Thien Seng Chan Sdn Bhd v 1. Teguh Wiramas Sdn Bhd; 2. YL Design Consultancy Services (WA-22C-92-12/2016)

TEGUH WIRAMAS SDN BHD (Company No: 92564-T)

YL DESIGN CONSULTANCY SERVICES ... DEFENDANTS JUDGMENT OF Y.A. LEE SWEE SENG [1] This is the 1st Defendant’s (D1) Notice of Application (Enclosure 6) to stay the proceedings between the Plaintiff and D1 pending arbitration to be held between the Plaintiff and D1 pursuant to the Section 10 of Arbitration Act 2005 and/or Order 92 Rule 4 Rules of Court 2012 (“ROC 2012”). 2 [2] In reply to the Supporting Affidavit of D1 dated 11.1.2017 to the Notice of Application, the Plaintiff had filed an Affidavit in opposition by Lee Kok Tian dated 2.3.2017. Preliminaries [3] D1 raised a preliminary objection to the admission of the Plaintiff’s Affidavit on ground that its jurat is defective. It was argued that the contents of the Plaintiff’s Affidavit was not interpreted by the Commissioner for Oaths to the deponent Lee Kok Tian as mandated by law. Instead, it was interpreted by someone else without the necessary qualification stated. Further, the format of the jurat used is also wrong. [4] Learned counsel for D1 referred to the case of Han Euu Tiam v Phang Kui Fatt & Ors [1999] 4 MLJ 683 at p 687, para F - G where non-compliance with the proper jurat form is fatal: "... If the deponent is neither blind nor illiterate but is not conversant in the Malay language (bearing in mind in the present case that the affidavit is in the Malay language), then Form 78(a) must be used. The affidavit must be interpreted to him in the language that he understands by a competent interpreter, and thereafter that part of the form which reads (‘Through the interpretation of ...') must be 3 completed accordingly. The full name of the interpreter (together with his identity card number) and the language (for example, Mandarin or Cantonese) used by him to interpret the contents of the affidavit to the deponent must be recorded in the blank spaces provided in the brackets." (emphasis added) [5] It was further held at p 688 para B – D that: "If the deponent is blind or illiterate, then Form 78(c) must be used. ... it is my finding that there has been a departure from the prescribed format and such departure is not trivial in nature. ... In view of the substantial deviation, and bearing in mind that O 41 r 1(7) and (8) use the word 'must', I am unable to accept the jurat as used by the plaintiff, as a valid jurat. ... The interlocutory application is thus without a supporting affidavit. It must fail". (emphasis added) [6] Learned counsel for D1 submitted that the Plaintiff had wrongly used an incomplete Forms of Jurat No. 74(c) or (d) under the ROC 2012 instead of the correct Form 74(a). It was also submitted that the contents was not interpreted by someone with the necessary qualification to the deponent Lee Kok Tian. 4 [7] As can be seen from the jurat used the said deponent does not understand Bahasa Malaysia and could only understand through the interpretation into Mandarin by a 3rd party. [8] I agree that the strict requirement of the ROC 2012 in relation to the right jurat had not been complied. The Court can exact an undertaking from learned counsel for the Plaintiff to refile the affidavit concerned and this time to follow with the strict requirements of the law on jurat. [9] Learned counsel for D1 argued that the prejudice suffered by them is that had the affidavit of D1 been properly explained, the Plaintiff might not be objecting to the stay application at all and that this objection had caused unnecessary costs and expense to D1. [10] I am not persuaded by this argument. I think in matters like this we must assume, in the absence of evidence to the contrary, that the said solicitors for the Plaintiff has the necessary instruction from their client, the Plaintiff, to object to the said application for stay. Whether there are merits or not in the objection to the stay is a separate matter altogether. 5 [11] I agree with learned counsel for the Plaintiff that the rules are a procedural code subject to the overriding objective of enabling the Court to deal with cases justly (Order 1(2) ROC 2012). [12] The Court should not allow such a preliminary objection only on the ground of non-compliance with the Rules unless the Court is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured by amendment or an appropriate order for costs or both – Order 2 rule 3 ROC 2012. [13] I am not persuaded that D1 had suffered any prejudice or that a substantial miscarriage of justice had been caused by the jurat being defective. As it is D1 had no problem filing a reply to the Plaintiff’s Affidavit in opposition. Indeed all the arguments that D1 had wanted to raise are in their Affidavit in support. The Plaintiff’s objection to the stay are more arguments of law as all the necessary averment of facts are found in D1’s Affidavit in support. [14] The argument of law is that the arbitration clause was in the CIDB Contract, which though referred to in the Letter of Award, duly signed by the parties, the CIDB Contract itself was not signed by the parties. The question of whether the arbitration clause has been properly imported into 6 the Letter of Award that had been signed by a reference to it in the Letter of Award is a question of law that may be raised at the hearing of the application without the need to rely on any Affidavit. [15] Likewise whether the arbitration clause is in conflict with the “Proper Law and Jurisdiction of the Court Clause” is a legal argument that could be raised at the hearing of the application without reference to any Affidavit on the part of the Plaintiff. [16] I also inclined to agree with learned counsel for the Plaintiff that the authority of Han Euu Tiam (supra) was decided in 1999 prior to the amendments to the Rules of the High Court 1980 then and now the ROC

