Schedule
Schedule 10. (d) The contents were pending further negotiations and finalisation. S/N hbfahr9DSEm7W/hbzavJA (e) A proper examination of the non-binding language in the 1070 recitals (C and F) of the TA creates no commitment on AEON on the lease agreement. It formed no binding obligations on the draft lease agreement. (f) For Betanaz to claim the initial 10-year lease rental, it is wholly misplaced in the circumstances. 1075 7.6 The obligations: (1) Under the TA, they were always subject to the fulfilment of the CPs under clause 2. (2) They must be completed within a specified period that underwent 1080 several extensions leading to the execution of (a) the Supplementary TA (the last date for compliance was 23.10.2020) and (b) the Supplementary CA (the last date for AZRB to comply with the CP fell on 23.01.2020, and also redefining the contribution sum of RM30m for the construction of the impugned bridge only). 1085 (3) AEON argued, the TA and CA are void ab initio caused by non-fulfilment of the respective CPs in the agreements, which is fatal. (4) The TA and the lease agreement are conditional upon fulfilling the terms of the TA and its CPs. Clause 20.1 of the TA expressly provides that only upon the fulfilment of the terms and conditions 1090 of the TA and all monies required hereunder have been paid by the tenant shall it lead to the lease of the shopping centre land. (5) AEON’s position is that the CPs were never fulfilled. Therefore, clause 20.1 did not come into effect, and the lease agreement did not come into play. The TA was voided on 23.10.2020; thus, 1095 Betanaz’s claim for breach of contract cannot arise. S/N hbfahr9DSEm7W/hbzavJA (6) Clause 2.1(m) of the TA: (a) Provides that the bridge project shall be completed under the terms and conditions of the CA. (b) Clause 5.3.1 of the CA requires AZRB to complete the project 1100 by the completion date. (c) In contrast, the completion date has been defined in clause 1.1.6 as the completed bridge construction with the issuance of the CCC not later than 14.08.2019 or such extended date determined by the Government of Malaysia. 1105 (d) The bridge's failure to complete with the required CCC is a breach of the CP. It is a trite law that the court must not rewrite the contract or change the bargains between the parties. If they find themselves with a bad bargain, that is what they have signed off on. 1110 (e) Once a party fails to perform his contractual obligations, the innocent party may exercise his right to terminate the contract and recover damages for non-performance by the guilty party. However, in cases where there is a total failure of consideration (i.e. where the party has failed to perform a 1115 promise in its entirety), a party may obtain the equitable relief of recission: Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464, FC. AEON took the position that the TA and the CA CPs were not fulfilled; beyond this, AEON’s motive for termination is 1120 irrelevant and does not require it to be ventilated by the Court. 7.7 AEON argued that the TA and CA are contingent contracts under Part IV of the Contracts Act 1950, similar to conditions precedent to forming a contract, citing sections 33 and 36. 1125 S/N hbfahr9DSEm7W/hbzavJA The CPs in the TA and CA would operate as CPs to create the respective agreements in law: (1) Clause 3.1 of the TA clarifies that the tenancy and the lease were subject to the fulfilment of the CPs set out in clause 2.1. The lease 1130 agreement was conditional upon making the bridge accessible or open to the public. (2) The construction of the proposed AEON shopping complex was subject to the completion of the bridge project. (3) Clause 3 of the CA is a CP. 1135 (4) Under clause 2.1(m) of the TA, the bridge project had to be completed under the terms and conditions of the CA: (a) AZRB only achieved a sectional CPC of the bridge project. (b) The bridge project was not open to the public at the date of AEON’s termination. 1140 (c) No CCC was issued for the bridge project as required in clause 1.1.6 of the CA. 7.8 AEON submitted, a distinct meaning of the term bridge project within the CA, as seen in Recital D of the CA: 1145 (1) The bridge project spanned chainage (CH) 0 to CH 2500. (2) While a bridge project is not defined in the CA, the term bridge is defined in clause 1.1.6 as a bridge across Sungai Kuantan connecting Bandar Kuantan to Bandar Putra, Tanjung Lumpur, Pahang. 