Express Rail Link Sdn Bhd v Semasa Parking Sdn Bhd (WA-22NCvC-632-09/2018)

The Plaintiff’s claim against the Defendant is for breach of contract of payment for the management of 370 lot of car park at KL Sentral.

On 24/11/2020 the Court had decided under Order 33 Rules of Court 2012 (“the Rules”) that the Plaintiff had no cause of action against the Defendant. This decision was however overturned by the Court of Appeal which directed the case to proceed for trial. 30/04/2024 16:52:10 WA-22NCvC-632-09/2018 Kand. 194 S/N ftf22//NZ0CMsgJmqIuftA

The Court in proceeding with the trial thought it fit to decide on the issue whether the Plaintiff was eligible for profit sharing for the periods between 2013 and 2014 under the agreement with the Defendant. This issue could be decided by legal submissions without the need to call witnesses as it involved the interpretation of the contract between the Plaintiff and the Defendant. The Court was also informed that the merits of whether the Plaintiff had a cause of action against the Defendant was not determined in the Court of Appeal and therefore was still an issue to be tried.

The Court exercising its powers under Order 33 of the Rules directed the parties to submit on the nature of the contract between the Plaintiff and the Defendant. Once the nature of the contract was determined the Court could decide whether the contract was fulfilled.

The relevant provision of Order 33 of the Rules states as follows:

Time of trial of questions or issues (O. 33 r. 2) The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. S/N ftf22//NZ0CMsgJmqIuftA Brief facts 6. The Plaintiff’s claim against the Defendant is based on a profit sharing agreement between the parties for managing the car park at KL Sentral from November 2012 and this included 370 parking lots which at the time of agreement was managed by another company Metro Parking.

Metro parking refused to give up the 370 parking lots for management by the Plaintiff leading to a dispute with the Plaintiff. This dispute was only resolved in 2015. The Plaintiff is now claiming for the share of profits for the management of the 370 parking from the Defendant during the duration of dispute with Metro Parking. The nature of contract between the Plaintiff and the Defendant 8. In this case the Court takes note of the fact that the Parking Management and Operation Agreement between the Plaintiff and the Defendant was only formalized on 2/2/2016.

The Plaintiff’s claim in this case for the share of profits for the 370 parking lot is for a period from January 2013 to June 2014. In the Court’s view the binding agreement between the parties for this period of time was a letter of award issued by the Defendant to the Plaintiff on 25/10/2012.

The Court cannot accept the Plaintiff’s contention that the contract entered into between the parties dated 2/2/2016 is the is the S/N ftf22//NZ0CMsgJmqIuftA determinant contract and it is this contract which should be read retrospectively.

The letter of award dated 25/10/2012 effectively awarded the parking management and operations for ERL’s parking area at KL Sentral Station. More important is that the letter of award was subject to certain conditions.

The 2 important conditions are reproduced here are as follows: “1. This parking management and operation will commence from 1 January 2013 until 31 December 2017.

From 1 November 2012 to 31 December 2012, Semasa Parking will take over the operations and management of the ERL parking area from Metro Parking based on the existing terms of the contract between ERL and Metro Parking which expired on 30 30 June 2012.”

It is obvious from the express wording of the agreement that it was conditional upon the Defendant taking over the management of the parking from metro Parking. It is an undisputed fact that the Defendant was unable to take over the management of the parking until the dispute with metro Parking was resolved in 2015.

Under this circumstances what is the status of the agreement when a primary condition of the agreement has not been fulfilled? The answer lies in the Contracts Act 1950 which the Court resorted to, for the determination of this issue. S/N ftf22//NZ0CMsgJmqIuftA

Section 32 of the Contracts Act 1950 defines what are conditional or contingent contracts as follows: A "contingent contract" is a contract to do or not to do something, if some event, collateral to the contract, does or does not happen. ILLUSTRATION A contracts to pay B RM10,000 if B's house is burnt. This is a contingent contract.

Section 33(a) of the Contracts Act 1950 stipulates :

Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.

Section 36(1) of the Contracts Act 1950 provides that:

Contingent contracts to do or not to do anything if a specified uncertain event happens within a fixed time become void if, at the expiration of the time fixed, the event has not happened, or if, before the time fixed, the event becomes impossible.

In this case the event as mentioned in the agreement is for the Defendant to take over the management of parking from Metro parking from a fixed period of 1 November to 31 December 2012. S/N ftf22//NZ0CMsgJmqIuftA

In this case the event did not materialize when the Defendant failed to take over the parking from Metro parking during the time fixed under the agreement.

In the Court’s view as the condition of the agreement has not been met the agreement between the Plaintiff and the Defendant is unenforceable and since it did not take place during the time fixed under the agreement the agreement is void.

As the agreement is void and unenforceable the Plaintiff’s claim for of share of profit is therefore unfounded. Conclusion 22. Based on the factors above the Plaintiff’s claim against the Defendant is dismissed and as the Defendant’s 3rd party claim is in consequence of the Plaintiff’s claim, the Defendant’s 3rd party claim is also dismissed. The Court directs the Plaintiff to pay cost both to the Defendant and the 3rd party to the amount of RM20,000 each. Dated: 19.4.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N ftf22//NZ0CMsgJmqIuftA PARTIES For the Plaintiff: Nama Peguamcara: Jasmine Goh / Kwong Chiew Ee / Ong Eng Hong (PDK) Tetuan Rahmat Lim & Partners Suite 33.01, Tingkat 33, the Gardens North Tower, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur. For the Defendant: Nama Peguamcara: Ashvinderjeet Kaur Tetuan Moideen & Max Suite B-05-12, Gateway Kiaramas No. 1, Jalan Desa Kiara Mont Kiara 50480 Kuala Lumpur. For the Third Parties: Nama Peguamcara: Alliff Benjamin Tetuan Thomas Philip Advocates and Solicitors 5-1, Jalan 22A/70A Wisma CKL, Desa Sri Hartamas, 50480 Kuala Lumpur. S/N ftf22//NZ0CMsgJmqIuftA