Brand Ace Sdn Bhd v 1. ) Rapid Rail Sdn. Bhd. (WA-22NCVC-269-05/2017)

AND RAPID RAIL SDN. BHD. (Company No: 660759-D) 15 (Formerly known as Rangkaian Pengangkutan

PRASARANA INTEGRATED DEVELOPMENT SDN. BHD. (Company No: 938203-U) 20 ...DEFENDANTS JUDGMENT (Enclosure 1) INTRODUCTION 25 [1] The parties are:

1.1 The plaintiff is a company registered under the Companies Act 1965; and 1.2 The defendants (the Ds) are companies registered under the Companies Act 1965 and wholly owned Prasarana Malaysia Berhad 30 (Prasarana) subsidiaries. [2] The contractual disputes between the parties are:

2.1 Prasarana had appointed the plaintiff to conduct a feasibility study to achieve optimum revenue on Prasarana’s existing properties. 35 The study was submitted to Prasarana on 04.01.2013, resulting in the plaintiff's appointment to manage and operate specific business spaces at identified locations of the properties of Prasarana subject to agreed terms and conditions between the parties.

2.2 All of Prasarana’s rights and liabilities over the said properties were 40 subsequently assigned to the management of Rapid Rail Sdn Bhd (D1), who in turn appointed Prasarana Integrated Development Sdn Bhd (D2) as the manager for all commercial contracts for and on behalf of D1. 45 2.3 On 14.03.2016, D2 terminated the Contract with the plaintiff for the best interest of the defendants. The plaintiff sued the defendants for compensation and damages for an alleged breach of Contract. In opposing the suit, the defendants have also filed a counterclaim against the plaintiff. 50 [3]

3.1 After considering the facts, all evidence adduced at the trial, and the parties' respective arguments, I dismissed this suit by the plaintiff. Similarly, I dismissed the defendant's Counterclaim, with no order 55 for costs.

3.2 Aggrieved, the plaintiff filed this appeal against my decision, and my reasons are as follows: 60 SALIENT FACTS [4] The salient facts are surmised as follows:

4.1 Prasarana appointed the plaintiff through a Letter of Appointment dated 17.08.2012 to conduct a thorough study on the possibility of a retail transformation (Feasibility Study) on existing properties 65 owned by Prasarana in connection with the Light Transit Rail or better known as "LRT" stations, Monorails and Car Park & Ride complexes (the properties).

4.2 The Feasibility Study submitted by the plaintiff on 04.01.2013 was a proposal to explore measures to be taken to achieve optimum 70 revenue using strategies to expand the retail potential at existing stations and/or properties along the Kelana Jaya Line, Ampang Line and the Monorail Line by outsourcing the management of Prasarana’s retail spaces at these properties. 75 4.3 Prasarana subsequently assigned all its rights and liabilities on these properties to its wholly owned subsidiary, D1.

4.4 D1 then entered into a Management Agreement with D2, another wholly owned subsidiary of Prasarana, where D2 was appointed as 80 the manager for all commercial contracts concerning the said properties for and on behalf of D1.

4.5 D2, with the concurrence of D1 pursuant to the said Feasibility Study, appointed the plaintiff as a strategic business partner. The 85 Letter of Appointment (LOA/the Contract) is to manage and operate business spaces exclusively at thirty-nine (39) stations and Park & Ride complexes on the Kelana Jaya Line, Ampang Line and Monorail Line. The plaintiff is also tasked to implement, manage, and arrange promotional events and promotions at all sixty (60) 90 stations on the Ampang Line, Kelana Jaya, and Monorail Routes (the Services).

4.6 The Contract is for nine (9) years commencing from 01.05.2013 with targeted expiry on 30.04.2022. This Contract period is divided into 95 three three-year terms where the renewal of the 2nd and 3rd terms will be subject to a review of the realisation of the required key performance index in Appendix B at every term as follows:

The First Term:

01.05.2013 – 30.04.2016

(ii) The Second Term:

01.05.2016 – 30.04.2019 100

(iii) The Third Term:

01.05.2019 – 30.04.2022 In the event the required key performance index in Appendix B is not achieved, D2 can elect to either (a) Utilize the Performance Bond, (b) Forfeit the Performance Bond, or (c) terminate the Contract under 105 Clause 10. [5] The pertinent points of the said Contract inter-alia in a nutshell were:

5.1 Clause 1 makes it clear that the said appointment is based on the:

Feasibility Agreement dated 17.08.2013, 110

the plaintiff’s Proposal (03.12.2012), and

all details or documents referred to during the negotiations and clarification meetings.

5.2 Clause 2 provides that the scope of services by the plaintiff shall be 115 as set out in Appendix A.

In signing up new tenants (Category B tenants) as opposed to Category A tenants (existing tenants), the plaintiff is to:

Seek Prasarana’s approval on new proposals.

Conduct site visits with Prasarana’s internal departments, i.e., 120 Operation, WEES, Facilities, Safety & Security.

Detailed architectural drawings, signages, and single line drawings will be submitted to Prasarana’s internal departments for approval, i.e., Operation, WEES, Facilities, Safety & Security.

Arrange a safety briefing with Prasarana’s Safety & Health 125 Department before any renovation works.

Power supply requirement: To seek WEES approval for electricity supply, tapped from station DB or direct supply from TNB.

Prepare work permit application for renovation works.

When required, organize technical meetings/site visits between Operations, WEES, Facilities, Safety, tenants, and their contractors.

To provide a one-month rental-free period to carry out renovation works. 135

Charge of electricity usage: To carry out meter reading exercises for three consecutive months after the commencement of business to gauge the average use of electricity consumption. The monthly electricity charge will be based on this average of three months’ reading.

(ii) Category B tenants: The tenants brought in by the plaintiff as of 01.05.2013 and their subsequent renewal:

For the payment process: The plaintiff will assist in collecting 145 rental payments for Category B tenants.

Optimize and/or increase retail revenue of the Contractual Stations.

Re-organize, re-arrange, relocate, change and/or manage the layout of the retail outlets in the Contractual Stations to 150 enhance the stations' image and appeal.

Enhance visitor count at the Contractual Stations by managing specific programs/events/promotions & sponsorship opportunities and maintaining proper retail standards to promote the Contractual Stations.

Ensure all new and potential tenants meet the expected standards and image.

