Eden Catering Sdn Bhd v ELLEN LOH KIN LEAN [Setiausaha Persatuan Alumni Universiti Malaya ("PAUM"), No. Pendaftaran Persatuan 9217/89, didakwa dalam kapasiti sebagai Pegawai Awam PAUM] (WA-22NCvC-922-12/2019)

On 16.03.2015, the Defendant, a society bearing the name “Persatuan Alumni Universiti Malaya” (“PAUM”), signed a Lease Agreement (“the Lease Agreement”) with University of Malaya 18/08/2025 16:55:30 WA-22NCvC-922-12/2019 Kand. 107 (“UM”) to lease the land on which the PAUM’s clubhouse is erected for a period of 15 years starting 16 March 2015.

Under Clause 2(1) of the Lease Agreement, PAUM is obligated to, inter alia, pay a monthly rent of RM15,000.00 to UM, starting a year after the date of the handling over of vacant possession of the leased area. To this date, PAUM has been dutifully paying the monthly rental to UM.

The purpose of the Lease Agreement is to enable PAUM to operate a clubhouse and the facilities included therein which are the Banquet Hall, the seminar rooms and the sports facilities (“the Clubhouse”).

On 11.05.2015, the Plaintiff and PAUM had signed a Consession Agreement (“the Concession Agreement”) under which PAUM had granted a concession to the Plaintiff, starting 16.03.2015 (“the Commencement Date”), to exclusively manage the food and beverages (“F&B”) operations of the Coffee House (known as “Aroma Café”) and the Banquet Hall within the Clubhouse. The Plaintiff was also made the F&B supplier to all other outlets in the Clubhouse.

Similar to the Lease Agreement, the concession period under the Concession Agreement was 15 years starting from the Commencement Date, and the Plaintiff was required to pay the Concession Rate of RM15,000.00 every month to PAUM starting 16.03.2016.

The said concession was one of PAUM’s main sources of income to pay the monthly rent to UM and for other activities in managing the Clubhouse.

As a result of the Plaintiff’s failure to timeously pay PAUM the Concession Rate, utility charges and 12.5% of the gross sales generated from private functions held at the Aroma Café (“the Commission”) starting 2016 and to carry out adequate marketing, advertising and promotional activities to create awareness and to generate F&B related sales for the Clubhouse, PAUM had taken over the management and marketing of the Banquet Hall as a necessary measure to mitigate its losses.

The Plaintiff had on this basis, filed this action against the Defendant for breach of the Concession Agreement for engaging third party caterers which forms the gist of the Plaintiff’s claim (“Suit 922”).

By the same token, PAUM had issed numerous letters including a forfeiture notice dated 31.12.2021 (“the Forfeiture Notice”) to the Plaintiff pursuant to Clause 14.1 of the Concession Agreement.

Due to the Plaintiff’s failure, neglect and/or refusal to fully remedy the breaches raised in the Forfeiture Notice, PAUM had through its solicitors, issued a notice dated 11.03.2022 to the Plaintiff (“the Termination Notice”) to terminate the Concession Agreement and to demand the Plaintiff to hand over vacant possession of the Clubhouse to PAUM within 14 days from 11.03.2022.

On 12.04.2022, the Plaintiff had failed another action against the Defendant, seeking declaration that the Forfeiture Notice and Termination Notice were null and void (“Suit 207”). Suit 207 was subsequently transferred to this Court to be consolidated and heard together with Suit 922.

ii. The TrialDuring the trial, the Plaintiff called five (5) witnesses, and the Defendant called one (1) witness as follows: PW1 Datin Fara Nadia Abd Rahim PW2 Dato’ Nik Mohd Fuad Wan Abdullah PW3 Zaiful Azrin bin Zulhazmi PW4 Dzalkurnine bin Zainal Abidin PW5 Sharon Lim Paik Lean DW1 Loh Kin Kean iii. Issued to be Tried 13. Before the trial, the Parties had agreed on the issues to be trial as follows: -

Suit 922Whether the Plaintiff had breached the Concession

(ii) If the answer to the above is in the affirmative, whether PAUM’s attempt to mitigate the losses was in breach of the Concession Agreement. Suit 207(i) Was PAUM’s termination of the Concession Agreement valid in law?