There is a palpable paradigm shift where the truth of the matter that is sought to be proved should trump and triumph over the technical non-compliance with the Rules. [17] The language used in Order 1A of ROC 2012 cannot be clearer in enjoining the overriding interest of justice and eschewing technical objections of non-compliance. It reads: "In administering these Rules, the Court or Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with the Rules." 7 [18] I would dismiss the preliminary objection raised and proceed to hear the parties on the merits of the arguments of the parties for and against the stay of proceedings. Principles Whether there is a valid arbitration agreement as required under section 10 of Arbitration Act 2005 [19] Section 10 of Arbitration Act 2005 stipulates, among others, as follows: "A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed." (emphasis added) [20] At the outset, let it be recorded that it is not in dispute that D1 had not taken any other steps in the litigation proceedings other than entering its appearance. That is acceptable for without it the Plaintiff may take a judgment in default of appearance. The Federal Court in Sanwell Corp v 8 Trans Resources Corp Sdn Bhd & Anor [2002] 2 MLJ 625 observed as follows at p 638: “We reaffirm that Sime Axa Assurance correctly decided that an entry of an unconditional appearance does not constitute a step in the proceedings within the meaning of s 6 of the Act. It is obvious that a conditional appearance entered with a view of making an application to set aside the writ or service of the writ under O 12 r 7 of the RHC would not amount to a step in the proceedings either. In short, an entry of appearance under O 12 of the RHC would not amount to a step in the proceedings within the meaning of s 6 of the Act.” (emphasis added) [21] Though decided under the old section 6 of the Arbitration Act 1952 the same principle would apply and more so when there is now no O. 12 r. 6 ROC on the entry of conditional appearance and with that O.12 r.7 has been deleted too with respect to an application to set aside writ arising from the entry of a conditional appearance. [22] The Court of Appeal in Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 stressed as follows: 9 "Section 10 of the Act imposes a mandatory obligation to stay the proceedings and refer the parties to arbitration. The word "shall" that appears in s. 10 must necessarily mean "directory" or "mandatory". (emphasis added) [23] An arbitration agreement, being a term of the contract between the parties, every effort must be made to uphold it. The Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful bhd [2016] 9 CLJ 1 went on to state as follows as summarized in headnote (1) at pp 2 - 3: "In order to grant a stay order under s. 10(1) (after the 2011 Amendment), the court has to consider whether there is in existence a binding arbitration agreement or clause between the parties, which agreement is not null and void, inoperative or incapable of being performed. The question as to whether there is a dispute in existence or not is no longer a requirement to be considered in granting a stay under s. 10(1). The clear effect of the present s. 10(1) of the 2005 Act is to render a stay mandatory if the court finds that all the relevant requirements have been fulfilled." (emphasis added) [24] The brunt of the complaint of the Plaintiff is that though the Letter of Award dated 2.4.2013 was signed by the parties, yet the arbitration 10 agreement in the CIDB Standard Form of Contract for Building Works 2000 Edition which formed the Addenda to the Letter of Award was not signed by the parties. [25] The Plaintiff had appointed D1 as sub-contractor by a Letter of Award dated 2.4.2013 ("the Letter of Award") based on CIDB Standard Form of Contract for Building Works 2000 Edition ("Conditions of Contract"). The signing portion of the Letter of Award specifically stipulates that: “The undersigned hereby acknowledged receipt of the above letter, copy of which has been retained by us. We hereby confirm our acceptance of all terms and conditions stated herein and as stipulated in the Tender Document and Addenda herewith attached.” [26] Paragraph 9 in the Supporting Affidavit of D1 states as follows: "Surat Awad tersebut menyatakan, antara lain, bahawa perjanjian dan syarat-syarat di antara Plaintiff dan Defendan Pertama adalah juga termasuk dan tertakluk pada Dokumen Kontrak iaitu CIDB Standard Form of Contract for Building Works Edisi 2000 (Syarat-Syarat Kontrak)." 11 [27] The undersigned referred to is D1. It is not disputed that the Addenda referred to the CIDB Standard Form of Contract for Building Works 2000 Edition ("Conditions of Contract") is as exhibited in Exhibit A-2 of D1’s Affidavit in Support in Enclosure 7. [28] The Conditions of Contract in turn refers to an arbitration agreement in Clause 47.3 which states that any dispute arise between the parties shall be referred to arbitration. [29] Clause 47.3 Conditions of Contract reads as follows: "47.3 (a) Subject to sub-clause 47.2(c), the Employer or the Contractor may within 14 Days after the termination of the mediation, give notice to the other party with a copy of the Superintending Officer of his intention to refer the dispute or difference to arbitration and the final decision of an arbitrator. The Arbitrator may be agreed upon by the parties and where the parties fail to agree within 14 Days of the Notice of Arbitration then either party may request the Appointer of Arbitrator named in the Appendix to appoint an arbitrator." [30] Clause 47.3 (c) further provides as follows: 12 “The Notice of Arbitration under this Clause 47.3 shall be deemed to be a submission to arbitration within the meaning if the Arbitration Act 1952 or any amendment or re-enactment of the said Act.” [31] That being the case, there is no need for further agreement and consent of the parties to refer any matter to arbitration. The word “deemed” means to “be regarded as if” or to “considered as it.” [32] The intention of the parties that the outcome of the arbitration shall be final and binding on the parties is further expressed in Clause 47.3 (f) as follows: “The Award of the arbitrator shall be final and binding on the parties.” [33] This matter of an agreement in writing making reference to a document containing an arbitration clause has been addressed in section 9(5) of the Arbitration Act 2005. The whole section 9 is reproduced below for context:

