Fused Project Sdn Bhd v Bina Tetap Tiara Sdn Bhd (BA-22NCvC-341-08/2022)

The relentless pursuit and lobbying by the business community in England for an efficacious system for the settlement of mercantile disputes, in general, and an expeditious system for the recovery of debt, in particular, gave rise to the birth of the modern summary judgment procedure. The Summary Procedure on Bills of Exchange Act 1855 (“Keating’s Act”) was first enacted in the middle of the 19th century to protect creditors from the injustice that would be caused to them if they were forced to wait for a considerable amount of time before they could recover their money. The ambit of the present-day summary judgment procedure has been expanded beyond what was originally envisaged in Keating’s Act. 16/05/2023 13:28:47 BA-22NCvC-341-08/2022 Kand. 48

The application before this Court involved an application for summary judgment by a defendant on part of its counterclaim pursuant to Order 14 rule 5 of the Rules of Court 2012. This necessitated a deliberation of the “defences” raised by the plaintiff in resisting the application by the defendant and the applicable principles in this area of practice and procedure.

The plaintiff, Fused Project Sdn Bhd, is a private limited company incorporated under the Companies Act 2016. The plaintiff is involved in the restaurant business.

The defendant, Bina Tetap Tiara Sdn Bhd, is also a private limited company that has been incorporated under the Companies Act 2016.

The plaintiff had entered into a tenancy agreement with the defendant to rent two lots of premises at Jaya One in Petaling Jaya, Selangor to run its “steamboat” restaurant business.

The plaintiff had commenced an action on 23 August 2022 against the defendant seeking, inter alia, an order that the plaintiff is entitled to a renewal of the said tenancy for a further period of three years under the tenancy agreement dated 1 August, 2019 and alternatively, special damages for the expenses incurred in the renovation of the said premises amounting to RM1,136,686.00.

The defendant, through a Notice of Application dated 10 November, 2022, sought summary judgment on part of its counterclaim against the 3 plaintiff. The three relevant prayers in the defendant’s counterclaim for summary judgment were for (i) a declaration that the letter of offer for the tenancy dated 1 August, 2019, for a tenancy period of 3 years commencing on 1 September, 2019, had expired on 31 August, 2022; (ii) a declaration that the plaintiff had since 1 September, 2022 become a tenant holding over of the said premises; and (iii) vacant possession of the demised premises.

As noted, the plaintiff and defendant had entered into a tenancy agreement whereby the defendant as the proprietor of two lots of premises at Jaya One in Petaling Jaya, Selangor had agreed to rent the said premises to the plaintiff to run the plaintiff’s “steamboat” restaurant business.

The terms of the tenancy agreement were spelled out in a Letter of Offer dated 1 August, 2019.

There were no disputes as to the key terms of the tenancy. Amongst the important terms that were expressly stated in Part 4 of Schedule A annexed to the Letter of Offer and agreed between the parties were the following:

Term of Tenancy : 3 Years

Option to Renew :

