Application for stay of proceedings and unconditional appearance

Abstract

Dispute in the construction industry is the most common and sometimes cannot be avoided. Arbitration is a popular method in resolving dispute in the construction industry. The law relating to arbitration in Malaysia is governed the Arbitration Act 2005. All standard forms of contract in Malaysia provide arbitration as the major method of dispute resolution. However, sometime a party may bring a dispute direct to litigation. The section 10 of the Act allows the other party to apply to the court for stay of the court proceedings provided that he has not taken any other steps in the proceedings. Entering appearance is one of the steps in any court’s proceedings. The entering of appearance may be conditional or unconditional. The courts seemed to have given inconsistent judgments whether or not entering of unconditional appearance as having taken steps in the proceedings. The objective of this research is to determine whether or not the entering of unconditional appearance a step in the proceedings. The methodology for this research is law case study method. The relevant law cases are extracted from the Malayan Law Journal. The examination of the law cases revealed that entering of unconditional appearance is not a step in the proceedings. Therefore, a party that intents to apply for a stay of court proceedings in order to resolve the dispute by arbitration need not be so much concern whether or not the entering of appearance is conditional or unconditional.