“Definition and form of arbitration agreement

In this Act, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have 13 arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in an agreement or in the form of a separate agreement.

An arbitration agreement shall be in writing.

An arbitration agreement is in writing where it is contained in—

a document signed by the parties;

an exchange of letters, telex, facsimile or other means of communication which provide a record of the agreement; or

an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

A reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement, provided that the agreement is in writing and the reference is such as to make that clause part of the agreement.” (emphasis added) [34] Based on the requirements of section 9(5) above, “A reference in an agreement to a document containing an arbitration clause” refers to “A 14 reference in the Letter of Award to the Conditions of Contract in the CIDB Standard Form of Contract for Building Works containing an arbitration clause in Clause 47.3”. [35] That Clause 47.3 is the arbitration agreement for the agreement in writing in the Letter of Award makes specific reference to it as to make Clause 47.3 on arbitration agreement part of the agreement. [36] In CLLS Power System Sdn Bhd v Sara Timur Sdn Bhd [2015] 11 MLJ 485 Justice Mary Lim J (now JCA) pointed out that section 9 of the Arbitration Act 2005 allows for an arbitration agreement located in a different document to be incorporated by reference. The written arbitration agreement need not necessarily be found in the same contract containing the terms and conditions of the contract. [37] The issue had also been considered by the Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 9 CLJ 1 at para (3) of the headnotes as follows: "(3) The parties are bound by the terms of the arbitration agreement which they had voluntarily executed which includes reference to another document where the terms can be found. The HCJ found that the expired Jerneh Policy contained an 15 arbitration clause which was effectively incorporated in the latter policies by the reference made in the placement slip, and that it was the intention of the parties to refer any disputes to arbitration as per the terms and conditions of the expiring Jerneh Policies. These findings were consistent with the provisions of s. 9 of the 2005 Act, particularly sub-s. (5) which clearly provides that a reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement; and the agreement is in writing and the reference is such as to make that clause part of the agreement. There was no reason to disturb the findings." (emphasis added) [38] The Plaintiff did not dispute the existence of the arbitration clause in the Conditions of Contract. Their only complaint is that the Conditions of Contract was not signed and so the arbitration agreement therein could not be incorporated into the Letter of Award which is the agreement between the parties. [39] Such a distinction is artificial for there is no requirement that a document has to be signed before it is binding on the parties. Whilst that is the most common mode as provided in section 9(4)(a) it may nevertheless 16 be incorporated into an agreement by express reference to it via that agreement. [40] Such an issue has already been decided by our apex Court in the Federal Court’s decision of Ajwa for Food Industries Co (MIGOP), Egypt v Pacific Inter-Link Sdn Bhd [2013] 5 MLJ 625. [41] In that case there were the sales contracts that did not contain the signatures of the parties. The Federal Court held that the sales contracts are not subject to any condition that they be signed before coming into effect. The Federal Court went on to observe that it is common knowledge that international agreements between parties doing business from different parts of the world ranging especially in international sales of goods and charter parties are concluded and performed without the need for signatures so long as the parties have agreed on the terms. The Federal Court opined as follows: “[22] … Likewise, the sales contracts setting out the agreed terms, despite the lack of signature as in the present case are valid and enforceable contracts. On this point we would refer to the two English cases of Baker v Yorkshire Fire and Life Assurance Company [1892] 1 QB 144 where it was held that it is not necessary that in all cases 17 the written agreement to refer the matter to arbitration must be signed by both parties; and Morgan v William Harrison Ltd [1907] 2 Ch 137 (CA) at p 104 where the court held that an arbitration agreement may be deduced from correspondence between the parties.” [42] In the instant case the Letter of Award is signed. It is only the CIDB Conditions of Contract that was not signed though referred to as Addenda to the Letter of Award. The Federal Court specifically addressed the issue of the arbitration agreement being not signed as the Conditions of Contract was not signed. In para [25] the Federal Court stressed the requirement that the arbitration agreement must be in writing and that it need not be a formal agreement executed by the parties as follows: “[25] We are of the view that an arbitration agreement need not be signed. Sections 9(3) –9(4) of the Act provide that the arbitration agreement must be in writing and the writing requirement is satisfied if the arbitration agreement is in a document signed by the parties or is in an exchange of letters, telex, facsimile or other means of communication which provide for a record of the agreement. As such a written agreement to arbitrate does not necessarily mean a formal agreement executed by both parties. It would be sufficient so long as the arbitration agreement is incorporated 18 into a written document. Section 9(5) of the Act further provides as follows: “A reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement provided that the agreement is in writing and the reference is such as to make that clause part of the agreement.” (emphasis added) [43] There was also the complaint raised in this case that there was no specific reference in the Letter of Award to arbitration and that the closest to it was a reference to mediation which fell short of arbitration. Clause 13.0 of the Letter of Award reads as follows: “All disputes or claims should be settled in a friendly and amicable manner. Independent Mediator shall be engaged should need arise where both parties are unable to agree on such dispute. Under such conditions, the party in default shall bear all cost incurred, including