Handover Date : 1 September, 2019

Tenancy Commencement Date: 1 September, 2019

Business Commencement Date: 1 December, 2019

Rent Commencement Date : 1 December, 2019

Fit-Out Period : 3 Months [11] The crucial term relating to the option given to the plaintiff as tenant to renew the tenancy in accordance with Part 4(b) above is clarified in Clause 16A of the Letter of Offer. The relevant clause reads as follows: To exercise this Option, the Tenant shall give to the Landlord a notice in writing to this effect not less than six (6) months prior to the expiry of the Terms of Tenancy and provided that at the date of exercise of the option and at the date of the expiry of the Term of Tenancy, there shall be no subsisting breach by the Tenant of the covenants and conditions of the Tenancy, the Landlord agrees to renew the Tenancy at the cost and expense of the Tenant commencing from the date following the expiry of the Terms of Tenancy based on such terms and conditions as the Landlord deems fit. [12] The plaintiff exercised its option to renew the tenancy by invoking Clause 16A of the Letter of Offer by way of a notice to the defendant on 9 May, 2022. [13] The defendant, in a letter to the plaintiff dated 26 May, 2022, challenged the right of the plaintiff to renew the tenancy on the ground that the option to renew the tenancy pursuant to Clause 16A was not exercised more than six (6) months prior to the expiry of the terms of tenancy. The defendant thereby refused to further renew the tenancy for the said demised premises. Issues before the Court [14] The Court in this matter between the parties was merely concerned with the application for summary judgment by the defendant for part of its counterclaim under Order 14 rule 5 of the Rules of Court 2012. [15] In this regard, the primary issue for consideration was whether the defendant was entitled to their prayers in their Notice of Application. [16] In determining the above main issue, this Court was required to consider whether the plaintiff had managed to “show cause” against that application” under Order 14 of the Rules of Court 2012. This Court was mindful of the two principal arguments raised by the plaintiff, namely (i) whether the doctrine of legitimate expectation has any application in the matter under consideration; and (ii) whether there was any representation by the defendant which altered the express terms of the tenancy as adumbrated in the Letter of Offer. The case for the defendant [17] The defendant submitted that the tenancy had expired on 31 August, 2022. Accordingly, the defendant expressed the view that the exercise of the option to renew the tenancy by the plaintiff made by way of the service of a notice to the defendant in a letter dated 9 May, 2022 was not valid. It was the defendant’s contention that the said notice did not fulfil the condition in Clause 16A of the Letter of Offer. The defendant pointed out that a written notice to exercise the option to renew the tenancy should have been made by or before 28 February, 2022. [18] In view of the fact that the tenancy had expired, the defendant argued that the plaintiff was under a legal obligation to hand vacant possession of the demised premises to the defendant in accordance with the terms of the Letter of Offer. [19] The defendant’s contention was that (i) its claim for vacant possession did not involve disputed facts; (ii) the plaintiff had no defence on the merits; (iii) the claim for vacant possession merely involved interpretation of the terms in the Letter of Offer and other contemporaneous documents; and (iv) this was a proper case for disposal by way of summary proceedings. The case for the plaintiff [20] The plaintiff conceded that it had not exercised the option to renew the tenancy more than 6 months before the expiry of the terms of tenancy. [21] Nevertheless, the plaintiff fervently resisted the defendant’s application for summary judgment for vacant possession as contained in the defendant’s counterclaim. The plaintiff’s main objections were premised on two broad grounds. [22] The first was the doctrine of legitimate expectation. The plaintiff maintained that it was entitled to invoke the doctrine of legitimate expectation to have the tenancy renewed for a further three-year term. The plaintiff made references to meetings that had taken place between the representatives of both parties and reasoned that as a result of these meetings, it carried out renovation works at huge expense at the premises in question. [23] Second, it was contended by the plaintiff that the defendant, through its representative, had made representations to the plaintiff that the tenancy would be renewed for a further three-year term. [24] The plaintiff maintained the position that the points that it had raised demand that the matter be determined by way of a plenary trial and not the summary procedure under Order 14 of the Rules of Court 2012. Applicable law and principles [25] The issues raised in this summary judgment application required this Court to examine and apply the provisions in Order 14 of the Rules of Court 2012. [26] The legal requirements associated with the summary judgment procedure, the doctrine of legitimate expectation and the principles relating to the legal effect of a representation, if applicable, were all subjected to scrutiny by this Court. [27] In the course of the arguments, the provisions in section 92 of the Evidence Act 1950 and sections 19 and 65 of the Contracts Act 1950 were also cited. The Authorities [28] In support of its application for summary judgment under Order 14 rule 5 of the Rules of Court 2012, the defendant had relied on the following cases, namely, (i) Cempaka Finance Bhd v. Ho Lai Ying (Trading as KH

