JUDGMENT

Ahmad Terrirudin Mohd Salleh FCJ:

Judgment

A. Introduction

[1] Appeals concerning judicial determination of application for a stay of proceedings and the construction of "before taking any other steps in the proceedings" under subsection 10(1) of the Arbitration Act 2005 [Act 646] generally follow a familiar pattern. Where a Plaintiff who has agreed to arbitrate nevertheless commences proceedings in Court, the Defendant will ordinarily be entitled to seek a stay of the proceedings in favour of arbitration, provided the application is made before delivering any pleadings or taking any other steps in the proceedings. Our Courts have treated the legislative amendment to Act 646 as reflecting Parliament's intention to that effect.

[2] In other words, the right to a stay and to arbitrate will be lost, and the Defendant may be deemed to have abandoned its right for arbitration if it, prior to making an application for a stay, takes any other steps in the proceedings in response to the Plaintiff's substantive claim. However, as demonstrated in our jurisdiction, certain conduct by a Defendant does not amount to taking steps in the proceedings. The Court's task then turns to whether the Defendant's conduct in question constitutes, figuratively speaking, a misstep or step too far. A relevant consideration is whether the Defendant has reserved its position as to the Court's jurisdiction in its correspondence with the Plaintiff or the Court, or in any application before the Court. Further, it is necessary to consider whether such an act engages the merits of the dispute, and whether it constitutes an interlocutory application by the Defendant from which a formal order is expected to be issued by the Court.