Tee Kok Ben (Berniaga Sebagai Woon Tong River Construction) v Mmn Infrra Sdn. Bhd. (CA-22NCvC-15-05/2023)

MMN INFRRA SDN. BHD. (Company No: 200001007780/510386-K)

MMN BINA SDN. BHD. (Company No: 199501008653/337851-M)

NOOR HASANI BINTI HAMID (NRIC No: 640923115080)

MOHAMED MOKHTAR BIN NADZRI (NRIC No: 59051115073)

MEGAWATI BINTI ANUAR (NRIC No: 830823065204)

AHMAD JOSLI BIN MOHD LAZIM (NRIC No: 710216065177)

MOHD TARMIZI BIN MUSA (NRIC No: 771114065765) ... DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] This is an application by the First Defendant ("D1") vide Enclosure 43 pursuant to section 10 of the Arbitration Act 2005 ("AA 2005") for, inter alia, an order staying these proceedings and referring the dispute between the Plaintiff and D1 to arbitration based on an arbitration clause contained in the document entitled "Sub-Contract No.: MMNISB/P11/LA(10) EARTHWORKS-COLLECTORDRAIN" dated 14 November 2016. [2] Having considered the affidavits filed by the parties, the written and oral submissions advanced, together with the pleadings as a whole, this Court allowed the application in part. [3] Accordingly, this Court ordered that the proceedings as between the Plaintiff and D1 be stayed and that the dispute between them be referred to arbitration pursuant to section 10 of the AA 2005. [4] However, this Court declined to grant the relief sought insofar as it concerned the Second to Seventh Defendants ("D2-D7") and ordered that the action against those Defendants proceed in the ordinary course. BRIEF BACKGROUND [5] The Plaintiff commenced this action against seven Defendants. [6] In essence, the Plaintiff's claim against D1 concerns the alleged failure of D1 to make payment for works allegedly carried out by the Plaintiff, including claims relating to interim certificates, retention monies, machinery rental and other related contractual claims. [7] In addition, the Plaintiff has advanced various allegations against D2-D7, including allegations of fraud, conspiracy, misrepresentation and seeks, among other reliefs, the lifting of the corporate veil. [8] On 22 July 2024, D1 filed Enclosure 18 seeking relief substantially similar to that sought in the present application. [9] Enclosure 18 was dismissed by this Court on 2 December 2025 on the ground that D1 lacked the necessary authority from the Winding-Up Court to do so. [10] Subsequently, D1 obtained a further Leave Order dated 9 February 2026 and thereafter filed Enclosure 43, which is now the subject of the present consideration. THE APPLICABLE PRINCIPLES [11] Before considering the issues raised by the parties, it is appropriate to briefly restate the legal principles governing an application under section 10 of the Arbitration Act 2005 ("AA 2005"). [12] The AA 2005 embodies the modern legislative policy of according primacy to party autonomy and of giving effect to parties' contractual agreement to resolve their disputes through arbitration rather than litigation. Consistent with that policy, judicial intervention is deliberately limited. Section 8 of the AA 2005 expressly provides that no court shall intervene in matters governed by the Act except where so provided therein. [13] In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 9 CLJ 1, the Federal Court emphasised that once the statutory requirements under section 10 are satisfied, the Court has no residual discretion to refuse a stay. The Court's role is not to determine the substantive merits of the dispute, but to uphold the parties' contractual bargain to submit their disputes to arbitration. [14] It is against these settled principles that the present application falls to be considered. ISSUES FOR DETERMINATION [15] Having considered the affidavits and submissions of the parties, the following issues arise for determination:

whether Enclosure 43 is barred by the doctrines of res judicata or estoppel following the dismissal of Enclosure 18;

(ii) whether there exists a valid arbitration agreement between the Plaintiff and D1;

(iii) whether the disputes raised in this action fall within the scope of that arbitration agreement;

