Announcement

Victory in Court Of Appeal: Secured Favourable Outcomes for Client Relating To RM 10Million Award

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15 April 2024

T Kuhendran, Esther Tan and Delvin Singh Mangat from the Construction Dispute Resolution Practice Group have successfully obtained favourable outcomes for our client in respect of the four appeals in the Court of Appeal. We acted for the Respondent in the appeal i.e. East Coast Economic Region Development Council (“ECERDC”). The Appellant is Multi-Spex Architects Sdn Bhd (“MSA”).

The four appeals relate to:

1. The High Court’s decision in allowing ECERDC’s application to enforce the Arbitration Award for RM10million pursuant to section 38 of the Arbitration Act 2005 (the “AA 2005”).

2. The High Court’s decision in dismissing MSA’s applications in respect of:
(a) MSA’s application to set aside the Arbitration Award pursuant to section 37 of the AA 2005.
(b) MSA’s application to adduce fresh evidence. 
(c) MSA’s application to amend its Originating Summons (“OS”).

In respect of the setting aside application, these were the grounds relied upon by MSA to set aside the Award:

1. The Tribunal has found that the defects arose from the construction by the main contractor, and not due to design carried out by MSA.

2. The Tribunal had prevented MSA from referring to the construction contract between ECERDC and the main contractor in the arbitration.

3. The fresh evidence shows there is double recovery by ECERDC and this amounts to unjust enrichment.

In response, ECERDC submitted comprehensive arguments addressing MSA’s allegations.

After considering the relevant documents before it, and the submissions of counsels for the respective parties, the Court of Appeal had found no merit in the appeal, and did not find that there is any reason to disturb the findings of the learned High Court Judge. In this regard, the appeal against the enforcement of the RM10million Award is also dismissed.

In respect of the fresh evidence application, the Court of Appeal found that MSA has failed to fulfill the requirements in Ladd v Marshall and accordingly there is no appealable error as alleged. On the same footing, the appeal in relation to amendment application to the OS which relates to fresh evidence is also dismissed.

Zul Rafique & Partners proudly acknowledges T Kuhendran, Esther Tan, and Delvin Singh Mangat in acting in the best interests of ECERDC from the arbitration stage to this recent triumph in the Court of Appeal. We thank the client for their trust in us. We will continue to act in the best interest of our clients and to navigate complex legal challenges effectively.

The High Court’s case is reported here - East Coast Economic Region Development v Multi-Spex Architects Sdn Bhd and another case [2022] 11 MLJ 761.

The Counsels for this case are:
 
T Kuhendran (Devan)
 
Esther Tan
 
Delvin Singh Mangat

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