Optimize, organize & manage all events, promotions & sponsorships where possible at all sixty (60) stations at Ampang, Kelana Jaya, Monorail lines and Park & Ride 160 complexes.

Establish a Retail Management Reporting System for Prasarana monthly that includes financial information, space utilization, availability and other relevant information mutually agreed upon from time to time.

5.3 Clause 3.2 obligate the plaintiff to achieve the Key Performance Indicator (KPI) as set out in Appendix B: First Term: 70% Occupancy Rate Second Term: 75% Occupancy Rate 170 Third Term: 80% Occupancy Rate.

5.4 Clause 6 makes provisions for revenue sharing and other payments amongst the parties as set out in Appendix D. Contractual Stations means the thirty-nine (39) stations in Appendix E. 175

5.5 Clause 10 provides for the specific events of termination of the Contract, while under clause 10.3, the parties agreed that notwithstanding any provision in the Contract, D2 could elect to terminate the Contract by giving not less than ninety (90) days’ 180 notice to that effect (without assigning any reason) if D2 considers such termination necessary for the parties best interests. Best interest shall be determined solely by D2 and shall be final and conclusive. 185 5.6 Clause 13 makes it obligatory for the parties to execute a formal contract within forty-five (45) days from the date of the acknowledgement of receipt of the said LOA. Pending, this LOA constitutes a binding contract between the parties. In default of executing the formal Contract, D2 is entitled to terminate this LOA 190 and is at liberty to exercise its rights under Clause 10.

5.7 In consideration of the plaintiff’s express undertaking to achieve the required KPI (Clause 3.2), the plaintiff would enjoy exclusive rights to perform its contracted services throughout the Contract period.

5.8 The plaintiff executed the Acknowledgement Receipt of the LOA (the Contract), agreeing to be bound to terms and conditions stipulated therein. 200 I observe that these are amongst the fundamental terms and conditions that the parties had agreed to bind them in discharging their obligations in this Contract. Parties are legally bound to their bargains and are disallowed to renege from their promises save in the presence of vitiating factors. 205 [6] The Contract thereafter ran for the first three years:

6.1 Subsequently, several weeks before the end of the first term, the plaintiff was served a Letter of Termination dated 14.03.2016 from 210

6.2 D2 had elected to terminate under Clause 10.3.1 of the Contract stipulating the parties agreed that notwithstanding any provision in the Contract, D2 could elect to terminate the Contract by giving not less than ninety (90) days’ notice (without assigning any reason) if D2 considers such termination necessary for its best interests:

It was expressed in the said letter that at the expiry of the ninety-day notice, Clause 10.2 of the Contract would apply. All payments due shall be computed as of the termination date.

It was determined that no payment was due, and the Performance Bond of RM136,000. was released to the plaintiff.

The plaintiff was to surrender all spaces it occupied.

6.3 Aggrieved by this termination and claiming it was unlawful, the plaintiff filed the present suit against D1 and D2, claiming compensation and damages (general, exemplary, and aggravated) 225 for the alleged contract violation by the Ds’.

6.4 The Ds’ denied all allegations by the plaintiff in its SoD alleging the plaintiff’s breach of the terms of the Contract. The Ds filed their Counterclaim against the plaintiff for alleged losses suffered by the 230 Ds as a consequence thereof.

6.5 During the trial, the following witnesses gave evidence in Court: For the plaintiff: i. Datin Sabrina Laila bt Hashim (PW1): CEO Retail Operations, 235 Brand Ace Sdn Bhd; and ii. Noor Rashidah binti Mohd Yusoff (PW2): Retail Operations Manager, Brand Ace Sdn Bhd (L21, Witness Statement). For D1: iii. Ng Choo Chong (DW1): Executive VP, Prasarana Integrated 240 Development Sdn Bhd. For D2: iv. Mohd Rafi Osman (DW2): Company Secretary, Prasarana Integrated Development Sdn Bhd. THE PLAINTIFF’s SUBMISSIONS 245 [7] The plaintiff argued, and I observed as follows:

7.1 To carry out its contractual obligations, the plaintiff had allegedly expended RM200,000.00 (unsupported) for upgrading and improving retail spaces at the designated properties along the Ampang Line, Kelana Jaya Line and the Monorail Line. 250 However, no convincing evidence was adduced in support thereof.

7.2 The plaintiff alleged that throughout the first three-year term, there were interferences by D2 with the exclusive rights granted to manage the spaces contracted for, impeding its performances 255 under the Contract. Again, no convincing evidence was adduced to support this contention, save for self-serving correspondences by the plaintiff. The plaintiff alleges:

Without prior consultation with the plaintiff, D2 awarded 260 exclusive naming rights of the LRT or Monorail stations that recorded high traffic volume (prime/hot stations) with sponsors that had impacted the plaintiff's income potential, resulting in the plaintiff being unable to attract potential tenants for retail spaces. 265 However, the Contract between the parties has no restrictive term in that regard, nor is it an item in the Contract.

D2 unilaterally awarded tenancy to MyFoodloft Sdn Bhd (MADO) to occupy the entire retail space of 2,000 sq ft at the 270 KL Sentral LRT Station without consulting the plaintiff, though the said station is designated for the plaintiff, making it very difficult for the plaintiff to attract potential customers to hold events and promotional activities. I take note that the Contract between the parties has no 275 restriction on the Ds to do so, and unrefuted evidence from the Ds shows that MADO was an existing tenant of the Ds before the Contract was signed.

D2 retaking the entire operation and management of the Kelana Jaya and Bukit Jalil LRT Stations from the plaintiff to 280 carry out upgrading works, causing the plaintiff a loss of opportunity to manage and operate the retail spaces available. Similarly, no compelling evidence was adduced to corroborate this argument by the plaintiff save for bare assertions. 285

D2 directly lets out retail spaces to eight out of thirty-nine stations without prior consultation with the plaintiff, causing a loss of opportunity to perform its contractual obligations. Again, I observed that the Contract does not restrict the Ds from doing so. For not addressing this issue in the Contact 290 before it was signed, the plaintiff cannot be blowing hot and cold over it at this juncture.

