[2016] 5 MLRA 529

Federal Court, Putrajaya
Ahmad Maarop, Zainun Ali, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim FCJJ
[Civil Appeal No: 02(i)-27-04-2015(W)]
15 August 2016


Ramly Ali FCJ:

The Appeal

[1] The appellant in the present appeal before us was the plaintiff at the High Court, while the respondent was the defendant. This appeal is against the decision of the Court of Appeal made on 30 October 2014, dismissing the plaintiffs appeal relating to the decision of the High Court made on 12 June 2014, whereby the learned High Court Judge granted a stay of proceedings pending referral of the dispute to arbitration, based on an application made by the defendant pursuant to s 10 of the Arbitration Act 2005 (the 2005 Act). In this judgment, the parties will be referred to as they were in the High Court.

The Parties

[2] At all material times, the plaintiff, Press Metal Sarawak Sdn Bhd, was a company incorporated in Malaysia with a registered address at Lots 15 and 37, Block 20, Kemena Land District, Tanjung Kidurong, 97000 Bintulu, Sarawak and a business address at Lots 211 and 212, Block 293 Mukah Land District, KM 38, Jalan Mukah-Balingian, 96400, Mukah, Sarawak. The plaintiff owned and operated an aluminium smelting plant at the business address (the Mukah Plant). It is a process of extracting aluminium from its oxide, namely alumina, by the process of electrolysis. The plant which began operation on or about August 2009, was the first aluminium plant set up in Malaysia.

[3] The defendant, Etiqa Takaful Berhad, at all material times, was a company incorporated in Malaysia with a registered and business address at Level 19, Tower C, Dataran Maybank No 1, Jalan Maarof, 59000 Kuala Lumpur and was in the business of providing insurance and takaful products.

Factual Background

[4] With the foregoing brief introduction, we will now address the salient facts of the case.

[5] By a contract of insurance, which was evidenced by a placement slip numbered D12EE0852324 dated 24 October 2012 (placement slip), and a policy certificate, the defendant, as the lead Takaful operator, agreed with the plaintiff, in consideration for the payment of a premium of RM300,000.00 among others, to insure all critical plants and machineries including pots and furnaces, parts, accessories, tool systems and installation ("machinery breakdown") and loss of profits ("loss of profits") against sudden and unforeseen damage from any cause not excluded, occurring after successful completion of acceptance tests while working or at rest and during overhaul cleaning or movement in the premises for such purposes. The sum insured for machinery breakdown was RM200 million and for the loss of profits was RM100 million.

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