(ii) Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400; (iii) National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 CLJ 220; [1984] 2 MLJ 300; (iv) Chen Heng Ping & Ors v. Intradagang Merchant Bankers (M) Bhd [1995] 2 AMR 1655; [1995] 3 CLJ 690; [1995] 2 MLJ 363; (v) Rock Records (M) Sdn Bhd v. Audio One Entertainment Sdn Bhd [2005] 1 CLJ 200; [2005] 3 MLJ 552; (vi) Union Pile (Penang) Sdn Bhd v. Core Rising (Penang) Sdn Bhd [2021] MLJU 1760; (vii) Mohd Nasrul bin Mukhtar v. Yayasan Pelajaran Mara [2022] 1 LNS 2738; [2022] MLJU 2973 (“Mohd Nasrul”); and (viii) Jamin Trading Sdn Bhd & Anor v. Shell Malaysia Trading Sdn Bhd [2010] AMEJ 0072; [2011] 10 CLJ 287; [2011] 4 MLJ 662 (“Jamin Trading”). [29] Bank Negara Malaysia v. Mohd Ismail & Ors was also cited by the plaintiff. In addition to that case, it also relied on Khairy Jamaluddin v. Dato’ Sri Anwar bin Ibrahim [2013] 6 CLJ 849; [2013] 4 MLJ 173, Oh Thevesa v. Siak Hoi Chai [1992] 3 CLJ Rep 148; [1992] 1 MLJ 215, Metroplex Holdings Sdn Bhd v. Commerce International Merchants Bankers Bhd [2013] 3 AMR 782; [2018] 8 CLJ 329; [2013] 4 MLJ 520, Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors [2006] 5 MLJ 1; [2006] 3 CLJ 1; [2006] 5 MLJ 1 (“Abdul Rahman Abdul Hamid”), Kluang Wood Products Sdn Bhd & Anor v. Hong Leong Finance Bhd & Anor [1998] 4 AMR 4225; [1999] 1 CLJ 1; [1999] 1 MLJ 193, Lee Lean Low v. Chew In Hai & Ors [1993] 2 AMR 3244; [1994] 2 CLJ 525 (“Lee Lean Low”); [1993] MLJU 333 and Zulkiflee Mohd Dom v. Public Prosecutor [1997] 3 CLJ Supp 290; 1997] 4 MLJ 161. [30] The key decisions that relate to the issues raised in the present application are examined below. The legal position Summary judgment on counterclaim [31] The law and principles governing the granting of summary judgment have come a long way since the enactment of Keating’s Act. The current scope of the summary judgment procedure in Order 14 of the Rules of Court 2012 allows a defendant to apply for judgment against a plaintiff on the defendant’s counterclaim. This is based on the ground that “the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such a claim …”. (see Order 14 rule 5(1) of the Rules of Court 2012). [32] The requirements that apply for a summary judgment application by a plaintiff pursuant to Order 14 rule 1 of the Rules of Court 2012 apply with equal force to an application under Order 14 rule 5. The cases cited by both parties, namely Cempaka Finance Bhd v. Ho Lai Ying (Trading as KH Trading & Anor), Bank Negara Malaysia v. Mohd ismail & Ors; National Company for Foreign Trade v. Kayu Raya Sdn Bhd and Khairy Jamaluddin v. Dato’ Sri Anwar bin Ibrahim reiterated the preliminary requirements that must be fulfilled and the principles that apply in a summary judgment application. Legitimate Expectation [33] The plaintiff had relied on the doctrine of legitimate expectation as a ground to resist the defendant’s application for summary judgment on part of its counterclaim. The plaintiff adopted the position that this “defence” necessitated a trial of that part of the counterclaim be held instead of by way of summary disposal. In other words, this legitimate expectation “defence” to the claim for vacant possession, according to the plaintiff, was a “bona fide serious issue to be tried”. [34] It is well established that the doctrine of legitimate expectation applies in the sphere of administrative law and public law. According to this principle, private individuals have a legitimate right to expect that public authorities will act in a certain way, based on their past actions or representations. The underlying basis of this doctrine to is ensure that public authorities act in a consistent and fair manner, and that individuals are not unfairly disadvantaged by sudden changes in policy or procedure. Its operation is between individuals and public authorities rather than between private individuals. [35] Jamin Trading and Mohd Nasrul were relied by the defendant to support its contention that the doctrine of legitimate expectation does not apply under a private contract. [36] There was indeed a point made to this effect in Jamin Trading. In that case, Vernon Ong J (as his Lordship then was) acknowledged that the doctrine of legitimate expectation “may arise in situations other than in the realm of public law”. However, the exception mentioned was in relation to “questions of a shareholder’s rights in a private company”. The High Court did not accept the application of the doctrine “to a party’s rights under a private contract situation”. (see para. [40]). [37] Mohd Nasrul, also a decision of the High Court, had referred to the Supreme Court of Seychelles in Allen Jean & Anor v Wellington Felix & Anor, (Civil Side No:15 of 2008) (2013) SLR 205; [2013] SCSC 63 (“Jean v Felix”). At para [10](f)(ii) and (iii) of the judgment, the following paragraphs (a) – (e) were quoted as purportedly the rulings by the Supreme Court. These paragraphs read as follows:

This doctrine of legitimate expectation cannot be applied in a contractual field of law, particularly when the Contract is concluded.

