Carbon Paper & Ribbon Co. Sdn Bhd v Wfn Auto Sdn Bhd (BA-A52-83-08/2023)

This is a claim by the Plaintiff, Carbon Paper & Ribbon Co. Sdn Bhd, against the Defendant, WFN Auto Sdn Bhd, arising from a tenancy dispute over the premises known as No. 18, Jalan U1/32, Seksyen U1, 40150 Shah Alam, Selangor (“the Premises”). The Plaintiff seeks recovery of double rental pursuant to section 28(4)(a) of the Civil Law Act 1956 and damages for failure by the Defendant to yield vacant possession of the premises in their original restored condition following termination of the Tenancy Agreement dated 1 December 2022.

The Defendant, on the other hand, contends that the termination of the tenancy on 5 July 2023 was invalid and effected in bad faith. It further alleged that the Plaintiff had accepted rental payments after termination, thereby revoking or waiving the said termination. The Defendant had initially filed a counterclaim seeking damages for renovation and repair costs, but during the course of trial, elected not to pursue the counterclaim, and the same was accordingly treated as withdrawn. B.

3.

The Defendant failed to pay the rental due for the months of April, May, and June 2023 within the stipulated time.

Consequently, in accordance with Clause 10 of the Tenancy Agreement, the Plaintiff issued a notice dated 8 June 2023 demanding payment of the arrears within fourteen (14) days, i.e., by 22 June 2023. The Defendant made partial payment for the month of April and May only, leaving the June 2023 rental outstanding as of 5 July 2023.

On 5 July 2023, the Plaintiff terminated the Tenancy Agreement and issued a formal notice of termination. The termination was effective on 5 July 2023, and the Defendant was granted a grace period until 12 July 2023 to yield vacant possession in the original restored condition.

Plaintiff alleged that between 12.7.2023 and 11.9.2024, the Defendant failed to deliver vacant possession of the Demised Premises in their restored original state in accordance with the terms of the Tenancy Agreement.

In these circumstances, the Plaintiff is entitled to double rental from 12.7.2023 to 11.9.2024 under Section 28(4)(a) of the Civil Law Act 1956, as well as restoration costs in the sum of RM4,750.00 pursuant to Clauses 8.1.4 and 10.1(a)(dd) of the Tenancy Agreement.

Defendant however contended that he has made rental payments to the Plaintiff as follows: i. For the rent for April 2023, the Defendant paid on 09.06.2023. ii. For the rent for May 2023, the Defendant paid on 27.06.2023. iii. For the rent for June and July 2023, the Defendant paid on 12.07.2023. iv. For the rent for August 2023, the Defendant paid on 06.08.2023. v. For the rent for September 2023, the Defendant paid on 07.09.2023. vi. For the rent for October 2023, the Defendant paid on 08.10.2023. vii. For the rent for November 2023, the Defendant paid on 09.11.2023. viii. For the rent for December 2023, the Defendant paid on 06.12.2023. ix. For the rent for January 2024, the Defendant paid on 12.01.2024. x. For the rent for February 2024, the Defendant paid on 15.02.2024.

The Plaintiff admitted that they communicated with the Defendant through an individual named Eva for the rent payment for April to June 2023. According to the Defendant, Ms Eva had consented for late payment of rental.

Defendant contended that the acceptance of continued payment of rental by the Plaintiff had estopped them from terminating the Agreement. Further, the Plaintiff failed to give a valid notice.

Plaintiff nonetheless issued a few letters to state that the acceptance of payment is treated to set off the double rental and utilities charged during that period and not deemed as payment of rental. C.

Agreed issues to be tried (filed vide Enclosure 29) are as follows: “

Sama ada Defendan telah melanggar Perjanjian Penyewaan bertarikh 1.12.2022.

Sama ada Perjanjian Penyewaan bertarikh 1.12.2022 telah ditamatkan secara sah pada 5.7.2023 atau apakah tarikh penamatan sah.

Sama ada terdapat bayaran dari Defendan kepada Plaintif pada 12.7.2023,

6.8.2023, 7.9.2023, 8.10.2023 dan/atau pada tarikh-tarikh lain.

Sekiranya isu 3 dijawab secara afirmatif, sama ada bayaran-bayaran tersebut diterima oleh Plaintif sebagai bayaran sewa.

Sama ada penerimaan bayaran-bayaran tersebut pada 12.7.2023, 6.8.2023 dan 7.9.2023 atau tarikh-tarikh lain, sekiranya ada, merupakan satu pembatalan (revocation) ke atas penamatan Perjanjian Penyewaan (sekiranya penamatan adalah sah).

Sama ada Plaintif dan Defendan masing-masing berhak kepada relief yang dipohon.” D.

The Plaintiff contended that the termination was valid and effective because:

The Defendant’s default in payment was undisputed both in pleadings and during cross-examination.

(ii) The Plaintiff’s termination notice dated 5 July 2023 was issued in accordance with the terms of the Tenancy Agreement, and the Defendant did not challenge or dispute the same.

The Plaintiff further submitted that the Defendant continued to unlawfully occupy the demised premises after the termination date and failed to deliver vacant possession by 12 July 2023. Accordingly, under Section 28(4)(a) of the Civil Law Act 1956, the Defendant is liable for double rental from 12 July 2023 until 11 September 2024.

The Plaintiff relied on the following authorities:

Amalan Setar (M) Sdn Bhd v Akar Serantau Sdn Bhd & 2 Ors [2021] 1 LNS 1610 – where the High Court held that under Section 28(4) of the Civil Law Act 1956, a landlord is entitled to claim double rental from the date the tenant is required to vacate until actual delivery of vacant possession. “It is settled law under Section 28(4) of the Civil Law Act 1956 that a landlord is entitled to seek double rental from the date the tenant is supposed to vacate … until actual delivery of vacant possession (see Imbi World Sdn Bhd v Deluxe Tours Sdn Bhd [1997] 3 MLJ 531).”

(ii) Rohasassets Sdn Bhd (formerly known as Wisma Perkasa Sdn Bhd) v Weatherford (M) Sdn Bhd & Anor [2020] 1 MLJ 557 (Federal Court) – which affirmed that a landlord may impose double rental when the tenant fails or refuses to yield up possession after being notified to do so, provided the landlord exercises the option properly and lawfully.

(iii) Prem Kumar Selvaedran v Bambull Sdn Bhd [2023] 1 LNS 1398 – where the court held that double rental is payable until the demised premises are restored to their original and tenantable condition, even if keys were surrendered earlier.

The Plaintiff submitted that the Defendant’s alleged return of keys by leaving them in a post box on 27 March 2024 was proven false under cross-examination. Even as of 11 September 2024, the premises remained unrestored, with visible structural defects (holes on the floor) and no evidence of reinstatement.

The Plaintiff had repeatedly informed the Defendant via letters dated 29 March 2024 and 12 July 2024 that leaving keys in the post box did not constitute valid delivery of vacant possession, but no remedial action was taken.

The Plaintiff also sought restoration costs of RM4,750.00 pursuant to Clauses 8.1.4 and 10.1(a)(dd) of the Tenancy Agreement for the Defendant’s failure to reinstate the premises to its original condition.

With reference to the issue of the validity of the termination of the Tenancy Agreement, the Plaintiff submitted that the Tenancy Agreement was lawfully terminated on 5 July 2023 pursuant to Clause 10 of the Agreement. The Defendant’s allegation that the termination was done in bad faith, after certain repair works, was unfounded and unsupported by evidence. The Plaintiff was unaware of any such repair or restoration works, and the Defendant’s subsequent withdrawal of its counterclaim further demonstrates the baselessness of this assertion.

Concerning the Defendant’s allegation that an adverse inference should be drawn under Section 114(g) of the Evidence Act 1950 for failure to call Ms. Eva as a witness, the Plaintiff submitted that no adverse inference arises, as there was already ample and sufficient evidence before the Court to establish the Plaintiff’s case. The Plaintiff relied on Kabilan Anasalam v Veerasingam Muthusamy & Anor [2023] CLJU 2970, which held that an adverse inference under Section 114(g) may only be drawn where evidence has been withheld or suppressed, and not where sufficient evidence is already available. The Court in that case further affirmed that either party in a civil case may rely on the other’s evidence.

