Forever Backup Sdn Bhd v Rockwills Property Management Sdn Bhd (BA-22NCVC-98-03/2023)

The Plaintiff's claim against the Defendant in the present suit is for an eviction of the Defendant-tenant and for vacant possession of the demised premises under two separate tenancy agreements, for order directing the Defendant-tenant to dismantle the signages at the faced and rooftop of the building, for rentals and losses in respect of the tenancy, and other ancillary orders [see the Writ and Statement of Claim in Enclosures 1 and 2 respectively].

The Defendant-tenant’s defences are (i) under the tenancy agreement, the Defendant had automatic option or unconditional right to extend the duration of tenancy on prevailing market rental rate; (ii) the Plaintiff-landlord has improperly or wrongfully refused to agree with the Defendant-tenant on the new rental rate for the extended period of tenancy; (iii) the Defendant-tenant has the right under the tenancy agreement to install and maintain its logo on signages at the façade and rooftop of the building; (iv) the Plaintiff is not entitled to evict the Defendant-tenant from any part of the 2 demised premises; (v) the Plaintiff is not entitled to any double rental or damages. In the Defence and Counterclaim, the Defendant counterclaims for (a) declaration that both the Tenancy Agreements dated 31.01.2020 and 29.9.2022 are valid, (b) declaration that the Plaintiff’s termination of the Tenancy Agreements are invalid under the law and also contrary to the terms of the agreements; (c) declaration that the Defendant-tenant has not committed any breach of either Tenancy Agreement; (d) order compelling the Plaintiff-landlord to execute a new Tenancy Agreement with the Defendant-tenant on same terms as the Tenancy Agreement dated 31.01.2020 and based on the prevailing market rental rate to be assessed by a licensed valuer to be appointed by the Defendant-tenant; (e) an order that the Defendant continue to enjoy possession of the demised premises. [see Enclosure 5]

By Enclosure 7 the Plaintiff applied for summary judgment for the following claims and reliefs.

an order that the Defendant immediately vacates and delivers vacant possession of the Ground Floor, Mezzanine Floor, Level 10 and Level 15A of the Building in the Property held under H.S.(M) 9104, PT 29649, Mukim Sungai Buloh, District of Petaling, State of Selangor with the postal address of No. 1, Jalan 19/3, Petaling Jaya, 46300 Selangor Darul Ehsan;

an order that the Defendant pays the Plaintiff the sum of RM43,677.00 a month being double the rent payable for holding over of the Ground Floor and Level 10 of the Building under Section 28(4)(a) of the Civil Law Act 1956 calculated from 01-02-2023 until the date of actual delivery of vacant possession to the Plaintiff;

an order that the Defendant pays the Plaintiff:-

the sum of RM66,233.90 a month being double the rent payable for holding over of the Mezzanine Floor and Level 15A of the Building under Section 28(4)(a) of the Civil Law Act 1956 calculated from 01-03-2023 until the date of actual delivery of vacant possession to the Plaintiff; or

(ii) alternatively the Defendant pays the Plaintiff damages for trespass to the Mezzanine Floor and Level 15A of the Building. 3

an order that the Defendant immediately removes the signages of the Defendant at the exterior of Level 10 and top façade of the Building failing which the Plaintiff is entitled to remove them at the Defendant’s costs and expense on a full indemnity basis;

an order that the Defendant pays the sum of RM30,000.00 a month calculated from 01-05-2023 until the date of removal of the Defendant’s external signages from the exterior of Level 10 and top of the façade of the Building as damages for loss of rental income from PM Access World Sdn Bhd;

Interest at the rate of 5% on all judgment sums calculated from the date of judgment to the date of actual realisation;

costs on a full indemnity basis; [4] In our present case, there is no argument relating to the preliminary procedural requirements having been complied with by the Plaintiff. The Defendant's argument here argues that there are allegedly triable defences which warrant unconditional leave to defend to be given here. [5] On 18 July 2023 this Court granted summary judgment on some of the claims [namely items (a), (b), (d) to (g) of the application for summary judgment] in favour of the Plaintiff and gave leave to the Defendant to defend on the other claim [namely item (c) above]. [6] Dissatisfied, the Defendant has appealed against the said decision on summary judgment. Law on summary judgment [7] In an application for summary judgment, the Defendant has to show a triable defence or some other reason for trial once the Plaintiff has complied with the preliminary procedural requirements and has shown a prima facie case for his claim. [8] In the case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, [1992] 1 CLJ (Rep) 14 the Supreme Court held that:- 4 “In an application under O 14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue…. Under an O. 14 application, the duty of a Judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O. 14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue”. [9] Where it has been shown that there are issues which ought to be tried, even if there is only one triable issue, a summary judgment should not be allowed. On this point, the case of Malaysian International Merchant Bankers Berhad v. Datuk Mohd. Salleh & Anor [1988] 2 CLJ 90; [1988] 1 CLJ Rep 786 refers. [10] Based on the Supreme Court decision in Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd [1987] 2 MLJ 332, it is an established principle that leave to defend must be given unless there is no real substantial question to be tried or unless there is no dispute as o facts or law which raises a reasonable doubt that Plaintiff is entitled to judgment. Analysis and conclusions of this Court [11] As there are two separate tenancy agreements signed between the parties on different dates in respect of different units of demised premises and with different periods of tenancy and some differences in the provisions of the agreements, it is more convenient or 5 expedient for this Court to deal with the claims in respect of each tenancy agreement under separate headings. [12] This Court will deal with the claims and defences in respect of the separate tenancy agreements under the following headings:

