Asian Kitchen (M) Sdn Bhd v Menara Kuala Lumpur Sdn Bhd (WA-22NCC-399-06/2023)

MENARA KUALA LUMPUR SDN BHD [NO. SYARIKAT: 188533-A]

HYDROSHOPPE SDN BHD … DEFENDAN - [NO. SYARIKAT: 806460-W] DEFENDAN JUDGMENT (Enclosure 98) [1] This was the 1st Defendant’s application seeking leave to issue a Writ of Possession against the Plaintiff under Order 45 Rule 3 and Order 46 Rule 3 of the Rules of Court 2012 (“ROC”) (“this Application”). [2] On 4.9.2023, I allowed the 1st Defendant’s application for leave to enter summary judgment against the Plaintiff on its Counterclaim (Enclosure 23) which includes an order for vacant possession (“Summary Judgment”). [3] On 23.11.2023, I dismissed the Plaintiff application for a stay of execution of the Summary Judgment (Enclosure 96) and allowed this Application. This Application was heard inter partes. [4] Earlier on 27.6.2023, I had dismissed the Plaintiff’s application (Enclosure 3) for essentially an injunction to remain on the Demised Premises after the expiry of the tenancy agreement. Page 2 of 15 [5] I adopt my Grounds of Judgment and findings in respect to Enclosures 23 and 3. A] SALIENT BACKGROUND FACTS [6] The Plaintiff, Asian Kitchen (M) Sdn Bhd, is a company that has been operating food and beverage outlets at KL Tower (“Demised Premises”) since 15.8.2011, particularly the Revolving Restaurant known as Atmosphere 360 (“Revolving Restaurant”), pursuant to various tenancy agreements with the 1st Defendant. [7] The 1st Defendant, Menara Kuala Lumpur Sdn Bhd, is the company that manages and operates the KL Tower under a concession agreement with the Government of Malaysia. [8] The latest agreement expired on 31.5.2019, after which the tenancy was extended through several letters. [9] The chronology of the Plaintiff’s tenancy of the Demised Premised from is summarised as follows: i) For the period 15.8.2011 to 14.8.2014: a) Agreement for the Management, Operation and Maintenance of Revolving Restaurant and Kitchen Area dated 31.12.2012. b) Three separate Tenancy Agreements dated 8.4.2014 for the Reservation Counter, Staff Room and Cafeteria. ii) For the period 1.10.2014 to 30.9.2016: a) Four Supplementary Agreements dated 1.10.2015 covering the Revolving Restaurant, Kitchen Area, Reservation Counter, Staff Room and Cafeteria (“2015 Agreements”). iii) For the period 1.10.2016 to 31.5.2019: Page 3 of 15 a) Agreement for the Management, Operation and Maintenance of Revolving Restaurant and Kitchen Area dated 1.12.2016. b) Three Supplementary Tenancy Agreements No. 2 dated 1.12.2016 for the Reservation Counter, Cafeteria and Staff Room (collectively “2016 Agreements”). iv) Following the expiry of the 2016 Agreements on 31.5.2019, the tenancy was extended through letters from the 1st Defendant as follows: a) Extended from 1.6.2019 to 31.12.2020; b) Further extended from 1.1.2021 to 31.12.2021 c) Extended from 1.1.2022 to 30.6.2022; d) Extended from 1.7.2022 to 31.12.2022; and e) Final extension granted by letter dated 24.11.2022 extending the tenancy until 30.6.2023 (“30.6.2023 Expiry Date”) (“Final Extension Letter”). [10] On 24.11.2022, following a discussion with the Plaintiff, the 1st Defendant issued the Final Extension Letter extending the Plaintiff's tenancy until the 30.6.2023 Expiry Date. The Plaintiff signed the Final Extension Letter and accepted the terms and conditions stated therein. [11] The Plaintiff did not vacate the Demised Premises and deliver the Demised Premises to the 1st Defendant on the 30.6.2023 Expiry Date which then led to the filing of the 1st Defendant Counterclaim and this Application. [12] On 4.9.2023, the 1st Defendant obtained Summary Judgment (Enclosure 91) against the Plaintiff as follows: “(a) Perjanjian 2016, Perjanjian-perjanjian Tambahan 2016, penyewaan antara Plaintif dan Defendan Pertama, dan hak Plaintif untuk menduduki Premis-premis Demis tersebut telah tamat tempoh (expired) pada 30.6.2023.