In respect of the Defendant’s assertion that the Plaintiff accepted rental payments after termination, the Plaintiff submitted that payments made post-termination were received strictly as set-off against outstanding sums due and not as rent. This position was clearly conveyed in letters dated 14 July 2023, 10 August 2023, and 8 September 2023, which expressly stated that the Tenancy Agreement had been effectively terminated on 5 July 2023 and that subsequent payments would be applied only towards arrears, utilities, and double rental. The Defendant received these letters without objection and continued making payments with full knowledge of the Plaintiff’s stated position.

In relation to the Defendant’s allegation that the notice dated 8 June 2023 was invalid, the Plaintiff submitted that this argument is misconceived, as it is undisputed that the Defendant had failed to pay rental for April, May, and June 2023 by the 7th of each month, contrary to Clause 4.2.1 of the Tenancy Agreement. The notice was therefore validly issued in accordance with Clause 10, and the Defendant’s contention that it was premature is without merit.

On the Defendant’s claim of having returned the keys in March 2024, the Plaintiff submitted that this assertion is factually unsupported. The Defendant’s witness (SD1) admitted under cross-examination that there was no documentary proof that the keys were returned, and further conceded that his earlier statement to that effect was untrue.

Pertaining to the Defendant’s counterclaim, The Plaintiff noted that during trial, the Defendant had decided not to pursue its counterclaim under paragraphs 26(c) and 26(e) thereof, and had expressly withdrawn it. (see page 54 of Notes of Proceeding). For ease of reference, paragraph 26 (c) and (e) stated as follows: 8 26(c) Plaintif diperintahkan untuk membayar ganti rugi khas sebanyak RM21,400.00 bagi kos membaik pulih premis penyewaan. 26(e) Secara alternatif, sekiranya penamatan Perjanjian Penyewaan bertarikh 01.12.2022 adalah sah, Plaintif diperintahkan untuk membayar ganti rugi bagi kos-kos renovasi premis tersebut dan ganti rugi tersebut hendaklah ditaksirkan.

Plaintiff submitted that in any event, the remaining portions of the counterclaim are wholly unsustainable, as the dispute arose solely from the Defendant’s admitted breaches and its failure to vacate the demised premises in accordance with the Tenancy Agreement.

In conclusion, the Plaintiff submitted that the Defendant’s failure to pay rent, to remedy the breach, and to deliver vacant possession in the original restored condition fully justified the termination of the tenancy on 5 July 2023. The Plaintiff remains entitled to double rental from 12 July 2023 to 11 September 2024 under Section 28(4)(a) of the Civil Law Act 1956 and restoration costs of RM4,750.00 pursuant to Clauses 8.1.4 and 10.1(a)(dd) of the Tenancy Agreement. The Defendant’s counterclaim should therefore be dismissed with costs. E.

The Defendant contended that the Plaintiff’s termination of the Tenancy Agreement dated 1 December 2022 was invalid, premature, and executed in bad faith. The Defendant further argued that the Plaintiff, having accepted rental payments after the alleged termination, was estopped from asserting that the tenancy had been lawfully terminated.

The Defendant submitted that the termination of the Tenancy Agreement by the Plaintiff on 5 July 2023 was invalid because:

The Defendant had duly paid rental from February 2023 up to February 2024, and therefore no default existed in April to July 2023.

(ii) The Plaintiff’s act of accepting rental payments after the alleged termination constituted a waiver or “revocation by conduct,” thereby reviving and continuing the tenancy.

(iii) The termination was done in bad faith, as it occurred immediately after the Defendant had incurred RM21,400.00 in repair costs to rectify leaks, water issues, and lighting problems which were originally the landlord’s responsibility.

(iv) Such termination amounted to oppression and unjust enrichment, as the Plaintiff benefited from the Defendant’s repairs.

The Defendant argued that, having accepted payments for rental months after termination without protest, the Plaintiff is estopped from alleging breach or enforcing termination. The Defendant maintained that the tenancy remained valid and binding between the parties.

The Defendant submitted that the notice dated 8 June 2023 was premature and not in accordance with Clause 10 of the Tenancy Agreement. According to the Defendant, under Clause 10.1.1, rent becomes a fundamental breach only if it remains unpaid seven days after it becomes due. Given that the rent for June 2023 was payable by 7 June and the 14-day cure period extended to 21 June 2023, the Plaintiff’s notice dated 8 June 2023 was issued before any breach occurred.

Accordingly, the notice was invalid, and any subsequent termination based upon it was void. The Defendant further pointed out that, prior to filing the suit on 16 August 2023, the Plaintiff had already received payment for June 2023, thereby confirming that no breach existed at the time of termination.

The Defendant submitted that by accepting rental payments from July 2023 to February 2024 without refund or written objection, the Plaintiff effectively revoked its earlier termination and elected to continue the tenancy. The Defendant emphasized that the Plaintiff neither returned the sums received nor rented the premises to any third party, demonstrating implied consent to continued occupation.

The Defendant relied on Rohasassets Sdn Bhd v Weatherford (M) Sdn Bhd & Anor [2019] 6 MLRA 594 in which the Federal Court held that double rental under Section 28(4)(a) of the Civil Law Act 1956 cannot be charged if the landlord, by conduct, has consented—expressly or implicitly—to the tenant’s continued occupation.

The Defendant relied on this case to argue that since the Plaintiff continued to accept rent without objection, it had given implied consent for the Defendant to remain in occupation, thereby waiving its right to terminate and to claim double rental.

The Defendant also invoked Section 114(g) of the Evidence Act 1950, submitting that an adverse inference should be drawn against the Plaintiff for failing to call Ms. Eva (the Plaintiff’s staff who directly communicated with the Defendant) as a witness. Her absence, the Defendant argued, deprived the court of relevant evidence that could have confirmed the Plaintiff’s acceptance of late rental payments.

The Defendant initially submitted that, due to the Plaintiff’s alleged wrongful termination and negligence in repairing the premises, it was entitled to recover:

Special damages of RM21,400.00 for renovation and repair costs incurred to rectify leaks, water and lighting defects (supported by invoices and payment slips);

(ii) Alternatively, if the termination were found valid, compensation for renovation costs to be assessed by the Court. 11 38. However, during the course of trial, the Defendant expressly agreed to withdraw the above counterclaim. These portions of the counterclaim therefore no longer subsist and are not pursued before this Court. DEFENDANT’S SUBMISSION IN REPLY

With reference to the issue of the Plaintiff’s termination of the Tenancy Agreement on 5.7.2023 for alleged non-payment of rent for April to June 2023, the Defendant submitted that the termination was premature and invalid as the notice dated 8.6.2023 was issued before the rent was overdue under Clause 10.1.1. The Defendant argued that rent payments were in fact made on 9.6.2023, 27.8.2023, and 12.7.2023 respectively, hence no breach had arisen at the time of the notice.

On the issue of the Plaintiff’s claim that the 8.6.2023 notice granted 14 days to remedy default, the Defendant submitted that the notice itself was defective and void because no actual breach had occurred when it was served; therefore, the 14-day period was irrelevant.

In relation to the Plaintiff’s contention that the Defendant did not object to the termination and thereby accepted it, the Defendant submitted that silence cannot be deemed consent where the termination itself was unlawful; the Defendant’s right to dispute the invalid termination remained intact.

Concerning the matter of failure to deliver vacant possession and restore the premises to its original condition, the Defendant submitted that all renovation and repair works were carried out with the Plaintiff’s knowledge and approval, and such works enhanced the commercial value of the premises. The Plaintiff, having benefited from the renovations, could not now demand restoration costs.

With regard to the alleged failure to return the keys and continued occupation until September 2024, the Defendant submitted that the premises had been vacated and the keys physically handed over; the Plaintiff failed to prove otherwise.

Pertaining to the Plaintiff’s letters dated 29.3.2024 and 12.7.2024 alleging non-compliance, the Defendant submitted that these were unilateral assertions, and the alleged damages were part of approved renovation works, for which the Plaintiff was responsible.

With reference to the issue of damage to the floor and four square holes seen on 11.9.2024, the Defendant submitted that those were part of the approved floor design during renovation, and no evidence was adduced to show that restoration to the “original” state was contractually required.

Turning to the issue of double rental claim until 11.9.2024, the Defendant submitted that such claim was unjustified as the termination was invalid, possession had been given up, and there was no proof of continued occupation.