1150 (3) The distinction between the bridge project and the bridge carries consequences on AZRB’s obligations under the CA. Under the bridge project, AZRB would be responsible for ensuring the completion of CH 0 to CH 2500 and not merely the main bridge section. 1155 S/N hbfahr9DSEm7W/hbzavJA (4) However, if it is only on the bridge, AZRB’s obligation was to complete the physical construction of the bridge at CH 1250 to CH 1650 and not the interconnecting roads. In this instance, it has to mean the entire bridge project (CH 0 to CH 2500) and not just the main bridge section. 1160 (5) AZRB had only delivered a sectional completion of the main bridge, not the entire bridge project (CH 0 to CH 2500). The bridge project never attained the CCC under the CA, and AZRB failed to adduce it for the bridge, a contractual requirement under the CA. 1165 7.9 Betanaz and AZRB claim that estoppel applies to stop AEON from asserting that the TA and the CA are void. That position taken is flawed as both the TA (clause 34) and the CA (clause 16A) provide for no waiver or indulgence clauses: (1) In the circumstances, any delay by AEON in halting its payments, 1170 issuing termination or exercising its rights based on its assertion that the TA and the CA were null, and void shall not be considered a waiver thereof. (2) Citing in support of HTJ Development Sdn Bhd v Teoh Chin Kee & Anor [2018], MLJU 1753 held that estoppel did not apply since 1175 there was a “no waiver” clause in the agreement. (3) AEON argued that the agreement prohibits Betanaz and AZRB from raising estoppel/waiver against it. As suggested, AEON’s letter to Betanaz to suspend the project temporarily did not amount to the TA's non-termination implication. 1180 S/N hbfahr9DSEm7W/hbzavJA (4) Estoppel can only arise where the party's prior conduct renders its subsequent conduct impossible and must be manifested clearly and unambiguously. 7.10 The nature of termination contemplated in Clause 2.6 in the TA had 1185 been complied with by AEON, which took the position that: (1) Clause 2.6 should be construed as a mere formality and not mandatory since: (i) Clause 2.6 is for the termination in the non-fulfilment of the CPs. It was suggested that it gave AEON the right to rescind the TA and seek the 1190 equitable relief of rescission. Ctitngthe Federal Court’s observation in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. (ii) Clause 22 of the TA relates to general default and termination. It allows the innocent party to terminate for breach of contract and to seek 1195 damages. (iii) Clause 9.2 of the TA reinforces this position by allowing the innocent party to rescind the TA if the bridge is incomplete and adversely affects the viability of the tenant’s operation at the complex. 1200 Therefore, AEON argued that, in the circumstances, it had the legal right to rescind the TA and withdraw from the project when the bridge project was incomplete, as per the agreements between the parties. Consequently, fourteen days after serving its Notice of Termination under clause 2.6, the TA terminates 1205 automatically after 14 days. (2) Under clause 3.3 of the CA, AEON was entitled to terminate on the non-fulfilment of the CPs therein. The term termination was posited as having the right to rescind to see equitable relief in 1210 recession. S/N hbfahr9DSEm7W/hbzavJA (3) AEON argued that notwithstanding the foregoing, they still validly exercise their right to rescind the agreements and should be entitled to the equitable relief of recession based on the total 1215 failure of consideration. Citing in support the Federal Court position in Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464, FC: (i) In such circumstances, it was argued that there was no necessity to prove that the impugned agreements were not completed in their 1220 entirety. (ii) There is a total failure of consideration (and a failure to perform a promise in its entirety) where a reasonable and commercially sensible man would consider the project as having little or no value. 1225 The bridge project was not completed nor accessible at the time of AEON’s termination. 7.11 The claim by Betanaz is excessive: (1) The primary claim on the lease agreement is non-existent to 1230 enable Betanaz to claim the initial 10-year lease period. (2) The alternative claim on wasted expenditure amounts to a gross overclaim where: (i) The earthwork on the impugned land should only be confined to the area designated for the shopping complex. 1235 (ii) There was no explanation for why AZRB incurred additional earthwork expenses. (iii) The land value appreciated due to the works carried out. (iv) No evidence that the Term Loans 1 and 2 were for earthworks financing. 