APEX COMMUNICATIONS SDN BHD v SUMBER KHAZANAH SDN BHD (DALAM LIKUIDASI)

w-02imc-1547-09-2023 Court of Appeal (Mahkamah Rayuan) 12 November 2025 • W-02(IM)(C)-1547-09/2023 • 44 min read
30 cases cited (1 SG, 29 foreign)

Catchwords

These two Appeals primarily concern preliminary issues as to the applicability and the proper interpretation of an Arbitration Clause as well as an Exclusive Jurisdiction Clause as against a third layer subcontractor who was assigned the rights and terms of a subcontract Agreement which was entered into by 1st and 2nd layers subcontractors. - the two Appeals impugn the sole and singular decision to dismiss the Stay Application (albeit against different portions and points of the same decision). - Issue 1: Whether the Learned Judge was correct in finding that the Arbitration Clause and Exclusive Jurisdiction Clause within the 2nd Subcontract were enforceable against SKSB in view of the express incorporation and adoption of the 2nd Subcontract within the IESB LA; Issue 2: Whether the Learned Judge was correct in its reading and interpretation of both the Arbitration Clause and the Exclusive Jurisdiction Clause and concluding that the reference to arbitration was only optional (not mandatory); and Issue 3: Whether the Learned Judge was correct to find that Apex’s requests for extensions of time did NOT effectively denote that Apex had abandoned its right to refer the dispute to arbitration. Held: Allowing Appeal 1547 and dismissing Appeal 1704

Practice Areas

These two Appeals primarily concern preliminary issues as to the applicability and the proper interpretation of an Arbitration Clause as well as an Exclusive Jurisdiction Clause as against a third layer subcontractor who was assigned the rights and terms of a subcontract Agreement which was entered into by 1st and 2nd layers subcontractors. Issue 1: Whether the Learned Judge was correct in finding that the Arbitration Clause and Exclusive Jurisdiction Clause within the 2nd Subcontract were enforceable against SKSB in view of the express incorporation and adoption of the 2nd Subcontract within the IESB LA; Issue 2: Whether the Learned Judge was correct in its reading and interpretation of both the Arbitration Clause and the Exclusive Jurisdiction Clause and concluding that the reference to arbitration was only optional (not mandatory); and Issue 3: Whether the Learned Judge was correct to find that Apex’s requests for extensions of time did NOT effectively denote that Apex had abandoned its right to refer the dispute to arbitration. Held: Allowing Appeal 1547 and dismissing Appeal 1704

Judges (3)

Azimah binti Omar Delivered Azizah binti Haji Nawawi Coram Utama Wan Ahmad Farid bin Wan Salleh Coram

Counsel (8)

AmerBON Firm Isaacs & Tan Firm Dato' Stanley Isaacs Counsel Defendant Edmund Bon Tai Soon Counsel Plaintiff Khor Xiou Shan Counsel Plaintiff Lee Yee Woe Counsel Plaintiff R. Vasanthi Counsel Defendant Shanthiny Ya Ting Counsel Defendant

Parties (2)

APEX COMMUNICATIONS Sdn Bhd Appellant SUMBER KHAZANAH Sdn Bhd (DALAM LIKUIDASI) Respondent

Case Significance

APEX COMMUNICATIONS SDN BHD v SUMBER KHAZANAH SDN BHD (DALAM LIKUIDASI) is a Court of Appeal (Mahkamah Rayuan) decision dated November 12, 2025 (citation: w-02imc-1547-09-2023). <p>Apex Communications Sdn Bhd appealed the High Court's refusal to stay court proceedings in favour of arbitration against Sumber Khazanah Sdn Bhd (in liquidation) concerning a third-layer subcontract for the MRT S8 Package. The Court of Appeal allowed Apex's appeal, finding that the arbitration clause in the subcontract was mandatory (not optional as the High Court held), and ordered a stay of the suit pending reference to arbitration, while dismissing Sumber Khazanah's cross-appeal on the ext The panel comprised Azimah binti Omar, Azizah binti Haji Nawawi and Utama Wan Ahmad Farid bin Wan Salleh, with Azimah binti Omar delivering the judgment. Counsel appearing: Dato' Stanley Isaacs (counsel for defendant), Edmund Bon Tai Soon (counsel for plaintiff), Khor Xiou Shan (counsel for plaintiff), Lee Yee Woe (counsel for plaintiff), R. Vasanthi (counsel for defendant), Shanthiny Ya Ting (counsel for defendant).

Key issues: Issue 3: Whether the Learned Judge was correct to find that Apex’s requests for extensions of time did NOT effectively denote that Apex had abandoned its right to refer the dispute to arbitration..

Summary

Apex Communications Sdn Bhd appealed the High Court's refusal to stay court proceedings in favour of arbitration against Sumber Khazanah Sdn Bhd (in liquidation) concerning a third-layer subcontract for the MRT S8 Package. The Court of Appeal allowed Apex's appeal, finding that the arbitration clause in the subcontract was mandatory (not optional as the High Court held), and ordered a stay of the suit pending reference to arbitration, while dismissing Sumber Khazanah's cross-appeal on the extension of time issue.

What was the outcome of APEX COMMUNICATIONS SDN BHD v SUMBER KHAZANAH SDN BHD (DALAM LIKUIDASI)?

<p>Apex Communications Sdn Bhd appealed the High Court's refusal to stay court proceedings in favour of arbitration against Sumber Khazanah Sdn Bhd (i...

Statutes Cited

Arbitration Act 2005
s 11
Arbitration Act 2005 (Cap 646)
Contracts Act 1950 (Cap 136)
National Land Code 1965
s 418
National Land Code (Cap 828)

Cases Cited (30)

SLR (1)
[2014] 1 SLR 130
UK (4)
[1912] AC 1 [1971] 1 All ER 394 [1971] 3 All ER 237 [1983] 3 All ER 645
AU (1)
[2014] WASC 10
MY (22)
[1987] 2 MLJ 52 [1995] 3 MLJ 331 [2002] 2 MLJ 625 [2008] 5 MLJ 254 [2008] 6 MLJ 561 [2010] 3 MLJ 656 [2010] 7 CLJ 785 [2012] 2 CLJ 16 [2013] 4 MLJ 857 [2013] 5 MLJ 625 [2015] 5 MLJ 513 [2016] 8 MLJ 289 [2017] 2 MLJ 1 [2017] 7 MLJ 274 [2018] MLJU 1629 [2019] 7 MLJ 59 [2022] 2 MLJ 971 [2023] 5 MLJ 644 [2023] MLJU 933 [2024] 2 MLJ 471 [2024] MLJU 1280 [2025] MLJU 2104
HK (2)
[1994] 2 HKC 562 [1994] 3 HKC 328