(ii) Was there any obstruction by PAUM that warrants an injunction in the Plaintiff’s favour?

B. Findings and Decision of the CourtAt the end of the trial, after deliberated on the submissions and replies by the counsels, and after an extensive study on the evidence tendered, I have decided to dismiss the Plaintiffs’ action for both Suit 922 and Suit 207. I shall address the issues in turn.

The law is trite that the Plaintiff bears the burden of proof to prove its claim against the Defendant. I refer to Section 101(1) and 103 of the Evidence Act 1950 as follows: “101. Burden of proof

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”.

In the Federal Court case of Inas Faiqah Helmi (A Child Suing Through Her Father and Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885, Abdul Hamid Embong FCJ (as he then was) in delivering the judgment of the court held: “The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabalities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not.”.

I will now look at the issues arising from the dispute between the parties.

The Plaintiff alleged that the Defendant had breached the Concession Agreement on numerous occasions by allowing outside caterers to providing food and beverages within the Clubhouse.

By virtue of the Concession Agreement, it was agreed by the parties that the Plaintiff was given the benefit of exclusivity to cater and/or manage all food and beverages operations at the Club House (Aroma Restaurant), Banquet Hall and become the sole supplier for food and beverages service for the whole of PAUM Clubhouse, include but not limited to seminar and meeting room, food and beverages corner by the swimming pool and all supply of food and beverages in sports complex.

The Plaintiff alleged that the Plaintiff’s sales had shown a significant increase year on year since the Plaintiff started operating at the Clubhouse. However, their sales started to decline dramatically since the Defendant started farming out the business to outside caterers in 2017.

From the Defendant’s point of view, the Defendant submitted that the Plaintiff had breached the Concession Agreement by failing, refusing and/or neglecting to make timely payments of the Concession Rate, the Commission and utility charges.

The Defendant also alleged that the Plaintiff was the one who breached the Concession Agreement by failing, refusing and/or neglecting to do sufficient marketing, advertising, and promotional activities to generate adequate sales.

I will address the above issues in length in the later part of this grounds. I will first examine the contention that the Defendant had breached the Concession Agreement.

In the Statement of Claim, the Plaintiff alleged as follows: “8. Plaintif menegaskan bahawa PAUM telah membawa dan/atau mengupah pembekal-pembekal makanan (caterer) yang lain bagi membekalkan makanan dan minuman untuk pelbagai acara, majlis dan/atau yang dijalankan di Banquet Hall dan di rumah kelab PAUM. Tindakan PAUM ini adalah jelasnya bertentangan dengan klausa (D) dan 4.1 A(a) dan justeru itu telah memungkiri perjanjian tersebut.”. [Emphasis added]

The Defendant submitted that due to the breaches by the Plaintiff above, the Defendant had to rented out the Banquet Hall to event organisers as a necessary measure to mitigate the losses resulting from the Plaintiff’s breaches above. The Defendant further submitted that in the course of them renting out the Banquet Hall to event organisers, the Defendant had never hired or paid outside caterers for these event organisers.

Evidently, the Defendant had tendered few invoices which can be found at Bundle of Documents Volume B7 at page 7, 8 & 9. Through these invoices, I agree with the Defendant that the Defendant had never engaged or paid any third-party caterers. In fact, these invoices showed that the Defendant had merely rented out the Banquet Hall to the event organisers.

