DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: W-02(C)(A)-1786-10/2014
BRUNSFIELD PROJECT MANAGEMENT SDN BHD …PERAYU
INGENIUR BERSEKUTU CONSULTING ENGINEERS …RESPONDEN
[DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
SAMAN PEMULA NO.: 24C(ARB) – 4 – 02/2014
Dalam perkara Timbangtara di
bawah Kaedah-kaedah Timbangtara
Institusi Jurutera Malaysia 2012
antara Brunsfield Project
Management Sdn Bhd dan Ingeniur
Bersekutu Consulting Engineers;
Dalam perkara Akta Pendaftaran
Jurutera, 1967 (Akta 138) dan
Peraturan-peraturan di bawahnya;
Dalam perkara Skala Fi Lembaga
Jurutera Malaysia (Pindaan 1998);
Dalam perkara Award bertarikh
10.01.2014 made by Ir. Leon Weng
Dalam perkara Seksyen 37(1)(b)(ii)
dan Seksyen 42(1) Akta
Timbangtara, 2005 dan peruntukan-
peruntukan lain Akta Timbangtara,
2005 dan Akta Timbangtara 2005;
Dalam perkara Aturan 69 Kaedah-
kaedah Mahkamah, 2012 dan Aturan
69 Kaedah 5 dan 6 Kaedah-kaedah
Mahkamah, 2012 dan peruntukan-
peruntukan lain Kaedah-Kaedah
Dalam perkara Aturan 92 Kaedah 4
Kaedah-kaedah Mahkamah Tinggi,
1980 dan kuasa sedia ada
BRUNSFIELD PROJECT MANAGEMENT SDN BHD … PLAINTIF
INGENIUR BERSEKUTU CONSULTING ENGINEERS … DEFENDAN
Yang diputuskan oleh Yang Arif Puan See Mee Chun di Mahkamah
Tinggi Shah Alam pada 22 September 2014]
LIM YEE LAN, JCA
VARGHESE A/L GEORGE VARUGHESE, JCA
IDRUS BIN HARUN, JCA
GROUNDS OF JUDGMENT
 The appeal in the present instance emanated from the decision of
the learned High Court Judge dismissing the amended Originating
Summons dated 20.2.2014 which seeks an order to set aside the
arbitration award handed down by the arbitrator on 10.1.2014.
 The material facts emerging out of the events culminating in this
instant appeal reveal that sometime in 2009, the appellant requested the
respondent, a firm of civil and consulting engineer, to provide civil and
structural engineering design and consultancy services (the services
agreement) for a project known as –
“Cadangan Pembangunan Komersial Yang Merangkumi Blok
Pejabat, Dewan Konvensyen, Hotel & Pangsapuri Servis 12
Tingkat Serta 2 Basemen di Atas Lot No. PT 8, Jalan PJU
1A/2, Mukim Damansara, Daerah Petaling, Selangor Darul
Ehsan untuk Tetuan Sime Darby Brunsfield Damansara Sdn
The appellant, in this regard, is in the business of project development and
project management. It is owned by Sime Darby Brunsfield Damansara
Sdn Bhd (SDBD). The respondent, on the other hand, is a firm of civil and
 The services agreement according to the appellant was oral in
nature. There was no formal written agreement. The respondent had
requested for an appointment letter from the appellant but was not issued
 The appellant was unhappy with the respondent’s work.
Consequently the service of the respondent was terminated on 16.5.2011.
The respondent disputed the termination.
 As the respondent had rendered professional services until
16.5.2011, it submitted several invoices to SDBD for the total sum of
RM12,537,155.16 as its fees and expense claim for the termination of the
services. These invoices were premised on the BEM Scale of Fees
(Revised 1998) (the Scale of Fees). The appellant disputed the invoices
and refused to make any payment to the respondent contending that
SDBD was not the correct party that had appointed the respondent, the
claim was excessive and unsubstantiated, the work had not reached the
stage as claimed by the respondent and the appellant had never agreed
to adopt the Scale of Fees.
