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

MENARA KUALA LUMPUR SDN BHD

HYDROSHOPPE SDN BHD … DEFENDAN - (NO. SYARIKAT: 806460-W) DEFENDAN JUDGMENT (Enclosure 3) [1] This was the Plaintiff's application under, inter alia, Order 29 of the Rules of Court 2012 for various interim injunctive reliefs in Enclosure 3 against the Defendants (“this Application”). [2] In this Application the Plaintiff essentially sought for an interim mandatory injunction to compel the Defendants to allow them to remain in possession of the 1st Defendant’s premises at KL Tower, specifically the Revolving Restaurant at level TH02, Main Kitchen at level GF-03, Counters at UGF level, Staff Room at level GF-02B and Cafeteria at level GF-03 (“the Demised Premises”), after the expiry of their tenancy agreement on 30.6.2023. [3] Having considered the submissions of all parties and the evidence before me, I dismissed this Application. These are my grounds. Page 2 of 20 A] SALIENT BACKGROUND FACTS [4] The Plaintiff, Asian Kitchen (M) Sdn Bhd, is a company that has been operating food and beverage outlets at KL Tower since 2011, particularly the Revolving Restaurant known as Atmosphere 360 (“Revolving Restaurant”). [5] 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. Until October 2022, it was a wholly owned subsidiary of Telekom Malaysia Berhad (“TM”). [6] The 2nd Defendant, Hydroshoppe Sdn Bhd, is the 100% shareholder of the 1st Defendant. [7] The KL Tower is owned by the Government of Malaysia while its operations are managed through a concession. Until October 2022, TM through its then wholly-owned subsidiary, the 1st Defendant, held the concession since 1996. [8] On 31.10.2022, TM sold its entire shareholding in the 1st Defendant to the 2nd Defendant for RM3.8 million. [9] The Plaintiff has been operating food and beverage outlets at KL Tower, particularly the Revolving Restaurant, since 15.8.2011, pursuant to various tenancy agreements with the 1st Defendant, which governed their landlord-tenant relationship. [10] The latest agreement expired on 31.5.2019, after which the tenancy was extended through several letters. [11] Following the 2nd Defendant’s acquisition of the 1st Defendant’s shares on 31.10.2022, by letter dated 10.11.2022, the 1st Defendant (under its new management) informed the Plaintiff that its tenancy would not be renewed beyond 31.12.2022. However, following discussions between the parties, the tenancy was extended further until 30.6.2023 through a letter dated 24.11.2022. [12] The chronology of the Plaintiff’s tenancy of the Demised Premised from is summarised as follows: Page 3 of 20 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: 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 (“Expiry Date”) (“Final Extension Letter”). Page 4 of 20 [13] In November 2022, the 1st Defendant conducted a tender exercise for the selection of a new food and beverage operator (“the Tender”). [14] On 11.11.2022, prior to the Final Extension Letter, the 1st Defendant published a notice in the New Straits Times newspaper inviting tenders for the selection of new Food and Beverage operator and management for KL Tower. [15] On 16.11.2022, the Plaintiff attended the Tender briefing. [16] On 23.11.2022, all the parties herein had a discussion about the Plaintiff's tenancy. [17] On 24.11.2022, following that discussion, the 1st Defendant issued the Final Extension Letter extending the Plaintiff's tenancy until Expiry Date. The Plaintiff signed the Final Extension Letter and accepted the terms and conditions stated therein. [18] On 30.11.2022, the Plaintiff submitted their tender proposal in respect of the Tender. [19] The Plaintiff participated in the Tender but was unsuccessful. The Plaintiff was informed of this outcome via letter dated 11.4.2023. [20] The Plaintiff contends it was the only bidder, citing an empty tender box, while the 1st Defendant maintains there were two bidders including Rhombus Kitchen Sdn Bhd (“Rhombus Kitchen”) and that the contract was subsequently offered to Rhombus Kitchen on 4.4.2023 but Rhombus Kitchen declined the offer vide letter dated 20.4.2023. [21] On 5.5.2023, the 1st Defendant published a notice on its official Facebook page announcing the closure of the Revolving Restaurant from 1.7.2023 to 31.10.2023 for upgrading works. Similar notices were subsequently sent to various travel agencies on 1.6.2023. [22] The Plaintiff then filed this action and this Application, contending among other things that the tender process was tainted with illegality and that the 2nd Defendant's acquisition of the 1st Defendant was subject to corruption investigations. Page 5 of 20 B] THIS APPLICATION [23] In this Application the Plaintiff sought two