7.3 It was argued that the actions of D2 adversely impacted the plaintiff's performance to achieve its obligated KPI under Appendix 295 B of the Contract. Despite raising its objections and concerns, it was alleged that D2’s Dato’ Mohd Zahir Zahur Hussain (CEO) forced the plaintiff not to prolong the issue or face termination of the Contract. Again, no compelling evidence was adduced to support this argument, and neither was this ex-CEO called by the plaintiff to be 300 examined at trial, it renders this allegation a bare assertion without any cogent evidence. It will have no leg to stand on.

7.4 It was claimed that despite all the alleged hindrances, the plaintiff, for the first three-year term, managed to generate a revenue of 305 RM2,697,845.70 within its scope of services. It was, however, far below the target agreed to by the parties, out of which D2 received RM1,520,772.96.

7.5 The plaintiff’s version of the supposed inhibiting factors to its 310 services were:

The Ds’ allowed the previous tenants to vacate rented spaces without restoring them to their tenantable conditions, dissuading other prospective tenants from taking up the spaces.

The Ds’ allowed existing tenants to use vacant spaces for 315 storage instead of being used as retail spaces.

Spaces within the paid area were allowed to be let out for selected activities only, even though the paid spaces are more expansive than the unpaid area.

Certain interchange stations between different modes of 320 transportation or lines do not have available retail spaces.

7.6 The plaintiff claimed that its recommendations and proposals for improvement were ignored, which contributed to its unimpressive performance and failure to achieve the contracted KPI under the 325 Contract.

7.7 D2 requested a revised proposal on the Imbi Plaza underpass, which the plaintiff did on 30.03.2016. A meeting was scheduled for 31.03.2016. Dato Mohd Zahir Hussain (CEO) of D2 took the position 330 that the Contract was nonetheless terminated. [8] In the circumstances, the plaintiff asserted that:

8.1 The termination of the Contract (letter dated 14.03.2016) was in bad faith and unlawful. At the trial, the Ds elected to call two witnesses 335 to oppose this suit and canvass for its Counterclaim. DW1, who only joined D2 as Executive VP in September 2015. So, it was argued by the plaintiff that he was never directly involved in matters that pertained to the Ds and the plaintiff at the time, while DW2 only prepared the Letter of Appointment (the Contract). The two ex- 340 CEOs having direct involvement and conversant with the facts, were not called to offer evidence for the Ds. The plaintiff cited the Federal Court in Takako Sakao v Ng Pek Yuan [2010] 1 CLJ 381, FC, which had observed that in the absence of evidence to the contrary from the respondent, the judge was to accept the appellant's 345 evidence as accurate. In that case, the Court should have drawn an adverse inference against the respondent. I take cognizance of this fact, but it is my considered view that the failure of the Ds to call these witnesses does not prevent the plaintiff from calling this two ex-CEO by subpoena to be examined in Court 350 on the alleged facts if it was pertinent to their case, but the plaintiff did not, and merely placed such burden on the Ds to call, and for failing to call, an adverse inference must be read against the Ds. I find this argument in the circumstances of the facts misplaced and overstretching the applicable principle of the law when there was no 355 evidence expressly or by implication to support the suppression of evidence by the Ds before the Court. The plaintiff was the one that made this specific allegation of facts, and it is by law incumbent on them to prove it and not otherwise. 360 8.2 The plaintiff cited the Federal Court in He-Con Sdn Bhd v Bulyah Ishak & Anor and Another Appeal [2020] 7 CLJ 271, FC, that observed that it is incumbent on the defendant to call the relevant witnesses to refute affirmative evidence adduced by the plaintiff. In law, the general rule is that it does not lie with the party to prove the 365 negative once he has proved an affirmative. The lower Court was correct in invoking adverse inference against the defendant for failure to call its two directors to offer refuting evidence. It is my considered view in the circumstances of the foregoing facts, this decision would not be applicable to defend the position taken by 370 the plaintiff because in the present case, the plaintiff has failed to establish any affirmative evidence.

8.3 It was asserted that the plaintiff had been granted exclusivity at the contracted stations to perform its scope of services. The exclusivity granted enables the plaintiff to achieve its contracted KPI set by the 375 Ds. Exclusivity means no other party can perform the same services at these designated stations. However, I find this assertion by the plaintiff inconsistent with the evidence. Granted that exclusivity disallows other parties from performing the same services, however, it was not intended to help 380 them achieve the set KPI. Clause 18 says: “Exclusive Rights: In consideration of your undertaking under Clause 3.2 to achieve the KPI, we hereby grant you throughout the Contract Period exclusive right to perform the Services.” 385 It does not say it is to assist the plaintiff in achieving its contracted KPI. This proffered reading by the plaintiff is evidently misleading. The law is trite that you cannot read a deeming provision/meaning into a contract term that is not there in the first place. Parties are not 390 allowed to rewrite, expand, embellish, or improve the sealed Contract terms, save where it is mutually and formally agreed to in writing: Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. 395 8.4 The plaintiff further postulated:

An unsupported assertion that as a strategic business partner, a measure of cooperation from the Ds is required for the collaboration to succeed. However, I observed that the plaintiff did not contractually 400 define the term to ensure no ambiguity in its operation before signing the Contract. They cannot rewrite this aspect of this Contract at this juncture by making unsupported postulations.

It is an agreed term that the agreed scope of services of the plaintiff requires the prior approval of the Ds. Without that 405 approval, the set KPI could not be achieved. I take cognizance that if this was taken as an impediment, it was not asked to be removed by the plaintiff in the Contract. In the circumstances, it is a term agreed to by the plaintiff, who now cannot be blowing hot and cold over it. There is no 410 evidence that they were coerced into agreeing to the said term in the Contract.

The exercise of the Ds power to award Naming Rights to certain sponsors at strategic locations (high-volume traffic 415 stations) adversely impacted the plaintiff’s performance over these locations. These sponsors are given the right to transform the selected stations to reflect their corporate identities or to name a station after themselves. It impacted the type of tenants that could be secured for these stations. 420 Though Naming Rights do not fall within the exclusivity of the agreed services, they should have been left to the plaintiff. I find the Naming Rights do not fall within the scope of the sealed Contract between the parties. To argue on it at this juncture is a non-starter.

