Thirteen Wings Sdn Bhd v Heineken Malaysia Berhad (WA-22NCvC-221-04/2021)

THIRTEEN WINGS SDN BHD (Company No.: 1129989-D)

(Sole proprietor trading under the name and style of Sivam Kandiah Enterprise) (Business Registration No.: 002702023-A)

(Sole proprietor trading under the name and style of Sivam Kandiah Enterprise) (Business Registration No.: 002411930-P)

(Sole proprietor trading under the name and style of Sivam Kandiah Enterprise) (Business Registration No.: 002700025-U) 02/12/2025 11:56:58 WA-22NCvC-221-04/2021 Kand. 176 S/N /kUgdyjqrU2uuun92czpg

ASTRIKE SDN BHD (Company No.: 650465-T)

AXCEND SDN BHD (Company No.: 654303-P)

TURBO BOOZE SDN BHD (Company No.: 1346153-A)

HOPS SDN BHD (Company No.: 1333951-V) … PLAINTIFFS

HEINEKEN MALAYSIA BERHAD (Company No.: 196401000020 (5350-X))

HEINEKEN MARKETING MALAYSIA SDN BHD (Company No.: 196501000156 (5971-D)) …DEFENDANTS HEARD TOGETHER IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO.: WA-22NCVC-781-12/2021 S/N /kUgdyjqrU2uuun92czpg

THIRTEEN WINGS SDN BHD (Company No.: 1129989-D)

(Sole proprietor trading under the name and style of Sivam Kandiah Enterprise) (Business Registration No.: 002702023-A)

(Sole proprietor trading under the name and style of Sivam Kandiah Enterprise) (Business Registration No.: 002411930-P)

(Sole proprietor trading under the name and style of Sivam Kandiah Enterprise) (Business Registration No.: 002700025-U)

ASTRIKE SDN BHD (Company No.: 650465-T)

AXCEND SDN BHD (Company No.: 654303-P) S/N /kUgdyjqrU2uuun92czpg

TURBO BOOZE SDN BHD (Company No.: 1346153-A)

HOPS SDN BHD (Company No.: 1333951-V) …PLAINTIFFS

HEINEKEN MALAYSIA BERHAD (Company No.: 196401000020 (5350-X))

HEINEKEN MARKETING MALAYSIA SDN BHD (Company No.: 196501000156 (5971-D)) …DEFENDANTS GROUNDS OF JUDGMENT

Enclosure 147 is the Defendants’ application pursuant to Order 14A of the Rules of Court 2012 for determination of a question of law arising from the Plaintiffs’ Competition Act 2010 (“CA 2010”) claims.

The Defendants contend that the Plaintiffs cannot commence or maintain a private action under subsection 64(1) of the CA 2010 because the Malaysia Competition Commission (“MyCC”) has S/N /kUgdyjqrU2uuun92czpg not made any finding of infringement against the Defendants. They therefore urge the Court to answer the legal question “in the negative” and, consequentially, to dismiss or strike out the Competition Act paragraphs (paras 17, 36 to 39) and prayers (f) to (k) in the Plaintiffs’ 2nd Further Re-Amended Statement of Claim dated 2.9.2024 (“SOC”).

The Plaintiffs resist the application, submitting that subsection 64(1) creates an independent civil right of action, not contingent upon MyCC having first issued any regulatory decision.

The Plaintiffs operate a group of restaurants, bars and nightclubs (“the Plaintiffs’ Outlets”). They have been purchasing beer from the Defendants under various supply arrangements and incentive structures since 2012.

The CA 2010 component of the claim arises from the parties’ dealings surrounding, among others:

the 2018 Outlet Agreement;

the December 2019 Offer Letter;

the February 2020 Offer Letter; and

the 2020 renegotiations involving increased targets, reduced incentives and new conditions. S/N /kUgdyjqrU2uuun92czpg

The SOC pleads that:

the Defendants hold substantial market power as one of two breweries licensed in Malaysia;

the Defendants and the Carlsberg entities constitute a collectively dominant group;

the Defendants imposed unfair trading conditions and engaged in anti-competitive conduct; and

the Plaintiffs suffered loss and damage as a result.

These paragraphs form the foundation of the Competition Act causes of action which the Defendants now seek to remove via this Order 14A application.

The Defendants pose the following question of law for determination: “Whether, given the absence of any finding of infringement under the Competition Act 2010 by the Malaysia Competition Commission, the Plaintiffs may commence and maintain a private action under subsection 64(1) for the alleged infringements.”

The Defendants say the answer is “no”. The Plaintiffs say the answer is “yes”. S/N /kUgdyjqrU2uuun92czpg

Two issues arise:

Issue 1: Whether a prior MyCC finding is a legal precondition to a private action under subsection 64(1).

