Webest Sdn Bhd v Arkitek AAP (MA-22C-1-01/2026)

By Notice of Application dated 27 February 2026 (Enclosure 6), the defendant seeks an order under section 10 of the Arbitration Act 2005 staying these proceedings and referring the parties to arbitration. The application is supported by the affidavit of Pauline Tseu Hui Hsya affirmed on 27 February 2026 (the supporting affidavit), and by her further affidavit in reply affirmed on 4 May 2026 (the reply affidavit). The plaintiff opposes the application by the affidavit of Lim Ying affirmed on 6 April 2026.

The substantive dispute concerns the defendant's engagement, by letter of appointment dated 3 August 2017, as architect for a 21-storey serviced condominium development undertaken by the plaintiff on Lot 1626, Mukim Bertam, Daerah Melaka Tengah, Melaka. The plaintiff's claim, pleaded in both contract and tort, is that the defendant wrongfully granted extensions of time to the main contractor, thereby depriving the plaintiff of liquidated damages of RM10,600,000.00. By paragraph 25 of the Statement of Claim the plaintiff seeks, among other reliefs, a declaration that the letter of appointment is void, the refund of professional fees, special damages in the sum mentioned, and consequential relief.

The application turns upon the proper construction of paragraph 8(g) of the letter of appointment, which provides that the terms and conditions of the parties' professional services agreement "will be in accordance to Conditions of Engagement, Rule 29, 3rd Schedule of Architect Rules 1996". Clause 24 of those Conditions of Engagement is an arbitration clause. The question is whether that clause has become part of the parties' contractual relationship, and if so, whether the matters in issue fall within section 10(1) of the Arbitration Act 2005.

The application gives rise to questions concerning the threshold for relief under section 10(1) of the Arbitration Act 2005, the incorporation of an arbitration clause by reference under section 9(5), the separability of the arbitration clause from the underlying contract under section 18(2), and the proper allocation of decisional responsibility between the court and an arbitral tribunal under section 18(1). These questions, and the issues into which they resolve, are identified in section C of these Grounds.

The letter of appointment dated 3 August 2017 (exhibit AAP-1 to the supporting affidavit) is a two-page document on the defendant's letterhead — "Arkitek AAP — Chartered Architects Development Consultants" addressed to the plaintiff for the attention of Mr Lim Seng Chong. The letter is signed by the defendant's principal "T. Tiang" and bears the plaintiff's countersignature beside the words "I/We fully agree to the above terms and conditions". It addresses the scope of work, the scale of professional fees (specified at 1.5% of total construction cost), the payment milestones, the engagement of other consultants, the conditions of engagement and termination. Paragraph 8(g), under the heading "Conditions of Engagement", provides: "Terms and Conditions of our professional services agreement will be in accordance to Conditions of Engagement, Rule 29, 3rd Schedule of Architect Rules 1996."

Paragraph (h) of the letter of appointment makes specific reference to "our Conditions of Engagement No. 7(2)" in connection with the client's deemed agreement to the terms of engagement. Paragraph (i), addressing termination, makes specific reference to "condition 17 of our Condition of Engagement". The relationship between paragraph 8(g) (general incorporation) and paragraphs (h) and (i) (specific references to particular clauses within the same body of incorporated provisions) is a matter to which the analysis returns.

The Architects Rules 1996, being subsidiary legislation made under the Architects Act 1967, contain in Part One of the Third Schedule a body of 25 paragraphs known collectively as the Conditions of Engagement (exhibit AAP-2 to the supporting affidavit). Clause 24 of those Conditions, titled "Arbitration", provides as follows: "24. (1) In the event of any dispute between the Architect and the client, whether arising during or after the rendering of architectural consultancy services under the Memorandum of Agreement, either party shall give a notice in writing to the other party informing him of the matter in dispute and requiring its settlement." "(2) The Architect and the client shall appoint an arbitrator within fourteen days from the date of the notice." "(3) If the Architect and the client fail to appoint an arbitrator within fourteen days from the date of the notice, either party may submit a written request to the President of the Board to appoint a person to serve as an arbitrator, whose award shall be final and binding on both the Architect and the client."

It is convenient also to note that Clause 23 of the same body of Conditions provides for voluntary mediation between architect and client. Clause 23(2) provides expressly that prior reference of any dispute to mediation under Clause 23 shall not be a condition precedent to arbitration under Clause 24, and shall not prejudice either party's right to refer the dispute to arbitration. Clause 24 is therefore freestanding within the Conditions of Engagement.