Furthermore, I refer to a letter by the Defendant to the Plaintiff dated 25.09.2019 which can be found in Bundle of Documents Volume B1 at page 153 to 155. In this letter, the Defendant had explained that such caterers as alleged by the Plaintiff were chosen and engaged by the customers themselves and not by the Defendant. The Defendant also stated that the availability of the Plaintiff’s services had always been conveyed by them to the customers as an option.

Interestingly, when cross-examined by the Defendant’s solicitor of whether or not the Plaintiff had any proof that the Defendant paid outside caterers, PW1 said that the Plaintiff had none. This can be seen as follows: “DC : My question is Datin, do you have any proof that PAUM paid these outside caterers? PW1 : Paid outside caterers no.”. [Refer Notes of Proceeding, page 76, line 10 – 12]

It is worth noting that the Plaintiff’s claim against the Defendant is for “bringing in” and “hiring” outside caterers to supply food and beverages for events organized in the Banquet Hall and the Clubhouse. Obviously, the candid testimony of PW1 is an admission against the Plaintiff themselves.

There was also an issue of whether or not the Defendant have taken over the management and the marketing of the Banquet Hall. I refer to clause 4.1B(a)(vii) of the Concession Agreement: “Both Parties are to have access to a joint diary in order to facilitate the bookings and reservations in respect of the utilisation of the Banquet Hall. For the avoidance of doubt, PAUM and EDEN shall be the joint-approving authority in respect of all bookings and reservations in relation to the utilisation of the Banquet Hall.”.

As fa as this Court is concerned, the Defendant’s action of facilitating the bookings of the Banquet Hall as evidenced by the invoices above are well within their jurisdiction according to clause 4.1B(a)(vii) of the Concession Agreement. Therefore, it is inappropriate to say that the Defendants were in breach when in fact their act was permitted by the Concession Agreement.

Having read the submissions and having considered the evidence before me, I find that the Plaintiff had failed to prove that the Defendant had brought in and/or paid and/or hired outside caterers for any events organised in the Banquet Hall and the Clubhouse. Therefore, I find that the Defendant was not in any way in breach of the Concession Agreement.

Based on the above, the Plaintiff’s claim is hereby dismissed.

I will now look at the Defendant's counterclaim in Suit 922.

In prayer (a) of the Defendant’s counterclaim, the Defendant is claiming for RM57,953.94 being the outstanding amount due and owing by the Plaintiff to the Defendant under the Concession Agreement as at 02.01.2020. However, this was fully settled by the Plaintiff before the trial. Therefore, it is no longer an issue before me.

For prayer (b), it is the Defendant’s claim that the Plaintiff shall submit a complete statement of account, charges, income and expenses in relation to sales related to F&B at the Clubhouse, Banquet Hall and/or Ramadan Buffet up to 31.12.2015 for the year 2015 up to 2022 in accordance with Clause 4.1A(a)(vi) of the Concession Agreement.

The Defendant premised that under Clause 4.1A(a)(vi) of the Concession Agreement, the Plaintiff was obliged to furnish to the Defendant full and complete sales reports in respect of the Banquet Hall sales at the end of the Plaintiff’s financial year.

It is not disputed that the Plaintiff has yet to furnish any reports to the Defendants pertaining to sales related to F&B at the Clubhouse, Banquet Hall and/or Ramadan Buffet since the inception of the concession in 2015. However, the Plaintiff disputed that the Defendant is entitled to sales reports pertaining to F&B at the Clubhouse, Banquet Hall and/or Ramadan Buffet. The Plaintiff submitted that according to Clause 4.1A(a)(vi) of the Concession Agreement, the Defendant is only entitled to sales report of the Banquet Hall and not as demanded vide their counterclaim.

Clause 4.1A(a)(vi) of the Concession Agreement read as follows: “(iv) To prepare and submit to PAUM full and complete sales report (which shall be limited to the Services herein defined) with regards to the Banquet Hall sales at the end of EDEN’s financial year.”.