1240 In the circumstances, AEON prays that Betanaz's claim on breach of contract is dismissed with costs and AEON’s counterclaim against Betanaz and AZRB is permitted. S/N hbfahr9DSEm7W/hbzavJA THE LAW 1245 [8] In a nutshell: Legal Burden 8.1 The burden of proof in establishing a case is on the plaintiff. It is not the defendant’s duty to disprove it. The evidentiary burden is trite that 1250 those who allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950). 8.2 Selvaduray v Chinniah [1939] 1 MLJ 253, 254, CA held: "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and 1255 accordingly, the plaintiff must establish his case. If he fails to do so, it will not avail him to turn around and say that the defendant has not established his. The defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours". 1260 8.3 Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC held: "It was all a matter of proof, and until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant. Even if the defendant's case was completely unbelievable, the 1265 claim against him must, in these circumstances, be dismissed. With respect, we agree with this judicial approach." Contractual Breach [9] Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 1270 CLJ 269, FC. The distilled principles, among others, are: (1) Where an agreement is not regulated by statute, parties are at complete liberty, under the doctrine of freedom of Contract, to agree on any terms they think fit. S/N hbfahr9DSEm7W/hbzavJA (2) The court's role is to interpret the Contract sensibly (a 1275 commercially sensible construction). See Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC. (3) The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. 1280 (4) A contract breaker must pay damages to the innocent party. However, if he has made any payment under a contract (not being a true deposit for the purchase of movable or immovable property), the contract breaker is entitled to have that payment set off against the damages he has to pay. However, he cannot seek 1285 to recover any benefit he may have conferred upon the innocent party where he is guilty of breach of Contract. Were it otherwise, a contract breaker could take advantage of his wrong. This is against the principle and the policy of the law. 1290 9.1 A contract is to be interpreted under the following guidelines: (1) A Court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix forming the background of the transaction. (2) The factual matrix of the transaction's background includes all 1295 material reasonably available to the parties. (3) The interpreting Court must disregard any part of the background declaratory of subjective intent only. (4) The Court should adopt an objective approach when interpreting a private contract. 1300 S/N hbfahr9DSEm7W/hbzavJA 9.2 The Federal Court in Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC observed that the principles of construction to be applied are that the parties' intentions are gathered from the language used. They are presumed to have intended what 1305 they say. The common universal principle is that an agreement ought to receive that construction, which its language will admit, that will best effectuate the parties' intention to be collected from the whole arrangement. The Courts are to give effect to the terms of the Contract (if any). 1310 Legal Implications of a Void Contract [10] The Federal Court in Apex Pharmacy Holdings Sdn Bhd v Chee Chin [1984] 2 MLJ 287, FC ruled that if an agreement is void by s.66 Contracts Act 1940, the innocent party is entitled to restitution. 1315 [11] However, if an agreement is voidable at the option of the innocent party, then by section 76, he would be entitled to damages and restitution. The High Court in Chye Fook v The Teng Seng Realty Sdn Bhd [1989] 1 MLJ, HC observed that a party who rescinds a 1320 contract is entitled to compensation for any damage which he has sustained through the non-fulfilment of the contract. Repudiation [12] Section 40 of the Contracts Act 1950 deals with a breach of contract 1325 that amounts to its repudiation. 