The works the subject of the engagement are administered by the defendant as architect under a construction contract between the plaintiff (as employer) and Wycom Construction Sdn Bhd (as main contractor) on the standard form known as the Agreement and Conditions of PAM Contract 2018 (Without Quantities). The relevant pages of that contract are exhibited as exhibit AAP-3 to the reply affidavit. Clause 37 of the PAM Contract is the arbitration clause governing disputes between the employer and the main contractor; by Clause 37.4(d), the arbitrator is empowered "to open up, review and revise any certificate, opinion, decision, requirement, or notice". The significance, if any, of that further arbitration clause is touched on in section E4 below.

The procedural chronology is, by reference to the cause papers, as follows. The writ is dated 6 January 2026; the Statement of Claim is dated 16 January 2026. The defendant entered appearance on 27 January 2026. At the first e-review of the cause on 29 January 2026, the defendant signified to the learned Senior Assistant Registrar an intention to apply for a stay under section 10 of the Arbitration Act 2005, and was directed to file the application before the next e-review. The Notice of Application and supporting affidavit were filed on 27 February 2026. The second e-review was held on 3 March 2026. No statement of defence has been filed. The defendant has taken no step in the action save the entry of appearance and the filing of the present application, no affidavit having been filed by the defendant going to the merits of the substantive dispute.

An objection was taken in the plaintiff's affidavit in opposition to the authority of Ms Pauline Tseu Hui Hsya to affirm the supporting and reply affidavits on behalf of the defendant, on the footing that she is neither a director nor a shareholder of the defendant. That objection cannot be sustained. The defendant, on the face of the cause papers and exhibit AAP-1, is an architectural firm — "Arkitek AAP — Chartered Architects Development Consultants" — and not a body corporate; directors and shareholders, as the plaintiff would understand the terms, do not exist within such a firm. By her reply affidavit, Ms Tseu deposes that she is the sole architect engaged on the project the subject of these proceedings, and that the present project is the second on which she has acted in that capacity for the plaintiff, the first being a residential development known as The Quartz Residence completed some three years previously. Ms Tseu affirms in terms that she is fully authorised to depose on the defendant's behalf. No material has been put forward by the plaintiff to displace that affirmation. Her affidavits comply with Order 41 rule 5(2) of the Rules of Court 2012, which permits affidavits on information and belief on interlocutory applications with the sources and grounds identified. The objection is not made out, and the affidavit material is properly before the court. C. ISSUES FOR DETERMINATION

On the application as it has been presented, three questions fall for determination:

whether the defendant has, before filing the present application, taken any other step in the proceedings within the meaning of section 10(1) of the Arbitration Act 2005;

(ii) whether an arbitration agreement exists between the parties within the meaning of section 9 of the Arbitration Act 2005, having regard in particular to section 9(5); and

