Asiana Dental Care Sdn Bhd v Loke Kam Foo (BA-24NCvC-2283-10/2024)

On 19-12-2024, I heard and dismissed the Plaintiff’s Originating Summons which sought a declaration that the Tenancy Agreement dated 1-8-2018 (“Tenancy Agreement”) between the Plaintiff and Defendant is valid and binding and specific performance of the obligation to renew the tenancy according to the option to renew clause in the Tenancy Agreement.

The Plaintiff also sought various other relief which included an alternative claim for special damages in the sum RM900,000.00 being the costs of renovating the demised premises.

I had on 14-11-2024 already dismissed an interim injunction application filed by the Plaintiff to restrain the Defendant from evicting the Plaintiff on grounds that there were no serious issues to be tried based on the contractual terms in the Tenancy Agreement and because damages were an adequate remedy.

The facts of this case are not disputed. Tenancy Agreement was for an original 3-year term of 15-8-2018 to 14-8-2021 (“Term 1”). It was renewed once for a further 3-year term from 1-9-2021 until 31-8-2024 (“Term 2”). In that instance, the Defendant’s representative had sent a WhatsApp reminder to the Plaintiff on 7-10-2021 that the Plaintiff should send a formal request to renew the tenancy, following which a formal renewal agreement was signed and backdated, on the same terms and conditions as the Tenancy Agreement.

Disputes arose on whether there was a further renewal of the tenancy for another 3-year term from 15-8-2024 to 14-8-2027, because five (5) days before the expiry of Term 2, the Defendant received a notice from the Plaintiff’s solicitors dated 26-8-2024 to state that the tenancy was due to expire on 31-8-2024 and the Plaintiff should vacate the demised premises at the end of Term 2. The Defendant did not agree to the Plaintiff’s subsequent requests to renew the tenancy on the original terms of the Tenancy Agreement.

The determination of the Originating Summons rested on trite law and the interpretation of the following provisions of the Tenancy Agreement:

The terms of the Tenancy Agreement are unambiguous and binding in that time was of the essence and clause 3(e) required the Plaintiff to give its notice of intention to renew the tenancy for a further term two (2) months before the expiration of Term 2. When this did not happen, the effect in law is that the Plaintiff forfeited the right to renew the tenancy for a further term.

The Plaintiff’s only argument was that there was no need to comply with clause 3(e) of the Tenancy Agreement based on the circumstances surrounding the renewal of the tenancy for Term 2, i.e. estoppel applied to bar the Defendant from insisting on its strict legal rights under the Tenancy Agreement. I was unable to agree with the Plaintiff on the facts and on the law.

There was no indication from the WhatsApp dated 7-10-2021 relied upon by the Plaintiff that the Defendant was content to deal with the tenancy informally without regard to the terms of the Tenancy Agreement. The contrary is true in that the Plaintiff was being reminded and rushed to issue a formal notice in respect of the first renewal. This was a cue on how the next renewal should be handled. As the saying goes, “one swallow does not make a summer.” There was no evidence of habitual indulgences by the Defendant in disregard of the terms of the Tenancy Agreement.

Further and in any event, there are also clauses 7, 10 and 11 of the Tenancy Agreement which are enforceable on their terms. In particular, the “no waiver” and “entire agreement” clauses preclude the application of equitable principles of estoppel to contradict it (HTJ Development Sdn Bhd v Teoh Chin Kee & Anor [2018] MLJU 1753).

For the above reasons, I dismissed Enclosure 1 with costs of RM15,000.00. Bertarikh : 24 Januari 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif : Davenesan A/L Sivanesan, Messrs S Ravenesan Untuk Defendan : Farhan Haziq Mohamed, Messrs Ezzah Elia & Associates