Plaintif menyerahkan milikan kosong Premis-premis Demis tersebut (dalam keadaan dan kedudukan asalnya) kepada Defendan Pertama pada 30.6.2023.

Plaintif secara tidak sah memegang (unlawfully holding over) Premis-premis Demis tersebut dari 1.7.2023.

Plaintif untuk membayar sewa bulanan dua kali ganda kepada Defendan Pertama dari 1.7.2023 sehingga tarikh Plaintif menyerahkan milikan kosong kepada Defendan Pertama.

Satu jumlah sebanyak RM421.950.00 yang merupakan jumlah tertunggak untuk sewa dan caj-caj bagi bulan Jun 2023.

Plaintif untuk membayar kos sebanyak RM5,000.00 kepada Defendan Pertama, tertakluk kepada fi alokatur.” [13] Despite the Summary Judgment, the Plaintiff has failed to surrender vacant possession and continues to occupy the Demised Premises. B] THIS APPLICATION (ENCLOSURE 98) [14] In this Application the 1st Defendant essentially sought: i) leave to issue a Writ of Possession against the Plaintiff for vacant possession of the Demised Premises; ii) payment of monthly double rental (inclusive of charges) amounting to RM1,976,100.00 for July 2023, August 2023 and September 2023, and continuing at RM658,700.00 per month or RM21,956.67 per day until vacant possession. [15] Order 45 Rule 3 of the ROC reads as follows: “Enforcement of Judgment for possession of immovable property (O. 45 r. 3)

Subject to these Rules, a Judgment or order for the giving of possession of immovable property may be enforced by one or more of the following means: Page 5 of 15

a writ of possession;

in a case in which rule 5 applies, an order of committal.

A writ of possession to enforce a Judgment or order for the giving of possession of any immovable property shall not be issued without leave of the Court except where the Judgment or order was given or made in a charge action to which Order 83 applies.

Such leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled.

A writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.” (own emphasis added) [16] Order 46 Rule 3 of the ROC states as follows: “Application for leave to issue writ (O. 46, r. 3)

An application for leave to issue a writ of execution may be made ex parte by a notice of application in Form 88.

Such an application shall be supported by an affidavit—

identifying the Judgment or order to which the application relates and, if the Judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date of the application;

stating, where the case falls within rule 2(1 )(a), the reasons for the delay in enforcing the Judgment or order;

stating, where the case falls within rule 2(1 )(b), the change which has taken place in the parties entitled or liable to execution since the date of the Judgment or order;

stating, where the case falls within rule 2(1 )(c) or (d), that a demand to satisfy the Judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so; and

giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it. (own emphasis added) C] THE PLAINTIFF’S OBJECTIONS [17] The Plaintiff raises two main objections to this Application. First Objection: Notice of Proceedings [18] The Plaintiff contends that the 1st Defendant failed to comply with Order 45 Rule 3(3) of the ROC by not providing proper “Notice of Proceedings” to the Plaintiff. Second Objection: Pending Appeal and Stay Application [19] The Plaintiff argues that: i) It has filed an appeal against the Summary Judgment; ii) It has a pending stay application (Enclosure 96); iii) Allowing the Writ of Possession would render its appeal nugatory; iv) About 80 employees would lose their jobs; v) The Plaintiff would lose its entire business which is dependent on its location. D] ANALYSIS AND FINDINGS [20] After hearing submissions from both parties and considering the affidavit evidence before me, I find that the Plaintiff’s objections do not have any merit for reasons stated below. Page 7 of 15 [21] I must emphasise from the outset that some of the issues raised by the Plaintiff have already been addressed in my Grounds of Judgment concerning Enclosures 23 and 3, and I adopt those points in response to the overlapping issues. Notice of Proceedings [22] The Plaintiff contends that the 1st Defendant failed to comply with Order 45 Rule 3(3) of the Rules of Court 2012 by not providing proper “Notice of Proceedings”. This contention has no merit for the reasons stated below. [23] Firstly, this objection was only raised only in the Plaintiff’s Written Submissions dated 9.11.2023 (Enclosure 124) and not in the Plaintiff’s Affidavit in Reply (Enclosure 115). In fact, the Plaintiff never denied the 1st Defendant’s averments in paragraphs 10 and 11 of the 1st Defendant’s Affidavit In Support of the this Application regarding notice of proceedings. Following Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 MLJ 281, the Plaintiff is deemed to have accepted and admitted having proper notice. [24] Secondly, in response to paragraphs 10 and 11 of 1st Defendant’s Affidavit In Support, the Plaintiff merely stated that: i) It was a “good paymaster”; ii) The 1st Defendant received the monthly rental for June 2023 as per the Summary Judgment; and iii) The Plaintiff had deposited monthly rentals to its fixed deposit account. [25] These statements cannot be taken as denials of the 1st Defendant’s averments in paragraphs 10 and 11 of its Affidavit in Reply. [26] The Federal Court in Nagaraja Ponusamy v. Menteri Dalam Negeri, Malaysia & Ors [2010] 4 CLJ 133 held that where a deponent to an affidavit makes a positive assertion which is not denied by the opponent, the Court should accept the former assertion as standing unrebutted: “[3] In the circumstances adumbrated, what approach is the court to adopt? The answer to this question is well settled by a legion of authorities we find Page 8 of 15 unnecessary to cite, it is this. Where the deponent to an affidavit makes a positive assertion, which is not inherently incredible or inherently improbable, and his opponent in his affidavit does not credibly deny that allegation, a court should accept the former assertion as standing unrebutted. Now apply that test here.” (own emphasis added) [27] Thirdly, there is overwhelming evidence that the Plaintiff had proper notice of these proceedings: i) The Plaintiff was a party to and actively contested the Summary Judgment proceedings; ii) The 1st Defendant’s solicitors served the Summary Judgment on the Plaintiff's solicitors via letter dated 19.9.2023; iii) The Plaintiff’s solicitors confirmed via letter dated 20.9.2023 that the Summary Judgment had been duly brought to the attention of the Plaintiff and the Plaintiff's Directors; iv) The Plaintiff filed an appeal against the Summary Judgment which means it has knowledge of these proceedings and the Summary Judgment entered against it; v) The Plaintiff filed the stay application in Enclosure 96 against the Summary Judgment; vi) The Plaintiff was served with and responded to this Application by filing an Affidavit in Reply and Written Submissions. [28] A similar objection was raised in the case of Lai Kan Teck & Ors v. Perbadanan Menteri Besar [2020] MLJU 459, and the High Court in following Chu Ah Fait v. Abdullah