When a contract becomes concluded, the expectation, if any, ends, whereafter the parties will be bound only by the terms thereof.

Applying this doctrine in contracts would result in absurdity as the specific performance of the same is impossible.

In its observation, it held that the doctrine of fairness is developed in administrative law to ensure the Rule of Law and prevent failure of justice where the action is administrative. Just as principles of natural justice ensure fair decisions where the function is quasi-judicial, the doctrine of fairness is evolved to provide appropriate action where the function is administrative.

It cannot be invoked to amend, alter or vary the express terms of the Contract between the parties.

The reason for not accepting this doctrine of Legitimate Expectation in the realm of contracts may be because the Contract Act 1872 clearly defines what consensus ad idem is. Once concluded, the Contract is reached. Contract terms are reduced to writing, and the contracting parties are bound by the terms of the Contract and nothing more. [38] Curiously, a reading of the judgment of the Supreme Court of Seychelles in Jean v Felix does not quite support the “conclusions” reached as forming the ruling in that case. In Jean v Felix, the Supreme Court did imply that it was willing to reject the doctrine of legitimate expectation if there were express terms in a contract. However, the Supreme Court in no uncertain terms held as follows: [28] Therefore, it goes without saying that in our jurisdiction it is lawful for a party to have legitimate expectation that in the absence of expressed terms in a contract, fairness would come in rescue, in respect of all the consequences and give rise to the necessary implied terms in the contract in accordance with its nature, and so I hold. [39] Leaving aside the decision of the Supreme Court of Seychelles for a moment, my own research led me to the following three High Court decisions that had considered the immediate issue of whether the doctrine of legitimate expectation may be invoked in a private contract. The cases are Universal Trustee (Malaysia) Berhad v. Lambang Pertama Sdn Bhd & Anor [2014] 3 AMR 751; [2014] 1 LNS 1437; [2015] 7 MLJ 305 (“Universal Trustee”), WTWT Sdn Bhd v Chew Bros (M) Sdn Bhd & Ors [2015] AMEJ 211; [2015] 5 CLJ 426; [2015] 2 MLRH 248 (“WTWT”) and Orix Credit Malaysia Sdn Bhd v. Raub Australian Gold Mining Sdn Bhd [2015] AMEJ 1712; [2015] 1 LNS 1065; [2015] MLJU 943 (“Orix Credit”). [40] In Universal Trustee, Wong Kian Kheong JC (as his Lordship then was) noted that the doctrine of legitimate expectation “is not applicable in the realm of private law which is governed by contracts”. (see para. [65]). His Lordship reiterated this point in WTWT and expressed reservations on the application of the concept of legitimate expectation in interpreting a company’s Articles of Association. (see paras. [46] and [47]). In Orix Credit, his Lordship further observed that there has been “a growing trend in private commercial cases for parties to raise the public law concept of “legitimate expectation”. (see para. [32). Representation [41] The plaintiff in the instant case had also raised the argument that as a result of “representations” made by an agent of the defendant in a number of meetings that had taken place between the parties, there was an intention for the tenancy to be of “long term” in nature. It was contended by the plaintiff that there was an understanding that the term of the tenancy was to be “3 plus 3” in nature. This was despite the express terms in Part 4(a) of Schedule A and Clause 16A of the Letter of Offer providing for a term of three years for the tenancy with an option to renew the tenancy for an additional three years respectively. [42] Abdul Rahim Abdul Hamid was cited by the plaintiff for the proposition that pre-contractual negotiations and documents are crucial in assisting the court in determining the intention of the parties and thus the terms of the contract. The plaintiff drew the Court’s attention to the following passages in the judgment: [29] Reverting to the facts of the present case the trial judge had de-emphasized the importance of the working draft, agreed upon by both the parties, after a series of negotiations. To him, it was merely a pre-contractual document that did not deserve much weight. [30] We however, take a diametrically opposing view on this. We find this working draft an important document, bearing in mind that it was the evidence of DW1, PW1 and PW2, of the importance of this working draft and the fact that the facility agreement was to formalize what was agreed upon by the parties, in the working draft. The trial judge’s reliance on the case of Prenn v. Simmonds (supra) and Keng Huat Film Co. Sdn Bhd (supra), is thus misplaced in this instance. [43] Furthermore, in Lee Lean Low, another case cited by the plaintiff, the High Court had alluded to the principle of “tenancy coupled with an equity” (as enunciated in Inwards v. Baker [1965] 1 All ER 446). The basis of the principle is that if an owner of a piece of land or landlord requests another or indeed allows another person to expend money on the piece of land in question under an expectation created or encouraged by the owner of the piece of land that he will be able to remain there, then in that situation, it raises an equity to the licensee or the tenant such as to enable the licensee or tenant to stay there. Whether equity will intervene to aid a licensee or tenant is a question of fact. Parol Evidence [44] The Court’s attention was also drawn to section 92 of the Evidence Act 1950. This section provides for the exclusion of oral evidence where the terms of any such contract have been proved according to section 91 of the same Act. The provision in section 92 is subject to numerous exceptions and these provisions have been considered and applied in a plethora of cases. Sections 91 and 92 of the Evidence Act 1950 provide as follows: 91 Evidence of terms of contracts, grants and other disposition of property reduced to form of document When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 92 Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: Provided that-