different types of injunctions, a prohibitory injunction as well as a mandatory injunction, as follows: i) An interim injunction restraining the Defendants from evicting Plaintiff and/or disrupting Plaintiff's business operations at the Demised Premises; ii) An interim mandatory injunction requiring 1st Defendant to: a) Withdraw/remove the Facebook notice about closure of Revolving Restaurant (1.7.2023 to 31.10.2023); b) Publish a withdrawal notice and clarification on Facebook within 7 days; c) Withdraw closure notices sent via email to travel agencies; d) Send retraction emails to the agencies within 7 days. iii) An injunction restraining Defendants from publishing/sending similar closure notices. [24] However, upon closer examination of this Application it is clear that what the Plaintiff is primarily seeking is essentially a mandatory injunction to compel the Defendants to allow them to remain in possession of the Demised Premises after their tenancy expires on 30.6.2023 (Expiry Date). [25] In this regard, it should be highlighted that when this Application was filed on 9.6.2023, the Plaintiff had not been asked to vacate the Demised Premises, as the tenancy has not yet ended. Therefore, the prohibitory injunction was sought in anticipation of eviction after the Expiry Date. However, in order to remain in the Demised Premises, the Plaintiff requires a mandatory injunction. Hence, it is clear that there is no real purpose for the prohibitory injunction in this Application. It is the mandatory injunction to remain in the Demised Premises that the Plaintiff actually seeks. Page 6 of 20 [26] This characterisation has significant implications when it comes to the proper threshold test that should be applied in this Application, which will be addressed in more detail below. C] PLAINTIFF’S ARGUMENT [27] The Plaintiff's main contentions are as follows: i) There are serious questions to be tried regarding: a) The validity of the 2nd Defendant's acquisition of the 1st Defendant. b) The legitimacy of decisions made by the 1st Defendant after the change in ownership. c) The propriety of the tender process. d) Whether the Plaintiff was the only bidder in the Tender. ii) Damages are not an adequate remedy as: a) The Plaintiff would have to cancel about 206 advance reservations. b) 82 employees would lose their jobs. c) The Plaintiff's goodwill built over 10 years would be destroyed. d) The Plaintiff has invested RM8 million in renovations iii) The balance of convenience favours granting the injunction as: a) The 1st Defendant would continue receiving rent. b) The Plaintiff has the necessary expertise to operate the restaurant. c) No other operator has been selected yet. Page 7 of 20 D] DEFENDANTS’ ARGUMENT [28] The Defendants’ main grounds for opposing this Application are stated below. [29] The 1st Defendants’ arguments are summarised as follows: i) There are no serious questions to be tried as: a) This is fundamentally a landlord-tenant dispute with a clear contractual end date of 30.6.2023. The 1st Defendant never terminated the tenancy, it simply expired by effluxion of time. b) The 1st Defendant is not obliged to renew the tenancy. c) The Plaintiff agreed via the Tender waiver clause not to challenge any decisions related to the Tender. The privilege clause in the Tender gives the 1st Defendant discretion. d) The tender process was proper with two bidders. There was another bidder (Rhombus Kitchen) who was initially awarded the Tender but later declined. e) The Plaintiff’s participation in the Tender itself shows that the Plaintiff acknowledged its tenancy was ending. ii) The balance of convenience favours refusing the injunction as the Demised Premises are needed for upgrading works. iii) Damages are adequate remedy. [30] The 2nd Defendant’ argues there are no serious issues to be tried as: i) The Plaintiff has no cause of action against the 2nd Defendant: a) There is no privity of contract between them. Page 8 of 20 b) The 2nd Defendant is merely a shareholder of the 1st Defendant. c) The 1st and 2nd Defendants are separate legal entities. ii) The Plaintiff lacks locus standi to challenge the legitimacy of the acquisition as they were not party to that transaction. E] PRINCIPLES APPLICABLE IN AN INTERLOCUTORY INJUNCTION APPLICATION [31] For mandatory injunctions, the threshold is higher than that of prohibitory injunctions. [32] Based on the locus classicus case of American Cyanamid Co. v. Ethicon Ltd [1975] AC 396 the following principles are applicable on whether an interlocutory injunction ought to be granted: i) Whether there is a serious question or issue to be tried; ii) Whether the balance of convenience lies in favour of the applicant; and iii) Whether