BRILLIANT STAR CONSTRUCTION (M) SDN BHD v MRCB BUILDERS SDN BHD

Case Significance

Illustrates how an application to enforce an arbitration award under section 38 is decided alongside a concurrent setting-aside challenge, and the absence of any power to remit to a fresh tribunal once the arbitrator is functus officio.

This High Court decision in the Construction Division at Kuala Lumpur determines a sub-contractor’s application to enforce a final arbitration award by entering judgment on it against a main contractor, heard together with the main contractor’s application to set the same award aside. The sub-contractor, Brilliant Star Construction (M) Sdn Bhd, sought under section 38 of the Arbitration Act 2005 to have the award, made in its favour, recognised as binding and enforceable and entered as a judgment of the High Court against the main contractor, MRCB Builders Sdn Bhd. Because the two matters turned on the same award and were heard together, the enforcement application could not be resolved in isolation from the challenge to the award’s validity under section 37 of the same Act. In deciding the set-aside application, the Court addressed the contractor’s contention that, upon a partial setting aside, the dispute should be remitted to a differently constituted arbitral tribunal. It rejected that contention, holding that it had no power to remit the matter to a new tribunal because an arbitrator who has signed the award becomes functus officio, and that section 37 permits only the severance of separable parts of an award or an adjournment to allow the existing tribunal to cure the grounds for setting aside. Having concluded that the part of the award concerning section 33A of the Construction Industry Development Board Act 1994 could not be severed from the remainder, and that the tribunal was functus officio once it had signed the award, the Court granted the reliefs sought in prayers (a) and (e) of the contractor’s setting-aside originating summons and, consistently with that order, dismissed the sub-contractor’s enforcement application. Per Nadzarin Wok Nordin J, the judgment illustrates how an application to enforce an award falls to be decided alongside a concurrent challenge to that award, and why success on the setting-aside application left no award capable of enforcement in the terms sought.