With reference to the issue of the overall validity of termination and possession, the Defendant submitted that the termination was premature and contrary to Clause 10.1.1, rendering subsequent allegations of non-delivery irrelevant since the tenancy remained valid at the material time.

In conclusion, the Defendant submitted that:

The termination on 5 July 2023 was invalid and executed in bad faith;

(ii) The notice dated 8 June 2023 was premature and contrary to the Tenancy Agreement;

(iii) The Plaintiff, having accepted rent thereafter, is estopped and has waived its right to terminate or claim double rental. Accordingly, the Defendant prayed that the Plaintiff’s claim be dismissed with costs. F. THE FINDINGS AND ANALYSIS OF THE COURT

Upon perusing the submissions of both parties, this Court identifies three further issues requiring determination, namely:

Whether, for the purposes of Clause 10.1.1, the rent for June 2023 became payable on (a) the first day of June 2023, (b) the 7th day of June 2023, (c) the 8th day of June 2023 — having regard to the natural and commercial meaning of the word “payable”, the surrounding contractual provisions, the parties’ course of dealing, and established principles of contractual construction.

(ii) Whether a valid and sufficient notice to quit was served on the Defendant in this case?

(iii) Whether the Plaintiff, in terminating the Tenancy Agreement, acted in breach by reason of not affording the Defendant reasonable notice? Issue: When the June 2023 rent became “payable”?

In respect of the first issue, this court observed that the Plaintiff relied on Clause 4.2 and 10.1 and sent the letter dated 8.6.2023, which stated: “2. Pursuant to Clause 4.2 of the Tenancy Agreement, you, as the tenant, shall pay rent of RM7,800 within the seventh (7th) day of each calendar month to our client. However, our client instructs us that despite our client’s repeated reminders, you have failed, refused and/or neglected to pay rent for April 2023, May 2023 and June 2023. Your blatant disregard to adhere to the terms of the Tenancy Agreement constitute a fundamental breach of the Tenancy Agreement.

As stipulated by Clause 10.1 of the Tenancy Agreement, we are serving you this formal notice to rectify the same whereby you are to pay the outstanding sum of RM23,400.00 (rent due for April 2023, May 2023 and June 2023), within FORTEEN (14) DAYS from the date of this letter, into our client’s bank account below: - …

TAKE NOTICE that if you fail to fulfil our client’s demand within the designated timeframe, we have strict instructions to commence legal proceedings against you without further notice, which you may be held liable for all costs and expenses in relation thereto.”

It is not disputed that the Defendant then made payment for the April 2023 rent on 09.06.2023, and for the May 2023 rent on 27.06.2023.

Subsequently, by registered post, the Plaintiff issued a further letter to the Defendant dated 5.7.2023 in the following terms: “…..

We note that despite the formal notice dated 8.6.2023, you have failed to pay rent for June 2023.

In light of your continued failure to adhere to the terms of the Tenancy Agreement, our client hereby invokes Clause 10 to terminate the Tenancy Agreement with immediate effect. While the Agreement requires you to make good, reinstate, and restore the premises to its original state and condition and to yield up the premises immediately our client allows you a grace period until 12.7.2023 to do the same.

Please be informed that if you fail to make good, reinstate, and restore the premises to its original state and condition and yield up the premises by 12.7.2023, you will be charged double rental for each day of your unlawful occupation of the premises, including the period from the date of this letter until 12.7.2023.

You are also required to immediately settle the outstanding rent for June 2023, any rent due up to the date of this letter and all outstanding utilities bills. …….”

The Defendant then paid the rent for June and July 2023 on 12.07.2023. Defendant’s position now is the notice dated 8 June 2023 was premature and contrary to the Tenancy Agreement.

The core of the Defendant’s contention is that the Plaintiff misread Clause 4.2 of the Tenancy Agreement. According to the Defendant, Clause 4.2 states rent is “payable on or prior to the 7th day of each month.” Therefore, the operative “payable” date is the 7th day, not the 1st.

As such, under Clause 10.1.1, a fundamental breach arises only if rent remains unpaid for seven days after becoming payable — that is, only after 14 June 2023 for the June rent. The Plaintiff’s Notice to Rectify dated 8 June 2023 was therefore premature and legally ineffective.

Defendant further submits that because the Notice to Rectify was invalid, the subsequent Termination Notice dated 5 July 2023 was also unlawful and contrary to Clause 10.1. By that time, the Defendant had already settled all arrears for April and May 2023, so no subsisting breach justified termination. If the termination referred to June 2023, it was procedurally void since the pre-termination notice was defective.

Let us look at Clause 10.1.1. Clause 10.1.1 reads: “10.1 The following events shall constitute a fundamental breach of this

10.1.1 the Rent or any part thereof or any payment payable to the Landlord as stated in this Agreement shall remain unpaid for seven (7) days after becoming payable (whether the same shall have been formally demanded or not);” 16 58. For the first issue raised, Plaintiff submitted that Clause 4.2.1 requires rent to be “made payable in advance on or prior to the 7th day of each calendar month”. Clause 4.2.1 reads: “The Tenant shall pay to the Landlord the amount as stated in Section 8 of the First Schedule hereto (hereinafter referred to as the “Rent”) for Term 1 without any deduction or right to set-off, made payable in advance on or prior to the seventh (7th) day of each calendar month, by crediting the Rent directly into the Landlord’s bank account with the details as stated in Section 8B of the First

This Court agrees with the submission of the Plaintiff and adopts the interpretation of the word “payable” in WTK Engineering Sdn Bhd v Seriemas Development Sdn Bhd [2021] 1 LNS 424, in which “payable” was held to denote an obligation to pay that has arisen, even if not yet overdue. The Court observed as follows: - “[39] Reverting to Chong Lek Engineering Works, the learned Judge had further quoted the meaning of “payable” as stated in Black’s Law Dictionary, Ninth Edition at p 1243 viz. “…(Of a sum of money or a negotiable instrument) that is to be paid – An amount may be payable without being due. Debts are commonly payable long before they fall due.”. To this, I would add the following references:

the legal definition of “payable” in Merriam-Webster is stated as “that may, can, or must be paid” (see https://www.merriam- webster.com/dictionary/payable) whilst Collins Dictionary defines the word “payable” as “If an amount of money is payable, it has to be paid or it can be paid” (see https://www.collinsdictionary.com/ dictionary/english/payable); … [40] Based on the above quoted dictionary meanings, the words “due” and “payable” are frequently synonymous. However, since the legislature has chosen to enact the words “due or payable” in sub-s. 30(5) CIPAA, the words “due” and “payable” must have been intended to have distinct meanings. In my opinion, “due” in the context of sub-s. 30(5) CIPAA and the factual matrix in this case means money which is owing by Seriemas to PAB as an obligation or a debt which has accrued according to the provisions of the PAM Contract whilst “payable” means money which has fallen due for payment such that there is an immediately enforceable obligation on Seriemas to pay that sum of money to PAB under the PAM Contract.” [emphasis added]

Applying this meaning to Clause 4.2.1, the rental obligation arises on the 1st day of every month, though the tenant is allowed until the 7th day to effect payment. Failure to pay within the first seven days constitutes a breach within the meaning of Clause 10.1.1.

The evidence further shows that the Defendant consistently paid rent late from February 2023 onwards. This Court therefore accepts the Plaintiff’s submission that Clause 10.1.1 was triggered and that the termination notice was validly issued. Section 28(4)(a) CLA and the Judicial Requirement of a Clear and Unequivocal Notice to Quit 62. However, with regard to the claim of double rental, this court noted that the claim for double rental is grounded on section 28(4)(a) of the Civil Law Act 1956 (“CLA”): “(4) (a) Every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double the amount of his rent until possession is given up by him or with double the value during the period of detention of the land or premises so detained, whether notice to that effect has been given or not.”

To rely on s 28(4)(a) CLA, the Plaintiff must establish:

that the tenancy has been determined;

(ii) that the Defendant remained in possession thereafter; and

(iii) that the Plaintiff has exercised the statutory option to impose double rent.

Beyond these statutory elements, the Federal Court in Rohasassets Sdn Bhd v Weatherford (M) Sdn Bhd & Anor [2020] 1 MLJ 557 held that while “wilful and contumacious” holding-over is not required under s 28(4)(a), the central question is whether the holding-over was with or without the landlord’s consent. Where the landlord, expressly or impliedly, allows continued occupation — for example, by negotiating renewal or accepting rent — the claim for double rent may be defeated.