damages are an adequate remedy. (see also Keet Gerald Francis Noel John v. Mohd Noor Bin Abdullah [1995] 1 MLJ 193) [33] Following American Cynamid (supra) and Keet Gerald (supra), the Court need to be satisfied that the claim is not frivolous or vexatious and there is a real as opposed to a fanciful issue to be tried. [34] However, the test for granting a mandatory injunction is higher than that in American Cynamid (supra). As established in Tinta Press Sdn Bhd v. Bank Islam Malaysia Bhd [1987] 2 MLJ 192, the Court’s discretion to grant such injunctions must be exercised “only in exceptional and extremely rare cases”. The case must be “unusually strong and clear” such that the Court feels assured a similar injunction would probably be granted at trial, otherwise Page 9 of 20 irreparable injury would result. The relevant passages of Tinta Press (supra) are as follows: “By judicial process, the power is extended to the granting of an interlocutory mandatory injunction before trial. Such discretion however must be exercised and an injunction granted only in exceptional and extremely rare cases as was held in Wah Loong (Jelapang) Tin Mine Sdn Bhd v Chia Ngen Yiok[1975] 2 MLJ 109 and confirmed by the Federal Court in Sivaperuman v Heah Seok Yeong Realty Sdn Bhd [1979] 1 MLJ. The case must be unusually strong and clear in that the Court must feel assured that a similar injunction would probably be granted at the trial on the ground that it would be just and equitable that the plaintiffs interest be protected by immediate issue of an injunction, otherwise irreparable injury and inconvenience would result. (See Gibb & Co v Malaysia Building Society Bhd [1982] 1 MLJ 271 273 and Shepherd Homes Ltd v Sandham [1971] 1 Ch 340 349).” (own emphasis added) [35] The principle in Tinta Press (supra) above can be seen in the Court of Appeal case of Inter Heritage (M) Sdn Bhd v. Asa Sports Sdn Bhd [2009] 2 CLJ 221 which also held that an interim or interlocutory mandatory injunction is never granted before trial save in exceptional and extremely rare cases. [36] In addition to the above, the Court also takes into consideration the applicant’s undertaking as to damages and whether the said undertaking is sufficient. [37] Given the true nature and purpose of this Application as stated earlier in paragraphs 23 to 26 above, I am of the considered view that the threshold as stated in Tinta Press (supra) for the grant of a mandatory injunction is applicable. F] UNUSUALLY STRONG AND CLEAR CASE AND SERIOUS QUESTIONS TO BE TRIED [38] The following undisputed facts undermine the Plaintiff’s argument that there are serious questions to be tried or that the Plaintiff has an unusually strong and clear case: Page 10 of 20 i) The Plaintiff signed the Final Extension Letter signifying its acceptance of the terms and conditions stated therein including the term that the expiry date of the tenancy with respect to the Demised Premises will fall on 30.6.2023. Therefore, it was within the Plaintiff’s knowledge that the tenancy would expire on 30.6.2023 (Expiry Date). ii) The Plaintiff and the Defendants had a discussion on 23.11.2023 and the Plaintiff acknowledged that the 1st Defendant is only extending the tenancy until 30.6.2023. This is stated by the Plaintiff in, inter alia, paragraph 21 the Plaintiff’s Affidavit In Support (Enclosure 4): “21. Oleh yang demikian, satu perbincangan telah berlangsung pada 23/11/2022 di antara Plaintif dan Defendan-defendan dalam kehadiran Dato’ Abdul Hamid Shaikh Bin Abdul Razak Shaikh (pengarah dan pemegang syer Defendan Ke-2) serta En. Nazli Saad (Ketua Pegawai Eksekutif Defendan Pertama) bagi pihak Defendan-defendan dan Dato’ Ringo Kaw Fan Chu (pengarah dan pemegang syer Plaintif), Datin Low Miow Yong (pengarah dan pemegang syer Plaintif) dan Pn. Fara Aswati ('Corporate Admin Manager’ Plaintif) bagi pihak Plaintif, di mana Plaintif telah meminta Defendan-defendan untuk melanjutkan tempoh penyewaan yang lebih lama tetapi Plaintif hanya diberikan lanjutan sehingga 30/06/2023 sepertimana dalam satu surat daripada Defendan Pertama bertarikh 24/11/2022.” (own emphasis added) iii) No further renewal/extension of the tenancy was given by the 1st Defendant. iv) The Tender was announced on 11.11.2022 before the Final Extension Letter was issued. v) The Plaintiff participated in the Tender and submitted its tender proposal on 30.11.2022. vi) The Tender document contains a “Privilege Clause” as well as a “Waiver Clause” which state as follows: Page 11 of 20 Clause 11.1 “The 1st Defendant does not bind itself to accept the cheapest or any offer submitted, and the 1st Defendant reserves the right to accept in part or in whole, of any offer submitted (“Privilege