(iii) whether that agreement, if it exists, is null and void, inoperative or incapable of being performed within the meaning of section 10(1). [13] A fourth matter whether the disputes pleaded in the Statement of Claim, including the claims framed in tort and the claim for a declaration that the letter of appointment is void, fall within the scope of any such arbitration agreement, or are otherwise within the jurisdiction of an arbitral tribunal is a question which, on settled authority, falls primarily to the arbitral tribunal under section 18 of the Arbitration Act 2005. The court's function on an application under section 10 is not to determine that question finally, but to be satisfied that the matter is at least colourably within the scope of the agreement: see Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 (Federal Court). This matter is addressed below only to that limited extent. [14] The centre of gravity of the application lies in the second issue. The first issue is straightforward on the chronology. The third issue, on the authorities, follows largely from the determination of the second. The analysis is structured accordingly. D. STATUTORY FRAMEWORK [15] Section 10(1) of the Arbitration Act 2005, in the form in which it has stood since amendment by the Arbitration (Amendment) Act 2011, provides: "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." [16] Three features of section 10(1) are material. The first is that the court's power to stay is engaged by an application made "before taking any other steps in the proceedings". The threshold condition is one of conduct. The second is that, where the conditions of the section are satisfied, the stay is mandatory; the discretionary regime that obtained under section 6 of the repealed Arbitration Act 1952 has been displaced. The third is that the three exceptions — null and void, inoperative, incapable of being performed — are exhaustive of the circumstances in which the court may refuse a stay where the matter is otherwise the subject of an arbitration agreement. [17] Section 9 defines the arbitration agreement. Sub-section (1) provides that an arbitration agreement is "an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not". Sub-section (5), which addresses incorporation by reference, provides: "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." [18] Section 18, finally, gives statutory force to two interrelated doctrines. By sub-section (1), the arbitral tribunal "may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement" — the doctrine of kompetenz-kompetenz. By sub-section (2)(a), "an arbitration clause which forms part of an agreement shall be treated as an agreement independent of the other terms of the agreement" — the doctrine of separability. By sub-section (2)(b), "a decision by the arbitral tribunal that the agreement is null and void shall not ipso jure entail the invalidity of the arbitration clause". The combined effect of sections 10 and 18 is, as the Federal Court explained in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 at [38], that the court's enquiry under section 10(1) is restricted to whether there is in existence a binding arbitration agreement and whether it falls within any of the three exceptions; all other matters including the scope of the agreement and the validity of the underlying contract are for the arbitral tribunal in the first instance, subject only to recourse under section 18(8). E. ANALYSIS AND DETERMINATION E1. Whether the defendant has taken any other step in the proceedings [19] The first question is whether, before the filing of the present application, the defendant has taken any other step in the proceedings. The statutory test is one of conduct. It is engaged where the applicant has invoked the procedure of the court in a manner inconsistent with the maintenance of its right to arbitrate, such that the applicant may be taken to have submitted to the court's jurisdiction. Time, in itself, is not such an act: the entry of appearance is a permissible step that does not preclude a subsequent stay application: Sanwell Corporation v Trans Resources Corporation Sdn Bhd & Anor [2002] 3 CLJ 213 (Federal Court); and see Agibs Engineering & Construction Sdn Bhd