In practice therefore, many landlords will serve a notice to quit so as to clearly show the landlord does not consent to the tenant staying. Failure to do so may mean the tenant is treated as a tenancy at will, rather than “holding over” for the purpose of s 28(4)(a). The governing principles on double rental are instead found in the Federal Court authorities, where the courts consistently highlight the central importance of a valid and unequivocal notice to quit in determining whether double rental may be imposed. The issuance, timing, and effect of the notice to quit form the legal threshold for identifying when a tenant becomes a trespasser and when liability for double rental can commence.

In Wee Tiang Yap v Chan Chan Brothers [1986] 1 MLJ 47, the Federal Court held that double rental was awarded only from the expiry of a valid notice to quit when the tenants wilfully remained in possession thereafter.

Similarly, in Rohasassets Sdn Bhd v Weatherford (M) Sdn Bhd & Anor [2019] MLJU 1484, the Federal Court refused double rental because the landlord had, by conduct, given tacit approval for the tenants to hold over. Although the landlord had “reserved” its right to double rental, it continually accepted rent and delayed issuing a notice to quit for nearly two years. It was therefore held to have waived its right. Double rental was only permitted from the date of expiry of the eventual notice to quit until delivery of vacant possession. The Federal Court observed that: “[91]………..We do not think section 28(4)(a) of the Civil Law Act can be construed to mean that double rent is chargeable irrespective of whether consent to hold over has been given by the landlord or otherwise. [92] On the facts of the present case, it is clear that the respondents’ holding over was with the tacit approval of the appellant. This was also the concurrent findings of fact by both courts below and we see no reason to interfere with such findings of fact. [94] Crucially, throughout the period of negotiation for renewal of the tenancies, the appellant accepted tenders of rent from the respondents without any complaint and did not issue any notice to quit, not until after the failure of the negotiations, and this too was done some two years after the expiry of the tenancies. Therefore, the appellant by conduct had waived its right to charge double rent. [96] The fact that the appellant reserved its right to charge double rent and had consistently reminded the respondents to pay double rent during the period of negotiation for renewal of the tenancies is neither here nor there as the appellant continued to accept tenders of rental by the respondents.. [97] Clearly, therefore, the respondents were tenants at will and not tenants at sufferance as rightly submitted by learned counsel for the respondents and were not trespassers during the period the parties were negotiating for renewal of the tenancies. [98] The respondents only became trespassers from the date of expiry of the notices to quit on 1.10.2011 up until the date they gave up possession of the premises on 31.10.2011. The Court of Appeal was therefore correct in ordering double rent to be charged only for the period commencing from the date of expiry of the notice to quit up until the date of delivery of vacant possession.”

From these observations, it is clear that although the landlord in Rohasassets Sdn Bhd had expressly reserved its right to claim double rental and had repeatedly reminded the tenants to that effect — a situation broadly analogous to the present case — the decisive consideration was the landlord’s continued acceptance of rent and its failure to issue a timely notice to quit. This conduct amounted to tacit approval of the tenant’s continued occupation and therefore a waiver of the right to impose double rental. Double rental was only chargeable from the date the tenants became trespassers, namely, after the expiry of a valid notice to quit.

The Plaintiff argued that the Defendant did not plead issues relating to “notice to quit” or “reasonableness of termination notice”. This Court disagrees. Whether a notice to quit is required is a question of law going to the Plaintiff’s entitlement to double rental. Under long-established pleading principles, parties are required to plead facts, not law. This position is supported by the following extracts from Atkin’s Encyclopedia of Court Forms in Civil Proceedings, vol. 32, pp. 12–15: “The requirement that the pleading must state “facts only” means not only that the pleading should not plead law but also that it should not plead or descend to arguments, reasons, theories, conclusions, inferences or other such extraneous material…. The court’s duty at trial is to determine the legal effect of the facts proved. It is usually neither necessary nor appropriate to plead law or legal argument or to assert the legal effect of the facts pleaded, for it is the duty of the court to take judicial notice of what the law is in determining whether the facts pleaded and proved establish the case of the plaintiff or defendant in law. A party should therefore plead neither particular points of law (subject to the consideration stated below) nor a statement of general propositions of law … Notwithstanding this general rule, there is specific provision to permit a party to raise by his pleading a point of law. To do so would clearly be appropriate where, for example, a defendant admits all the facts alleged by the Plaintiff but objects to the Plaintiff’s claim merely on a point of law, or where a particular point of law is likely to decide the whole issue. Any objection on a point of law is likely to decide the whole issue. Any objection on a point of law must be pleaded plainly and explicitly. Where defence is merely on a point of law arising from admitted facts no evidence will be taken at the trial since the facts are not in dispute. Where a point of law may dispose of the whole case it is appropriate to raise it in a pleading rather than to apply on summons to strike out a claim or defence on the ground that it discloses no reasonable cause of action or defence, and in such a case may be convenient to take advantage of the provisions which permit the trial of a preliminary issue or of the provisions of Order 14A. Failure to plead a point of law will not preclude a party from raising the point at the trial, and indeed a pleading may be amended to raise a point of law at the trial.”

The issue therefore arises whether, in the absence of an express contractual stipulation, a notice to quit is nevertheless required.

In Lye Lin Heng, Landlord and Tenant (Butterworths, 1990), p. 243, states: “Where no express terms are stipulated in the lease, the common law rules will apply.

At p. 242, the same author explains: “A notice to quit serves to determine the tenancy without the consent of the other party. The right to serve a notice to quit may be expressly reserved in the lease (as we have seen in the case of a fixed-term leases), or allowed by the law (in the case of periodic tenancies).”

The Court also refers to Rent Control Legislation in Malaysia (Sethu, 1986), p. 217: “The notice to quit is a document which formally brings to an end the relationship of landlord and tenant or an existing tenancy, so it may pave the way for the parties to create a new one or completely extinguish the relationship of landlord and tenant. There are certain technical rules about the notice to quit. It must, in clear terms, terminate the tenancy and demand vacant possession. The pre-requisite condition for determination of a periodical monthly tenancy is a valid and sufficient notice to quit.”

Accordingly, the Defendant bears no burden to plead the legal requirement of a notice to quit. The Plaintiff, as the party claiming a penal remedy under s 28(4)(a), bears the burden of proving all necessary preconditions. Issue: Whether the Plaintiff Was Required in Equity to Give Reasonable Notice Before Termination and whether such notice was given 75. In Sim Siok Eng v Government of Malaysia [1978] 1 MLJ 15, the Federal Court of Malaysia laid down an important principle regarding the reasonableness of notice and the application of equity through estoppel. Brief facts of this case show the appellant entered into a building contract with the respondent (the Government of Malaysia) to construct certain buildings. Due to difficulties in sourcing essential materials, the respondent agreed to supply those materials to the appellant. This supply arrangement continued for a time, during which the appellant relied on the promise and adjusted his responsibilities accordingly. Later, the respondent ceased the supply without giving adequate notice, and ultimately terminated the contract on the basis of the appellant’s non-performance. Two key issues to be determined are:

Whether the respondent was estopped from insisting on strict performance of the contract without giving reasonable notice.

(ii) Whether the termination of the contract by the respondent constituted a breach due to the lack of reasonable notice.

The Federal Court found that the respondent was in breach of contract for failing to give reasonable notice before ceasing material supply and terminating the agreement. The Federal Court held that: “

in this case, the appellant was clearly induced to believe that certain essential materials would be supplied to him. The respondent promised to supply the materials to the appellant whenever the latter asked for them and a considerable amount of materials were so supplied. Relying on the promise or assurance, the appellant had altered his position and his responsibilities to supply those materials had been suspended or kept in abeyance. For the respondent to reimpose the contractual provision, adequate notice should be given;

as the learned judge himself had held that the notice given was not reasonable, it should have been held that the respondent was in breach in terminating the contract and judgment given in favour of the appellant.”

This case is a leading Malaysian authority on the doctrine of promissory estoppel and the equitable requirement of reasonable notice in contractual modifications and terminations. Where one party, by words or conduct, leads another to believe that strict contractual rights will not be enforced, and the latter relies on that belief to his detriment, equity requires that reasonable notice be given before reverting to those rights. Failure to do so renders any consequent action (such as termination) a breach.

