MASENANG SDN BHD v. SABANILAM ENTERPRISE SDN BHD

[2021] 6 MLRA 203

MASENANG SDN BHD v. SABANILAM ENTERPRISE SDN BHD
Federal Court, Kota Kinabalu
Nallini Pathmanathan, Vernon Ong, Rhodzariah Bujang FCJJ
[Civil Appeal No: 02(i)-20-03-2020(S)]
3 September 2021

JUDGMENT

Nallini Pathmanathan FCJ:

Introduction

[1] The events giving rise to this dispute, resulting in this appeal, took place in Panampang, near Kota Kinabalu, Sabah. The appellant, Masenang Sdn Bhd ('Masenang') is the contractor under a standard PAM construction contract between itself and one Sabanilam Enterprise Sdn Bhd ('Sabanilam'), the employer. Disputes arose over the construction works resulting in a resolution of the dispute by way of arbitration.

[2] The agreement between the parties is a standard PAM contract 2006. Clause 34.5 relates to arbitration and is entitled "Disputes referred to arbitration". It is effectively the arbitration agreement and provides as follows:

"34.5 In the event that any dispute or difference arises between the Employer and Contractor, either during the progress or after completion or abandonment of the Works regarding:

34.5(a) any matter of whatsoever nature arising under or in connection with the Contract;

34.5(b) ...

34.5(c) ...

34.5(d) ...

34.5(e) ...

Then such disputes or differences shall be referred to arbitration."

[3] And for completion, cl 34.7 which is entitled "Arbitration Act and Rules" provides:

"34.7 Upon appointment the arbitrator shall initiate the arbitration proceedings in accordance with the provisions of the Arbitration Act 2005 or any statutory modification or re-enactment to the Act and APM Arbitration Rules or any modification or revision to such rules."

[4] The arbitral dispute was heard fully in Kuala Lumpur and the award was handed down there. The Final Award dated 12 October 2017 was handed down in Kuala Lumpur in favour of Masenang in the sum of RM26,765,198.29, payable by Sabanilam.

[5] The seat of the arbitration is Kuala Lumpur.

[6] Masenang then initiated registration proceedings under s 38 of the Arbitration Act 2005 ('AA') in the High Court in Malaya at Kuala Lumpur ('the KL suit').

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