Clause”)” Clause 35.5 “By submitting a tender document, the Plaintiff agrees not to contest, appeal or challenge any decision made in connection with the tender documents process and hereby waives any rights it may have to bring any claim, whether in damages or equity, against the 1st Defendant, its agents, advisers and employees, with respect to any matter arising out of any process associated with the tender (“Waiver Clause”). vii) The Plaintiff does not deny the existence of the Privilege Clause” and “Waiver Clause” in the Tender document. viii) The Plaintiff was not successful in the Tender and was informed of this outcome via letter dated 11.4.2023. ix) The 1st Defendant did not object to the Tender until after the Plaintiff was informed that it was not successful in the Tender. x) The 2nd Defendant is not a party to the tenancy agreements between the Plaintiff and the 1st Defendant and the 2nd Defendant is also not a party to the Tender. xi) The Plaintiff is not privy or a party to the sale of the 1st Defendant’s shares to the 2nd Defendant. [39] I am of the considered view that the Tinta Press (supra) threshold test is applicable in this Application. [40] The characterisation of this Application as primarily seeking mandatory injunctive reliefs have several important implications for its consideration. [41] Firstly, the American Cyanamid (supra) principles traditionally applied to prohibitory injunctions are not applicable here in an application for a mandatory injunction (MBF Holdings Bhd v. East Asiatic Co (M) Bhd [1995] 3 MLJ 49). Instead, as held in East Asiatic (supra) a significantly higher threshold must be met where Page 12 of 20 the applicant must demonstrate a clear case and a “high degree” of assurance that the applicant would succeed at trial. [42] Secondly, what the Plaintiff seeks would alter rather than preserve the status quo. The current legal position is that the Plaintiff's tenancy expires on 30.6.2023. The Plaintiff seeks to compel a change to this position by requiring the Defendants to continue the landlord-tenant relationship beyond its agreed termination date. The Courts have consistently shown greater reluctance to grant mandatory injunctions that would alter existing legal relationships, particularly where, as here, those relationships are governed by clear contractual terms (Monashofian Bin Zulkarnain Putra v. KLCC Urusharta Sdn Bhd & Anor [2003] MLJU 87 and The Store (Malaysia) Sdn Bhd v. MTrustee Berhad (2019) 1 LNS 1212). [43] Thirdly, the mandatory nature of the relieves sought requires careful consideration of practicality and enforcement. Unlike a prohibitory injunction which simply maintains an existing position, what is sought here would require ongoing positive action from the Defendants in maintaining a landlord-tenant relationship that has contractually ended. [44] Therefore, applying the Tinta Press (supra) test to the present case, the Plaintiff has failed to fulfil the criteria of having an “unusually strong and clear” case. [45] Even applying the lower threshold test in American Cynamid (supra) and Keet Gerald (supra), I would not have found serious questions to be tried as stated earlier. [46] In arriving at my decision on this issue I have taken into consideration, inter alia, the principles in Monashofian (supra) and The Store (supra) which state that a tenant must yield up vacant possession upon expiry of the tenancy unless there is a contractual right of renewal. [47] I have also considered the principle in Land & General Berhad & Anor v. Michael Joseph Monteiro [2012] MLJU 596 which facts are similar to the present case regarding a challenge to a tender. In Land & General (supra) the Court struck out the plaintiff’s claim on the basis that it was plain and obviously unsustainable. Page 13 of 20 G] DAMAGES ARE AN ADEQUATE REMEDY [48] Notwithstanding the principle in East Asiatic (supra), which states that the principles in American Cyanamid (supra) are not applicable in an application for a mandatory injunction, nevertheless, I will, for completeness, also address the remaining requirements set out in American Cyanamid (supra) in relation to a prohibitory injunction. [49] The Plaintiff contends that damages would not be an adequate remedy, citing three main reasons: i) They would have to cancel approximately 206 advance reservations made by customers until the end of this year; ii) They would need to terminate the employment contracts of approximately 82 employees who are hired for the Revolving Restaurant; and iii) Their goodwill, reputation and credibility built over more than 10 years since 2011 would be significantly affected. [50] I found these concerns, can be adequately compensated by damages for the