Introduction
In Accent Technique Sdn Bhd v Kuala Lumpur Aviation Fuelling System Sdn Bhd [2026] 4 MLJ 490, the Court of Appeal dismissed Accent Technique Sdn Bhd’s (“Appellant”) application for an extension of time to commence arbitration proceedings following two earlier arbitrations that were procedurally, legally, and technically flawed.
In essence, the Court emphasised that the discretionary relief under section 30(5) of the Limitation Act 1953 and the Court’s equitable jurisdiction cannot be relied upon to relieve a party from the consequences of its own procedural and legal errors.
Brief facts
Kuala Lumpur Aviation Fuelling System Sdn Bhd (“Respondent”) issued a Letter of Award for a project jointly to the Appellant and Maxwell Energy Sdn Bhd (“ME”) (collectively, the “JV”). The Respondent and the JV subsequently entered a contract containing an arbitration clause (“Contract”).
The first arbitration (January 2017)
Following a dispute over a variation order and the compulsory winding up of ME, Maxwell Accent JV Sdn Bhd (“JV Co”) commenced an arbitration against the Respondent.
The Respondent raised a jurisdictional challenge on the basis that JV Co was not a party to the Contract. Although ME subsequently obtained sanction from the Director General of Insolvency (“DGI”) to continue with the arbitration, the first arbitration was terminated in May 2022 when the arbitrator dismissed JV Co’s application to substitute the claimant from JV Co to the JV.
The second arbitration (August 2022)
The JV commenced a second arbitration against the Respondent.
The Respondent once again challenged jurisdiction, arguing that ME’s DGI sanction was defective and that without valid sanction, the JV was incompetent to commence the arbitration. The arbitrator dismissed the challenge.
The High Court allowed the Respondent’s appeal in February 2024, resulting in the termination of the second arbitration (“High Court’s Decision in 2024”).
Consequently, the Appellant filed an application in the High Court for a declaration that the extension of time be given to commence an arbitration against the Respondent (“Appellant’s application”).
High Court
The High Court dismissed the Appellant’s application based on the following key findings:
- The Appellant should have sought an extension of time during the Respondent’s appeal against the second arbitration but failed to do so.
- The Appellant could not pursue the application independently, as the Letter of Award and Contract were entered into between the Respondent and the Appellant and ME jointly, rather than between the Respondent and the Appellant alone.
- Both the first and second arbitrations were flawed due to the Appellant’s own failure to comply with the requisite procedural, legal and technical requirements.
Court of Appeal
On appeal, the Appellant relied on the statutory provisions relating to the Court’s equitable jurisdiction and section 30(5) of the Limitation Act 1953 in support of its application.
In dismissing the appeal, the Court of Appeal held that:
- The exercise of the Court’s equitable jurisdiction and application of section 30(5) of the Limitation Act 1953 had to be undertaken conjunctively.
- The relief under section 30(5) of the Limitation Act 1953 is discretionary and intended only for circumstances genuinely beyond a party’s control. Such relief cannot be invoked to cure avoidable procedural or legal errors.
- Although the Appellant’s application was properly brought under section 30(5) of the Limitation Act 1953, the circumstances giving rise to the application were within its control, as it had failed to identify the correct contracting party and secure valid corporate sanctions.
- The Appellant could not pursue arbitration independently of ME, as this was contrary to the Contract. The Court also held that the application was barred by res judicata, as it amounted to a backdoor attempt to challenge the High Court’s Decision in 2024.
Key takeaways
This decision serves as a useful reminder of the importance of adhering to legal technicalities and procedural requirements when commencing arbitration. A party that is the sole architect of its own procedural demise cannot subsequently rely on discretionary relief, whether under section 30(5) of the Limitation Act 1953 or the Court’s equitable jurisdiction, to remedy its own avoidable procedural or legal errors.
This update is prepared by Michelle Ku.
For more information, please reach out to your usual contact from our Arbitration Practice Group.
For further information, please contact:
Michelle Ku Suet Yeng, Shearn Delamore
michelle.ku@shearndelamore.com