(iv) what effect, if any, arises from the presence of D2-D7, who are not parties to the arbitration agreement; and

whether the relief sought in Enclosure 43 ought to be granted in its entirety. FINDING AND ANALYSIS Whether Enclosure 43 is barred by the doctrines of res judicata or estoppel following the dismissal of Enclosure 18 [16] The Plaintiff contends that Enclosure 43 constitutes a second attempt by D1 to obtain relief which had previously been refused under Enclosure 18. [17] This Court is unable to agree. The true basis upon which Enclosure 18 was dismissed must first be examined. [18] This Court made it abundantly clear in its earlier decision that Enclosure 18 was dismissed solely on the issue of authority and locus standi. [19] No final determination was made in respect of the existence of the arbitration agreement, the applicability of section 10 of the AA 2005 or any of the substantive issues now raised in the present application. The earlier decision of this Court is reported as Tee Kok Ben v MMN Infrra Sdn Bhd (In Liquidation) & Ors [2026] MLRHAU 111. [20] It follows that none of the substantive issues raised in Enclosure 43 has previously been determined on its merits. In these circumstances, this Court is satisfied that Enclosure 43 is not barred by either the doctrine of res judicata or issue estoppel. [21] As observed by the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993, the doctrine of res judicata only arises where the earlier judgment had necessarily and with complete precision determined the very issue sought to be litigated. [22] That principle was subsequently affirmed by the Federal Court in Tong Lee Hwa & Anor v Lee Yoke San [1979] 1 MLJ 24. Likewise, in Andavan v Thong Nyik Lim [1966] 1 MLJ 57, it was held that where an earlier application was dismissed merely because of a procedural defect, without any judicial determination of the substantive issue, the plea of res judicata cannot succeed. Accordingly, the Plaintiff's objection must fail. [23] One of the principal reasons for the dismissal of Enclosure 18 was that D1 lacked the requisite authority or locus standi granted by the Winding-Up Court. [24] In the present application however, D1 has produced the Leave Order dated 9 February 2026 expressly authorising D5 to act on behalf of D1, including filing applications relating to the reference of disputes to arbitration. [25] In the opinion of this Court, the defect which existed in Enclosure 18 has now been duly rectified. Accordingly, that earlier procedural deficiency no longer constitutes any impediment to the present application. Whether there exists a valid arbitration agreement between the Plaintiff and D1 [26] The next issue for determination is whether there exists a valid arbitration agreement between the Plaintiff and D1. [27] There is no dispute that the document entitled Sub-Contract No.: MMNISB/P11/LA(10)EARTHWORKS-COLLECTORDRAIN dated 14 November 2016 contains Clause 10, which expressly provides that disputes between the parties shall be referred to arbitration. [28] The clause further provides for the appointment of an arbitrator and stipulates that the arbitration shall be conducted in accordance with the rules of the arbitral institution specified therein. [29] Having examined the said document, this Court is satisfied that Clause 10 constitutes a valid arbitration agreement for the purposes of section 10 of the Arbitration Act 2005. [30] The Plaintiff further contends that the Contract expressly provides that it shall be governed by the laws of Malaysia. It is argued that, by reason of that provision, disputes arising from the Contract ought to be determined by the Malaysian courts rather than by arbitration. [31] With respect, I am unable to agree with that contention. [32] A governing law clause and an arbitration clause serve fundamentally different purposes. A governing law clause identifies the substantive law governing the rights and obligations of the contracting parties. An arbitration clause, on the other hand, concerns the forum agreed upon by the parties for the resolution of disputes arising out of the contract. The two provisions are therefore complementary rather than inconsistent. [33] In Majlis Perbandaran Alor Gajah v Sunrise Teamtrade Sdn Bhd [2014] 7 MLJ 570, the High Court held that a clause providing that the contract is governed by Malaysian law does not derogate from or render inoperative a separate arbitration clause. Rather, the governing law clause regulates the applicable substantive law, whilst the arbitration clause regulates the agreed dispute resolution mechanism. [34] The same approach has been adopted by the English courts. In Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2013] 1 WLR 102, the Court recognised that a governing law clause and an arbitration clause should, wherever possible, be construed harmoniously so as to give effect to the parties' commercial intention. The existence of an exclusive governing law clause does not, without more, displace an otherwise valid agreement to arbitrate. [35] In the present case, Clause 9 merely stipulates that the Contract shall be governed by the laws of Malaysia. Clause 10 separately provides that disputes between the parties shall be referred to arbitration. There is no inconsistency between the two provisions. The arbitral tribunal remains bound to determine the parties' rights in accordance with Malaysian law, which is the governing law chosen by the parties. The fact that Malaysian law governs the Contract does not alter the parties' equally binding agreement that disputes arising therefrom are to be resolved by arbitration. [36] Accordingly, I find no merit in the Plaintiff's submission that the governing law clause confers upon either party the right to disregard the arbitration agreement and commence litigation before the courts. Whether the disputes raised in this action fall within the arbitration agreement [37] The Plaintiff contends that not every claim advanced in the present action arises from the contract containing the arbitration clause. [38] According to the