In support of its arguments on the interferences and non-cooperation by the Ds, the plaintiff cited Asiaric Contracts Sdn Bhd CM United Sdn Bhd [2016] 1 LNS Sdn Bhd, HC. Also cited was Panglima Ribuan Sdn Bhd v GD Express 430 Sdn Bhd [2010] 1 LNS 1186, HC, which suggested that where exclusive rights are conferred on one party, the other should not be allowed to operate or carry out similar services of services or activities. 435

The Contract was drafted by D2 and proffered for execution. Therefore, it should be read against the Ds in case of ambiguity (contra proferentum rule: Mary Colete John v South East Asia Insurance Bhd [2010] 7 CLJ 538, CA). In the circumstances of the facts of the present case, I believe 440 there is no issue of ambiguity. Parties knew precisely what they were in for when the Contract was executed.

8.5 The plaintiff never made assurances that it could immediately carry out the contracted services and optimise the revenue but highlighted 445 the limitations and weaknesses to overcome. However, the hands of the plaintiff are restrained by having to secure prior approval before being able to do so. The fact that D2 carried out similar services at the contracted stations does not help the plaintiff. It adversely impacted the plaintiff’s performance by D2 competing with 450 the plaintiff. It is claimed that the plaintiff did not receive any response on addressing these limitations to the plaintiff’s services.

8.6 The plaintiff must adhere to the Ds' tedious Standard Operating Procedure (SOP) before securing any new tenant. Undue delay in 455 the approval process by the D2 adversely impacted the plaintiff’s performance. D2 consistently rejected potential tenants suggested by the plaintiff. The plaintiff unsupportively postulated this amounted to unlawful and unreasonable interferences by the Ds. I find this term of the Contract was agreed to by the plaintiff. If they 460 felt hampered by it, they should have addressed it before signing the Contract but did not. To complain about it now would amount to an afterthought. There is no evidence that they were coerced or deceived into signing the Contract. Parties are bound by the bargains that they signed. 465 [9] The termination (14.03.2016) premised under Clause 10.3.1 for the company's best interest by D2 was in bad faith:

9.1 What amounts to the best interest of the company was left unexplained. There was never any indication that D2 intended to 470 terminate the Contract.

9.2 It was hastily made after the change of CEO in D2 from Mr Rudyanto Azhar to Dato Mohd Zahir Zahur Hussain in September 2015. 475 9.3 DW1 testified that Clause 10.3.1 was elected for termination because the wordings are more encompassing. It blankets and covers the company’s best interest better.

9.4 However, the Ds defence stated that the Contract was terminated 480 for the plaintiff’s failure to achieve the set KPI, inconsistent with the contents of the termination letter. It was argued further that:

If it were due to a failure to achieve the contracted KPI, then Clause 10.1(g) of the Contract would have been appropriate for the termination. It gives the plaintiff thirty days to remedy the 485 default after written notice, but D2 premised it on Clause 10.3.1 for the best interest of the Ds, giving the plaintiff ninety days’ notice before the termination took effect.

The plaintiff argued that the termination should have been either 490 Clause 10.1(g) or Clause 3.2 for failure to achieve the contracted KPI. Reliance on Clause 10.3.1 was unwarranted. The plaintiff cited Damansara Realty (Pahang) Sdn Bhd v OM Cahaya Mineral Asia Bhd & Another Appeal [2021] 5 CLJ 283, CA, on the manner of termination of a contract. Any termination leads to 495 consequences, so a strict approach must be adopted. “In that case, the defendant had the option to terminate by giving sixty days' notice without having to ascribe any reason thereto (termination simpliciter) rather than termination for a cause upon the occurrence of the agreed events of a breach that requires a notice to remedy within 500 fourteen days to be given. Since the defendant elected to terminate the simpliciter with a sixty-day notice, it is not open to the defendant to proffer any reason to justify the termination.” Similarly, in the present case, the Ds in its Statement of Defence, 505 proffered that the failure of the plaintiff to achieve its KPI caused the termination rendering it inconsistent with the notice of termination. The plaintiff should have been accorded the required notice to remedy the KPI failure under Clause 10.1(g): Wire & Wireless Sdn Bhd v Eminent Display Sdn Bhd [2019] 510 1 LNS 1704, CA.

Consequently, it was postulated that the termination was actuated by bad faith and for some other ulterior reasons undisclosed to the plaintiff. 515 I take cognizance that, other than conjecture, no actual evidence was adduced to support this assertion.

The plaintiff then conjured further unsupported allegations against the defendants by asserting that;

After the said termination, the Ds took the ideas and suggestions of the plaintiffs and implemented them, generating the projected revenue.

(ii) Circumstances suggest that the Ds recorded a substantial jump in its revenue from the retail spaces after the 525 termination, as seen in the financial reports.

(iii) The projected revenue the plaintiff was entitled to share with the Ds had the Contract not been unlawfully terminated by 530

The plaintiff cited in support Perkayuan OKS No.2 Sdn Bhd v Kelantan State Economic Development Corpn [1995] 1 CLJ that had held a notice was wrong in law by not giving any facts or particulars in the circumstances of that case. The notice was insufficient and inadequate. 535 However, in Perkayuan, it is observed that the termination clause requires a reason for termination.

The arguments by the Ds that the allegations against them are the plaintiff’s concoction that had damaged the reputation of 540 the Ds are irrelevant. This was never pleaded by the Ds and constituted a statement from the Bar. Parties are bound by their pleadings (O.18, r.10 RC 2012). The plaintiff cited Saiman Bin Umar v LPP [2015] 9 CLJ 153, FC, that the Court can decide only on issues raised in their respective 545 pleadings.

On the Ds Counterclaim, the plaintiff argued that:

The limitations and interferences faced by the plaintiff in performing the contracted services were brought about by 550 the conduct of the Ds.

(ii) The termination of the Contract was done in bad faith. The alleged failure to achieve the KPI is an afterthought.

(iii) The Ds are not entitled to the prayers in the Counterclaim. All losses suffered are attributable to the conduct of the 555 The plaintiff claimed that it had discharged its burden of proof and cited s.102 and s.103 Evidence Act 1950, and asks that its prayers in the SoC are allowed with costs: Cheong Heng Loong Goldsmiths (KL) Sdn Bhd 560 & Anor v Capital Insurance Bhd [2004] 1 CLJ 357, CA; Pan Malaysian Pools Sdn Bhd v Kwan Tat Thai & Anor and Other Appeals [2018] 4 CLJ 323, CA. THE DEFENDANTS’ SUBMISSIONS 565 [10] In opposing the SoC and canvassing for the Counterclaim, the Ds’ argued, which I observed as follows:

10.1 The issue to be determined by the Court are:

Whether there were unlawful interferences with the plaintiff’s rights under the Contract?