Issue 2: Whether paragraphs 17, 36 to 39 and prayers

to (k) should be dismissed or struck out. E. FINDINGS AND ANALYSIS OF THE COURT

ISSUE 1 — Whether a MyCC finding is required under subsection 64(1)

Statutory Text

Subsection 64(1) allows a person who suffers loss “as a result of an infringement” to bring an action. The wording does not impose a requirement that there must first be a finding of infringement by MyCC. Subsection 64(1) provides: “Any person who suffers loss or damage directly as a result of an infringement … may bring an action in civil proceedings…” S/N /kUgdyjqrU2uuun92czpg

(ii) Statutory Scheme Must Be Read as an Integrated Whole

At the outset, it bears emphasis that the drafting of any written law proceeds on the basis that each provision forms part of a coherent and integrated legislative scheme. No section is intended to stand alone or to be interpreted in isolation.

The Legislature drafts statutes holistically, with interlocking Parts and provisions designed to operate collectively to give effect to the overall statutory purpose. It is therefore a fundamental principle of interpretation that a statute must be read as a whole, and each section construed in harmony with the structure, intent and context of the Act.

In the context of the CA 2010, this interpretive principle requires subsection 64(1) to be understood not only by reference to its own wording, but also in light of the substantive prohibitions in

When these interconnected provisions are read together, it becomes clear that the Act envisages both regulatory enforcement and private enforcement operating in parallel.

This Court believes that the Parliament did not intend the availability of civil redress under subsection 64(1) to be conditional upon the prior exercise or conclusion of MyCC’s investigatory powers under Part III. S/N /kUgdyjqrU2uuun92czpg

This Court is guided by the settled principle that legislation is drafted holistically and must be read holistically. Each provision of a statute draws its meaning from the wider statutory context. Accordingly, subsection 64(1) cannot be interpreted in isolation from the prohibitions in Part II or the enforcement powers in Part

When the Act is read as an integrated whole, it is evident that Parliament created a dual-enforcement regime in which private actions under subsection 64(1) are not dependent on prior regulatory findings.

(iii) Factual Trigger of Section 64 Does Not Depend on MyCC

The Defendants’ argument is premised on the fact that MyCC has not made any finding of infringement. This premise misunderstands how the Act functions. Under the CA 2010, the status of an investigation is only conclusively determined by formal statutory instruments.

Where MyCC decides not to pursue a complaint, it must issue a closure notice under subsection 16(4). Where it concludes that conduct does not infringe the Act, it must issue a non-infringement decision under section 39. These are the only formal mechanisms by which MyCC communicates its regulatory conclusions. S/N /kUgdyjqrU2uuun92czpg

In this case, the Court finds that there is no closure notice under subsection 16(4), no non-infringement decision under section 39, and no determination under section 40. Thus, the Court is of the opinion that the “absence of a finding” is not equivalent to “no infringement”; it merely signifies that no regulatory conclusion has been reached.

The absence of a finding is therefore a legally neutral fact. It cannot extinguish or limit the Plaintiffs’ statutory right to maintain a private action under subsection 64(1), nor does regulatory silence bar civil proceedings.

(iv) Case Law

The Defendants rely on GTSM v Grabcar [2022] 1 CLJ 956. That case turned on its own facts and does not stand for the proposition that a MyCC finding is a mandatory precondition.

Having said that, the Court therefore finds that the Plaintiffs are entitled to commence and maintain a private action under subsection 64(1) CA 2010 notwithstanding the absence of any finding of infringement by MyCC.

Accordingly, the question is answered in the AFFIRMATIVE.

ISSUE 2 — Whether paras 17, 36 to 39 and prayers (f) to

should be struck out S/N /kUgdyjqrU2uuun92czpg

Order 14A Is Not a Striking-Out Mechanism

The Defendants’ consequential prayer is in substance a striking-out application under Order 18 rule 19 of ROC 2012. No such application has been filed. Order 14A cannot be invoked to bypass the procedural safeguards of Order 18 rule19 ROC 2012.

(ii) SOC Discloses Triable Issues

Paragraphs 17, 36 to 39 and prayers (f) to (k) contain substantive allegations relating to dominance, collective dominance, anti-competitive conduct and loss. These are fact-intensive issues that require full ventilation at trial.

The pleadings disclose clear triable issues and should not be summarily removed.

For the reasons above the Court finds that:

The Order 14A question of law is answered in the AFFIRMATIVE.

A MyCC finding is not a legal precondition to a subsection 64(1) private action.

The Defendants’ consequential prayer to strike out paragraphs 17, 36 to 39, and reliefs (f) to (k) is refused.

Enclosure 147 is dismissed with costs in the cause. S/N /kUgdyjqrU2uuun92czpg Dated: 24th November 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiffs : Ivanpal Singh Grewal & Vinodhan Kuppusamy Messrs. Vinodhan Kuppusamy Advocates & Solicitors Counsel for The Defendants : Joshua Chong Wan Ken & Amanda Cheak Xin Yi Messrs. Raja, Darryl & Loh Advocates & Solicitors S/N /kUgdyjqrU2uuun92czpg