loss in income and profit as s result of this dispute.” [44] It is only too obvious that much as parties may want to first try to resolve their disputes through mediation, there may be times when resolution through mediation fail. Whilst hoping for the best, one must be 19 prepared for the worst. The CIDB Conditions of Contract takes over where mediation is terminated. Clause 47.2 of the Conditions of Contract refer to “Reference to Mediation” and Clause 47.3(a) takes over where mediation fails for it begins with: “(a) Subject to sub-clause 47.2(c), the Employer or the Contractor may within 14 Days after the termination of the mediation, give notice to the other party with a copy of the Superintending Officer of his intention to refer the dispute or difference to arbitration and the final decision of an arbitrator...” [45] There is no conflict between the Letter of Award and the CIDB Conditions of Contract. The latter supplements the former and compliments it. The fact there is no specific reference in the Letter of Award is not a bar to incorporating the arbitration agreement in another document by reference. The Federal Court in Ajwa for Food Industries Co’s case (supra) confronted this complain as follows: “[26] Section 9(5) of the Act therefore clarifies that the applicable contract law remains available to determine the level of consent necessary for a party to become bound by an arbitration made 'by reference'. Section 9(5) of the Act in our view addresses the situation 20 where the parties, instead of including an arbitration clause in their agreement, include a reference to a document containing an arbitration agreement or clause. It also confirms that an arbitration agreement may be formed in that manner provided, firstly, that the agreement in which the reference is found meets the writing requirement and secondly, that the reference is such as to make that clause part of the agreement. The document referred to need not to be signed by the parties to the contract (see the case of Astel-Peiniger Joint Venture v Amos Engineering & Heavy Industries Co Ltd [1994] 3 HKC 328). We are of the view that the mere fact the arbitration clause is not referred to in the contract and that there is a mere reference to standard conditions which was neither accepted nor signed, is not sufficient to exclude the existence of the valid arbitration clause. There is no requirement that the arbitration agreement contained in the document must be explicitly referred to in the reference. The reference need only be to the document and no explicit reference to the arbitration clause contained therein is required.” (emphasis added) [46] It is clear in this case that parties had by both contract and conduct applied the terms in the Letter of Award together with the CIDB Conditions 21 of Contract when progress claims and Interim Certificates No. 1 to 13 were issued with the Certificate of Practical Completion being finally issued. The provision in the CIDB Conditions of Contract governing Interim Certificates is Clause 42.2 on Valuation and Interim Certificates. As for Certificate of Practical Completion, that is provided for in Clause 20.2. The Plaintiff is claiming for LAD and that is governed by Clause 26.2 under Damages for Non-Completion. [47] It is too late in the day for the Plaintiff to now contend that the CIDB Conditions of Contract does not apply and that only the Letter of Award applies. [48] Clause 15.0 of the Letter of Award clearly refers to the Contract Documents which comprised of the Conditions of Contract, among others. [49] When parties have expressly addressed their mind to arbitration as the preferred mode of dispute resolution they must be held to the bargain as they must have been advised on the legal benefits of arbitration with respect to party autonomy, confidentiality, speed of resolving the dispute and finality. [50] If in spite of that the Plaintiff would still want to persuade D1 to proceed with litigation, then they must first get the consent of D1 or unless 22 D1 has waived that right by taking dirt her steps in the court proceedings which in this case, D1 clearly has not. [51] The Plaintiff now says that costs would increase if the parties were to proceed with arbitration. It is common knowledge that arbitration has now become generally more expensive than litigation but parties must be deemed to be aware of this when they entered into the Letter of Award and higher costs alone should not be a ground of not enforcing a valid arbitration agreement. [52] The Plaintiff further argued that this Court should proceed to hear this case as there is a 2nd Defendant (“D2”) who has agreed to the jurisdiction of the Court. There was no need for D2 the Superintending Officer appointed under the Contract to agree to proceed with the intended arbitration between D1 and the Plaintiff simply because there is no arbitration clause or agreement between the Plaintiff and D2. [53] The Plaintiff submitted that all parties including D1 should be present before this Court so that all issues can be ventilated justly and fairly. The Plaintiffs’ claim against D2 is for negligence in supervising the works and certifying the claims. It is a claim in tort. 23 [54] This Court cannot compel D2 to proceed with arbitration but what this Court could do is to fix trial dates after the arbitration between the Plaintiff and D1 has been concluded with an arbitration Award. This Court appreciates that some issues in the D1’s claims under the various Certificates of Payments may well straddle the Plaintiff’s claim against D2 in that if the works completed have not been correctly certified, then there may be a claim by the Plaintiff against D2. [55] The Court was able to persuade the parties to proceed with arbitration under the KLRCA Fast Track Arbitration Rules 2010. Rule 36 provides as follows: “With regard to an arbitration with a substantive oral hearing, the arbitrator shall publish his final award expeditiously and no later than hundred and forty (140) days from the commencement of the arbitration subject to such equivalent extensions as may have been agreed by the parties under rule 30.” [56] As such I do not see how the Plaintiff may be prejudiced in any way in wanting the disputes between them and D1 and D2 resolved fairly and fully. 24 Whether Clause 49.1 of the Conditions of Contract that states that the parties agree to submit to the jurisdiction of the Malaysian Courts for the purpose of any action or proceedings arising out of the Contract preclude arbitration [57] Clause 49.1 reads: “49 GOVERNING LAW