Tenancy Agreement dated 31.01.2020 in respect of Suite G.02 and Level 10 for total of 9,496 sq ft (or “the 1st Tenancy”); and

(ii) Tenancy Agreement dated 29.9.2022 in respect of Mezzanine Floor (3,325.30 sq ft) and Level 15A (7,671 sq ft) (or “the 2nd Tenancy”). Tenancy Agreement dated 31.01.2020 in respect of Suite G.02 & Level 10 for total of 9,496 sq ft, or the 1st Tenancy (Exhibit “FB-5” to Afidavit Sokongan Plaintif) [13] This 1st Tenancy Agreement dated 31.01.2020 was signed between Maybank Trustees Berhad (as the Landlord) and the Defendant as the Tenant: see Exhibit “FB-5” to Afidavit Sokongan Plaintif (Enclosure 8 pages 66 - 96). [14] Following the sale of the building by Maybank Trustees Berhad to the Plaintiff, this 1st Tenancy Agreement was absolutely assigned by Maybank Trustees Berhad to the Plaintiff and the assignment was notified in writing to the Defendant-Tenant on or about 15.11.2022: see Exhibit “FB-7 to the Plaintiff’s Affidavit in Support at page 132 (Enclosure 8 pdf page 162). [15] This 1st Tenancy Agreement dated 31.01.2020 is for a Term of 3 years commencing from 1 February 2020 until 31 January 2023: Section 3.01 (at page 72) read with the Definitions in Section 1.01 (see Exhibit “FB-7 to the Plaintiff’s Affidavit in Support at pages 69 – 70) and Parts 5a, 5b and 5c of the Schedule (at page 93). [16] The gist of the Plaintiff’s claims against the Defendant regarding the 1st Tenancy in the present case is that the Term of 3 years for the 1st Tenancy Agreement dated 31.01.2020 for Ground Floor and 10th Floor expired on 31.01.2023 and there was no valid extension or renewal of the tenancy Term: see paragraphs 10 and 11 of the 6 Statement of Claim in Enclosure 2. [17] The gist of the Defendant’s defences regarding the 1st Tenancy is that items 7(a) and 7(b) of the Schedule to the 1st Tenancy Agreement should be read in isolation to mean that the tenant has a unilateral option or unconditional right to extend the original term of the 1st Tenancy subject to payment of prevailing market rental to be assessed by a licensed valuer. [18] In the considered view of this Court, the brief and short particulars in items 7(a) and 7(b) of the Schedule to the 1st Tenancy Agreement cannot be read in isolation but should be read together with the provisions in Section 3.02 in the main body of the 1st tenancy Agreement. [19] This approach of reading the various clauses of the contract together and not in isolation is consistent with the settled principles of interpretation of contract terms as held by our appellate courts. An example of our apex court’s decision on this approach of holistic interpretation of contract terms is in the case of Lucy Wong Nyuk King & Anor v. Hwang Mee Hiong [2016] 4 CLJ 813 where the Federal Court held inter alia as follows: “[34] In the first place, as submitted by learned counsel for the plaintiff, the dispute between the two parties in substance revolved around the construction of a written contract and its clauses. We ourselves have read the entire terms and conditions of the SPA. In this regard, the point which has a strong bearing on the matter is that it is an established principle of construing a contract that, among others, a contract must be construed as a whole, in order to ascertain the true meaning of its several clauses, and also, so far as practicable, to give effect to every part of it. Each clause in an ordinary commercial contract should be so interpreted as to bring them into harmony with the other clauses of the contract (see National Coal Board v. Wm Neill & Son (St Helens) Ltd [1984] 1 All ER 555 which was cited in Royal Selangor Golf Club v. Anglo-Oriental (M) Sdn Bhd [1990] 1 CLJ 995; [1990] 3 CLJ (Rep) 37 and Mulpha Pacific Sdn Bhd v. Paramount Corporation Bhd [2003] 4 CLJ 294; [2003] 4 MLJ 357). In Australian Broadcasting Commission v. Australasian Performing Right Association Limited [1973] 129 CLR 99, it was held that the whole of the contract has to be considered, since the meaning of any one part of it may be revealed by other parts, and 7 the words of every clause must if possible be construed so as to render them all harmonious one with another. [35] Professor McMeel in The Construction of Contracts, Interpretation, Implication and Rectification, (2nd edn, 2011) explains in clear words this long-standing canon of construction at para 1.73 as follows: Both the traditional and the modern approaches to construction stress the importance of having regard to the instrument as a whole. It is important not to fixate on one particular word or phrase and thereby neglect the overall purpose of the document or to give disproportionate importance to one phrase or clause. This is a long-standing rule. [36] As stated by Lewison in The Interpretation of Contracts 5th edn at para 7.02 that in order to arrive at the true interpretation of a document, a clause must not be considered in isolation, but must be considered in the context of the whole of the document. In Chamber Colliery Company Ltd v. Twyerould (1893) [1915] 1 Ch 268 (note) (which was cited by Lewison), Lord Watson said: I find nothing in this case to oust the application of the well-known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible.” [20] Section 3.02 “Renewal of Tenancy” (at pages 71 – 72) provides as follows: “Section 3.02 Renewal of Tenancy The Landlord shall at the written request of the Tenant made not less than six (6) months before the expiration of the Term and if there shall not at the time of such request be any existing breach or non-observance of any of the covenants on the part of the Tenant herein contained, grant to the Tenant a Further Term based on the same terms, covenants and provisions contained herein with the exception of this option to renew and the Fit Out Period provided that: 8

the rent for the Further Term shall have been agreed between the Landlord and the Tenant in writing at least two (2) months (or such shorter period as may be mutually agreed by the Parties) PRIOR to the expiration of the Term hereby created;

the agreement for the tenancy in respect of the Further Term shall have been signed by the Tenant at least one (1) month (the “Renewal Agreement”) (or such shorter period as may be mutually agreed by the Parties) PRIOR to the expiration of the Term hereby created; and

the Tenant, shall, simultaneously with the execution of the Renewal Agreement, have paid to the Landlord:-

the differential sum between the Security Deposit and the new security deposit for the Further Term; and