The significance of this case is it demonstrates the importance of fair dealing and reliance-based justice in contractual relationships. It can be seen that in the absence of a statutory requirement, Malaysian courts have treated “reasonable notice” as a default principle unless clearly excluded.

Thus, when terms of the tenancy agreement is silent on notice to quit, this court is of the considered view that based on the Federal court case of Sim Siok Eng, even where a tenancy contract permits immediate termination, reasonable notice is implied by Common law and equity, unless explicitly excluded and done in accordance with natural justice.

This Court observes that the Plaintiff’s continued acceptance of rental payments created the impression that the tenancy was permitted to continue. This is particularly so where, despite issuing a notice requiring the Defendant to yield up possession by 12.7.2023, the Plaintiff nevertheless accepted the Defendant’s rental for July 2023. Such conduct renders the notice equivocal and undermines its effectiveness as a valid notice to quit.

It is trite that when a party has induced reliance, equity prevents that party from suddenly enforcing strict legal rights without fair notice. This is an application of promissory estoppel, derived from the case of Hughes v Metropolitan Railway and other English authorities. The origin and meaning of the doctrine of promissory estoppel were judicially explained in Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 at p 498, as follows: “… It’s the first principle upon which all courts of equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results — certain penalties or legal forfeiture — afterwards by their consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealing which has thus taken place between the parties. (Emphasis added.)

The doctrine was reaffirmed in Impact Elite Golf Academy Sdn Bhd v Mines Excellence Golf Resort Berhad [2020] MLJU 487, the High Court (Faizah Jamaludin J) referring to Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, affirmed that estoppel is a flexible principle invoked to achieve justice based on the facts of each case. It can operate in numerous situations — to prevent a party from asserting or denying certain rights, or to modify contractual obligations where equity demands. The doctrine may be used to preclude a party from taking a position inconsistent with its earlier conduct, representation, or omission, particularly when the other party has relied upon such conduct to its detriment.

The Court in Impact Elite Golf Academy held as follows: [114] In Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd (supra) Gopal Sri Ram FCJ in delivering the judgment of the Federal Court, held that: “The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. Edgar Joseph Jr J (as he then was) in an illuminating judgment in Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at p 244 applied the doctrine in a broad and liberal fashion to prevent a defendant from relying upon the provisions of the Limitation Act 1952. The doctrine may be applied to enlarge or to reduce the rights or obligations of a party under a contract: ………………………. All that a representee (which term includes one who has received encouragement in the sense we have discussed earlier) need do is to place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that 'his conduct was so influenced by the encouragement or representation … that it would be unconscionable for the representor thereafter to enforce his strict legal rights' (per Robert Goff J in Amalgamated Investment [1982] 1 QB 84 at p 105). ………………….. We take this opportunity to declare that the detriment element does not form part of the doctrine of estoppel. In other words, it is not an essential ingredient requiring proof before the doctrine may be invoked. All that need be shown is that in the particular circumstances of a case, it would be unjust to permit the representor or encourager to insist upon his strict legal rights. In the resolution of this issue, a judicial arbiter would, when making his assessment of where the justice of the case lies, be entitled to have regard to the conduct of the litigant raising the estoppel. This may, but need not in all cases, include the determination of the question as to whether the particular litigant had altered his position, although such alteration need not be to his detriment.” [Emphasis added]

This Court finds that the Plaintiff’s conduct — in particular, the continued acceptance of rental, including the July 2023 payment, even after demanding vacant possession by 12.7.2023 — would reasonably lead the Defendant to believe that the tenancy relationship was being maintained. The Plaintiff cannot, in equity, induce such reliance and then enforce strict rights without providing a reasonable notice. This accords with the further observation in Sim Siok Eng: “It seems to me wrong for one to a contract to give other permission to commit a breach and then turn around and sue him for it. Such a party must be taken to have waived a condition of the contract. At least the other’s obligations under the contract must be regarded as having been suspended until sufficient time has been given to enable him to assume his original obligation. In Panoutsos v Raymond Hadley Corporation of New York, Viscount Reading C.J said at page 477 that “It is open to a party to a contract to waive a condition which is inserted for his benefit.” Respondent did give notice but as the learned judge said the notice did not give appellant reasonable time to look for his own supply.”

Accordingly, this Court holds that although the contract is silent on the requirement of a notice to quit, a clear and unequivocal reasonable notice is nevertheless implied by common law and equity in the circumstances of this case. On the present facts, no such reasonable notice was issued or afforded to the Defendant.

Furthermore, the Plaintiff’s acceptance of rental for July 2023 and thereafter, before later asserting that such sums were “double rental”, is inconsistent conduct. It confuses the tenant and, in substance, amounts to condoning the continued occupation. Equity will not allow a party to rely on strict rights in such circumstances.

This Court is of the considered view that, given the circumstances of the present case — in particular, that the tenancy was for a fixed term of two years and substantial renovation works had been carried out to equip the premises for their intended commercial purpose — a sufficient notice ought to have been given. What constitutes a reasonable period of notice to quit must be determined having regard to the length of the tenancy, any express contractual stipulations, and the nature of the tenancy in question.

In Hill and Redman’s Guide to Landlord and Tenant Law, Butterworths 1999 , para 14.81 p. 789, the authors state: “A notice to quit is notification by a landlord or a tenant to the other that the person, giving reasonable notice to unilaterally determine a periodic tenancy, including a tenancy from year to year, half-yearly, quarterly, monthly, or weekly tenancies. The expression notice to quit is equally applicable to a notice served by a landlord or a tenant requiring him to quit the premises and to a notice served on a landlord by a tenant stating that the latter person will quit the premises. The exact period of notice is that which law, custom, contract or statute deems to be reasonable in respect of any given tenancy.”

At Para 14.80 of the same page, it is further explained: “Any periodic tenancy may be determined by notice to quit given by the landlord or the tenant. The appropriate period for a notice to quit is determined by any express stipulation in the lease or principles of law which apply in the absence of express stipulation. The above principles of law are that:

A yearly tenancy may be determined by at least a half-year’s notice, expiring at the end of a year of the tenancy;

Any other periodic tenancy may be determined by a notice equal to at least a period of the tenancy and expiring at the end of a period of the tenancy.”

Further at para 14.89 p. 791 of the same text, the length of notice required is elaborated below: “Unless, on the construction of the tenancy agreement, the tenancy is not a yearly tenancy and in the absence of any special stipulation, a notice to quit must be given so as to expire at the end of any complete period of the tenancy, and be equal to at least the length of the period of the tenancy.”

In Ko Teck Kin v Watkinson [1961] MLJ 73, the Court held: “In a monthly tenancy, the period of the notice to quit, in the absence of special agreement, must correspond with the length of the tenancy and must determine at the end of a periodic month from the commencement of the tenancy. Queens Club Garden Estates Ltd v Bignell 39 TLR 496, and Lemon v Lardeur [lsqb] 1946 [rsqb] KB 613; [lsqb] 1946 [rsqb] 2 All ER 329 followed. Simmons v Crossley [lsqb] 1922 [rsqb] 2 KB 95 and Khoo Soo Cheow v Kam Teik Sean

1 FMSLR 87 are no longer good law.”

Additional guidance is found in Rent Control Legislation in Malaysia (RR Sethu Butterworths 1986), ch. 17 p. 220: “Length of notice The length of notice in the case of a monthly tenancy is a month and, if insufficient notice had been given, it would be ineffective to terminate the tenancy. This applies in the absence of any special agreement between the parties. The length of notice to be given by the landlord may be different from that required of the tenant. Where the tenancy was by parol and not exceeding one year, the proper notice to quit was a month’s notice. A month’s notice to quit is usually sufficient to terminate a monthly tenancy of a dwelling or of an ordinary shop. While a notice for a shorter period of tenancy is ineffective to determine a tenancy, there is nothing to prevent the landlord from giving a longer notice. Service was held bad when it was short by a day.”

At p. 221, the author writes: “The notice to quit must be expressed to expire at the end of the period and not in the middle of the tenancy. Where premises are held on a monthly tenancy, a notice to quit served on the tenth day of the month was held to be a declaration that the landlord’s consent no longer exists and the tenancy expires at the end of the following month. An action for possession cannot be brought before the expiry of the notice to quit. The action would be premature as was held in Franklin v Tingey. The tenancy in that case commenced on 12 March. A notice dated 19 August 1974 requiring delivery of vacant possession on 18 October 1974 ‘or at the expiry of the next two complete months next expiring after the end of two months from the service of the notice’ was served and proceedings were commenced on 21 October 1974. It was held that the notice should be construed as expiring on 12 or 13 November and that, therefore, action for possession ought to have been dismissed as having been premature.”