Abdul Majid [1998] 5 MLJ 446 held that: i) The word “proceedings” in Order 45 Rule 3(3) of the ROC gives the Court a wide discretion to determine the sufficiency of notice. ii) There is no restriction in the form of notice required. Page 9 of 15 iii) Notice is sufficient if it has the effect of informing a person of the proceedings for vacant possession. iv) Service of the summons commencing the action or the order of Court obtained on the summons constitutes sufficient notice. v) The application for leave may be made ex parte where the person has had notice by any other sufficient means. [29] Further in Pengurusan Danaharta Nasional Bhd v. Yong Wan Hoi & Anor (No 2) [2008] 7 MLJ 297, a case also involving an application for leave to issue a writ of possession, it was held that: i) The Plaintiff’s mere presence in and defence of the application is evidence of notice. ii) Being represented by solicitors, the Plaintiff must be deemed to have knowledge of the order for vacant possession and the cause papers as they were served on their solicitors. iii) The knowledge of the solicitor is the knowledge of the client. [30] I therefore find that the 1st Defendant has fully complied with the notice requirements under Order 45 Rule 3(3) of the ROC. The Plaintiff’s contention to the contrary appears to be an attempt to further delay the enforcement of the Summary Judgment. Pending Appeal and Stay [31] As stated earlier the Plaintiff argues that this Application should be dismissed because: i) It has filed an appeal against the Summary Judgment; ii) It has a pending stay application; iii) Granting the Writ of Possession would render its appeal nugatory; iv) About 80 employees would lose their jobs; Page 10 of 15 v) The Plaintiff would lose its entire business which depends on the Demised Premises’ location. [32] Firstly, the filing of an appeal and stay application does not render the Plaintiff a lawful tenant or occupier of the Demised Premises, as the Summary Judgment has already established that: i) The tenancy expired on 30.6.2023 Expiry Date. ii) No extension or renewal was granted beyond that date. iii) The Summary Judgment declared the Plaintiff’s occupation unlawful. [33] In Cempaka Properties Sdn Bhd v. Sia Moi Choo [2004] MLJU 306, the Court held that continuing business does not constitute “special circumstances” to merit staying execution where the tenancy has expired. [34] In any event, as I had dismissed the Plaintiff’s stay application in Enclosure 96, it is no longer a valid ground for the Plaintiff to rely on. [35] Secondly, the Plaintiff’s concerns about being “forced to surrender vacant possession” and inability to recover possession if the appeal succeeds are misplaced because: i) The Plaintiff was merely a tenant and operator of the Revolving Restaurant; ii) Following the tenancy expiration on 30.6.2023, the Plaintiff has no legal right to remain; iii) Even if the appeal succeeds, this would not have the effect of renewing the expired tenancy; iv) The Plaintiff has no proprietary rights to claim return of possession. [36] In this regard the Federal Court in Rohasassets Sdn Bhd v. (M) Sdn Bhd & Anor [2020] 1 MLJ 557 clearly held that a tenant continuing occupation after tenancy expiry is a trespasser. Hence, the Plaintiff became a trespasser from 1.7.2023. Page 11 of 15 [37] Thirdly, I find that the Plaintiff’s claim of being a “good paymaster” is contradicted by its own conduct as: i) The June 2023 rental was only paid after the Summary Judgment, more than three months late; ii) The purported payments for July to September 2023 were unilaterally deposited into the Plaintiff’s own fixed deposit account; iii) These payments exclude the double rental ordered by the court; iv) Following Terminal Perintis Sdn Bhd v. Tan Ngee Hong Construction Sdn Bhd [2017] 1 LNS 177, past payment history cannot justify continued illegal occupation. The following passage from Terminal Perintis (supra) and the principle from that passage apply directly to the present case: “It certainly cannot be a case where “if I have been generous and a good paymaster in the past, you must extend some grace to me in the present”. (own emphasis added) [38] Fourthly, in Greenery Development (S) Sdn Bhd v. The Director of Lands and Surveys & 6 Ors [2005] 1 