49.1 Law The law governing the Contract shall be the law of Malaysia and the parties hereby submit to the jurisdiction of the Malaysian Courts for the purpose of any action or proceedings arising out of the Contract.” [58] It comes after 47.3 on “Reference to Arbitration” and within that are subclauses (a) to (h). After having an elaborate provision on arbitration parties could not have intended Clause 49.1 on Governing Law and on submission to the jurisdiction of the Malaysian Courts to preclude arbitration and to nullify all the references to arbitration. [59] The Court must proceed on the basis that the parties did not intend to contradict themselves in the same document expressing their contractual obligations and intentions. Here is a case where the clause on “Reference 25 to Arbitration” could be read harmoniously with the clause on “Governing Law.” There is no conflict between the 2 clauses but a convergence of interest, with one complementing the other to form a composite and coherent whole. As was held in Hamidah Fazilah Sdn Bhd v Universiti Tun Hussein Onn Malaysia (UTHM) [2017] 7 MLJ 274 where there was a “Reference to Arbitration” and a submission to “Exclusive Jurisdiction” clause the High Court held as follows: “[54] As we are all aware, when it comes to certain reliefs in aid of arbitration and more so when it comes to setting aside and enforcement of an arbitral award, the parties seeking such reliefs would still have to come to the relevant Court for assistance. To avoid bickering over what law to apply and which court to apply for such reliefs, parties have addressed this issue at the outset in governing law clause. As both the parties are incorporated in Malaysia and carrying out their business here and as the Project is here, it makes every sense for the laws of Malaysia to apply. Parties have agreed to submit to the exclusive jurisdiction of the Courts of Malaysia where there is a need to come to the Malaysian Courts to apply for interim measures such as an injunction for instance under section 11 Arbitration Act 2005 or for setting aside the Award under section 37 26 or to refer a question of law under section 42 or under section 38 for enforcement of the arbitral award. [55] Section 11 Arbitration Act 2005 reads as follows:

Arbitration Agreement and Interim Measures by High Court 1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for: a) security for costs; b) discovery of documents and interrogatories; c) giving of evidence by affidavit; d) appointment of a receiver; e) securing the amount in dispute, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court; [Am. Act A1395:s.5] f) the preservation, interim custody or sale of any property which is the subject-matter of the dispute; 27 g) ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and h) an interim injunction or any other interim measure." (emphasis added). [60] The High Court further observed as follows: “[56] Where a harmonious interpretation is possible in an apparent contradiction at first reading, that interpretation is to be preferred lest the baby is thrown out together with the water in the bath tub. It must not be forgotten that such clauses are present in almost all standard form contracts and here we are dealing with the PWD Form DB Contract. I cannot read Clause 70.0 here as reflecting the intention of the parties to abandon arbitration altogether after having addressed their mind on the procedure to be followed before a reference to arbitration is made and when arbitration can be commenced as well as the consequences of proceeding with arbitration and the obligations of the parties set out in 11 sub clauses in Clause 67.0. 28 [57] This is clearly a case where a holistic and harmonious approach is to be followed, giving effect to the clear intention of the parties to resolve all matters arising out of or in connection with the Contract to arbitration. At the same time parties affirm that where they have to approach the Court to aid and assist them in the instances set out above, they would then submit to the exclusive jurisdiction of the Malaysian Courts.” [61] There is thus no conflict in the 2 clauses but a complementarity leading to a convergence of interest and purpose where the aid of the Court shall be called upon if necessary for matters pending arbitration for example in cases of injunctive reliefs and even for matters after arbitration as in an enforcement of the award. Pronouncement [62] For the above reasons, the Court had allowed Enclosure 6 for stay of the proceedings between the Plaintiff and D1 pending reference to arbitration. 29 [63] After hearing parties on costs the Court allowed costs of RM8,000.00 to be paid by the Plaintiff to D1. Dated: 31 July 2017. Sgd Y.A. LEE SWEE SENG Judge Construction Court High Court Malaya For the Plaintiff : Patrick Dass and CW Chan (Messrs Patrick Dass & Co) For the 1st Defendant : Tan Chi Sian (Messrs P.Y. Hoh & Tai) Date of decision: 17 April 2017