Further, at p. 224: “The onus of proof that a notice to quit is valid is on the landlord and not on the tenant. The burden is also on the landlord, where the receipt of the notice is disputed, to show that the notice was duly delivered.”

Applying these principles, the burden rests upon the Plaintiff to satisfy this Court that a reasonable notice to quit was issued and duly served. This Court finds, however, that no such reasonable notice was ever given. The evidence shows that the Plaintiff’s letter dated 8.6.2023 merely demanded payment within 14 days. Strictly speaking, this was not a notice to quit. The subsequent letter dated 5.7.2023 granted the Defendant a grace period only from 5.7.2023 to 12.7.2023 to yield up possession.

On the facts, neither of the Plaintiff’s letters satisfies the above requirement. The letter of 8.6.2023 was purely a demand for payment; the letter of 5.7.2023 did not operate as a proper notice to quit and afforded only a minimal grace period. Issue: Whether the Plaintiff, in terminating the Tenancy Agreement, acted in breach by reason of not affording the Defendant reasonable notice?

The Plaintiff relied on Balakrishnan Ramasundram v Sargunam P Seeniappan [2021] 1 LNS 2341 and Wah Fung Constructions Sdn Bhd v Cermat Ria Sdn Bhd [2018] MLJU 1870 to submit that when a tenancy agreement contains an express termination clause, the parties are bound by that clause and no additional requirement of “reasonable notice” arises. On that basis, the Plaintiff asserts that the termination in this case was lawfully effected.

This Court notes that the tenancy agreement does not expressly require a notice to quit as a precondition to seeking possession in the present circumstances. Instead, it contains provisions entitling the landlord to require an immediate yield up of possession. Accordingly, the answer to the third framed issue is in the negative, and this Court holds that any omission to provide a “reasonable notice” does not amount to a contractual breach. In light of the contractual framework, and as earlier explained, this Court does not consider the termination notice to be invalid. The question of termination is properly resolved by reference to the express terms of the Agreement.

That said, the absence of a proper notice to quit remains a material consideration in determining whether double rental ought to be awarded under s 28(4)(a) of the Civil Law Act 1956. This is all the more significant where the Plaintiff, after issuing the termination notice, continued to accept rental payments, did not refund the deposits, and did not apply the deposits towards repair costs. Such conduct bears directly on whether the Defendant’s continued occupation was with the Plaintiff’s tacit approval, thereby undermining the basis for imposing double rental.

The case of Balakrishnan applies only where all the following elements are satisfied:

the termination is valid;

(ii) the notice is effective;

(iii) possession is wrongfully retained; and

(iv) the evidence clearly establishes holding over. The present case is materially different. The factual matrix diverges—whether as to the nature of the termination, the circumstances of possession, the acceptance of rent, the state of evidence, or the contractual structure. For these reasons, the Plaintiff cannot rely on Balakrishnan to ground a claim for double rental.

In Wah Fung Constructions, the central issues concerned termination rights, sufficiency of notice, and the refund of deposits. There was no claim for double rental and no application of s 28(4)(a) of the Civil Law Act 1956. The court’s inquiry was purely contractual: whether termination was accepted and whether reasonable notice was required. Crucially, there was no allegation of wrongful possession after termination; indeed, the landlord in that case was already sourcing new tenants even before the tenant vacated, and had requested the tenant to remove fixtures by 31.1.2016. This amounted to an acceptance of the tenant’s departure.

In contrast, the present case turns precisely on the issue of holding over. The legal framework for double rental under s 28(4)(a) is entirely distinct from the issues in Wah Fung, and that authority provides no support for the Plaintiff’s present position in their claim for double rental. Hence, it is evident that the Plaintiff’s reliance on Balakrishnan and Wah Fung for double rental is misplaced. Issue: Whether Double Rental is Justified in Light of the Parties’ Conduct, Mitigation, and the Requirements of Section 28(4)(a) of the Civil Law Act 1956 97. This Court further notes that the Plaintiff’s conduct in relation to mitigation was unsatisfactory. The evidence reveals that the Defendant delivered the keys in March 2023. While the Defendant initially stated that the keys were delivered on 27 March 2023, he subsequently clarified in court that that this occurred on 6 March 2023 after a mediation session (This Court has checked the Case Management System (CMS) and confirms that there was an earlier mediation session fixed on this date). He also testified that he notified Ms. Eva, the Plaintiff’s representative. Ms. Eva was not called to rebut this evidence. The Plaintiff did not deny receiving the keys nor produce evidence of any refusal by the Defendant to surrender possession. In fact, the Plaintiff in their witness statement admitted that they were informed in March 2024 about the key drop by the Defendant's solicitor.

This Court does not accept the Plaintiff’s insistence on a “proper joint inspection” as a valid basis to defer taking possession. Such a requirement is not stipulated in the tenancy agreement, and the Plaintiff had rights under Clause 10.1.4(a)(dd) and Clause 7.1(ix) to unilaterally reinstate the premises and deduct the costs from the security deposit (though not obligated to). These provisions state, inter alia: Clause 10.1.4 (a) (dd) reads: If the Tenant fails to fulfil any of its obligations set out in Clauses 10.1 (a) (bb) to 10.1 (a) (cc) above, the Landlord shall be entitled to (but is under no such obligations to) deduct or retain from the Security Deposits such amount of monies for such costs and expenses incurred by the Landlord to carry out any or all of the Tenant’s obligations in Clauses 10.1 (a) (bb) to 10.1 (a) (cc) on behalf of the Tenant and where the Security Deposits are not sufficient to cover the costs and expenses incurred by the Landlord, any shortfall shall be a debt forthwith due from the Tenant to the Landlord upon demand and recoverable by action; Clause 7.1(ix) reads: “To bear the costs and expenses to make good or restore or reinstate the Demised Premises as per the original state and condition at the expiry or upon unlawful determination/termination of this Agreement. In the event that any part of the Demised Premises is damaged by the Tenant (including its officers, employees, servants, representatives, invitees or agents), to compensate the Landlord for damages and for repairs, construction, modification of the Demised Premises where the damage or the necessity for such repairs arose by reason of the Tenant’s fault under this Agreement. If the Tenant fails to do so, the Landlord shall be entitled but is not obliged to carry out all necessary works and repairs to restore the Demised Premises to a state and condition acceptable to the Landlord and the costs incurred thereby shall be deducted from the Security Deposits. Should the Security Deposits be insufficient for this purpose, the Tenant shall pay to the Landlord, on demand, all sums due and owing under this Clause.”

The Plaintiff also had a contractual right of immediate re-entry under Clause 10.1.4(cc): “the Landlord shall be immediately entitled without prejudice to the right or remedies of the Landlord under this Agreement or at law to the Demised Premises to the exclusion of the Tenant, and the Tenant shall immediately yield up the Demised Premises in accordance with Clause 7.1 (ix). If the Tenant fails to do so, the Landlord shall then be entitled without any liability to the Tenant or further notice to the Tenant or re-enter upon the Demised Premises or any part thereof in the name of the whole (forcibly if necessary) to the exclusion of the Tenant (notwithstanding that the Tenant may not have removed any of his properties or goods from the Demised Premises at that time) and to exercise and avail himself of all his rights, powers and remedies (including its rights under this Agreement or at law);”

As correctly submitted by the Plaintiff, “in a civil case, one party’s evidence is the other’s as well. Thus, a plaintiff may rely on the defendant’s evidence to prove his or her case, and the converse is equally true.” The Court of Appeal in Tan Kah Khiam v. Liew Chin Chuan & Anor [2006] 4 CLJ 715 provides clear support for this proposition. In the present case, the Defendant is likewise entitled to rely on the Plaintiff’s evidence to establish that the keys were in fact returned in March 2024. The Notes of Proceedings at pp. 19–25 confirm that the Plaintiff did not dispute the fact of the March 2024 key return, and further show that the Plaintiff had been informed by the Defendant’s solicitors regarding the key drop. The Plaintiff’s witness, SP1, also conceded that a joint inspection was not a contractual requirement. “PD: And do you agree that the joint inspection is not stated in the tenancy agreement. Correct? The joint inspection is not stated in the tenancy agreement. I mean when I mentioned joint inspection is the proper handover to inspect the property together. It is not mentioned in the tenancy. So, do you agree when the Defendant has vacated the premise in March and returned the key in the mailbox, the Plaintiff did not re-enter and repair the premise, correct? The tenant did not re-enter? No, the Plaintiff, not the tenant. When the Defendant vacate the premise and return the key in March, the Plaintiff, which is the landlord, did not re-enter the premise? Yes. And based on the tenancy agreement, the Plaintiff is entitled to do so, correct?