any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law;

the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document;

the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;

any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and

any fact may be proved which shows in what manner the language of a document is related to existing facts. [45] A case that directly dealt with issues pertaining to the duration of a tenancy and the admissibility of parol evidence, issues similar to those under consideration in the present application, is the decision of the Federal Court in Tan Swee Hoe Co Ltd v Ali Hussain Bros [1979] 1 LNS 113; [1980] 1 MLJ 89 (“Tan Swee Hoe”). In that case, an oral agreement had been reached between the parties whereby if the respondents (tenants) were to rent the said premises on payment of $14,000 tea-money, in return, “they could stay there for as long as they wished provided they paid rent regularly”. In deciding the issue of whether the tenancy was indeed for an indefinite duration, the Federal Court noted that that question “is tied to the salutary provisions of ss. 91 and 92 of the Evidence Act, which briefly stated, enact that extrinsic evidence is not admissible to vary or qualify the terms of a written contract”. [46] In that case, the Federal Court explained as follows: Although it is trite law that parol evidence is not admissible to add to, vary or contradict a written agreement, a technical way of overcoming the rule is by invoking the doctrine of collateral contract or collateral warranty. … In our view there is a growing body of authority which supports the proposition that a collateral agreement can exist side by side with the main agreement which it contradicts. After citing a number of English authorities, the Federal Court concluded as follows: … an oral promise, given at the time of contracting which induces a party to enter into the contract, overrides any inconsistent written agreement. This devise of collateral contract does not offend the extrinsic evidence rule because the oral promise is not imported into the main agreement. Instead it constitutes a separate contract which exists side by side with the main agreement. Sections 19 and 65 of the Contracts Act 1950 [47] The defendant had also referred this Court to sections 19 and 65 of the Contracts Act 1950. Section 19 of the Contracts Act 1950 provides that when an agreement has been entered without the free consent of one of the parties, the contract is voidable at the option of that party whose consent was caused by coercion, fraud or misrepresentation. On the other hand, section 65 of the Contracts Act 1950 states the consequences when a voidable contract is rescinded. Decision of the court [48] In the present application, the plaintiff did not raise any issue relating to the compliance or otherwise of the preliminary requirements that had to be satisfied by the defendant in its application for summary judgment. In this regard, the burden had shifted to the plaintiff to satisfy the Court as to why judgment should not be entered against them. (see Order 14 rules 3 and 4 of the Rules of Court 2012). In short, the plaintiff in the instant application was merely required to satisfy this Court that there was “an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part”. [49] Having considered the legal position relating to the application of the doctrine of legitimate expectation to private contracts and the relevant authorities in paragraphs [33] – [40] above, I formed the view that the doctrine has no application in the context of the facts in the present case. The Supreme Court of Seychelles in Jean v Felix did indicate its willingness to accept the application of the doctrine of legitimate expectation in private contracts. However, that is subject to the overriding qualification that it can only apply in situations where there is an absence of expressed terms in the contract. [50] In the present application, the option to renew the tenancy was expressly provided for in the agreement and thus had formed an express term in the contract. While it has been acknowledged in Jamin Trading that the doctrine of legitimate expectation “may arise in situations other than in the realm of public law”, this Court did not find that the factual matrix in this case justified and called for the recognition and application of