LNS 364, the Court refused an application for a stay of a vacant possession order pending appeal and held as follows: “Indeed, it would be utterly perverse to allow a stay of execution because that would facilitate the continued unlawful occupation and benefit of the said land by the Plaintiff who is a trespasser through and through. Thus after giving careful consideration to the affidavits filed herein and the written submissions of the respective counsel, I find that the Plaintiff has failed to show special circumstances that would warrant a stay of execution” (own emphasis added) Page 12 of 15 [39] Finally, the Plaintiff’s reliance on the case of La Kaffa International Co Ltd v. Loob Holding Sdn Bhd [2018] 6 MLJ 561 is misplaced as: i) That case involved franchising agreements, not tenancy; ii) The Plaintiff relies on a dissenting judgment; iii) The Court of Appeal majority found that special circumstances do not apply in cases of self-induced misconduct. [40] I therefore find that the pending appeal and stay application provide no legal basis to deny the 1st Defendant’s statutory right to enforce the Summary Judgment via a Writ of Possession. E] CONCLUSION [41] Based on the above analysis, I find that: i) The 1st Defendant has satisfied the requirements under Order 45 Rule 3 and Order 46 Rule 3 of the ROC. ii) The Plaintiff has not shown any legal justification to deny enforcement of the Summary Judgment. iii) The Plaintiff’s objections are without merit and appear designed to further delay surrendering vacant possession. [42] I would conclude with the following passage from Pengurusan Danaharta Nasional (supra) which is directly applicable to the instant case: “[63] Here, there is no legal principle, no critical fact or change of circumstance presented by the defendants to disentitle the plaintiff from securing its relief. It is merely an attempt by the defendants to delay the enforcement of an order of this court by ‘fair means or foul’. The defendants’ refusal to vacate the said property is a contemptuous disregard of the order of this court. It must be recalled that this court granted the order in the presence of the defendants’ solicitors and the defendants are now effectively thumbing their noses at this court when they Page 13 of 15 maintain, through the same solicitors, that they do not have notice of it or need not abide by it. In the words of Abdul Hamid Omar LP in Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal [1993] 2 MLJ 217, at pp 220-221: (own emphasis added) [43] For the reasons stated above, I allowed this Application with costs in favour of the 1st Defendant. Dated this 13rd day of January, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) COUNSEL FOR THE PLAINTIFF Dato' Dhanaraj Vasudevan (Arun Ganesh Boopalan together with him) Messrs Kamil Hashim Raj & Lim Unit B-9-11, Phileo Damansara 1, No. 9, Jalan 16/11 off Jalan Damansara, 46350 Petaling Jaya, Selangor Tel: 03-79570088 Emel: pj@mykhrl.com Page 14 of 15 COUNSEL FOR THE 1ST DEFENDANT Datuk DP Naban (Oazair bin Huneid Tyeb and Nik Aimi Nabilah together with him) Messrs Shahrizat Rashid & Lee Ground and First Floor, Wisma Prima, 17, Jalan Sri Semantan Satu, Damansara Heights, 50490 Kuala Lumpur Tel: 03-27105555 Emel: srl@srl-law.com.my COUNSEL FOR THE 2ND DEFENDANT Datuk DP Naban (Lisa Yong together with him) Messrs Rosli Dahlan Saravana Partnership Level 16, Menara 1 Dutamas, No. 1, Jalan Damansara 1, Solaris Dutamas, 50480 Kuala Lumpur Tel: 03-62095400 Emel: enquiry@rdslawpartners.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 45 Rule 3 ▪ Order 46 Rule 3 CASES CITED

Chu Ah Fait v. Abdullah Abdul Majid [1998] 5 MLJ 446

Cempaka Properties Sdn Bhd v. Sia Moi Choo [2004] MLJU 306 Page 15 of 15 3. Greenery Development (S) Sdn Bhd v. The Director of Lands and

Lai Kan Teck & Ors v. Perbadanan Menteri Besar [2020] MLJU 459

La Kaffa International Co Ltd v. Loob Holding Sdn Bhd [2018] 6 MLJ 561

Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 MLJ 281

Nagaraja Ponusamy v. Menteri Dalam Negeri, Malaysia & Ors [2010]

Pengurusan Danaharta Nasional Bhd v. Yong Wan Hoi & Anor (No 2) [2008] 7 MLJ 297

Rohasassets Sdn Bhd v. (M) Sdn Bhd & Anor [2020] 1 MLJ 557

Terminal Perintis Sdn Bhd v. Tan Ngee Hong Construction Sdn Bhd [2017] 1 LNS 177