(ii) all stamp duty payable on or in relation to the Renewal Agreement, falling (a), (b) or (c) and without prejudice to the Landlord’s rights under Section 6.28(b)(ii), the option to renew shall lapse and the Landlord shall forthwith be entitled to let the Demised Premised to any other person without any further reference to the Tenant.” [21] Under the provisions of Section 3.02 of the Tenancy Agreement, the following requirements are to be fulfilled in order for a valid and effective renewal of the Term of tenancy:

The Tenant shall make a request for renewal not less than 6 months before the expiration of the Term;

There shall not at the time of request any existing breach or non-observance of any of the covenants on the part of the

The rent for the Further Term shall have been agreed between the Landlord and the Tenant in writing at least 2 months (or such shorter period as may be mutually agreed in writing) PRIOR to the expiration of the Term hereby created: proviso

to Section 3.02; 9

The agreement for the tenancy in respect of the Further term shall have been signed by the Tenant at least 1 month (“the Renewal Agreement) (or such shorter period as may be mutually agreed by the parties in writing) PRIOR to the expiration of the Term hereby created: proviso (b) to Section 3.02; and

The Tenant, shall, simultaneously with the execution of the Renewal Agreement, have paid to the Landlord (i) the differential sum between the Security Deposit and the new security deposit for the Further term; and (ii) all stamp duty payable on or in relation to the Renewal Agreement: proviso

to Section 3.02. [22] The Schedule to the 1st Tenancy Agreement, which is to be taken, read and construed as an essential part of this Agreement, contains a table of summary of various items including items 5(a), 5(b), 7(a) and 7(b) on the duration of the 1st Tenancy [see Encl. 8 pages 92 – 93] as described below: PART ITEM PARTICULARS

5.

Term of this

Commencement Date 1 February 2020

Expiry Date 31 January 2023

7.

Further Term

Rental For Further Term At then prevailing market rate [23] When read holistically and harmoniously, Section 3.02 of the main body of the 1st Tenancy Agreement together with items 7(a) and 7(b) of the Schedule thereto mean that when discussing and negotiating the rental for the proposed Further Term pursuant to proviso (a) to Section 3.02 the parties are to be guided by the then prevailing 10 market rate according to their respective views and thereupon endeavour to mutually agree on the rental rate in writing at least two

months (or such shorter period as may be mutually agreed by the Parties) PRIOR to the expiration of the original Term. However, the provisions of Section 3.02 of the main body of the 1st Tenancy Agreement read holistically and harmoniously together with items 7(a) and 7(b) of the Schedule does not erase the requirements of provisos (a) to (c)(ii) of Section 3.02. It is contrary to the holistic approach or the principle of harmonious interpretation to suggest that the brief particulars in items 7(a) and 7(b) of the Schedule has superseded or erased the entirety of the contract provisions in Section 3.02 and the provisoes thereto. [24] In Section 3.02, the contractual timeframes for the parties to discuss and negotiate any proposed renewal of tenancy period are chronologically as follows:

At least 6 months before the expiry of the original Term (i.e. on or before 31 July 2022), the Defendant-tenant shall make a written request for renewal to the Plaintiff-landlord: see opening part of Section 3.02;

(ii) Upon the receipt of such written request, the Landlord and the Tenant shall discuss and negotiate on the rental rate for the proposed Further Term, being guided by the then prevailing market rate according to their respective views and thereupon endeavour to mutually agreed on the rental rate in writing: proviso (a) to Section 3.02 read together with items 7(a) and 7(b) of the Schedule;

(iii) At least two (2) months prior to the expiration of the original Term (i.e. on or before 30.11.2022), or such shorter period as may be mutually agreed by the Parties prior to the expiration of the original Term (i.e. within such time between 30.11.2022 and 31.01.2023 as mutually agreed by the parties), the rent for the proposed Further Term has to be agreed between the Landlord and the Tenant in writing: proviso (a) to Section 3.02;

(iv) At least 1 month before the expiry of the original Term (i.e. on or before 31.12.2022) or such shorter period as may be mutually agreed by the parties in writing before the expiry of the original Term (i.e. between 31.12.2022 and 30.01.2023 as the parties mutually agreed in writing), the Renewal 11 Agreement for the proposed Further Term must have been signed by the parties: see proviso (b) to Section 3.02;