12.1 The general principles governing repudiatory breach under section 40 of the Contracts Act 1950 were held by the Federal Court in Berjaya S/N hbfahr9DSEm7W/hbzavJA Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC where it bears repeating that the starting point in an action for 1330 breach of contract is for the court to determine who is the innocent party and who is the guilty party; and the next question would be whether the innocent party is entitled to terminate the contract for breach and claim for damages under s.40 CA 1950, or whether the innocent party can rescind the contract ab initio and claim for 1335 restitution. 12.2 A party refuses to perform when he indicates to the other party, either by conduct or in express terms, an intention not to proceed with the contract. This amounts to repudiation of the contract or his obligations under the contract. 1340 12.3 The Supreme Court in Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] 2 MLJ 291, SC that was cited and followed in PT Vision Renewable Fuels v Export-Import Bank of Malaysia Bhd [2014] 2 AMCR 488; [2015] 8 MLJ 706, HC where the principles in the judgment of Mohamed Azmi SCJ can be distilled as follows: 1345 (1) Not every refusal to perform some part of the contract amounts to repudiation or a refusal to perform. (2) An absolute refusal to perform his part of the contract. (3) Short of an express refusal, however, the test is to ascertain whether the action or actions of the contract breaker are such as 1350 to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. S/N hbfahr9DSEm7W/hbzavJA (4) Only when there is an express refusal or where, on the facts, a reasonable man can conclude that there has been an absolute refusal to perform his part of the contract can the other party elect 1355 to terminate the contract or exercise the option of affirming the contract. (5) If there is a genuine dispute as to the interpretation of the contract or its terms that have caused the breach by one party, that party cannot be taken to have refused to perform his part of the contract. 1360 12.4 The phrase “disabled himself from performing” was explained in: (1) The Federal Court in Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 AMR 453; [2007] 5 MLJ 697, FC explained that the word “disabled himself from performing his promise” is wide enough to include: 1365 (a) Any act on the part of a party that has the effect of bringing the contract to an end is any deliberate act. (b) There is no need to show that the act was in breach of the contract or wrong by the wrongdoer. In that case, the new shareholder of the defendant terminated the 1370 plaintiff's services, an architect, because they wanted to bring in their architect. This state of affairs was brought about by the defendant's act of wanting its architect and changing the project's plans, thereby disabling it from performing its part of the agreement. (c) Thus, when a party refuses to perform or disables himself 1375 from performing, he repudiates the contract by breach or commits a repudiatory breach. (d) The refusal or disability to perform must relate to the contract's fundamental term or obligation. (e) Only a violation of a fundamental term would justify 1380 repudiation. S/N hbfahr9DSEm7W/hbzavJA 12.5 The Court of Appeal in Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1997] 1 AMR 89; [1997] 1 CLJ 287, CA laid down the following principles: (1) In every contract, some terms are of fundamental importance and 1385 others of lesser or minor importance. The law creates this distinction to determine the kind of remedy to be given to the innocent party. (2) Where the term flouted is fundamental to the contract, the innocent party is entitled to treat himself as being discharged from 1390 further obligations under it. (3) Conversely, where the obligation that has been breached is only subsidiary or minor, the innocent party may not treat himself as being free of his obligations under the contract; he may, however, sue and recover damages for the non-performance of the 1395 subsidiary term. (4) A party who terminates a contract or treats it as having come to an end in reliance upon the breach of a non-fundamental term is himself guilty of breach of contract. (5) Whether a term is fundamental to the contract or merely a term of 1400 subsidiary importance depends very much on how the contract is constructed. 