Based on the above, I partially agree with the Plaintiff on this. Therefore, I order the Plaintiff to furnish the sales report concerning food and beverages for the Clubhouse, Banquet Hall and/or Ramadhan Buffet within thirty (30) days from the date of judgment. However, the sales report does not have to be as detailed as pleaded by the Defendant because the Concession Agreement does not give the Defendant the power to ask for those details up to that extend.

I shall now look into prayer (c) and (d) of the Defendant’s counterclaim.

Under prayers (c) and (d) of the counterclaim, the Defendant is claiming for 12.5% of the gross sales generated from all the functions held at the Banquet Hall, Ramadhan Buffet and Aroma Café in accordance with clauses 4.1B(a)(vii), 4.1C(a)(vii) and 20.4A(d) of the Concession Agreement.

To refute this, the Plaintiff argued that the Defendant owed a burden to this Court to demonstrate that functions were indeed held at the Banquet Halls. Once the burden is discharged, only then would the Defendant be entitled to 12.5% from the gross sales for any functions held at the Banquet Hall.

However, the Plaintiff alleged that the Defendant had failed to speficy all the functions held at the Banquet Halls. Therefore, the Defendant’s counterclaim is defective and shall fail.

With regard to the above, I am of the view that the Plaintiff’s contention cannot stand.

I refer to the Notes of Proceedings at page 311 – 313. When cross-examined by the Plaintiff’s counsel pertaining to the above claim, answered as follows: “PC : It doesn’t matter. That is why I’m guiding you, it is correct isn’t, what you are claiming, what in the agreement. I’m saying is it correct? DW1 : We claim for Banquet Hall and Ramadhan Buffet. Yup, we did. Because Ramadhan Buffet is also held in Banquet Hall.”.

Based on the above, I agree with the Defendant’s submission. The Defendant premised that the Ramadhan Buffet was held in the Banquet Hall. Therefore, as elaborated above, it is the duty of the Plaintiff to furnish sales reports for functions held at the Banquet Hall.

From the sales report the parties would then be able to calculate the amount that the Defendant is entitled to based on 12.5% of the gross sales generated from the function at the Banquet Hall.

Since the Plaintiff was the one who breached the Concession Agreement in the first place, the Plaintiff cannot now shift the blame to the Defendant for failing to identify all the functions held in the Banquet Hall when it could be easily identified if the Plaintiff furnished the sales report to the Defendant.

Based on the above, I dismiss the Plaintiff’s claim. Consequently, I allow prayer (b), (c) (d) and (f) of the Defendant’s counterclaim with cost of RM30,000.00.

The injunction against the Defendant under Suit 922 is hereby revoked and/or terminated subject to assessment of damages.

In Suit 207, the main issue is whether the Defendant’s termination of the Concession Agreement is valid in law.

The facts that lead to the termination of Concession Agreement are in relation with clause 20.4A(d) of the Concession Agreement.

Clause 20.4A(d) of the Concession Agreement reads as follows: “If the Coffee House is booked for a private function [subject always to a reservation of a reasonable number of tables and seats for walk-in members or other guests], EDEN shall pay to PAUM a sum equivalent to 12.5% of the gross sales of the function. The payment terms shall follow Clauses 5.2 and 5.3 above.”.

As a result of the Plaitniff’s failure to pay the Defendant the commission of 12.5% from the gross sales generated from private functions held at Aroma Café since 2016, the Defendant had issued the Forfeiture Notice to the Plaintiff pursuant to Clause 14.1 of the Concession Agreement.

Consequently, when the Plaintiff failed to pay as demanded in the Forfeiture Notice, the Defendant issued a Termination Notice to terminate the Concession Agreement and demanded the Plaintiff to hand over vacant possession of the Clubhouse within fourteen (14) days from 11.03.2022.

The Plaintiff remained recalcitrant and refused to comply with the Termination Notice. Therefore, the Plaintiff filed Suit 207 for, inter alia, a declaration that the Forfeiture Notice and Termination Notice are null and void.