 The arbitration between the parties arose out of the dispute in
connection with the termination of the services by the appellant and the
claim for the payment of fees by the respondent. By a letter dated
17.5.2012, the Board of Engineers Malaysia confirmed that both the
appellant and the respondent had agreed to arbitrate the dispute. To this
end, Ir. Leon Weng Seng was appointed as the arbitrator.
 As the evidence has shown, subsequent to the commencement of
the arbitration proceedings, the respondent reissued a second set of
invoices for a total sum of RM12,476,389.16. This time around it was sent
to the appellant.
 On 10.1.2014 the arbitrator made his award as follows:
a. that the termination of the respondent’s services was not mutual
and not justified.
b. that the professional services provided by the respondent were
adequate within the professional standard of a civil and structural
consulting engineer and / or fit for their intended purpose.
c. that the invoices issued in the name of Sime Darby Brunsfield
Damansara Sdn Bhd were wrongly issued and are therefore
d. that the re-issued invoices are correctly addressed to the claimant
(the appellant) as the party liable for the respondent’s claim.
e. that the parties are not bound to the Scale of Fees (Revised 1998).
f. that the reasonable fee percentage for the respondent’s services
shall be 1.25% of the total cost of construction (as per letter of Award
for substructure work, and the cost estimate dated 20.09.2011 by the
consultant Quantity Surveyor) and the stage of payment of fees shall
be as follows:
Preliminary Stage : 20%
Design Stage (i) : 35%
Design Stage (ii) : 20%
Tender Stage : 5%
Construction Stage : 20%
g. that the claimant is to pay the respondent the sum of
RM2,187,702.86 together with simple interest thereon at 5% per
annum from the date of this award until payment.
h. the appellant is to pay the respondent’s costs together with simple
interest thereon at 5% from the date of this award until payment.
i. that the claimant shall bear the administrative costs of RM1,000.00
which the claimant has paid to the IEM.
j. that the claimant shall bear the room rental charge of RM6,000.00.
k. that the claimant shall bear the costs of transcription which amounts
l. that the claimant shall bear all of my fees and expenses in respect of
this award, which fees and expenses I have determined at
RM74,727.96, and to the extent the Respondent had paid any part
thereof the claimant shall forthwith reimburse the Respondent with
that amount and simple interest thereon at 5% p.a. from the date of
the Respondent’s payment until the date of such reimbursement.
m. I reserve my final award determination, if not agreed, of the amount
of recoverable costs and any interest thereon for which purpose
shall give my further direction upon the application of either party.
THE ORIGINATING SUMMONS
 Dissatisfied with the decision of the arbitrator, the appellant
commenced the present action by way of an Originating Summons dated
31.3.2014 challenging the award. By an amended Originating Summons
dated 20.2.2014 the appellant challenged the award pursuant to sections
42 and 37 of the Arbitration Act 2005 (the Act) seeking the following orders:
(a) the award be set aside and / or varied in whole or in part
pursuant to determination of the questions of law under
section 42(1) of the Act arising out of the award; and
(b) the award be set aside and / or varied in whole or in part
pursuant to section 37(1)(b) of the Act.
 We pause to observe at this point that for the purpose of the
application under section 42(1) of the Act, the appellant advanced 25
questions of law put across in sub-paragraphs 1.1(a) to (x) of the amended
Originating Summons. However in our view, in the end and in essence,
these questions clearly boil down to only one principal question of whether
as a matter of law, the arbitrator, upon making a finding that there was no
agreement reached between the parties with regard to the percentage of
fees for the respondent’s services, was correct in holding that the fee
percentage of 1.25% of the total construction costs was the reasonable
fee percentage for the respondent’s professional fees, or the learned
arbitrator ought to have held that the respondent was only entitled to claim
from the appellant on the basis of quantum meruit and proceeded to
assess the defendant’s claim on that basis.
 Having said that, we take this opportunity to mention that the