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DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA C)(A... · PDF file Dalam perkara Akta Pendaftaran Jurutera, 1967 (Akta 138) dan Peraturan-peraturan di bawahnya; Dan Dalam perkara Skala

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  • DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN)

    RAYUAN SIVIL NO.: W-02(C)(A)-1786-10/2014

    ANTARA

    BRUNSFIELD PROJECT MANAGEMENT SDN BHD …PERAYU

    DAN

    INGENIUR BERSEKUTU CONSULTING ENGINEERS …RESPONDEN

    [DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

    (BAHAGIAN DAGANGAN) 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;

    Dan

    Dalam perkara Akta Pendaftaran Jurutera, 1967 (Akta 138) dan Peraturan-peraturan di bawahnya;

    Dan

    Dalam perkara Skala Fi Lembaga Jurutera Malaysia (Pindaan 1998);

    Dan

    Dalam perkara Award bertarikh 10.01.2014 made by Ir. Leon Weng Seng;

    Dan

    Dalam perkara Seksyen 37(1)(b)(ii) dan Seksyen 42(1) Akta Timbangtara, 2005 dan peruntukan-

  • 2

    peruntukan lain Akta Timbangtara, 2005 dan Akta Timbangtara 2005;

    Dan

    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 Mahkamah 2012;

    Dan

    Dalam perkara Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah Tinggi, 1980 dan kuasa sedia ada Mahkamah.

    ANTARA

    BRUNSFIELD PROJECT MANAGEMENT SDN BHD … PLAINTIF

    DAN

    INGENIUR BERSEKUTU CONSULTING ENGINEERS … DEFENDAN

    Yang diputuskan oleh Yang Arif Puan See Mee Chun di Mahkamah Tinggi Shah Alam pada 22 September 2014]

    CORAM

    LIM YEE LAN, JCA VARGHESE A/L GEORGE VARUGHESE, JCA

    IDRUS BIN HARUN, JCA

  • 3

    GROUNDS OF JUDGMENT

    INTRODUCTION

    [1] 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.

    FACTS

    [2] 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

    Bhd.”

    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

    consulting engineer.

    [3] The services agreement according to the appellant was oral in

    nature. There was no formal written agreement. The respondent had

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    requested for an appointment letter from the appellant but was not issued

    one.

    [4] 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.

    [5] 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.

    [6] 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.

    [7] 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.

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    [8] 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

    dismissed.

    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

    to RM6,846.32.

  • 6

    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

    [9] 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.

    [10] 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

  • 7

    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.

    [11] Having said that, we take this opportunity to mention that the

    appellant in

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