Plaintiff, certain claims are founded upon separate contracts or independent transactions and therefore fall outside the scope of the arbitration agreement. [39] D1, on the other hand, submits that the disputes arise from the same contractual relationship and are therefore governed by the arbitration clause agreed upon by the parties. [40] In the opinion of this Court, whether a particular claim arises from a single contract, multiple contracts, contractual variations or separate transactions are matters which concern the substantive merits of the dispute. Such questions necessarily require a careful examination of the factual matrix and documentary evidence. [41] The function of the Court in an application under section 10 of the Arbitration Act 2005 is not to conduct a mini-trial on those substantive disputes. [42] The Federal Court in Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd & Anor Appeal [2020] 4 CLJ 301 made it clear that, at this stage, the Court's inquiry is confined to determining whether the statutory requirements under section 10 have been satisfied. It is neither necessary nor appropriate for the Court to determine the merits of the underlying contractual dispute or to resolve factual controversies which properly fall within the jurisdiction of the arbitral tribunal. [43] This Court also notes that the parties have advanced arguments concerning the 30-day clause, the scope of the contract, alleged variations to the works and several other contractual issues. [44] In the judgment of this Court, those are precisely the kinds of issues which ought to be determined by the forum ultimately entrusted by the parties to resolve their substantive disputes, namely, the arbitral tribunal. Once parties have agreed to submit their disputes to arbitration, the Court should refrain from embarking upon a determination of issues that properly belong to the arbitral process. [45] Accordingly, this Court deliberately refrains from making any conclusive findings on those substantive issues. Effect of the existence of D2-D7, who are not parties to the arbitration agreement [46] The Plaintiff further contends that the present action involves allegations of fraud, conspiracy, misrepresentation and the lifting of the corporate veil against D2-D7. [47] This Court accepts that those allegations form part of the Plaintiff's pleaded case. [48] Nevertheless, the mere existence of such allegations does not, without more, deprive D1 of its contractual right to rely upon a valid arbitration agreement. [49] This Court is unable to regard those allegations, by themselves, as sufficient justification for refusing D1's application under section 10 of the Arbitration Act 2005. [50] However, the arbitration agreement cannot be enforced against the remaining Defendants, for the reasons which follow. Whether the relief sought in Enclosure 43 ought to be granted in its entirety [51] Enclosure 43 was framed as an application seeking a stay of the present proceedings in their entirety. In other words, D1 seeks an order staying not only the dispute between the Plaintiff and D1, but also the Plaintiff's claims against the remaining Defendants pending the resolution of the arbitration. [52] However, the right asserted by D1 in Enclosure 43 arises solely from the arbitration agreement concluded between the Plaintiff and D1. That agreement does not extend to the remaining Defendants. [53] This Court also takes into account that the Leave Order obtained by D5 from the Winding-Up Court merely authorised her to act on behalf of D1, including filing an application to refer the dispute between the Plaintiff and D1 to arbitration. [54] In the opinion of this Court, the Leave Order only empowered D5 to act for D1. It did not authorise D1, directly or indirectly, to seek relief on behalf of D2-D7. [55] D2-D7 are not applicants in Enclosure 43. Neither have they filed any application seeking similar relief nor have they sought to invoke any arbitration agreement before this Court. [56] In those circumstances, this Court is of the view that its consideration of Enclosure 43 must necessarily be confined to D1's contractual rights arising under the arbitration agreement. [57] Accordingly, any relief granted under the present application can only extend to the dispute between the Plaintiff and D1, being the parties to the arbitration agreement and the parties before the Court in respect of this application. [58] This Court accepts that there may be certain overlapping factual and legal issues between the dispute involving the Plaintiff and D1 and the Plaintiff's claims against D2-D7. [59] This Court further accepts that there exists a possibility of overlapping evidence or even differing factual findings between the arbitral proceedings and the court proceedings. [60] Nevertheless, the existence of such overlap, without more, is insufficient to deprive D1 of its contractual right to enforce the arbitration agreement freely entered into between the parties. [61] At the same time, this Court is neither required nor in a position at this stage to determine the legal effect, if any, that any future arbitral award may have upon the Plaintiff's claims against D2- D7. [62] That question remains entirely premature and should only be considered if and when it properly arises during the subsequent course of these proceedings. [63] D1 further seeks an order that, should the Plaintiff fail to refer the dispute to arbitration, the Plaintiff's claim against D1 be struck out. This Court is unable to accede to that prayer. [64] Such relief is, in the view of this Court, premature. At this stage, there has been no failure on the part of the Plaintiff to comply with any order of this Court. [65] Whether either party will take steps to commence arbitration and what consequential directions or relief may thereafter become necessary, remain matters of speculation. [66] Should any issue subsequently arise concerning the implementation or enforcement of this Order, the parties remain at liberty to apply to this Court for such further directions or relief as may then be appropriate.