From the above testimonies, it can be seen that the Plaintiff also admitted that, despite the Defendant having vacated the premises and returned the keys, they chose not to re-enter. This directly undermines the Plaintiff’s allegation of “holding over”. This court finds that the Plaintiff did not produce evidence that the Defendant excluded the Plaintiff from possession. Once the landlord has access or control, the tenant cannot be said to be holding over.

The repeated reminders demanding a “proper” delivery of possession appear, in the circumstances, to be tactical manoeuvres aimed at prolonging the accrual of double rental. The double rental claimed — from 13.7.2023 up to 10.9.2024 — exceeds one year and amounts to RM217,561.37. And this amount alone forms the claim of this suit, not any arrears of rental!

It is further noted that the Plaintiff continues to retain the RM23,400.00 deposit, despite producing only a quotation for RM4,750.00 (P1) as evidence of restoration cost. The deposit would be more than sufficient to cover this amount. Yet the Plaintiff opted instead to accept monthly payments described by the Defendant as rental, while simultaneously asserting that such payments would be treated as double rent — a position not provided for under the tenancy agreement.

To add to the perplexity, in a letter dated 10.8.2023 (p. 49, Bundle B), the Plaintiff expressly stated that the double rent collected could be utilised to offset restoration costs, in the following terms: “2. As you are well aware, the Tenancy Agreement dated 1.12.2022 was effectively terminated on 5.7.2023 and any payments made subsequent to this termination will be utilised to offset outstanding amounts owed to our client, including, but not limited to, double rental, utilities, and restoration costs. Therefore, kindly be reminded that the payment made on 6.8.2023 is not recognised as rent but as payment for the aforementioned purposes.” Notwithstanding this assertion, the Plaintiff persisted in refusing to re-enter the premises or to ascertain the actual restoration costs, despite being contractually entitled — and indeed empowered — to do so without incurring any liability under Clause 10.1.4(a)(cc).

This Court must emphasise that, in the present case, following the issuance of the termination notice on 5.7.2023, the arrears of rental for June 2023 was promptly paid, and the rental for the subsequent month was likewise paid. Unlike the more typical tenancy disputes, this is not a case where rental arrears form any part of the relief sought in the Statement of Claim.

The decision in Prem Kumar a/l Selvaedran v Bambull Sdn Bhd [2023] MLJU 1454 cited by the Plaintiff is clearly distinguishable. In Prem Kumar, the tenant expressly admitted the outstanding debts via WhatsApp and did not dispute the notice to quit. In contrast, in the present matter, no notice to quit was issued, and there was no outstanding rental after the termination notice dated 5.7.2023 because the Defendant had made immediate payment upon being notified. The factual matrix is therefore materially different, and the doctrine applied in Prem Kumar cannot be mechanically or transposably applied to the circumstances of this case.

It must be emphasised that, at the time the Defendant settled the arrears for June, he simultaneously paid the rental for July, and such payment was accepted by the Plaintiff. Notwithstanding the Plaintiff’s subsequent letter asserting that all payments made after termination would be treated as set-off against double rental or restoration cost, this Court finds such a position untenable. First, the Tenancy Agreement contains no provision permitting such a set-off; in other words, the Agreement does not allow it. Under the Agreement, only the security deposit may be utilised to set off restoration costs. Secondly, it is doubtful whether the Plaintiff may purport to set off sums in respect of a penal sum—namely double rental—which has not yet been adjudicated upon or granted by the Court.

It is clear that double rental cannot be claimed as of right, even where a tenancy has been determined. Section 28(4)(a) of the Civil Law Act 1956 vests the Court with a discretion, and the imposition of double rental depends upon the overall circumstances, including the conduct of the parties, the presence or absence of the landlord’s consent to holding over, and the equities of the case.

In Soong Ah Chow & Anor v Lai Kok Cheng [1986] 1 MLJ 42, the learned trial judge directed the tenants to render vacant possession of the premises and to pay double rent from August 1, 1979, that is, the date that the trial judge held them to be trespassers. The tenants appealed to the former Federal Court. It was held as follows:

Because of the refusal of the landlord to accept any rental from August 1, 1979 no tenancy was created between the parties as from that date. There was therefore no tenancy existing between the tenants and the landlord after July 31, 1979 in respect of the premises; and

Since the trial judge had found the tenants to be trespassers from August 1, 1979 the order to impose double rental from that date was correctly made.

In short, the Federal Court affirmed that where the landlord refused to accept rent after the tenancy’s expiry, no new tenancy arose and the tenants became trespassers. Double rental was correctly imposed from the date they were held to be trespassers. Hashim Yeop A Sani FJ reaffirmed that s 28(4)(a) provides the court with discretion, and that its application depends on whether the tenant is indeed holding over without the landlord’s consent. In delivering the unanimous decision of the Court, he said: “Section 28(4)(a) of the Civil Law Act 1956 provides that every tenant holding over after the determination of his tenancy shall be chargeable, at the option of the landlord, with double rental until possession is given up by him. The effect of section 28(4)(a) was examined in Krishna Sreedhara Panicka v Chiam Soh Yong Realty Co. Ltd. The majority judgment held the view that the court has discretion when to impose double rent. It seems to me that the legislature’s choice of words “shall be chargeable” clearly implies some discretion. But a more difficult question is the extent of the discretion. In Panicka’s case the trial Judge had found that the parties had come to some sort of understanding and considered it to be unconscionable for the respondents to claim double rent from the expiry of the notice. The majority judgment saw no reason to interfere with the exercise of this discretion. In the present case, since the trial Judge had found the appellants to be trespassers from August 1, 1979 the order to impose double rental from that date was correctly made.”

The discretion inherent in s 28(4)(a) is further illustrated in Krishna Sreedhara Panicka v Chiam Soh Yong Realty Co Ltd [1983] 1 MLJ 65, where the majority of the Federal Court held that it would be “unconscionable” to impose double rental from the expiry of the notice to quit due to the parties’ conduct and their underlying understanding. The court emphasised that damages for holding over can only run from the determination of the lease, but the court retains discretion depending on the equities of the case. The learned CJ (Borneo) explained as follows: “Damages can only be recovered as from the determination of the lease, whatever form it may take, whether by effluxion of time, notice to quit or by re-entry under a proviso for that purpose. In our case the conduct of the parties were such that the learned Judge had to decide as to the best course to take in the absence of any authority to guide him. The learned Judge was of the view that the parties had come to some sort of understanding and considered it to be unconscionable for respondents to claim double rent from the expiry of the notice.”

The Federal Court in both Soong Ah Chow and Panicka made plain that the mere fact of holding over does not automatically entitle a landlord to double rental; rather, the Court must be satisfied that the tenant is a trespasser in substance and that it is just and proper to impose such enhanced damages. Accordingly, double rental is an exceptional remedy, dependent not only on the legal determination of the tenancy but also on the fairness and intention discernible from the parties’ conduct.

In the present case, the Defendant continued to make payments described as “rent” in all the online transfer records, and the sums paid corresponded with the ordinary contractual rental rate. The Plaintiff conveniently accepted these payments from July 2023 until March 2024. After March 2024, the Defendant returned the key and ceased making further rental payments. Despite this, the Plaintiff delayed re-entering, inspecting, or taking control of the premises, and only in September 2024—approximately six months later—did the Plaintiff elect to re-enter.

In the Court’s view, a landlord cannot be permitted to profit from a delay of its own making. Accordingly, any alleged period of “holding over” must, in these circumstances, be either substantially reduced or extinguished altogether.