the said doctrine. In view of the finding that the doctrine of legitimate expectation had no application in the present case, the issue of an issue or question in dispute which ought to be tried did not arise. [51] The submission by the plaintiff that an agent of the defendant had made “representations” resulting in “an understanding” that the tenancy was meant to be one of “long term” in nature or for a term of “3 plus 3” required added deliberation. [52] While the public law doctrine of legitimate expectation may have no application in private commercial contracts, the concept of representation may be relied on by one of the parties to a contract as the basis of a claim for breach of contract of misrepresentation. The representations or promises made must have induced the other party to enter into the contract or to act to the other party’s detriment. [53] Statements that are made during negotiations may be either mere representations or they may be terms of a contract. Whether these statements or representations are mere representations or are terms of a contract rest on the intentions of the parties, to be ascertained from their conduct and the circumstances of the case. [54] This Court agreed with the proposition that pre-contractual negotiations and documents may be crucial in assisting the court in determining the intention of the parties and thus the terms in a contract. However, where the intention of the parties has clearly been expressed in express terms in a contract, such as the one in the present case, the weight to be given to such pre-contractual negotiations or representations diminished considerably. [55] The present application relates to the period of the tenancy and the option to renew the tenancy. These have been expressed in clear and unambiguous terms in the Letter of Offer. Regardless of the “representations” made by the agent of the defendant, the option or right to renew the tenancy remained at all times with the plaintiff. The representation by the agent of the defendant, if any, did not in any way alter the condition which required that “the Tenant shall give to the Landlord a notice in writing to this effect not less than six (6) months prior to the expiry of the Terms of Tenancy”. [56] Tan Swee Hoe can be distinguished as the evidence in that case disclosed that an oral agreement had been reached between the parties whereby in consideration of a payment of $14,000 tea-money, the tenant “could stay there for as long as they wished provided they paid rent regularly”. In addition, there was no express terms in the tenancy agreement relating to the term or period of the tenancy. [57] On the concept of “tenancy coupled with an equity” as adumbrated in Lee Lean Low, whether equity will intervene to aid a tenant is a question of fact. The plaintiff argued that the defendant had allowed it to expend money to renovate the restaurant and thus, as I understand its argument, equity should intervene to allow the tenant to have the tenancy renewed. However, the issue of equity having to intervene did not arise in the present case. [58] The plaintiff, as tenant, was allowed to renew the tenancy under the terms of the tenancy. The plaintiff did not exercise the right afforded to it and was therefore solely responsible for the predicament it was facing. Hence, on the defence of representation, the plaintiff had failed to satisfy the Court that there was an issue or question in dispute which ought to be tried. [59] On the issue of parol evidence, this Court is in agreement with what had been articulated by the Federal Court in Tan Swee Hoe. Based on the facts and reasonings as outlined in paragraphs [44] – [46] above, the application or otherwise of sections 91 and 92 of the Evidence Act 1950 had no bearing on the outcome of this decision. [60] Likewise, the provisions in sections 19 and 65 of the Contracts Act 1950 did not alter the conclusion reached in relation to the application for summary judgment for part of the defendant’s counterclaim. [61] I allow the application by the defendant on part of the counterclaim with costs. [62] The plaintiff to pay the defendant costs of RM10,000. Dated: 3 May, 2023 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Tay Shieh Chin for the Plaintiff (Messrs. Chun Hoo & Partners) Chew Chun Wei together with Tang Kian Khuang for the Defendant (Messrs. Han & Partners)