Were there limitations beyond the plaintiff’s control within the Ds knowledge that had hampered the plaintiff’s performance in the Contract?

Whether the D2 heeded the plaintiff’s recommendations, proposals, and concerns? 575

Did the plaintiff fails to perform its obligations under the Contract fully?

Whether the plaintiff failed to achieve the KPI?

Whether the reason in the Notice of termination (14.3.2016) is just and lawful?

Whether the plaintiff is entitled to relief?

Is there an automatic extension of the Contract to the Second Term?

10.2 The Ds encapsulate their submissions as follows:

The purported interferences by the Ds in the plaintiff's services are unfounded. Those limitations and/or restrictions were there from the get-go, and it would be wrong to bring in that issue at this juncture.

The plaintiff would undoubtedly have discovered these 590 limitations and/or restrictions when conducting its feasibility study for Prasarana. There was never any concealment, and the plaintiff knew precisely what they were in for when they signed up.

The plaintiff failed miserably to achieve its contracted KPI for 595 the first two years of the Contract and fell short severely in the third year. The plaintiff is at fault, and they cannot be allowed to use their breach as a foundation for their claim.

Parties are bound to the terms of the Contract.

D2 was within its rights to terminate under Clause 10.3.1 of 600 the Contract. It is valid and lawful. It was in the best interest of the Ds, and no other reason needed to be proffered to justify it. It is what the parties had agreed.

Clause 10.1(g) only allows for termination if the plaintiff fails to achieve its targeted KPI (70% for the First Term):

The First Term had not yet expired when the Notice of termination (14.03.2016) was issued under Clause 10.3.1 (for the best interest of the Ds). The First Term was only set to expire on 30.4.2016.

(ii) Undoubtedly, the failure to achieve its targeted KPI for the 610 first two years and its inability to increase the KPI in the third year was the catalyst that brought about the move to terminate.

(iii) There is, however, a host of other issues/problems that occurred during the Contract period. The plaintiff had 615 repeatedly skewed a list to-angle support for its arguments to exonerate itself from its breach of the said Contract.

(iv) D2 rightfully exercised its right to terminate under Clause 10.3.1. 620 a. There is no cogent evidence to corroborate the plaintiff’s claim of RM200,000.00 on the expenses allegedly used by the plaintiff. The claimed losses of RM28,879,866 for the three terms under the Contract are too remote and unproven. There is no compelling 625 evidence that the plaintiff can generate such an income. b. The Ds had always acted in good faith and had accorded the plaintiff sufficient latitude to perform its contracted services. 630 c. There is no basis for arguing that the Ds benefitted from the plaintiff’s proposals and recommendations since the plaintiff themselves had failed. d. DW1, as a senior officer of D2, had all access to the records of the transactions giving him sufficient 635 knowledge on the subject matter of the dispute. There is no basis for the plaintiff to argue otherwise. In the circumstances, the plaintiff is not entitled to its claim in the SoC.

10.3 The law is trite that the legal burden lies on the plaintiff throughout the proceedings to prove its case, in which case the plaintiff herein had failed: Yui Chin Song & Ors v Lee Ming Chai & Ors [2019] 6 MLJ 417. It is not for the Ds to establish their defence in such a 645 circumstance: Selvaduray v Chinniah [1939] 1 MLJ 253.

10.4 There is no compelling evidence that the Ds had unlawfully interfered with the plaintiff in this Contract. It has always been the case that the Contract requires the plaintiff to comply and adhere to 650 the set guideline and SOP as set out in Appendix A of the Contract. PW2 acknowledged that the SOP had always been there. PW1 agreed that exclusivity does not mean the plaintiff can operate freely, disregarding the SOP. The exclusivity granted to the plaintiff was never diminished throughout the Contract period that was 655 agreed to by PW1.

10.5 The Ds further argued that:

In the plaintiff’s submission, it had pleaded issues that were not pleaded and, therefore, should be ignored by the Court:

That D2 purportedly resumed control and management of five prime stations initially awarded to the plaintiff.

(ii) That D2 purportedly poached and claimed some of the new tenants that the plaintiff had allegedly 665 sourced for; and

(iii) The present suit was not disclosed as material litigation to D2 stakeholders in its Financial Statements for the year ending 2017 and 2018. This is strictly misplaced and gravely misconceived. 670 DW1 stated that the financial statements showed the total revenue generated by all business activities of the Ds. The notion by the plaintiff is that it was due to the Ds leveraging on their proposals and ideas after the termination is far-fetched and 675 misplaced. The Ds cited Samuel Naik Siang Ting v Public Bank Berhad [2015] 6 MLJ 1, FC, that had ruled parties are bound by their pleadings and are not allowed to adduce issues not pleaded to avoid 680 the elements of surprise in litigation.

As canvassed by the plaintiff, an adverse inference should not be invoked against the Ds for failing to call the previous CEOs to give evidence for the Ds. The plaintiff relied on Takako 685 Sako v Ng Pek Yuen [2010] 1 CLJ 381, FC, which had been observed that without evidence to the contrary from the respondent, the judge was to accept the appellant's affirmative evidence as accurate. The Court should have drawn an adverse inference against the respondent.

In the present case, the Ds had determined the suitability of DW1 and DW2 to offer evidence for the Ds in this trial. DW1 as a senior officer, upon joining D2, had all access to all records, documents, and information on the case to offer 695 cogent evidence both before September 2015 and after. The Supreme Court in Munusamy v PP [1987] 492, SC that: “It is essential to appreciate the scope of section 114(g) of the Evidence Act, 1950, lest it is carried too far outside its limit. Adverse inference under that illustration can only be drawn if there 700 is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession nor for non-production of just any witness but only an important and material witness to the case.” 705 The previous CEOs are not material witnesses for the Ds and are not relevant for this trial.

The unfounded allegation of the Ds interfering with the services of the plaintiff in appointing MADO at the KL 710 Sentral Station is untrue since MADO is already a tenant under Category A, i.e., an existing tenant before the signing of the Contract. Similarly, Blu Café at the Bukit Bintang Station. PW2 acknowledged it. 715

PW1 acknowledged that the Contract does not restrict the Ds’ rights to lease retail spaces.