12.6 The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] AMR 601; [2015] 2 MLJ 441, FC found that the failure to 1405 comply with a fundamental term tantamount to a wrongful breach of the contract. The payment obligation in that case was a fundamental term of the SPA. 1410 S/N hbfahr9DSEm7W/hbzavJA [13] FINDINGS 13.1 I have examined all-cause papers, the evidence at the trial, and the parties' submissions in canvassing for their position in the present suit. Considering my observation in the totality of the evidence and my 1415 observations on the parties' respective arguments, it is my considered determination by a greater weight in evidence that: (1) Final judgment is entered with costs favouring Betanaz against AEON on the alternative prayer of wasted expenditures. (2) AEON’s counterclaim against Betanaz and AZRB is dismissed 1420 with costs as carrying no merits and is wholly misplaced. (3) OS NO: WA-22NCVC-1254-06/2021 on the BG is dismissed with costs, and a date for assessing damages (if any) will be fixed. 13.2 In examining and considering the evidence by the parties herein, I am 1425 guided by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC, that observed: (1) The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. In coming to this 1430 determination, a Court interpreting is entitled to look at the factual matrix forming the background of the transaction. The factual matrix of the transaction's background includes all material reasonably available to the parties. 1435 (2) A breach of contract occurs when a party to a contract expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his obligations. S/N hbfahr9DSEm7W/hbzavJA (3) In this respect: 1440 (a) I have examined the Common Bundles of Documents adduced and the parties’ respective submissions. I find no hesitation in holding that AEON is in breach of the TA and the CA when AEON intentionally failed to honour its contractual obligation to deliver its part of the bargain in the shopping 1445 complex project as agreed. (b) What AEON has offered at the trial, the attempt to justify its actions are merely excuses to camouflage its real intention of not wanting to proceed with the impugned project for obviously non-viable economic reasons. 1450 13.3 I am also guided by the Court of Appeal in Guan Teik Sdn Bhd v Hj Mohd Noor bin Hj Yakob & Ors [2000] 4 MLJ 433, CA in observing that the Court must not only weigh such evidence on a balance of probabilities but must also consider the surrounding circumstances 1455 and evaluate contemporary documents that may tend to establish the truth or otherwise of a given fact. I am equally guided by the Federal Court in Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC that the principles of construction to be applied are that the parties' intentions are gathered from the language used. 1460 They are presumed to have intended what they say. The common universal principle is that an agreement ought to receive that construction, which its language will admit, that will best effectuate the parties' intention to be collected from the whole arrangement. The Courts are to give effect to the terms of the contract (if any). 1465 S/N hbfahr9DSEm7W/hbzavJA 13.4 It is trite in law that all cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case. The Federal Court in Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC ruled that it was all a 1470 matter of proof and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant. In light of the preceding legal position and the materials before me, it is my finding that: (1) AEON breached the Tenancy Agreement by failing to honour its 1475 part of the bargain and would be liable to Betanaz for the monthly rental due to Betanaz under the TA. In the circumstances, it was very much within the contractual rights of Betanaz to procedurally terminate the TA as seen in its submissions that: (i) Citing clause 2.6 of the TA (Tenancy Agreement) that expressly 1480 provides that the party who is terminating the TA shall not be in breach of any obligation/performance of this Agreement, which includes deliberate delay, neglect and/or refusal to apply for and obtain any of the said Approvals unless due to the decision of the Relevant Authorities. 1485 (ii) It pointed out that AEON breached the Conditions Precedent (CPs) by failing to secure the EPU and S433B Approval from the state authority. (iii) Betanaz issued a fourteen (14) day notice to remedy the default, citing AEON’s failure to secure the Building Plan Approval, EPU Approval, and the S433B Approval. 