The Tenant, shall, simultaneously with the execution of the Renewal Agreement, have paid to the Landlord (i) the differential sum between the Security Deposit and the new security deposit for the Further term; and (ii) all stamp duty payable on or in relation to the Renewal Agreement: proviso

to Section 3.02. [25] It is also settled law that when interpreting or deciding on the contract terms, the Court cannot re-write the contract terms of the parties nor make an improvement to the terms of the contract. This principle is also clearly held by our apex court in Catajaya Sdn Bhd v. Shoppoint Sdn Bhd & Ors [2021] 3 CLJ 159; [2021] 2 MLJ 374 where the Federal Court held that: "[53] Lord Hoffman observed in Attorney General of Belize v. Belize Telecom [2009] UKPC 10: The Court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. If it is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed... It is this objective meaning which is conventionally called the intention of the parties or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument. [54] In Trollope & Colls Ltd v. North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 Lord Pearson remarked: ....the court does not make a contract for the parties. The court will not even improve the terms which the parties have made for themselves, however desirable the improvement might be. The court's function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be 12 made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been suitable. An unexpressed term can be implied if and only if courts finds that the parties must have intended that term to form part of their contract.” [26] The express provisions of the 1st Tenancy Agreement having specifically stipulated that any Further Term for renewal of the tenancy is subject to the five (5) requirements of Section 3.02 read with items 7(a) and 7(b) of the Schedule including mutual agreement in writing of the rental rate for the proposed Further term, it is not open to the Court to re-write or improve on the contract terms by holding that the renewal for Further Term is an unconditional right of the tenant or that the rental rate for the Further Term shall be decided by a third person such as a licenced valuer. [27] In the premises, this Court rejects the Defendant-tenant’s legal argument that items 7(a) and 7(b) of the Schedule to the 1st Tenancy Agreement should be read in isolation to mean that the tenant has a unilateral option or unconditional right to extend the original term of the 1st Tenancy subject to payment of prevailing market rental to be assessed by a licensed valuer. [28] Now we proceed to examine the contemporaneous documents to see whether or not the requirements for renewal of the Further Term of the 1st Tenancy have been fulfilled in our present case. [29] In our present case, the contemporaneous documentary evidence in respect of the Tenancy for Ground Floor and 10th Floor shows the relevant events in chronological sequence as follows:

(1)

16.3.2022: AmREIT managers Sdn Bhd’s letter to the Defendant regarding the Defendant’s proposed signage design at Menara AmFirst: with the contents as follows: “PROPOSED SIGNAGE DESIGN AT MENARA AMFIRST We refer to the above. Further to the recent discussion between your representative Ms Amelia Tham and our Ms. Asilah in making an additional request for the removal of the building’s name i.e. “Menara AmFIRST” located on the left side of the building roof top, we regret to inform you that we are unable to accede to your additional request. 13 We wish to bring your attention to our email dated 13/12/2021, whereby we had previously informed you that the name of the building to remain as “Menara AMFIRST” and we further wish to emphasize that under the Letter of Offer dated 05/01/2022 which you had accepted on 09/02/2022, the Landlord has only agreed to grant you a right to put your signage at the building roof top and not the naming rights of the building. In addition, we also wish to state that we had vide our email on 01/03/2022 approved your plan and layout for Rockwills’ Signage at the center of the roof top as per location indicated by you in the two superimposed photos attached by you in email dated 16/02/2022 to us and the two superimposed photos clearly showed that the building name of “Menara AmFIRST” in red located on the left side of the building roof top will be maintained for the building as agreed previously.” [see Exhibit “A-2” in the Defendant’s Afidavit Jawapan in Encl. 9 pdf page 34 ]

12.9.2022: The Defendant’s Amelia Tham by e-mail of 12 September 2022 gave notice that the Defendant would renew the tenancy for G-02 and Level 10 for another 3 years from 1 February 2023: see Exhibit “FE-8” to the Plaintiff’s Affidavit in Support at page 137 (Enclosure 8 pdf page 168);

12.9.2022: By e-mail of 12 September 2022, Nur Asilah of AmReit Managers Sdn Bhd informed Amelia of Rockwills that “For subsequent renewal, tenant need to negotiate with the new owner after novation of agreement complete”: see Exhibit “FE-8” to the Plaintiff’s Affidavit in Support at page 137 (Enclosure 8 pdf page 168);

14.10.2022: Rockwills COO Michael Lim’s e-mail to Ng Chee Kam, wherein Rockwills stated as follows: “Thank you for meeting up with us earlier today. This is my email and my contact details below. Please do email me your proposal rental after your discussion so that we can prepare our proposal to our board. 14 We are current renting 10th floor, 15th floor and 15A apart from Mezzanine and Ground floor, the 2 floors which we need to vacate. We would like to continue our tenancy for three floors.” see Exhibit “FE-9” to the Plaintiff’s Affidavit in Support at page 142 (Enclosure 8 pdf page 174);

7.11.2022: Ng Chee Kam of Perfect Hexagon’s e-mail to COO of Rockwills stating that “As discussed, we look forward to having Rockwills as one of our retaining tenants subject to several conditions as follows: Tenant Unit Area sqft Rental per sqft Rental per month Remarks Rockwills Property Management Sdn Bhd Level 10 7,670 RM3.40 RM26,078.00 New Tenancy Agreement to be signed MTrustee Bhd Level 15 7,670 RM3.40 RM26,078 New Tenancy Agreement to be signed Rockwills Property Management Sdn Bhd Level 15A 7,671 RM2.80 RM21,478.80 New Tenancy Agreement to be signed see Exhibit “FE-9” to the Plaintiff’s Affidavit in Support at page 141 (Enclosure 8 pdf page 173);

15.11.2022: Rockwills’ COO Michael Lim’s e-mail to Ng Chee Kam and copied to several others in the Amcorp Group wherein Michael Lim expressed his disappointment regarding the deadline to remove the logo and vacate the Ground and Mexzanine floors, and wherein Michael Lim asserted inter alia 15 that “The tenancy for Ground and 10th floor, which are automatically renewed subject to the prevailing market rate, allows us to maintain our signage at the external wall of the 10th floor”: see Exhibit “FE-9” to the Plaintiff’s Affidavit in Support at page 139 (Enclosure 8 pdf page 171);