The plaintiff failed to provide details of the eight retail stations purportedly leased out by the Ds without prior 720 approval from the plaintiff.

PW1 agreed that the plaintiff has no evidence to show that it had sought justification for the Ds rejection or delay in granting approvals for prospective tenants.

PW2 agreed that the plaintiff must seek the prior approval of the Ds in all matters concerning the letting of retail spaces and their rental rate. 730

PW1 agreed that the Ds has the absolute right to reject or approve proposed tenants by the plaintiff. It was unsurprising as it is a term in the said Contract.

There is no evidence the plaintiff adduced that the Ds' 735 lengthy approval process contributed to the plaintiff’s failure to achieve its KPI. PW1 acknowledged it in her evidence.

PW1 agreed that the Naming Rights program by the Ds 740 does not fall under the plaintiff’s scope of work in the Contract and affirmed by PW2.

PW1 agreed that it is within the plaintiff's knowledge that specific retail spaces had already been leased out to 745 existing tenants (Category A).

PW2 agreed that if the alleged limitations and/or restrictions were not discoverable at the feasibility study stage by the plaintiff, it indicated a weak feasibility study 750 by the plaintiff. [11] The plaintiff must not be allowed to benefit from its breach:

11.1 The plaintiff miserably failed to achieve its undertaken KPI during the First term of the Contract. 755 First year: 1.64% of the Undertaken Occupancy Rate of 70%. Second year: 11.54% of the Undertaken Occupancy Rate of 70%. Third year: 11.03% of the Undertaken Occupancy Rate of 70%. To camouflage its failure, the plaintiff resorted to deflecting the blame on the Ds on the unfounded and unproven allegations of 760 interferences in the performances of its scope of services in the Contract. The plaintiff had been given three years for the First Term of the Contract to prove its worth. The ideas and suggestions by the plaintiff to achieve the optimum revenue were either ineffective or workable. This was admitted by PW2 in her evidence. Whatever the 765 plaintiff did, they only achieved 8.07% of the contracted 70% KPI for the First Term. Notwithstanding the poor performance, the Ds provided ample time for the plaintiff to improve but did not.

11.2 While claiming that KPI based on the lettable area is wrong, PW1 770 had relied wholly on the KPI in formulating its claim against the Ds. The plaintiff cannot be blowing hot and cold simultaneously, depending on the situation favouring them.

11.3 Parties are bound to the terms of their bargain save for the existence 775 of vitiating factors to release the parties. The legality was never disputed: Subramaniam v Retnam [1966] 1 MLJ 172.

11.4 There are no vitiating factors to release the plaintiff from the terms of the bargain they signed. It was agreed to by PW1, who also 780 acknowledged no issues, disputes and/or disagreements regarding the Contract's terms before the Contract's signing. PW1 also agreed that the plaintiff had read the Contract terms before signing.

11.5 D2 acted within its rights in the termination of the Contract;

Premised on Clause 10.3.1, a Notice of termination was served on 14.03.2016, several weeks before the end of the First Term of the Contract. Based on this clause, it was in the best interest of the Ds. A ninety-day notice was issued for the termination to take effect. It would be wrong to terminate the Contract under 790 10.1(g) as suggested by the plaintiff before the end of the First Term. But there is no such concern under Clause 10.3.1. Clause 10.1 is not a prerequisite of Clause 10.3.1: Chan Whye & Sons Contractors (Suing as a Firm) v Sarawak Shell Bhd [2003] 5 MLJ 68, HC where the termination clause is explicit, the Court 795 must not rewrite the Contract or audit the bargain between the parties but instead hold them to it.

This is a specific term agreed to by the parties that were not objected to when the Contract was signed. It was agreed to by 800 PW2. In Er Ngee (P) v Lim Choon Hiok (P) [2017] MLJU 2398, HC that held that a party could not at one time say a transaction is valid, thereby obtaining some benefit to which he could only be entitled on the basis that it is valid, and at another time say it is void to receive some other benefit.

The words “notwithstanding any provision in this agreement” in Clause 10.3.1 allows the Ds a right to invoke 10.3.1 in its entirety. Berjaya Times Square Sdn Bhd v M Concept Sdn Bhd [2010] 1 MLJ 597, FC observed that the Court could not introduce terms 810 to make it fairer or more reasonable. It is only concerned with discovering what the instrument means. The Federal Court in Michael C Solle v UMBC [1986] 1 MLJ 45, FC made it clear that the Court are to give effect to what contracting parties had agreed. See also Aura Indah Jaya Sdn Bhd v OCBC Bank 815 [2021] 10 MLJ that held that such intention should be upheld where a contract explicitly allows a party to terminate without providing any reason in the termination notice.

The Federal Court observed in SPM Membrane Switch Sdn 820 Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, FC that in so far as the appellant’s contention that the respondent, when terminating the Contract, has to ascribe reasons following general law is false and unsupported. In the present case, the Ds is not a party in breach of the Contract.

Also cited was Joo Seng Trading Co v Commercial Importers and Distributors Sdn Bhd [2007] 4 MLJ 128, CA that had ruled it is settled law where a contract breaker gives no reason or gives bad reason for terminating a contract, they 830 are entitled at the trial to justify the termination on good grounds.

DW1 in his evidence explained that:

If Ds were to allow the Contract to progress to Term Two 835 and finally Term Three, the Ds would stand to lose a lot of revenue based on the KPI performances of the plaintiff.

(ii) The failure to meet the undertaken KPI can hurt the public perception of Prasarana in providing public transport and its ancillary services. That would not be in the best interest of 840 the Ds.

PW2 agreed that it was right for the Ds to cut losses by terminating the Contract where the plaintiff hardly achieved its undertaken KPI.

PW2 further agreed that the termination was purely a business decision without any bad faith.

11.6 On the issue of the Imbi Station Underpass, it was argued by the Ds 850 that:

It is a heavy traffic flow station with earning potential.

Though the Ds could have reaped the benefits alone, it elected to share it by allowing the plaintiff to manage it. PW2 agreed to this in her evidence.

The Ds did not work against the plaintiff as alleged but endeavoured to assist it. PW1 agreed to this (NOE, p 105).