1490 (iv) AEON elected to ignore the said notice. (v) Betanaz served a Notice of Termination dated 29.12.2020, which lawfully and effectively terminated the TA on 28.1.2021. (vi) AEON will be liable for the consequences of its intentional breach of the TA. 1495 (2) On the facts, I find AEON'S purported termination unlawful. AEON issued a termination notice grounded on clause 2.6 of the TA, claiming both parties failed to fulfil the CPs, which I cannot agree S/N hbfahr9DSEm7W/hbzavJA with as the facts at the trial do not support such an allegation. It 1500 was irrefutable that AEON intentionally defaulted on its obligation to secure the CPs. AEON’s purported termination was contractually invalid and legally flawed. (3) Evidentially, DW6 acknowledged in her evidence that AEON’s purported termination under clause 2.6 was inappropriate since 1505 AEON was in default of the CPs it was supposed to secure. [14] For AEON to submit on an unsupported allegation that a purported incompletion of the impugned second bridge had adversely impacted the TA, the CA is not tenable: 1510 (1) It’s a fact that the said impugned bridge and the AEON ramp granting physical access to the shopping complex land were completed on 25.09.2020 before the expiry of the 29.09.2020 EOT by the Federal Government, the owner of the bridge project who 1515 took possession of the impugned bridge and the AEON ramp fourteen days after the issuance of the CPC on 10.12.2020. (2) I am convinced by the evidence that access to the bridge was not an issue after the CPC was issued on 25.09.2020, and access 1520 was unhindered with the additional works at CH0 to CH650 for the construction of the proposed flyover by the Federal Government that was also awarded to AZRB. AEON arguing otherwise with no compelling evidential support, but merely bare arguments cannot negate this conclusion: 1525 (a) I am not with AEON on its stand between the term bridge and the bridge project. As pointed out by Betanaz, the terms S/N hbfahr9DSEm7W/hbzavJA bridge and bridge project were used interchangeably in both agreements. (b) Collectively taken, it points to AZRB’s obligation to construct 1530 the main bridge section to serve the business operations of the proposed shopping complex that AEON was contractually obligated to build and operate. This is appropriately set out in the TA and the CA, as seen in clause 9.2 of the TA and the definition of bridge in clause 1.1.2 of the CA and the 1535 designated completion date. (c) However, even after the construction of the impugned bridge and the access ramp, the AEON shopping complex was nowhere in sight. That is an irrefutable fact. 1540 (3) Similarly, I cannot agree with AEON, which keeps insisting on the issuance of the CCC for an infrastructure project when cogent evidence has been tendered that confirms such certification (CCC) is not applicable, nor will the relevant authority issue a CCC for it. 1545 [15] I am not convinced, nor do I find Betanaz's arguments persuasive enough to attach liability on AEON on the purported draft lease agreement as it remained an unexecuted draft copy attached to the TA. In hindsight, it should have been incorporated into an all- 1550 encompassing contract in the TA, but it was not: (1) On the facts, AEON did not partake in the lease as expected in the TA. (2) In such circumstances, to hold them liable for the initial 10-year lease rental would be unfair and unjust on a Lease Annexure that 1555 was never perfected and duly performed. S/N hbfahr9DSEm7W/hbzavJA (3) I observed the extenuating economic circumstances that overtook and overwhelmed events at the time, and neither party should be faulted in all fairness. (4) In the circumstances, I am not able to agree with Betanaz's 1560 position that the Lease annexure in the TA binds AEON, where it provides that after the TA period is over, Betanaz would offer, and AEON would take a lease of the shopping complex land for an initial period of ten years, takes place subject to terms and conditions. 1565 (5) It shows no definitive agreement to be bound on the lease. Under these circumstances, I am disallowing Betanaz from making this claim. The Court of Appeal in Heller Factoring (M) Sdn Bhd v Metalco Industries (M) Sdn Bhd (supra) held that an unsigned contract can be enforced if there is evidence that parties had 1570 elected to be bound by the agreement. In the present case, there is no compelling evidence that this is so. [16] The TA and CA: (1) Are not conditional (contingent) agreements, subject to the 1575 completion of the impugned bridge as asserted by AEON. Clause 2.1 makes the requirement for the fulfilment of the CPs before the commencement of the tenancy only and not the TA. A scrutiny of the relevant clause supports a conclusion that the position taken by AEON is unsustainable. I take AEON’s interpretation as 1580 unreasonable since the facts do not support such a proposition. (2) AEON’s suggested