following reasons: i) The cancellation of advance bookings and any associated losses can be quantified. ii) Similarly, any costs related to employee terminations can be calculated. iii) As for goodwill and reputation, the Plaintiff has operated multiple food and beverage outlets, and this experience would enable them to establish operations elsewhere. The reputation built over the years is portable and not inextricably tied to this specific location. [51] Importantly, the Plaintiff was aware their tenancy would expire on the Expiry Date. They participated in the tender process for continued operation rights, which indicates they recognised their tenancy had a definite end date. The potential consequences they Page 14 of 20 now cite were foreseeable business risks that could have been prepared for in advance of the tenancy’s expiry. [52] Furthermore, any losses suffered can be calculated with reasonable precision based on historical revenue data, booking records, and employment contracts. The commercial nature of the relationship and the existence of clear financial records make this an appropriate case for damages as an adequate remedy. [53] In this regard the following passage from American Cynamid (supra) is instructive: “As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. …..” (own emphasis added) H] BALANCE OF CONVENIENCE [54] Since I have found that damages are adequate, there is no requirement to determine where the balance of convenience lies as held in American Cynamid (supra): “It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.” (own emphasis added) Page 15 of 20 [55] However, for completeness, I will also deal with the balance of convenience requirement. [56] In considering where the balance of convenience lies, I must weigh the potential harm to each party if the injunction is granted or refused. [57] I found that the balance of convenience lies against granting the injunction. The Plaintiff's concerns primarily involve commercial inconvenience that can be compensated by damages. The 1st Defendant, however, would suffer a more fundamental interference with its proprietary rights if forced to maintain a tenancy relationship beyond its agreed termination date. [58] Furthermore, the Plaintiff’s investment in renovations and equipment was made with full knowledge of the tenancy’s fixed duration. The potential need to relocate at the end of the tenancy was a foreseeable business risk. [59] While the Plaintiff has expertise in operating the restaurant, this does not create a right to continue occupation beyond the agreed tenancy period. The 1st Defendant’s ability to receive rent from the Plaintiff does not outweigh its right to determine the use of its property after the expiry of the tenancy agreement. [60] In Setia Fontaines Sdn Bhd v. Megamax Legacy Sdn Bhd [2022] MLJU 2147, which facts have similarity to the present case, in granting an injunction to restrain the defendant from entering the plaintiff’s land, the Court found that the balance of convenience lay with the plaintiff and relied on the case of Luxury Connection Sdn Bhd v. Matrix Parking Solution Sdn Bhd [2018] 1 LNS 1242 and Husam Musa v. Mohd Yassin Yusoff[2018] 1 LNS 491. The Court in Setia Fontaines (supra) held as follows: [47] lt is my finding that the balance of convenience lies in favour of P. Granting the injunction, in my view, would produce a lesser harm to D. As compared to the harm that would result to P from its refusal. To my mind, P would suffer the greater injustice if the injunction is withheld. I considered the following factors. [48] On the face of it, P (as landowner) is entitled to terminate the License Agreement without cause and on any ground. Clause 6.4,2 of the License Agreement stipulates that “notwithstanding no event of Default has occurred, Page 16 of 20 the Landowner shall be absolutely entitled at any time during the Term to revoke the License ... for any reason whatsoever by serving on the Licensee a two (2) months written notice of its intention to revoke the License". ……. “[52] As things stand, it has not been proven that there is any agreement in existence for D to remain on the Lands after 31.12.2021. Consequently, the default position is that upon expiry of the Second EOT, D is obliged to vacate the Lands. The balance of convenience therefore lies in favour of P as landowner. [53] l refer to the following authorities. In Luxury Connection Sdn Bhd v Matrix Parking Solution Sdn Bhd [2018] 1 LNS 1242, the High Court said: “[24] Shorn of all intricacies, when the Plaintiff as the owner of the building wants the Defendant, as a licensee or operator, to be out, the balance of convenience would dictate that the Defendant has to be the weaker denominator