23.11.2022: Plaintiff’s TH Tan sent an e-mail to several officers of the Defendant (Rockwills) with the following contents: “Dear Tenants and Stakeholders, Summary of 23rd Nov 2022 meeting discussion and proposed terms of agreement ________________________________________________ i) Mezzanine and Ground – Rockwills will have the first right of refusal for the leasing of MB1 unit (located at Annex Building), as the replacement for Mezzanine and Ground Floor units. MB1 unit is currently exclusively reserved for Rockwills acceptance. Reservation of the Unit will be valid until 31st Dec 2022. ii) Signage at External Façade – Forever Backup management recognize the impact caused to Rockwills from the removal of signage. For mutual benefit, it is agreed that a formal final date of removal shall be set as 28th Feb 2023. However, the actual removal work can be delayed, subject to commencement of upgrading works by building owner, where Forever Backup will formally inform Rockwills team, for the preparation of signage removal to be completed within two weeks by Rockwills contractor. iii) Renewal of Contract Lease Rates: Existing Proposed Lease End Date LOT NO. SQ. FT Suite G.02 1,825.00 2.30 - 31/01/2023 16 Level 10 7,671.00 2.30 3.40 31/01/2023 Mezzanine 3,325.30 3.50 - 31/07/2025 Level 15 7,670.00 3.60 3.40 31/03/2023 Level 15A 7,671.00 2.80 2.80 31/07/2025 MB1 3,181.00 -

2.50 - iv) Level 15A & Mezzanine existing contract will be terminated by 31st Dec 2022. A new tenancy contract will be signed for a period 3 years tenure. v) As gesture of goodwill, Forever Backup management will offer an extended rent-free period of 3 months for MB1, commencing from 1st Jan 2023. This unit comes with existing fit out suited for hosting walk in customers which will benefit Rockwills as minimum upfront construction cost is required. With the above summary of discussion, it is hoped that the intent for both Rockwills Property Management team and Forever Backup team, can be aligned and arrive at a mutually beneficial outcome Our management team will always keep Rockwills interests at heart and provide support where necessary. We are optimistic with the upgrade works planned for the building, which will further enhance the work and business environment for all Rockwills team members and clients, once completed.” see Exhibit “FE-10” to the Plaintiff’s Affidavit in Support at page 146 (Enclosure 8 pdf page 179);

16.12.2022: Rockwills COO Michael Lim’s e-mail to the Plaintiff’s TH Tan with the contents as follows: “We, the management, are seriously considering taking up M81 but it has to be with compensation for terminating our tenancy rights. We have brought the matter for the approval of our board but we are still waiting for their response. Few of 17 our board members are travelling and we are not able to obtain their approval. Please allow us until next week to revert back to you.”

28.12.2022: Plaintiff’s TH Tan’s e-mail to Rockwills’ Michael Lim and cc to others: ““Dear Rockwills Team, Seasons Greetings to all, we’re about 3 days away to a brand new year, wishing Rockwills team a prosperous and fruitful year ahead. Meanwhile, our team will look forward to Rockwills reply on the terms. We’ve put forward.” see Exhibit “FE-11” to the Plaintiff’s Affidavit in Support at pages 149 - 150 (Enclosure 8 pdf page 183 - 184)

05.01.2023: Ng Chee Kam on behalf of the Plaintiff sent an e-mail to the Defendant (Rockwills) with the following contents: “Wishing you and the team a Happy New Year. We have not heard from you and the team with regards to our proposal below since mid-December and we need a final response urgently. Please do not that the rental free months that was offered to you earlier for MB1 (annex) are from Jan to Mar 2023. Appreciate your kind response latest by Monday (9th January 2023).” see Exhibit “FE-11” to the Plaintiff’s Affidavit in Support at page 149 (Enclosure 8 pdf page 183)

10.01.2023: Rockwills’ Michael Lim’s e-mail to Ng Chee Kam of the Plaintiff and copied to others: ““Subject “ RE: Rockwills Tenancy at Menara AmFirst Dear CK, 18 Thank you for your mail. As has been conveyed to your management and to AmFirst management, we would be happy to consider renewal and other terms when we are assured in writing of the compensation that you and AmFirst agree to pay us, the amount of which both of you know and for which you both have to agree and commit at the same time so that we can respond. I have also conveyed the same message to TH yesterday afternoon.” see Exhibit “FE-11” to the Plaintiff’s Affidavit in Support at page 148 (Enclosure 8 pdf page 182)

12.01.2023: in reply to the Defendant’s demand for compensation, Ng Chee Kam on behalf of the Plaintiff replied by e-mail as follows: “Many thanks for reverting. Just to clarify, we are under no obligation to make any compensation to Rockwills and any amended terms beyond our standard policy in your favour are done on a goodwill basis. We have gone through many iterations and multiple emails/text correspondences to come to an agreement and despite that many attempts and timeline extension; we are still in the same dilemma as we first started. We now come to this juncture where we need your final confirmation on the acceptance of our offer. Out of goodwill from the Board of Directors, the following are our final offer in terms of our rental rates (all other terms remain the same as per our previous offer dated 23rd November 2022 – attached): - LOT NO. SQ. FT Current Offer New Offer REMARKS Suite G.02 1,825.00 To vacate To vacate - Mezzanine 3,325.30 To vacate To vacate - Level 10 7,671.00 3.40 3.30 - Level 15 7,670.00 3.40 3.30 - Level 15A 7,671.00 2.80 2.80 - 19 MB1 3,181.00 2.50 2.50 Rent free up to 31st March 2023 Please note that we require your final response by 16th January 2023; falling which we will deemed the offer not accepted and will proceed to open the units for leased to new tenants. Also for your information, we will not be entertaining any 3rd Party request moving forward. We look forward to your quick response.” see Exhibit “FE-11” to the Plaintiff’s Affidavit in Support at page 147 (Enclosure 8 pdf page 181) [30] In respect of the 1st Tenancy for Ground Floor and 10th Floor, it is clear from the contemporaneous documents and communications between the parties’ representatives prior to the reference of the matter to solicitors that:

The Defendant/Tenant has not made a request for renewal not less than 6 months before the expiration of the Term;

The rent for the proposed Further Term (after the expiry of the original Term) have not been agreed between the Plaintiff/Landlord and the Defendant/Tenant in writing until to-date;

There is no written agreement between the Plaintiff/Landlord and the Defendant/Tenant on the rental for the proposed Further Term at least 2 months (or such shorter period as may be mutually agreed in writing) PRIOR to the expiration of the original Term;

No agreement for the tenancy in respect of any Further term has ever been signed by the Tenant with the Plaintiff/Landlord until to-date;

There is no Renewal Agreement which has been signed at least 1 month (or such shorter period as may be mutually agreed by the parties in writing) PRIOR to the expiration of the original Term; and 20

The Defendant/Tenant has not. simultaneously with the execution of any Renewal Agreement, paid to the Plaintiff/Landlord (i) the differential sum between the Security Deposit and the new security deposit for the Further term; and

(ii) all stamp duty payable on or in relation to any Renewal Agreement. [31] The multiple requirements for a valid and binding renewal of the 1st Tenancy for the Further term are cumulative or conjunctive requirements. [32] While the Defendant-tenant may have an arguable point for saying that time period of not less than 6 months before the expiration of the Term request for making a written request for renewal has been waived by the Plaintiff-Landlord who negotiated with the tenant despite the short notice of request, the Defendant-tenant has no arguable point for the non-fulfilment of the requirements as stated in items (b) to (f) of the immediately foregoing paragraph. [33] In the premises this Court has held that the Defendant-tenant has not shown any triable defence to the Plaintiff’s case that the prerequisite requirements for renewal of the 1st Tenancy have not been fulfilled in the present case. [34] The ending paragraph in Section 3.02 of the 1st Tenancy Agreement stipulates that “falling (a), (b) or (c) and without prejudice to the Landlord’s rights under Section 6.28(b)(ii), the option to renew shall lapse and the Landlord shall forthwith be entitled to let the Demised Premised to any other person without any further reference to the Tenant”. The items (a), (b) and (c) stated in this ending paragraph of Section 3.02 refer to provisoes (a), (b) and (c) to Section 3.02 which laid down the cumulative prerequisite requirements. [35] The clear contract provision in the 1st Tenancy Agreement is to the effect that if any of the cumulative requirements for renewal is absent or not fulfilled, “the option to renew shall lapse and the Landlord shall forthwith be entitled to let the Demised Premised to any other person without any further reference to the Tenant”. This is another way of saying automatic ending of the 1st Tenancy upon the expiry of the original Term (i.e. on 31.01.2023) in the event of non-fulfilment of any of the prerequisite requirements for renewal of tenancy period. 21 [36] By virtue of the clear provisions of Section 3.02 of the Tenancy Agreement dated 31.01.2020 in respect of the Ground Floor and the 10th Floor, it is clear and indisputable that the Term of tenancy of 3 years expired on 31.01.2023 and the 1st Tenancy Agreement ended on 31.01.2023. [37] In the premises, there is no triable defence against the Plaintiff/Landlord’s action for eviction of the Defendant/Tenant from the Ground Floor and the 10th Floor of the building. [38] As from the date of expiry of the Term of the 1st Tenancy, the Defendant became unauthorised occupier who improperly or wrongfully holds over the two units of demised premises and is liable to pay mense profit or double rental. This has been clearly decided by the Federal Court in the case of of Rohasassets Sdn Bhd v. Weatherford (M) Sdn Bhd & Anor [2020] 1 CLJ 638; [2019] MLJU 1484 wherein Abdul Rahman Sebli FCJ (now CJSS) held inter alia as follows: “[87] On expiry of the tenancy, s. 28(4)(a) kicks in to give the landlord the right, at his option, to charge double rent and the double rent continues to be chargeable until possession is given up by the tenant who holds over without the landlord's consent. The landlord may decide not to charge double rent at all or even allow the tenant to hold over for free after the expiry of the tenancy but that is entirely a matter for the landlord to decide. [88] The legislative scheme of s. 28(4)(a) of the Civil Law Act is clearly to give the landlord the right of option to charge double rent if the tenant fails or refuses to deliver vacant possession of the demised premises after the expiry of the tenancy. The right is given by statute and can only be taken away by statute. [89] But that said, it does not mean that holding over simpliciter is all that the landlord needs to prove in a claim for double rent under s. 28(4)(a) of the Civil Law Act. To entitle the landlord to charge double rent, there must be failure or refusal by the tenant to give up possession after being told to do so by the landlord. This has to be so because the landlord's claim is actually not rent but a penal sum which the former tenant has to pay for the inconvenience and loss the tenant causes the landlord in refusing to give up possession: Panicka (supra ). 22 [90] At the risk of repetition, it needs to be emphasised that the court's duty in a claim under s. 28(4)(a) of the Civil Law Act is merely to determine whether the option to charge double rent had been exercised properly and lawfully by the landlord. The court is not concerned with contumacious conduct on the part of the tenant who holds over. Even if the tenant is not guilty of contumacious conduct, the tenant is still liable to pay double rent if the landlord has decided to charge double rent and does not consent to the tenant's holding over and has asked the former tenant to vacate the premises. [91] Therefore, the question in the present appeal is not whether the respondents were holding over contumaciously or otherwise after the expiry of the tenancies. The question is whether they were holding over with or without the appellant's consent, express or implied by conduct. We do not think s. 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.” [39] In our present case, the Defendant has continued to occupy the demised premised comprised in the 1st tenancy after the expiry and ending of the original Term notwithstanding that Plaintiff-landlord has not expressly or impliedly consented to such continued occupancy and in spite of the Plaintiff having asked the Defendant to vacate the demised premises under the 1st Tenancy Agreement. The Plaintiff has also decided to charge double rental vis-à-vis the Defendant. In the circumstances, the Plaintiff is entitled to double rental in respect of the office units comprised in the 1st Tenancy as from 1 February 2023. [40] In the premises, there is also no triable defence against the Plaintiff/Landlord’s claim for double rental in respect of the Defendant/Tenant’s holding over at the Ground Floor and the 10th Floor as from 1 February 2023 until the date of vacating the said premises. [41] In the premises, the Plaintiff/Landlord is entitled to its claims in prayers (1)(a) and 1(b) of its application for summary judgment in Enclosure 7. 23 Tenancy Agreement dated 29.9.2022 in respect of Mezzanine Floor (3,325.30 sq ft), Level 15A (7,671 sq ft) (or the 2nd Tenancy) [42] In respect of the 2nd Tenancy Agreement dated 29.9.2022 the gist of the Plaintiff’s case is that the Plaintiff is not bound by the said agreement because:

the said agreement is a transaction (“urusan”) under NLC which was sealed after 01.07.2022 without the written permission of the Plaintiff;

(ii) the Mezzanine Floor is not stated in the List of Tenancy Agreements in Appendix 2 of the Sale and Purchase Agreement but was declared as vacant without tenant;

(iii) the said Tenancy Agreement dated 29.9.2022 was not endorsed on the title document of the Property under s. 213(3) of NLC: para. 12 of Statement of Claim (Enclosure 2). The Plaintiff alleged further or alternatively that the Defendant committed breaches of Special Terms in Appendix A of the said Agreement in that (a) the Defendant was allowed to put signage on the rooftop of the building if it occupied at least 28,000 sq ft subject to other terms and conditions;(b) all the approvals of the relevant authorities must be obtained before the installation and construction of the signage board;(c) the Defendant was required to deposit the insurance coverage for the signage: para. 13 of the Statement of Claim. The particulars of breaches pleaded by the Plaintiff against the Defendant were:

the Defendant installed the signage board not at the rooftop but attached it to the top façade of the building;

(ii) the Defendant occupied less than 28,000 sq ft of the building and therefore has no such right to signage;

(iii) the Defendant failed or neglected to obtain the licence from MBPJ before installing the signage;

(iv) the MBPJ licence for the signage was issued to Rockwills Corporation Sdn Bhd and not to the Defendant: para 14 of the 24 Statement of Claim. [43] A copy of the Tenancy Agreement dated 22.9.2022 can be found in Exhibit “FB-6” to the Plaintiff’s Afidavit Sokong [Enclosure 8 pages 97 - 131 pdf pages 126 – 160]. This 2nd Tenancy Agreement dated 22.9.2022 is for the tenancy in respect of 3,325.30 sq ft of Mezzanine Floor and 7,671 sq ft of Level 15A in the building: see Page 98 in Enclosure 8. [44] The Term of this 2nd Tenancy is 3 years from 1.8.2022 until 31.7.2025: see Section 3.01 read with item 5 of the Schedule to the 2nd Tenancy Agreement: see page 125. [45] In item g of Annexure A the Special Conditions to the 2nd Tenancy Agreement, the Defendant/Tenant is granted a right to display its business signage at Rooftop of Menara AmFirst (“the Agreed Location”), provided that the Tenant occupies a rental area of at least 28,000 square feet at Menara AmFirst and such right is also “strictly subject to the following terms and conditions:

The Tenant shall be responsible for obtaining and maintaining at its own expense and cost all necessary licence, permit, approval, registration and other consent from appropriate authorities before commencing any installation & construction works at the Agreed Location where the Tenant’s signage is to be displayed and placed. A copy of such license, permit, approval, registration, and consent from appropriate authority, as the case may be, must be furnished to the Landlord at least 30 days prior to the commencement the signage installation and construction works at the Agreed Location;

(ii) the Tenant shall ensure that any license or permit for the display of its signage at the Agreed Location is maintained and/or renewed throughout the tenure of this tenancy or any renewal thereof (if applicable);

(iii) the Tenant shall ensure that before any commencement of the signage installation and construction works at the Agreed Location, the tenant had procured and deposited with the Landlord all relevant insurance coverage as may be required by the Landlord; and 25