total failure of consideration in the agreements is similarly not supported by the facts. Evidentially S/N hbfahr9DSEm7W/hbzavJA before the Court, Betanaz and AZRB had reasonably delivered their part of the bargains subject to the prevailing circumstances 1585 at the time. The default lies with AEON failing to deliver theirs, resulting in the lawful termination thereof by Betanaz. AZRB successfully delivered the bridge and the ramp with the appropriate certification from the Federal Government, while Betanaz successfully delivered vacant possession of the shopping 1590 complex land. Only AEON had failed to deliver the construction of the shopping complex and/or commence its business as proposed. (3) On the issue of estoppel, grounded on the facts before me, I agree with Betanaz and AZRB's submissions that AEON’s argument that 1595 non-waiver clauses in the agreements preclude them from arguing that AEON is estopped by its action from asserting that the TA was terminated is misplaced: (a) AEON never exercised its right to terminate the TA and CA, and the impugned agreements have no automatic termination 1600 provision. (b) AEON's conduct clearly communicates its affirmation of the agreements and abandonment of its right to terminate. As cited, Tele2 International Card Company SA and Others v 1605 Post Office Ltd [2009] EWCA Cov 9, UK CA observed that the non-waiver clause did not assist the appellant and could not prevent the fact that the appellant had made an election to abandon the right to terminate. As a result, the appellant’s notice of termination and subsequent failure to perform the contract were 1610 found to be a repudiatory breach of the contract. S/N hbfahr9DSEm7W/hbzavJA In the present case: (i) Betanaz permitted AEON to retain vacant possession of the Shopping Centre Land until the Tenancy Agreement was validly terminated by 1615 Betanaz, effective on 28.012021. (ii) AZRB continued with the construction of the Bridge, including the AEON Ramp, based on AEON’s agreement to contribute RM30 m towards the costs and complete it by 25.09.2020. 1620 [17] Alternative Claims on Wasted Expenditure: (1) Since I have held that the lease annexure in the TA does not bind AEON, the primary claim for the initial 10-year lease rental by Betanaz could not possibly succeed. However, AEON is liable for breach of the Tenancy Agreement with Betanaz. 1625 (2) That said, it cannot be denied that Betanaz spent money (wasted expenditure) on the preliminary earthwork, site clearance and other expenses on the impugned land to prepare it for the proposed development pursued by AEON. Betanaz has provided 1630 for an alternative prayer in the event the Court is not with them on the lease rental: (a) Betanaz seek to recover damages of RM18, 936, 207-76 with 5% per annum pre-judgment interest for wasted expenditure incurred in acting on reliance on the TA being performed by 1635 AEON. (b) In Anglia Television v Reed [1972] 1 QB, Lord Denning MR in a nutshell said: (i) If the plaintiff claims wasted expenditure, he is not limited to expenses incurred after the contract was concluded. He can also 1640 claim expenditures incurred before the contract, provided that they would reasonably be in the contemplation of the parties as likely to be wasted if the contract was broken. (ii) He must have contemplated, or, at any rate, it is reasonably to be imputed to him - that if he broke his contract, all that expenditure 1645 would be wasted, whether or not it was incurred before or after the S/N hbfahr9DSEm7W/hbzavJA contract. He must pay damages for all the spending so wasted and thrown away. (iii) Wasted expenditure can be recovered when wasted because the defendant breached the contract. 1650 (iv) The defendant having made his contract and broken it; it does not lie in his mouth to say he is not liable when it was because of his breach that the expenditure has been wasted. (c) The Court of Appeal in Delpuri-Hari Corp JV Sdn Bhd v 1655 Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24, CA observed: (i) That the claimant may either claim his losses of profits, or (ii) For his wasted expenditure. (ii) He may elect either but cannot claim for both. 1660 (3) I have examined the materials from Betanaz and find the plea on the alternative claim of RM18,678,255.27 is appropriately substantiated as set out in paragraph 5.8(2) above. 