As pleaded by the Defendant in their defence, there was a total of 108 private functions held at Coffee House (Aroma Café) as of April 2022 of which the commission due and payable pursuant to clause 20.4A(d) was not paid to the Defendant by the Plaintiff.

Throughout the proceedings, the Plaintiff maintained its stance that the 108 functions held at Aroma Café as stated by the Defendant were not “private functions” pursuant to clause 20.4A(d) of the Concession Agreement.

The Plaintiff through the Witness Statement of PW1, PW2 and PW5 consistently defined a “private function” as follows: “Private function is only when the total premises or total venue hire (and in this content the restaurant of 200 seeting capacity) is made exclusive to the hiring party.”.

During the trial, PW5 justify the definition of “private function” as follows: “PC : Miss Sharon you were then referred to question 18 of your witness statement. The question was how do you define private function. And you answers therein. Ok, Counsels for the Defendant earlier asked you is this definition of private function is your personnel interpretation. Your answer no. Then, you were asked who define this definition of private function. You said you can’t recall. Can you explain how did you derived to this definition? : Based on industry norm private function is where at the event if the event space is hired, exclusively to the hirer.”. [Refer Notes of Proceeding, page 233, line 9 – 17]

There are two versions of “private functions” according to each party. The Plaintiff defined “private functions” as only when the total premises or total venue hire (and in this context restaurant of 200 seating capacity) is made exclusive to the hiring party.

The Defendant defined “private functions” as when Aroma Café (instead of being opened to is day-to day walk-in customers) was book on a specific date and time for a closed group of people to hold, celebrate and gather for an event, irrespective of its numbers, but subject always to reasonable number of walk-in members and guests.

Both parties agreed that “private functions” involved exclusivity to a closed group of people. However, the Plaintiff went overboard and claimed that the so called “exclusivity” must only mean that when the whole premises (200 seatings) is made exclusive only to the hiring party. The word “exclusivity” cannot be used if only part of the premises or less than 200 seatings were book. Ergo, does not suit the definition of “private functions”.

However, looking at clause 20.4A(d) of the Concession Agreement, this Court find nothing to support the Plaintiff’s claim that there must be certain numbers of booking for it to be considered “private function”.

During the cross-examination, PW5 had conceded that the Plaintiff’s interpretation of a “private function” was wrong. I refer to the Notes of Proceedings at pages 206 – 207, lines 19 – 22 and 1 respectively as follows: “DC : Does this clause says that Aroma Café must be booked for 200 pax for an event to considered as private event? : No. … DC : My question is does this clause, there is anywhere in this clause says that Aroma Café must be reserved exclusively to the hiring party and therefore no rooms for outside guests as you have defined earlier? : No. … DC : So I will put to you Miss Sharon, private event would simply mean when Aroma Café is booked for close group of people to hold any event irregardless of number of people but always subject to a reasonable number of seats reserved for walk in members and guests, correct? : Yes.”.

I therefore agree with the Defendant on this issue. Clause 20.4A(d) of the Concession Agreement, in my view, was drafted as a privilege granted to the Defendant to assure that PAUM’s members could occupy a reasonable number of seats in the Aroma Café should there be a private function held in the Aroma Café. However, this does not in any way make the function less private.

When the Concession Agreement was executed by the parties, both parties had understood and agreed to every clause stated therein. The Plaintiff cannot now come before this Court and deny its obligation by inserting a whole new terms and definitions to it. Not the Plaintiff nor this Court could rewrite the terms of the Concession Agreement.

I refer to the Federal Court case of Ong Thye Peng v. Loo Choo Teng & Ors [2008] 1 CLJ 571 where Augustine Paul FCJ in delivering the judgment of the court held: “The first principle is that the Court cannot rewrite the parties' agreement (see Law and Practice of Compromise by David Foskett at page 81, Fourth Edition and quoted with approval by the Court of Appeal in Lee Lim Huat v. Yusuf Khan bin Ghows Khan & Anor [1997] 3 CLJ 197.”.