The Ds has nothing to gain with the termination of the plaintiff, as the plaintiff's efforts thus far have shown dismal results. PW2 agreed to this (NOE, p 230), who also agreed that the plaintiff’s 860 effort had only produced dismal results.

It was established that the plaintiff was a loss-making company with only eight months of corporate experience before being appointed by Prasarana to conduct the feasibility in August 2012 (NOE, p 193). PW1 agreed that the plaintiff was a loss-making 865 company (NOE, p 26). Therefore, the notion that Ds would leverage the plaintiff's ideas and suggestions is far-fetched.

11.7 At the trial, PW1, failed to adduce compelling evidence on the claim for:

RM 200,000.00 expenses it purportedly incurred.

RM50,000.00 expense for relocation of stalls at Imbi Monorail

RM28,879,866.00 being the purported loss of potential profit for the whole nine-year duration of the Contract. This is too remote 875 (s.74(1) Contracts Act 1950).

The actual loss must be shown, and not projected loss: Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh Bin Mamat & Ors [2009] 4 MLJ 610: A plaintiff claiming damages must prove his case. It must be satisfied both 880 as to the fact of the damage and as to its amount. If he satisfies the Court on neither, the action will fail. In the present case, the plaintiff evidently could not achieve its undertaken KPI to justify the computation of damages claimed.

Failing miserably to achieve its First Term undertaken KPI, the 885 plaintiff’s claim for a potential profit of RM7,055,856.00 must similarly be dismissed as there is no foundation for it. The Ds cited Dato Mohd Anuar Bin Embong & Anor v BBMB [2003] 3 MLJ 37, CA, that had observed there must be ample 890 evidence to support such a figure before the Court can allow such a claim. In the present case, there is nothing but assumptions and conjectures. [12] On the Counterclaim, the Ds argued that: 895 12.1 There is no compelling evidence that the Ds had interfered in the scope of services contracted to the plaintiff. It is only bare allegations by the plaintiff.

12.2 The plaintiff had clearly failed to meet its contractual undertaking on 900 the targeted KPI in the Contract's first three years.

12.3 The list of baseless accusations by the plaintiff is unfounded and unproven at trial. D2 rightfully terminated the Contract under Clause 10.3.1 to safeguard the interest of the Ds.

12.4 Because of this breach, the Ds suffers losses amounting to RM12,926,671.75, being supposed profit to be acquired under the First Term of the Contract. The Ds pray that the plaintiff’s claim be dismissed with costs, while the Ds 910 Counterclaim is allowed with costs. THE LAW [13] Cases are to be determined on the legal burden of proof being discharged. It is the acid test applied in a case. 915 13.1 The burden of proof in establishing its case is on the plaintiff. It is not the Ds' duty to disprove it. The evidentiary burden is trite that those who allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950). 920 13.2 In 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 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 925 established his. The defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours".

13.3 In Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, held: 930 "It was all a 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, and no matter if the defendant's case was completely unbelievable, the claim against him must in this circumstances be dismissed. With respect, we agree with this judicial 935 approach." [14] Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. The distilled principles, among others, are:

14.1 Where an agreement is not regulated by statute, parties are at 940 complete liberty, under the doctrine of freedom of Contract to agree on any terms they think fit.

14.2 The role of the Court is to interpret the Contract sensibly (a commercially sensible construction). See Loh Wai Lian v SEA 945 Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC.

14.3 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.

14.4 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 955 the damages he has to pay. However, he cannot seek 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 would be in a position to take advantage of his own wrong. This is against the principle and the policy of the law.

14.5 The FC cited Attorney General of Belize v. Belize Telecom Limited [2009] UKPC 11, where when delivering the Advice of the Board, Lord Hoffmann said: “The Court has no power to improve upon the instrument which it is 965 called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which 970 the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is 975 conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument.”

14.6 A contract is to be interpreted in accordance with the following 980 guidelines:

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 to the transaction;

The factual matrix which forms the background to the 985 transaction includes all material that was reasonably available to the parties;

The interpreting Court must disregard any part of the background that is declaratory of subjective intent only; and

The Court should adopt an objective approach when 990 interpreting a private contract. See Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 All ER 98. As Lord Clyde said in Bank of Credit and Commerce International SA v. Munawar Ali [2001] 2 WLR 735: 995 “The knowledge reasonably available to them (that is to say, the parties to the Contract) must include matters of law as well as matters of fact. The problem is not resolved by asking the parties what they thought they intended. It is the imputed intention of the parties that the Court is concerned to ascertain…. The meaning of the agreement is to be 1000 discovered from the words which they have used and read in the context of the circumstances in which they made the agreement. The exercise is not one where there are strict rules but one where the solution is to be found by considering the language used by the parties against the background of the surrounding circumstances”. 1005 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 they say. 1010 The common universal principle is that an agreement ought to receive that construction which its language will admit, which will best effectuate the parties' intention to be collected from the whole agreement. The Courts are to give effect to the terms of the Contract. 1015 FINDINGS [15] A breach of Contract is said to occur when a party to a Contract expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his contractual obligations. As was said by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn 1020 Bhd [2010] 1 CLJ 269, FC, 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. I have examined all-cause papers, the evidence and/or the lack thereof at the trial, and the parties' respective submissions in canvassing for their position in the 1025 present suit. It is my considered judgment that:

15.1 The plaintiff has failed to discharge its burden of proof to establish the claim set out in its SoC as set out under ss 101-103 Evidence Act 1950. As I had observed that the plaintiff had failed to adduce 1030 the required compelling evidence to tilt the scale of evidence in its favour:

Failed to adduce compelling evidence on the supposed expenses incurred in improving the retail spaces.

Other than bare assertions, no cogent evidence was adduced to 1035 definitively, objectively and independently establish alleged interferences by the Ds in impeding the performance of the Contract. I have perused the Common Bundles of parties (L84-L87: Vol.1-4) and the additional Bundles (L74-L75), and I cannot find such probative materials that can persuade me on the alleged 1040 interferences in breach of the terms of the Contract between the parties. It remains merely speculation and conjectures on the part of the plaintiff that the Court does not act upon.

There is no evidence that the plaintiff is entitled to the Naming Rights scope of services in the Contract. This issue is a non-starter in the 1045 circumstances of the case.