and to leave the car park. This is not necessarily based on the Defendant perceive to be in breach. The Plaintiff could just as much be in breach, but we simply have to accept the reality that it would be within the prerogative of the Plaintiff to terminate the agreement and even to be in breach of contract by doing so. ……. [26] To recapitulate, the balance of convenience would tend to favour the Plaintiff as the owner of the building. Whatever the end result, even if it were to be the case of the Plaintiff being in breach, the Defendant cannot have a better right to remain in occupation of the building nor can it insist to. [54] ln Husam Musa v Mohd Yassin Yusoff [2018] 1 LNS 491, the High Court ruled that the right of the registered proprietor to enjoy its lands prevailed. “[36] Mahkamah berpendapat Defendan sebagai tuan punya berdaftar berhak keatas kegunaan hartanah berkenaan. Jika injunksi dibenarkan, Defendan adalah terhalang daripada menikmati nikmat daripadanya dan terhalang membuat apa-apa aktiviti diatasnya.” (own emphasis added) Page 17 of 20 [61] Therefore, in the instant case, the balance of convenience does not lie with the Plaintiff as the tenant of an expired tenancy. I] UNDERTAKING AS TO DAMAGES [62] While the Plaintiff has given the usual undertaking as to damages, I must consider whether such undertaking would adequately protect the Defendants if it later transpires that the injunction should not have been granted. [63] The Plaintiff’s financial capacity to meet any potential damages is uncertain. No evidence has been presented of their current financial position or their ability to compensate the Defendants for losses that might arise from wrongfully continuing to occupy the Demised Premises beyond the Expiry Date. [64] This is particularly significant given that the injunction sought would interfere with the 1st Defendants’ commercial property rights and its ability to implement its planned renovation works at the Revolving Restaurant. The potential damages could be substantial, and there is insufficient evidence that the Plaintiff could meet such liability. J] CONCLUSION [65] Having considered all the evidence and submissions, I found that this is not an unusually strong and clear case that would justify the grant of a mandatory injunction. [66] The Plaintiff’s case falls far short of meeting the high threshold required for such relief as held in Tinta Press (supra) and Inter Heritage (supra). This Application, involving essentially a commercial tenancy dispute where the Plaintiff seeks to remain in possession after the agreed expiry of its tenancy, does not meet this stringent test. [67] Before I conclude, and to clarify, in determining whether the Plaintiff has an unusually strong and clear case or whether there are serious questions to be tried, I make no finding on the merits of Page 18 of 20 the Plaintiff’s case. I have only examined the Plaintiff’s case to determine whether it meets the threshold set in, inter alia, Tinta Press (supra) and American Cyanamid (supra). [68] For the reasons stated above, I dismissed this Application with costs in the cause. Dated this 2nd 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 Ee Kah Fuk (Chin Evon together with him) Messrs K. F. Ee & Co. N-1-2, Pusat Perdagangan Kuchai, Jalan 1/127, Off Jalan Kuchai Lama, 58200 Kuala Lumpur Tel: 03-79827885 Emel: info@kfee.com.my Page 19 of 20 COUNSEL FOR THE 1ST DEFENDANT Oazair Bin Huneid Tyeb (Nik Aimi Nabilah together with him) Messrs Shahrizat Rashid & Lee Tingkat Bawah & Tingkat 1, Wisma Prima, 17, Jalan Sri Semantan 1, Bukit Damansara, 50490 Kuala Lumpur Tel: 03-27105555 Emel: srl@srl-law.com.my COUNSEL FOR THE 2ND DEFENDANT Datuk DP Naban (Lisa Yong, Amiratu Al Amirat and Gan Yu Ju (pupil-in-chambers) together with him) Messrs Rosli Dahlan Saravana Partnership Tingkat 16, Menara 1 Dutamas, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur Tel: 03-62095400 Emel: enquiry@rdslawpartners.com RULES CITED Rules of Court 2012 ▪ Order 29

American Cyanamid Co. v. Ethicon Ltd [1975] AC 396

Husam Musa v. Mohd Yassin Yusoff[2018] 1 LNS 491

Inter Heritage (M) Sdn Bhd v. Asa Sports Sdn Bhd [2009] 2 CLJ 221 Page 20 of 20 4. Keet Gerald Francis Noel John v. Mohd Noor Bin Abdullah [1995] 1

Land & General Berhad & Anor v. Michael Joseph Monteiro [2012]

Luxury Connection Sdn Bhd v. Matrix Parking Solution Sdn Bhd [2018] 1 LNS 1242

MBF Holdings Bhd v. East Asiatic Co (M) Bhd [1995] 3 MLJ 49

Monashofian Bin Zulkarnain Putra v. KLCC Urusharta Sdn Bhd &

Setia Fontaines Sdn Bhd v. Megamax Legacy Sdn Bhd [2022] MLJU 2147

Tinta Press Sdn Bhd v. Bank Islam Malaysia Bhd [1987] 2 MLJ 192

The Store (Malaysia) Sdn Bhd v. MTrustee Berhad (2019) 1 LNS 1212