v Paragon Advance Solutions Sdn Bhd [2011] 1 MLRA 587 (Court of Appeal). The principle has been reaffirmed by the Court of Appeal in Airbus Helicopters Malaysia Sdn Bhd v Aerial Power Lines Sdn Bhd [2024] 2 MLJ 471 (Court of Appeal), where an application brought before the time for filing of defence was held to be in time, and most recently and authoritatively by the Federal Court in Universiti Malaya v Esa Jurutera Perunding Sdn Bhd, Civil Appeal No 01(i)-20-07/2024(W), in a unanimous judgment delivered by Ahmad Terrirudin Mohd Salleh FCJ on 14 May 2026. The Federal Court there held, at [137], that requests for extension of time to file a defence and the service of a Notice to Produce Documents under Order 24 rule 10 of the Rules of Court 2012 taken in their entirety and in good faith do not constitute "other steps in the proceedings" within the meaning of section 10(1). At [118], the Federal Court endorsed the holistic approach: whether there is a clear and unequivocal intention not to arbitrate and to submit to the jurisdiction of the court is a question of fact, to be determined by reference to the whole of the defendant's conduct. [20] On the chronology, the defendant entered appearance on 27 January 2026. At the first e-review on 29 January 2026, the defendant signified to the learned Senior Assistant Registrar an intention to apply for a stay and was directed to file the application before the next e-review. The application was filed on 27 February 2026, before the second e-review on 3 March 2026 and before any statement of defence was due. No interlocutory application has been pursued on the merits; no affidavit has been filed by the defendant going to the substantive dispute; and no step has been taken which engages the court's procedure on a footing inconsistent with the maintenance of the right to arbitrate. The defendant cannot, on this material, be taken to have submitted to the jurisdiction. The threshold condition imposed by section 10(1) is satisfied. [21] For completeness, an observation in Winsin Enterprise Sdn Bhd v Oxford Talent (M) Sdn Bhd [2010] 3 CLJ 634 (High Court) suggesting that a section 10 applicant must move promptly does not lead to a different result. That decision turned on a factual finding that a step had been taken; the observation on promptness, properly read, does not impose an independent temporal cut-off operating outside the conduct-based statutory test. In any event, Winsin Enterprise has now been overtaken by the recent decision of the Federal Court in Universiti Malaya v Esa Jurutera Perunding Sdn Bhd, which has expressly declined to follow the line of High Court authority of which Winsin Enterprise formed part (see [80] and [129] of the judgment), and has further held at [117] that the observation in Sanwell to the effect that a request for an extension of time to file a defence constitutes a step in the proceedings is obiter dicta. The Federal Court has held at [121] that "the mere passage of time does not, in itself, result in a Defendant losing the right to a stay of Court proceedings in favour of arbitration". On the facts here, the defendant communicated its intention to apply for a stay at the very first opportunity and filed within the time permitted by the court. E2. Whether an arbitration agreement exists between the parties [22] The second and dispositive question is whether the reference in paragraph 8(g) of the letter of appointment to the Conditions of Engagement in Part One of the Third Schedule to the Architects Rules 1996 is sufficient, under section 9(5) of the Arbitration Act 2005, to constitute an arbitration agreement between the parties. Two distinct objections must be considered. The first concerns the manner of incorporation: it might be said that the absence of any specific reference in the letter of appointment to Clause 24 itself prevents incorporation. The second concerns the contingent applicability of the Conditions of Engagement: it might be said that those Conditions do not apply at all because the further requirements of Rule 29 of the Architects Rules 1996 (the execution of a Memorandum of Agreement in the prescribed form and adherence to the Architects (Scale of Minimum Fees) Rules 2010) have not been met.