(iv) The Tenant’s design drawing and plan for the signage intended to be displayed at the Agreed Location shall be submitted to the Landlord for prior approval before any submission of such design drawing and plan is made by the Tenant to the appropriate authorities for approval.” : see Exhibit “FB-6” to the Plaintiff’s Afidavit Sokong [Enclosure 8 page 127 - 128]. [46] It is a specific prerequisite condition for the grant of the right to display the Defendant’s logo at the Rooftop that the Defendant must have rented at least a total of 28,000 square feet of the building. [47] In paragraph 25 of the Defendant’s Afidavit Jawapan (Enclosure 9), the Defendant argues that with the automatic renewal of Ground Floor and 10th Floor under the 1st Tenancy Agreement at the market rental, the Defendant has rented a total of 28,000 sq ft of the building. [48] As this Court has held that the Tenancy Agreement dated 31.01.2020 expired on 21.01.2023 and there was no automatic renewal, the Defendant has no right to continue to occupy the Ground Floor and the 15th Floor of the building after 31.01.2023. [49] In the circumstances, there is no triable defence on the cessation of right to display the Defendant’s logo at the Rooftop as from 1 February 2023, although there may be triable defence on the other conditions (i) to (iv) of item g of Annexure A the Special Conditions to the 2nd Tenancy Agreement. [50] As regards the questions whether or not the 2nd Tenancy Agreement dated 29.9.2022 for Mezzanine Floor and Level 15A of the building is binding on the Plaintiff or can be validly terminated by the Plaintiff due to certain events argued by the Plaintiff, this Court finds them to be triable defences. [51] It is also very clear that the façade of the10th Floor is not part of the Rooftop, and that the Defendant has no right to display its logo or signage at the façade of the 10th Floor of the building. A fortiori, where the Defendant/tenant has ceased to rent or lawfully occupy at lease 28,000 square feet in the building. 26 Summing up [52] In summing up, this Court has held that the 1st Tenancy Agreement dated 31.01.2020 expired on 31.01.2023 and that there is no mutual agreement to extend the Term for a further 3 years. [53] As from 1 February 2023, the Defendant has been holding over the Grounds Floor and Level 15 improperly and in breach of the Tenancy Agreement. [54] With the expiry of the tenancy for Ground Floor and Level 15, the Defendant ceased to be a lawful occupier for at least 28,000 sq ft of the building and therefore as from 1 February 2023 the Defendant has no right to display its logo or signage at the Rooftop. [55] There are triable defences as to whether or not the tenancy for Mezzanine Floor and Level 15A is binding upon the Plaintiff and whether or not the said tenancy has been validly terminated by the Plaintiff. [56] In the premises this Court has held that the Defendant has failed to raise a triable defence in relation to the expiry of the tenancy for the Ground Floor and the 10th Floor. Also, there is no triable defence as to the absence or expiry of any right to display logo at the façade of the 10th Floor and as to the expiry of the right to display the logo at the Rooftop. [57] In the circumstances, the Plaintiff is hereby given summary judgment in the present case for parts of the Enclosure 7 application in respect of which there is no triable defence. [58] Consequential or ancillary thereto, the interim injunction order dated 14 Jun 2023 and the ad interim injunction order dated 27 June 2023 are also hereby discharged and cancelled forthwith. [59] Costs of the application for summary judgment were assessed at RM7,000 subject to allocator, and were ordered to be paid by the Defendant to the Plaintiff. [60] Interests on the judgment sums at 5% per annum as from the date of judgment until the date of full realisation are also awarded to the Plaintiff. 27 [61] As an ancillary order, this Court also ordered that the deposit paid by the Defendant pursuant to the conditions of interim injunction dated14 June 2023 and/or ad interim order dated 27 June 2023 shall be utilised by the Plaintiff’s solicitor as stakeholder to be released to the Plaintiff as part payment towards the summary judgment sums and any balance payable for the summary judgment sums, if any, shall be paid directly by the Defendant to the Plaintiff. [62] The full terms of the summary judgment granted on 18 July 2023 in the national language are as follows:

(a) Defendan hendaklah dengan serta-merta mengosongkan dan menyerahkan milikan kosong Tingkat Bawah dan Tingkat 10 Bangunan yang dipegang di bawah H.S.M 9104, PT 29649, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor dengan alamat pos No.1, Jalan 19/3, Petaling Jaya, 46300 Selangor Darul Ehsan;

Defendan hendaklah membayar kepada Plaintif jumlah sebanyak RM43,681.60 sebulan iaitu dua kali ganda sewa yang perlu dibayar kerana memegang Tingkat Bawah dan Tingkat 10 Bangunan di bawah Seksyen 28(4) (a) Akta Undang-Undang Sivil 1956 yang dikira dari 01-02-2023 sehingga tarikh penyerahan milikan kosong kepada Plaintif; dan/atau

Defendan hendaklah dengan serta-merta menurunkan papan tanda Defendan di bahagian luar Aras 10 dan fasad bahagian atas Bangunan tersebut dan sekiranya gagal Plaintif berhak untuk menurunkannya atas kos dan perbelanjaan Defendan atas dasar indemniti penuh;

Satu perintah bahawa Defendan hendaklah membayar jumlah RM30,000.00 sebulan yang dikira dari 01-05-2023 sehingga tarikh penurunan papan tanda luar Defendan dari bahagian luar Tingkat 10 dan bahagian atas bangunan itu sebagai ganti rugi bagi kehilangan pendapatan sewa daripada PM Access World Sdn Bhd;

Defendan hendaklah membayar kepada Plaintif faedah pada kadar 5% ke atas semua jumlah penghakiman yang dikira dari tarikh penghakiman hingga tarikh realisasi sebenar; dan 28

Defendan hendaklah membayar Plaintif kos permohonan