1665 [18] In light of the foregoing facts: (1) AEON’s arguments against AZRB to recover RM28,415,094.44 paid as a contribution for constructing the impugned bridge to serve the proposed AEON shopping mall are unsustainable. (2)) The bridge with the AEON ramp was practically completed on 1670 25.09.2020, with a CPC issued by the Government of Malaysia for CH 650-CH 2500. (3) I find no merits in AEON’s position that the bridge was incomplete by anchoring their argument on the larger bridge project awarded to AZRB. The facts before me do not support that argument. It is 1675 untenable to insist on the completion of CH0 to CH 2500 when the impugned bridge and the AEON ramp were already completed and accessible to the public, but the AEON shopping complex was not even built when they had a change of heart after receiving S/N hbfahr9DSEm7W/hbzavJA instructions from the shareholders in Japan to suspend all 1680 expansion projects. (4) In breaching the CA and the TA, AEON now seeks to exit the entire project in Kuantan with minimal exposure to losses. AZRB successfully delivered their part of the contractual bargain in the CA. By providing the bridge and the AEON ramp within the EOT 1685 imposed by the Government of Malaysia, CH650-CH2500 was more than sufficient to serve the proposed business and operations of the shopping complex that AEON never built. This was never refuted at trial. (5) The arguments on public access to the completed bridge that the 1690 Federal Government gazetted are unchallenged save for AEON’s untenable and unsupported assertions. [19] CONCLUSION 4.1 All things considered: 1695 (1) I am allowing Betanaz alternative prayers in the present suit WA - 22NCVC-121-03/2021. A final judgment sums for wasted expenditures of RM18,678,255-27 against AEON is entered with cost. (2) The OS proceeding on the Bank Guarantee in the Session Court 1700 reregistered in this court as OS NO: WA-22NCVC-1254-06/2021 is dismissed with cost against AEON. A date is to be fixed to assess damages for the ex-parte injunction. S/N hbfahr9DSEm7W/hbzavJA (3) I find the counterclaim by AEON in the present suit WA -22NCVC- 121-03/2021 against Betanaz and AZRB as not probable and it is 1705 dismissed with cost. 4.2 Costs: Order 59 r 2 RC 2012 provides that subject to the express provisions of any written law and the Rules, the costs incidental to the proceedings in the Court shall be at the discretion of the Court. The Court shall have 1710 the full power to determine by whom and to what extent the cost will be paid, and litigation costs are discretionary (see Golden Star & Ors v Ling Peek Hoe & Another Appeal [2024] 4 MLRA 354, FC). Costs are a “sum of money which the Court orders one party to pay another in respect of expenses of litigation incurred…Costs are distinct from 1715 damages” (see Halsbury’s Law of England, 4th Reissue, Vol 12(1) p.266 para807). The parties submitted on costs: (1) Betanaz: Pray for RM600,000.00, considering: 1720 (i) 18 days of trial, 2 days of oral clarifications, 19 separate issues for determination, and 12 witnesses (8 B, 4 AZRB and 3 AEON). (ii) 20 volumes of documents, written submissions of 520 pages, 103 authorities filed. (iii) Costs for the OS, and the discovery application (cost in the cause). 1725 (iv) Documents under part C. (v) Issues by AEON over its pleaded case. (vi) Cross of AZRB includes items not part of the pleadings. S/N hbfahr9DSEm7W/hbzavJA (2) AZRB: 1730 Adopted Betanaz's position but asked for RM 350,000.00 for the counterclaim. (3) AEON: The Court only allowed their alternative prayer, i.e.1/3, of their primary claim. The Court has in the past awarded RM100,000.00 1735 in Apex Marble’s case. Asks that RM100,000.00 costs are to be awarded. Considering their arguments and in light of my findings in the foregoing paragraphs on this case, the following costs are awarded which are fair and reasonable: 1740 (a) AEON is ordered to pay costs of: (i) RM200,000.00 global costs to Betanaz. (ii) RM100,000.00 costs to AZRB. (b) All costs are payable by AEON within forty-five (45) days from the date hereof. 1745 Dated 07.02.2025. HAYATUL AKMAL ABDUL AZIZ 1750 JUDGE HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR 1755 S/N hbfahr9DSEm7W/hbzavJA Parties: For Betanaz Properties Sdn Bhd: 1760 Alan Adrian Gomez together with Michael Yap Chih Hong, Haikaldin Mahyidin and Peroshnah T Dev (PDK) Messrs Tommy Thomas For Ahmad Zaki Resources Berhad (AZRB): 1765 P. Gananathan together with Lai Ann Xing and Koo Jia Ying (PDK) Messrs Gananathan Loh For AEON Co. (M) Bhd: Lim Chee Wee together with R.Jayasingam, Syafiq Syukran and Manveer 1770 Singh Messrs BH Lawrence & Co S/N hbfahr9DSEm7W/hbzavJA