Incorporation by reference [23] The starting point is the statutory text. Section 9(5) requires three matters: that the host agreement contain a reference to a document containing an arbitration clause; that the host agreement be in writing; and that the reference be such as to make the arbitration clause part of the agreement. The provision does not, in its terms, require that the arbitration clause itself be specifically identified in the reference. What is required is that the reference be apt, on its proper construction, to make the clause part of the agreement. [24] The construction of section 9(5) has been authoritatively settled by the Federal Court in Ajwa for Food Industries Co (MIGOP), Egypt v Pacific Inter-Link Sdn Bhd [2013] 5 MLJ 625 (Federal Court). Zulkefli CJ (Malaya) (as his Lordship then was), delivering the judgment of the court, said at [26]: "... Section 9(5) of the Act in our view addresses the situation 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 ... 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." [25] That holding is binding on this court. Its effect, in plain terms, is that a general reference to a document containing an arbitration clause is sufficient under section 9(5) to incorporate the clause, provided the reference is apt to make the clause part of the agreement. No specific reference to the arbitration clause itself is required. [26] It might be suggested that a stricter approach should be adopted, by reference to a line of English authority including T W Thomas & Co Ltd v Portsea Steamship Co Ltd [1912] AC 1 (House of Lords), The Annefield [1971] 1 All ER 394 (Court of Appeal), Skips A/S Nordheim v Syrian Petroleum Co Ltd; The Varenna [1983] 3 All ER 645 (Court of Appeal), Augton Ltd v MF Kent Services Ltd (1991) 31 ConLR 60 (Court of Appeal), and Habaş Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] 1 All ER (Comm) 1143 (English High Court). Those authorities have held, in various contexts ranging from charterparties and bills of lading to reinsurance contracts, that specific words of incorporation are required before an arbitration clause may be drawn into a host contract by reference. The English line cannot, however, displace Ajwa in this jurisdiction. Those decisions were given under a different statutory regime: the English Arbitration Act 1996 did not adopt the UNCITRAL Model Law, whereas section 9(5) of the Malaysian Act reflects the substance of Article 7(2) of the Model Law. The Court of Appeal in Best (Re)(L) Ltd v ACE Jerneh Insurance Bhd [2015] MLJU 0256 (Court of Appeal) has expressly declined to follow the English line, preferring the approach adopted in Model Law jurisdictions. That decision binds this court. Earlier Court of Appeal guidance to similar effect is found in Albitt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 3 MLJ 656 (Court of Appeal). [27] Certain High Court decisions that have applied the English strict approach — notably Sigur Ros Sdn Bhd v Malayan Banking Bhd & Anor [2013] 8 CLJ 86 (High Court) and Orin Energy Investments Ltd v The Owners of The Ship or Vessel MT 'Cavalier' [2022] 1 LNS 667 (High Court) cannot stand against the binding authority of Ajwa and Best (Re)(L). Sigur Ros was decided shortly before Ajwa and without the benefit of the Federal Court's pronouncement. Orin Energy post-dates Ajwa but did not refer to it. A body of comparative authority drawn from Singapore and Australia — Concordia Agritrading Pte Ltd v Cornelder Hoogewerff (Singapore) Pte Ltd [1999] SGHC 269 (Singapore High Court); Star-Trans Far East Pte Ltd v Norske-Tech Ltd [1996] 2 SLR 409 (Singapore Court of Appeal); Transocean Offshore International Ventures Ltd v Burgundy Global Exploration Corp [2010] SGHC 31 (Singapore High Court); and Conagra International Fertiliser Co v Lief Investments Pty Ltd (1997) 141 FLR 124 (Federal Court of Australia) — likewise applied the older English approach. None can prevail over the binding pronouncement of the Federal Court in Ajwa and the Court of Appeal in Best (Re)(L). Transocean Offshore is in any event distinguishable on its facts, having turned upon a competing express jurisdiction clause in a subsequent agreement. [28] Applying section 9(5) and Ajwa to the facts, the matter admits of one answer only. The letter of appointment is in writing and signed by both parties. It contains, in paragraph 8(g), an unqualified reference to the Conditions of Engagement in Rule 29 of the Third Schedule to the Architects Rules 1996. The reference is not made for any limited purpose; it provides, in terms, that the terms and conditions of the parties' professional services agreement "will be in accordance to" the prescribed Conditions of Engagement. That language is apt to make the Conditions of Engagement, including Clause 24, part of the agreement. The Conditions of Engagement are, moreover, not obscure private standard terms; they are subsidiary legislation made under the Architects Act 1967, in force at the date of contracting, and well known to architects practising in this jurisdiction and to those who engage them. The plaintiff is, on the evidence in the reply affidavit, a developer that has previously engaged the defendant on another condominium project completed some three years before the present action was commenced. The parties are therefore familiar with the regulatory framework that governs the architect's engagement. It might be observed that paragraphs (h) and (i) of the letter of appointment refer specifically to Clause 7(2) and Clause 17 of the Conditions of Engagement respectively, and an inference might be drawn that the parties' selective specific reference to particular clauses manifests an intention not to incorporate the others. The inference is not available on the natural reading of the document. Paragraph 8(g) is in general words of incorporation; paragraphs (h) and (i) draw particular attention to two of the incorporated provisions for the parties' commercial convenience. The relationship is one of general and particular within a single scheme of incorporation, not one of incorporation and exclusion. Indeed, the fact that the parties have drawn on two separate clauses within the Conditions of Engagement and have done so under the same letter that incorporates the Conditions generally fortifies, rather than weakens, the conclusion that the Conditions as a whole govern the engagement.