The principle is well-articulated by Nallini Pathmanathan J in Golden Quantum Acres Sdn Bhd v SSU Management Services Sdn Bhd [2013] MLJU 1611 “[29] (h) In this context the plaintiffs are required to mitigate their losses by ensuring that the repairs are effected within a reasonable time. They are entitled to be compensated on the basis of an objective and reasonable estimate of the time taken to effect the requisite works. [30] For these reasons it appears to this court that the learned Sessions Court Judge erred in allowing the plaintiffs’ claim for liquidated damages for period of some five odd years giving rise to a claim for RM869,816.92 together with interest. This is a greatly exaggerated claim which does not achieve the purpose of compensating the plaintiffs for their loss but instead flouts the principle that the plaintiffs are not to profit or take advantage by claiming for damages well in excess of the wrong suffered. It is necessary for the plaintiffs to lead evidence in the course of any assessment of damages hearing, that they have in fact made an attempt to mitigate the losses they have suffered. This must be a question of fact which cannot be determined by way of an originating summons. In other words whether or not the plaintiffs did in fact mitigate their losses is a question of fact. So is the issue of an objective assessment of the time taken to effect the repairs necessary such that the villas meet the contractual specifications.”

Having considered these principles, this Court does not accept the Plaintiff’s assertion that re-entry on 11.9.2024 constituted a reasonable step in mitigation. The Plaintiff could and ought to have mitigated its loss at an earlier stage.

Although s 28(4)(a) CLA permits the imposition of double rent, the entitlement is not absolute. Even this Court has already found the termination notice valid, however, from the Defendant’s perspective, he could not have known this at the material time. The Plaintiff’s act of accepting rental for July 2023, immediately after issuing the termination notice, reasonably led the Defendant to believe that the tenancy could continue upon clearing the arrears.

Hence, to award double rent in these circumstances would, in this Court’s view, offend natural justice. A sufficient notice to quit ought to have been issued to ensure clarity, especially in light of the Plaintiff’s earlier tacit acceptance of late rental payments. As mentioned above, there was a delay in the payment of rent for the months of April to June 2023. However, the evidence shows that such delay had been communicated to Ms. Eva, who was the Plaintiff’s representative, and that the Plaintiff raised no objection to the late payment at the material time (see SD-1’s answer to question 5 of the Defendant’s witness statement).

Significantly, the Plaintiff did not call Ms. Eva to rebut this representation. Had Ms. Eva been called, she would have been in a position either to confirm or deny SD-1’s account in paragraph 5 of the Defendant’s witness statement (WSSD-1), which reads as follows: “5. Boleh Encik terangkan mengenai bayaran sewa yang dibuat oleh Defendan kepada Plaintif pada bulan April sehingga Jun 2023? “Terdapat kelewatan pembayaran sewa untuk bulan April sehingga Jun 2023. Akan tetapi, kelewatan dalam pembayaran sewa bagi bulan-bulan tersebut telah pun dimaklumkan kepada Eva selaku wakil dan Pengarah Plaintif dan

Plaintif tiada bantahan dengan kelewatan bayaran sewa. …” It is also relevant that the Plaintiff acknowledged that Ms. Eva was the individual responsible for liaising with the Defendant. The evidence shows that, at all material times, the Defendant’s communications regarding the tenancy were made through this representative, “Ms. Eva”. SP-1 expressly admitted that she herself was not Ms. Eva and confirmed that Ms. Eva was a different individual who had been the point of contact with the Defendant (refer to the Notes of proceeding at pages 5–6). “PD: Ms. Ng, the Defendant's instruction, they've been communicating with a person named Eva. PD: Are you Eva? SP1: No, I'm not. Eva is one of our staff in this company. PD: So, is it true that Defendant has been communicating with Eva? PD: Who's Eva, by the way? SP1: She's actually one of the staff in this company reporting to me. PD: Can I have her full name? SP1: Chee. We call her Chee, Ms. Chee. PD: But Defendant called Eva? Eva Chee, right? PD: So, you confirm Ms. Eva is the one who communicated with the Defendant all this while for the tenancy, correct?

SP1: Yes.” The Plaintiff’s failure to call Ms. Eva, while not affecting the validity of the termination notice—given this Court’s finding that the Defendant was in breach of the Agreement by failing to make payment on or before 7 June 2023— nonetheless contributes to the overall picture of inconsistent positions taken by the Plaintiff at the material time. Such inconsistency could reasonably have caused confusion to the Defendant.

The Plaintiff’s inconsistent instructions and conduct, particularly the acceptance of late rental payments, materially contribute to the equitable considerations militating against the imposition of double rent. Such conduct is capable of inducing a reasonable belief on the part of the Defendant that strict compliance was not being insisted upon at the material time, thereby weakening the Plaintiff’s assertion that the Defendant was a wrongful holder-over. In these circumstances, equity does not favour the grant of double rental.

The Federal Court in Rohasassets Sdn Bhd v Weatherford (M) Sdn Bhd [2020] 1 MLJ 557 emphasised that double rent arises only when a tenant wrongfully occupies the premises without the landlord’s consent after the expiry of a valid notice to quit. Where the landlord, by conduct or acceptance of rent, permits continued occupation or delays in re-enter the premises, double rent cannot be claimed for the period of acquiescence.

CONCLUSION Having considered the totality of the evidence, the contractual provisions, the applicable legal principles and in light of the foregoing analysis, this Court arrives at the following conclusions.

While the Plaintiff was contractually entitled to terminate the tenancy pursuant to Clause 10.1.1, arising from the Defendant’s failure to make timely payment of rent, the Plaintiff’s subsequent conduct materially weakens its claim to double rent.

Although the Tenancy Agreement in this case does not expressly require the service of a notice to quit, and the Plaintiff was therefore not contractually obliged to issue one, the common law position remains that where the lease is silent, the principles governing notice to quit continue to apply. The requirement of sufficient and reasonable notice is grounded in fairness and is consistent with long-established common law authority. The Plaintiff’s pleading-based objection in this issue is untenable, as the necessity of a notice to quit is a question of law affecting entitlement to double rental, and parties are required to plead facts, not matters of law.

In the present case, the Plaintiff neither issued a valid and sufficient notice to quit nor afforded the Defendant reasonable notice, whether before or after termination. While the absence of such notice does not affect the validity of the termination notice already issued, it nevertheless constitutes a material equitable consideration when assessing whether an award of double rent should be granted.

Furthermore, the Plaintiff’s inconsistent conduct — in continuing to accept rental payments after termination, unilaterally recharacterising those payments as “double rent” or as set-off against restoration costs, and delaying re-entry into the premises — is both legally unsustainable and contractually impermissible. Such unilateral assumption that post-termination payments could be applied towards double rent or restoration costs is neither supported by law nor provided for under the Tenancy Agreement.

These inconsistencies, coupled with the absence of a proper notice to quit, defeat the Plaintiff’s entitlement under section 28(4)(a) of the Civil Law Act 1956, a penal provision that must be strictly construed. While the right to double rental is statutory in nature, its application is not automatic. The court retains discretion, guided by equitable considerations such as consent, waiver, negotiation conduct and unconscionability, in determining whether double rental ought to be imposed.

In addition, the Plaintiff’s failure to take prompt steps to re-enter and mitigate its loss further militates against the claim for double rent. Equity will not permit a landlord to profit from its own delay, failure to mitigate, or conduct that reasonably led the tenant to believe that the tenancy relationship continued upon payment of the arrears.

Accordingly, while the termination notice is upheld as valid, the Plaintiff’s claim for double rental is dismissed. For the reasons stated above too, this Court disallows the Defendant’s counterclaim seeking a declaration that the termination was invalid, and rejects the accompanying claim for special damages in respect of legal costs.

By virtue of Clause 4.1.3 of the Agreement, and in light of this Court’s conclusion that the Defendant breached its provisions, the Plaintiff is not liable to refund the balance of the security deposit, after deducting the proven repair costs and any outstanding utility charges.

Given the mixed outcome of the case, this Court orders that each party shall bear its own costs. Dated: 19 November 2025 (YONG LEOU SHIN) Judge Session Court Shah Alam Selangor Counsel for the Plaintiff WONG ZHI KHUNG & WENDY YEONG Messrs. Wong & Yeong, solicitors Kuala Lumpur Counsel for the Defendant DATUK ADNAN SEMAN @ ABDULLAH Tetuan Adnan Sharida & Associates Bangi, Selangor