Therefore, it is trite that this Court cannot rewrite the terms of the agreement agreed by the parties.

Furthermore, it is trite when the term which is clear and unambiguous (in this case, clause 20.4(A)(d) of the Concession Agreement), it should be interpreted in its plain and natural meaning (see Federal Court decision of SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ 177).

This Court have also explained the same in the case of Rancangan Kita Sdn Bhd v. Ketua Pengarah Kerja Raya Malaysia & Ors [2012] 1 LNS 1086 as follows: “[25] The cardinal rule of interpretation premises that the court will give effect to the plain and unambiguous meaning of the contractual term as expressed by the parties. In other words, it does not matter what parties thought the contractual term meant for, what matters is what has been clearly and expressly stated in the contract. [26] The test is what a reasonable person would have understood the contractual term to mean. If there is no ambiguity as to the meaning of the term, the court has no choice but to apply the plain meaning of the term.”.

Therefore, to the question of whether the Forfeiture Notice and Termination Notice is null and void, I answer it in negative.

Based on the facts and evidence before me, I find that the Plaintiff was liable to pay the commission to the Defendant, therefore, had breached clause 20.4(A)(d) of the Concession Agreement. The Plaintiff had been served with the Forfeiture Notice by the Defendant. The Plaintiff had failed to rectify the breach. Therefore, the Defendant terminated the Concession Agreement by virtue of clause 14.1 of the Concession Agreement.

Hence, I find that the Plaintiff had failed to establish its case. With that, the Plaintiff’s claim under Suit 207 is also dismissed with cost of RM20,000.00.

The injunction against the Defendant is hereby revoked and/or terminate subject to assessment of damages. C. Conclusion 85. To sum up, this Court find that the Plaintiff had failed to establish that the Defendant had breach the Concession Agreement under Suit 922. Therefore, the Plaintiff’s claim under Suit 922 is dismissed with cost of RM30.000.00.

The Plaintiff is also ordered to furnish a sales report pertaining to food & beverage for Clubhouse, Banquet Hall and/or Ramadhan Buffet for 2015, 2016, 2017, 2018, 2019 and up to 07.01.2020 to the Defendant within thirty (30) days from the date of this judgment.

Besides, the Plaintiff is to pay the Defendant, 12.5% from the gross sale from the functions and events held as mentioned in the sales report within thirty (30) days after the finalisation of the sales report subject to 5% interest until full payment.

The earlier Injunction imposed against the Defendant in Suit 922 is hereby lifted and/or revoked and this is subject to the usual assessment of damages.

Consequently, this Court find that the Defendant had successfully established its counterclaim against the Plaintiff in Suit 922. Therefore, the Defendant’s counterclaim is allowed.

For Suit 207, this Court hold that the Forfeiture Notice and Termination Notice issued by the Defendant are valid. Therefore, the Plaintiff’s claim under Suit 207 is also hereby dismissed with cost of RM20,000.00.

Again, the earlier Injunction imposed against the Defendant in Suit 207 is hereby lifted and/or revoked and the same is also subject to assessment of damages. Dated: 14th August, 2025 ---------------------------------------------------------------- DR. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Plaintiff : Ramesh N P Chandran & Tejal Harash Messrs. Ramesh Yun & Co. Advocates & Solicitors For The Defendant : Yap Boon Jhoe, Kevin De Rozario & Deborah Lau Ee Yi Messrs. Khaiduddin Ngiam & Tan Advocates & Solicitors Table of Authorities Cases Inas Faiqah Helmi (A Child Suing Through Her Father and Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885 Ong Thye Peng v. Loo Choo Teng & Ors [2008] 1 CLJ 571 Rancangan Kita Sdn Bhd v. Ketua Pengarah Kerja Raya Malaysia & Ors [2012] 1 LNS 1086 SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016]