The Memorandum of Agreement objection [30] The second objection rests upon Rule 29(1) of the Architects Rules 1996, which provides that, except with the prior approval of the Board for special reasons, an architect "shall only enter into an agreement for architectural consultancy services according to" three matters: the Architects (Scale of Minimum Fees) Rules 2010, the Conditions of Engagement in Part One of the Third Schedule, and a Memorandum of Agreement in Form A or Form B of the Fourth Schedule. It is undisputed that no Memorandum of Agreement in the prescribed form has been executed between these parties. From this omission it might be argued that the Conditions of Engagement do not apply at all; further, that Clause 24, which speaks of disputes arising "under the Memorandum of Agreement", has no operative content where no instrument bearing that description exists. The plaintiff's affidavit in opposition takes the further position that the question whether the letter of appointment is void — being one of the prayers in the Statement of Claim — is a matter "which only this court can determine". [31] The argument may be addressed, on three independent bases none of which calls for the court at this stage to make a substantive determination upon the operation of Rule 29 or the construction of Clause 24. [32] First, by force of section 18(2)(a) of the Arbitration Act 2005, an arbitration clause which forms part of an agreement is to be treated as an agreement independent of the other terms of the agreement. The doctrine of separability is now embedded in the statute. Section 18(2)(b) reinforces the point: a decision by the arbitral tribunal that the agreement is null and void shall not ipso jure entail the invalidity of the arbitration clause. The plaintiff's contention that the letter of appointment is void by reason of non-compliance with Rule 29 is, in any event, one of the very matters which the plaintiff seeks to litigate in this action paragraph 25(b) of the Statement of Claim prays for a declaration in those terms. That contention cannot, by section 18(2), invalidate the arbitration clause; and the question whether the letter of appointment is itself void is, on settled authority, for the arbitral tribunal in the first instance under section 18(1). [33] Second, the proposition that the void-contract question "only this court can determine" is, with respect, the inverse of the position. The question whether Clause 24 properly construed embraces the present disputes notwithstanding the absence of a Memorandum of Agreement in the prescribed form, and the question whether the letter of appointment is itself void, are both questions concerning the existence, validity or scope of the arbitration agreement. Such questions are committed by section 18(1) of the Arbitration Act 2005 to the arbitral tribunal in the first instance. The Federal Court in Press Metal Sarawak Sdn Bhd v. Etiqa Takaful Bhd [2016] 5 MLJ 417 (Federal Court) explained the proper allocation at [38]: "... To comply with the requirements of s 10(1) the court should restrict its enquiry only to the issue of whether there is in existence a binding arbitration agreement or clause between the parties and whether the arbitration agreement or clause is null and void, inoperative or incapable of being performed. If the court is satisfied that the arbitration agreement or clause does not fall into any of these exceptions, it must order a stay of proceedings and refer the matter to arbitration." [34] And, at [40]: "A challenge to the jurisdiction of an arbitrator must be made during the arbitration proceedings itself, but not at the court hearing an application for a stay under s 10(1) ... It is the arbitrator who decides the issue of jurisdiction. Any ruling of the arbitrator that it has jurisdiction, can be appealed to the High Court which will finally decide the matter." [35] The position has been reaffirmed by the Federal Court in Universiti Malaya v Esa Jurutera Perunding Sdn Bhd, where Ahmad Terrirudin Mohd Salleh FCJ said at [114]: "Guided by Press Metal Sarawak Sdn Bhd, we are of the view that the matter must be referred to arbitration even if there is some doubt as to the validity of [the arbitration clause], or where it is arguable whether the subject matter of the Plaintiff's claim falls within the ambit of the Clause. Such is the effect of subsection 10(1), the intention of Parliament behind the legislative developments previously discussed, and the parties' initial mutual intention." It is not the function of this court, at the section 10 stage, to determine finally whether Clause 24 extends to disputes between parties who have agreed in writing that the Conditions of Engagement shall govern their professional services agreement but have not executed a Memorandum of Agreement in Form A or Form B. That question being one of scope and existence concerning the arbitration agreement is for the tribunal in the first instance under section 18(1). The threshold required at this stage, namely that the matter is at least arguably the subject of an arbitration agreement, is plainly met. The parties have agreed in writing, in a signed document, that their professional services agreement "will be in accordance to" the Conditions of Engagement; Clause 24 sits within those Conditions; and the natural reading of the contractual arrangement is that the parties intended their disputes concerning the rendering of architectural consultancy services to be resolved through the mechanism the Conditions provide. Whether that reading withstands further analysis is a matter for the tribunal. [37] Third, and were it strictly necessary to address the underlying point which, for the reasons just given, it is not the foundation of the argument is doubtful. Rule 29(1) is a provision of subsidiary legislation made under the Architects Act 1967 for the regulation of the architectural profession. It does not in terms provide, nor does it necessarily imply, that an architectural consultancy agreement entered into between architect and client is to be treated as a nullity for any failure by the architect to comply with each of its three requirements. Whether that is the correct construction of Rule 29(1) is a question which need not now be decided; it does not arise on the application before the court. It would be inappropriate to make a final determination on