Allegation on the inappropriate appointment of MADO has been satisfactorily refuted by the Ds that the plaintiff has no persuasive answer to. PW2 acknowledged this.

No compelling evidence was adduced to corroborate the allegation 1050 of retaking the operation and management of the Kelana Jaya and Bukit Jalil Stations by the Ds.

No evidence can be shown that the Ds are restricted in any way under the Contract from letting out retail spaces at the various stations. This should have been negotiated before signing the 1055 Contract but was not. To complain now is an apparent afterthought.

Bare assertion on the issue with the ex-CEO of D2 does not amount to affirmative evidence. Without persuasive evidence, it has no leg to stand on. See the Supreme Court in Munusamy v PP [1987] 492, SC. 1060

It has been proven that the plaintiff failed to achieve its undertaken KPI for the first three-year term, breaching its undertaking in the said Contract. This undertaking is an agreed term by the parties.

The plaintiff’s assertions on the supposed inhibiting factors are without supporting and compelling evidence. 1065

Allegation of bad faith in issuing the termination letter (14.03.2016) is unproven. Not a shred of persuasive evidence was adduced to support such an allegation save for conjectures. Without affirmative evidence, this allegation has no leg to stand on.

The plaintiff took no effort before signing the Contract to define the 1070 scope of a strategic business partner. They cannot rewrite this aspect of this Contract at this juncture by making unsupported postulations.

The standard SOP followed under the Contract was present from the beginning. If it was an impediment, the plaintiff took no effort to 1075 remove or address it before signing the Contract. Blaming it now constitutes an afterthought. There is no evidence of coercion or deception to vitiate the signing of the Contract.

There is no issue of ambiguity in the terms of the Contract in the present case. Parties knew precisely what they were in for when the 1080 Contract was executed.

The evidence of PW1 and PW2 in cross-examination did not help the plaintiff’s case:

PW1 acknowledged that there is no restriction on the Ds' rights to lease the retail spaces. 1085

(ii) PW1 agreed that there is no evidence that the plaintiff sought justification for Ds' delay or rejection in granting approvals for respective proposed tenants.

(iii) PW2 agreed that the plaintiff must seek prior approval concerning letting the retail spaces to proposed new tenants. 1090

(iv) PW1 agreed that the Ds has the absolute right to approve or reject the proposed new tenant.

PW1 acknowledged there is no evidence that the approval process contributed to the plaintiff's failure to achieve its undertaken KPI. 1095

(vi) PW2 agreed that Naming Rights are not within the plaintiff’s scope of services.

(vii) PW1 agreed that it is within the plaintiff's knowledge that specific retail spaces had already been leased out to existing tenants. 1100

(viii) PW2 agreed that the termination by the Ds was purely a business decision without ill intentions.

15.2 As quoted by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, citing Attorney General 1105 of Belize v. Belize Telecom Limited [2009] UKPC 11, that the Court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument 1110 means.

15.3 In clearly failing to prove its claim, I refer to Court of Appeal in Selvaduray v Chinniah [1939] 1 MLJ 253, 254, CA, held that where the plaintiff fails to prove his case, it will not avail him to turn 1115 around and say that the defendant has not established his. In Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, held that it was all a matter of proof and that until and unless the plaintiff has discharged the onus to prove his case on a balance of probabilities, the burden did not shift to the 1120 defendant, no matter how unbelievable the defence might be. The claim against the defendant must, in these circumstances, be dismissed. I agree with the Ds submission that the legal burden lies on the plaintiff throughout the proceedings to prove its case, in which case the plaintiff herein had failed: Yui Chin Song & Ors v Lee 1125 Ming Chai & Ors [2019] 6 MLJ 417. It is not for the Ds to establish their defence in such a circumstance: Selvaduray v Chinniah [1939] 1 MLJ 253. [16] Parties are bound to the terms of their sealed bargains and will not 1130 be allowed to renege from them:

16.1 It is my considered judgment that the Ds is within its rights to exercise its rights to terminate the Contract under Clause 10.3.1. It is what they have expressly agreed to, as was said by the Federal Court in Michael C. Solle v United Malayan Banking Corporation 1135 [1986] 1 MLJ 45, FC, that the Courts are to give effect to the terms of the Contract.

16.2 I agree with Chan Whye & Sons Contractors (Suing as a Firm) v Sarawak Shell Bhd [2003] 5 MLJ 68, HC that where the 1140 termination clause is explicit, the Court must not rewrite the Contract or audit the bargain between the parties but instead hold them to it. See also SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, FC. 1145 16.3 It is my finding that the party in breach of the said Contract in the present case is the plaintiff failing to meet its undertaken obligations (they only achieved 8.07% of the contracted 70% KPI for the First Term). PW2 agreed that it was right for the Ds to cut losses by terminating the Contract where the plaintiff hardly achieved its 1150 undertaken KPI. It was purely a business decision. I believe that a party should not be allowed to gain or profit from his breach.

16.4 In finding that the plaintiff has failed to prove its claim, by the same token, it is my considered judgment that the Ds has also failed to 1155 adduce compelling evidence to establish its Counterclaim against the plaintiff other than claiming that occasioned by the plaintiff’s breach, the Ds suffers losses amounting to RM12,926,671.75, being supposed profit to be acquired under the First Term of the Contract. The burden of establishing the losses has not been satisfied. To 1160 reiterate the Court of Appeal in Dato Mohd Anuar Bin Embong & Anor v BBMB [2003] 3 MLJ 37, CA, that there must be ample evidence to support such a figure before the Court can allow such a claim. 1165 CONCLUSION [17] After considering the facts, all evidence adduced at the trial, and the parties' respective arguments:

17.1 I found no merits in the plaintiff’s suit against the Ds and dismissed 1170 it accordingly with no order as to costs; and

17.2 Similarly, I found no merits in the Ds counterclaim against the plaintiff for want of evidence and dismissed it accordingly with no order as to costs. 1175 Dated 02.08.2023. (HAYATUL AKMAL ABDUL AZIZ) 1180 JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 1185 Counsels: Mr. Viknesh Selvanathan together with Mr. Edmund Chow Zi Sim Messrs. Viknesh & Yap Counsels for the plaintiff 1190 Mr. Hua Zhi Loon Messrs. Masleena, Yee & Partners Counsel for the defendants