Tss v Bbw (WA-24C(ARB)-58-12/2023)

2.1 The Plaintiff be ordered to deposit all monies awarded in the Arbitral Award dated 30.8.2023 (the “Award”) into a fixed deposit account with a licensed financial institution to be held by the Defendant’s solicitors as stakeholder within fourteen (14) days from the date of any Order to await a decision on

2.2 Unless the Plaintiff complies with the Order granted pursuant to prayer 1 above, this action stand struck out without any further order and/or application;

2.3 Further and/or in the alternative, that all proceedings in this action be stayed pending compliance by the Plaintiff with any order granted pursuant to prayer 1 above; 3 2.4 The Plaintiff be ordered to pay the Defendant the costs of this application; and 2.5 Such further or other order that this Honourable Court deems fit and proper. Material Facts [3] The brief facts of the matter are as follows:- a. The Plaintiff and the Defendant entered into and executed the Joint Venture Agreement ("JVA") dated 22.6.2005 and the 1st Supplementary Joint Venture Agreement ("1st SJVA") dated 23.3.2006. The JVA and 1st SJVA were intended to jointly implement the T2A Project and telecommunication towers projects with both parties as joint venture partners. b. The JVA contains an arbitration clause, outlined as follows: "10. ARBITRATION AND APPROPRIATE LAWS

10.3 In the case of disputes between the parties hereto with regards to the provisions of this Agreement, the dispute shall be conducted by the Kuala Lumpur Regional Centre for Arbitration with the venue at Kuala Lumpur and such arbitration shall be settled/determined in accordance with the Rules of the Regional Centre for Arbitration. The award or determination of the arbitrator in relation to any dispute shall be made by such arbitration as an expert and not as an arbitrator and such award or determination shall be final, binding and conclusive on the Company and Weida." c. Disputes arose between the Plaintiff and the Defendant out of and/or in connection with the JVA and the 1st SJVA. d. On 23.5.2017, pursuant to Clause 10.3 of the JVA, the Defendant served a Notice of Arbitration on the Plaintiff. This marked the commencement of the arbitration proceeding between the Defendant and the Plaintiff ("Arbitral Proceeding"). e. On 15.8.2017, Mr. Lim Tuck Sun was appointed as the sole arbitrator ("learned arbitrator"). The seat of arbitration was in Kuala Lumpur, Malaysia. f. On 30.8.2023, the learned arbitrator handed down the Award. g. On 8.12.2023, the Plaintiff filed Enclosure 1 to set aside the Award ("Setting Aside Application"). [4] On 6.3.2024, the Defendant filed an action to recognise and enforce the Award in Originating Summons No. WA-24C(ARB)-18-03/2024 in the Kuala Lumpur High Court ("Enforcement Application"). [5] After hearing the respective learned counsels submit on Enclosure 12, this Court had on 9.7.2024 dismissed Enclosure 12 with costs. The Defendant being dissatisfied with the decision of this Court on the same had then filed an appeal. [6] Herein are my written grounds with regards Enclosure 12. Analysis & Findings [7] The Defendant had submitted: a. The parties have gone to Arbitration. The Plaintiff did not succeed and was ordered to pay the Defendant various sums of monies. b. There is a pending application by the Plaintiff to set aside the Award. The hearing has not been heard at this time. The Plaintiff has not applied for a stay of the payment of the monies awarded to the Defendant. c. As such, the Award remains final and binding upon both parties and its is trite law that the Plaintiff is expected to honour and comply with the terms of the Award. d. Accordingly, the Plaintiff is contractually, legally and morally obliged to comply with the terms of the Award. e. The Plaintiff's financial ability to satisfy the Award is not strictly relevant. The Plaintiff has agreed to arbitration. It lost, it now must pay. There is no stay. So, it has to pay. It is that simple and straightforward. f. The Plaintiff continues to thumb its nose at the findings made in the Award. It continues to derive monies from the JVA and the 1st SJVA entered into between the parties without paying the Defendant a single cent. The Plaintiff has not even initiated discussion with the Defendant in this respect. The Plaintiff ignores the Award as if the Award is without effect or worse, that the Award has already been set aside. g. The Plaintiff is therefore obliged to make payment of the sums awarded pending the disposal of Enclosure 1. h. In light of the above, the Application must be allowed. [8] In essence the Plaintiff in turn submits that the Defendant has failed to prove any prejudice and has not fulfilled the condition precedent of section 37 of the Arbitration Act 2005. [9]

14.1 the Court retains a discretion with regards any security for costs application;

14.2 an Award, although final and binding, does not automatically entitle the Applicant/Defendant to an order for security for costs as the Court must determine whether there are any circumstances to justify the making such an Order;

14.3 after balancing the respective parties positions and the issues raised, I have also found no prejudice suffered or proven by the Defendant as indicated by the Defendant herein in the event this Court does not grant the Order under Enclosure 12;

14.4 there is also nothing before the Court which shows that the Plaintiff will dissipate its assets before the Court hears and disposes the Plaintiff's application in enclosure 1 herein; and 9 14.5 It is therefore in this Court's view, no evidence that the Defendant herein will not be able to enforce the Award should the Court decide in its favour in not setting aside the Award. [15] This Court therefore finds that the application in Enclosure 12 is not warranted and hereby dismisses Enclosure 12 with costs. Dated: 9th day of July 2024 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Alan Wong, Andrew Heng Yeng Hoe, Roger Leong Chun Lim & Atiqah Yasmin Sedek Binti Abu Bakar Sedek for Defendant (Messrs Zain Megat & Murad (Kuala Lumpur)] COUNSEL FOR THE DEFENDANT: Rishwant Singh, Noor Muzalifah Binti Shabudin & Chermine Lim Jia Yi (Messrs Cecil Abraham & Partners]