the construction of Rule 29 in the context of a section 10 application where the underlying merits stand to be determined by the tribunal. [38] For these reasons, an arbitration agreement within the meaning of section 9 of the Arbitration Act 2005 exists between the parties. The second issue is answered in favour of the defendant. E3. Whether the arbitration agreement is null and void, inoperative or incapable of being performed [39] The third question is whether the arbitration agreement falls within any of the three exceptions in section 10(1). The expressions "null and void", "inoperative" and "incapable of being performed" each bear a settled meaning, conveniently collected by Aziah Ali J (as her Ladyship then was) in Sunway Damansara Sdn Bhd v Malaysia National Insurance Bhd & Anor [2010] 1 MLRA 764 (High Court) at [10]-[11]. An arbitration agreement is "null and void" only where it is void ab initio; it is "inoperative" only where, although valid in inception, it has ceased to operate for some reason such as agreement, waiver or estoppel; and it is "incapable of being performed" only where supervening circumstances have rendered the arbitration impossible to perform regardless of the parties' willingness to proceed. [40] None of those exceptions is engaged on the affidavit evidence before the court. The arbitration clause derives from subsidiary legislation made under an Act of Parliament; it is in a settled form; nothing in the affidavit of Lim Ying discloses any incapacity, frustration or supervening impossibility. The contention that the agreement is void for non-compliance with Rule 29 does not engage section 10(1) at this stage: by force of section 18(2)(a) the arbitration clause stands independent of the host agreement, and the question whether the host agreement is itself void is for the tribunal under section 18(1). The third issue is therefore answered in favour of the defendant. E4. The scope of the arbitration agreement [41] It remains to address, briefly and to the limited extent necessary at this stage, the contention that the disputes pleaded in the Statement of Claim being framed not only in contract but also in the tort of professional negligence fall outside the scope of the arbitration agreement. The scope of the arbitration agreement is, on settled authority, a question over which section 18(1) of the Arbitration Act 2005 confers primary jurisdiction on the arbitral tribunal: Press Metal at [38] and [40]. It is not for this court, on an application under section 10, to determine that question finally. Even were the question open for substantive determination, the matters pleaded wrongful grant of extensions of time, breach of duty in the administration of the main contract, the consequential loss of liquidated damages arise wholly out of the defendant's performance of its functions as architect under the engagement. Section 9(1) of the Act expressly contemplates arbitration of disputes arising out of a defined legal relationship "whether contractual or not". Clause 24(1) is in correspondingly wide terms, embracing "any dispute ... arising during or after the rendering of architectural consultancy services". That tortious claims arising out of the same factual matrix as the contractual dispute are themselves arbitrable is established by Renault SA v Inkom Corp Sdn Bhd & Anor [2010] 5 MLJ 394 (Court of Appeal), where a stay was granted notwithstanding that the cause of action was framed in the tort of conspiracy. The disputes are at least arguably within the scope of the arbitration agreement; the threshold for a stay is met. Final determination of scope, if it remains contested, is for the arbitral tribunal. [42] It is also right to observe that the disputes pleaded concerning the propriety of extensions of time and the consequential loss of liquidated damages against the main contractor — touch upon the administration of the construction contract between the plaintiff and the main contractor on the PAM 2018 standard form. That construction contract itself contains, at Clause 37, a comprehensive arbitration mechanism, and the arbitrator thereunder is expressly empowered, by Clause 37.4(d), to open up, review and revise any certificate, opinion, decision, requirement, or notice given by the architect. Whether and to what extent the plaintiff's grievances are properly the subject of arbitration with the architect, or with the main contractor, or with both, is a matter which the parties may wish to consider in due course. It does not arise for decision on the present application; the present application is concerned only with the arbitration agreement contained in Clause 24 of the Conditions of Engagement. F. CONCLUSION [43] The conditions of section 10(1) of the Arbitration Act 2005 being satisfied, the stay is mandatory and follows. The matters which have been pressed in opposition to the application whether the letter of appointment is void, whether Clause 24 extends to the disputes as pleaded, and whether claims framed in tort fall within the agreed scope are matters over which section 18 of the Act confers primary jurisdiction on the arbitral tribunal. Recourse to the High Court remains open under section 18(8) should the plaintiff be dissatisfied with any ruling of the tribunal on those matters. Nothing in these Grounds is intended to prejudge them. G. ORDERS OF THE COURT [44] For the reasons given above, the orders of the court are:

all proceedings in this action, including any pending or further interlocutory applications, are stayed pursuant to section 10(1) of the Arbitration Act 2005;

the parties are referred to arbitration in accordance with the arbitration agreement contained in Clause 24 of Part One of the Third Schedule to the Architects Rules 1996;

the plaintiff shall pay the defendant the costs of the application in the sum of RM5,000.00; and

there shall be liberty to either party to apply. Dated 29 May 2026 (MELAKA) Lawyer For Plaintiff : Encik Suria Juan Pillai bersama Puan Sajitha a/p Suresh Tetuan Liaw & Partners Peguambela dan Peguamcara E-07-01, Block E, Plaza Mont Kiara 2, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur. Lawyer For Defendant Encik Oon Chee Kheng bersama Cik Veeloshini a/p Thiruchelvam Tetuan C K Oon & Co. Peguambela dan Peguamcara L3A-3A, Wisma BUB, No. 11, Lebuh Bandar Utama, Bandar Utama Damansara, 47800 Petaling Jaya, Selangor.