[67] Having considered the entirety of the circumstances of this case, this Court is satisfied that the dispute between the Plaintiff and D1 is subject to a valid arbitration agreement and that D1 is entitled to rely upon section 10 of the Arbitration Act 2005. Once the statutory requirements under section 10 have been satisfied, the Court no longer retains a discretion to refuse a stay of proceedings. As affirmed by the Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 9 CLJ 1, the grant of a stay under section 10 is mandatory where the prescribed statutory conditions have been fulfilled. The role of the Court under section 10 is therefore supervisory rather than adjudicative, the substantive determination of the parties' contractual rights being reserved for the arbitral tribunal. [68] However, this Court finds no legal basis for extending such relief to D2-D7, as they are neither applicants in Enclosure 43 nor parties seeking to enforce the arbitration agreement before this Court. [69] Accordingly, this Court makes the following orders:

the proceedings between the Plaintiff and D1 are stayed pursuant to section 10 of the Arbitration Act 2005;

the dispute between the Plaintiff and D1 is referred to arbitration pursuant to Clause 10 of the Sub-Contract No. MMNISB/P11/LA(10)EARTHWORKS-COLLECTORDRAIN dated 14 November 2016;

the application to stay the proceedings in their entirety is dismissed;

the action against D2 to D7 shall proceed in the ordinary course;

prayer 2 in Enclosure 43 is dismissed; and

costs of RM3,000.00 are awarded to D1, subject to allocatur. [70] Enclosure 43 is accordingly allowed in part. Dated: 13 July 2026 (SAMRY BIN MASRI) JUDICIAL COMMISSIONER HIGH COURT KUANTAN Counsel for the PlaintiffTetuan Jacob Goldie S.S Chew Peguambela dan Peguamcara B-48, Tingkat 1, Lorong Tun Ismail 8 Sri Dagangan II 25000 Kuantan Pahang Darul MakmurCounsel for the 1st DefendantTetuan Chia Koay & Teng Peguambela dan Peguamcara D-2-13A, Boulevard Business Park Jalan Kepayang, Off Jalan Kuching 5120 Kuala LumpurCounsel for the 2nd, 3rd, 4th, 6th & 7th DefendantTetuan Teh & Soong Peguambela dan Peguamcara Unit S16, Tingkat 1 7 2 Tower 3, Avenue 7 Horizon 2, Bangsar South City Bangsar South 59200 Kuala LumpurCounsel for the 5th DefendantTetuan Cal, El & Partners Peguambela & Peguamcara Unit L-5-7, No. 2, Jalan Solaris Solaris Mont' Kiara 50480 Kuala Lumpur