Loy Chi Lam v Low Wei Kean (BC-A54-4-12/2024)

The plaintiff filed an Originating Summons against the defendant on 17 December 2024 seeking for the following reliefs: a) Vacant possession of a commercial shop lot known as No. 39G & 41G, Jalan Bunga Tanjung 7, Taman Muda, 68000 Ampang, Selangor Darul Ehsan (‘the said property’); b) A declaration that the Tenancy Agreement dated 1 April 2024 has been terminated; S/N BazoNtp9E2zqMviJhqOg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 c) Outstanding rental sum of RM36,000.00 as at 12 November 2024; d) Double rental from 27 November 2024 until the delivery of vacant possession of the said property; e) Interest at the rate of 5% per annum on the total outstanding rental from the date of the judgment until full settlement; f) Liberty to apply; g) Costs; and h) Such other order or reliefs as this Honourable Court deems fit and proper.

The facts leading to this application are these. The plaintiff and the defendant entered into a tenancy agreement on 1 April 2024 for two years to rent a three-storey shop lot at No. 39G & 41G, Jalan Bunga Tanjung 7, Taman Muda, 68000 Ampang, Selangor Darul Ehsan (‘the said property’). The said property belongs to the plaintiff, who co-owns it together with his wife. The plaintiff alleged that the defendant had breached Clause 4 of the Tenancy Agreement by refusing, failing and neglecting to pay three months' rent amounting to RM36,000.00 as at 12 November 2024. The plaintiff sent a notice of demand to the defendant dated 12 and 13 November 2024 and subsequently on 17 December 2024 filed this action claiming for amongst others the vacant possession of the said property, the defaulted rental, termination of the agreement and double rental S/N BazoNtp9E2zqMviJhqOg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 from 27 November 2024 until the delivery of the vacant possession of the said property and interest.

The defendant argued that he had made all the outstanding rental payments, including the allegedly defaulted sums. Therefore, the Tenancy Agreement remains valid. The defendant also averred that he has never received the notice of demand from the plaintiff.

The parties laid down three issues to be determined by the court. The issues are as follows: a) Whether the plaintiff’s conduct of accepting rental payments without objection after the alleged termination amounts to a waiver of notice of termination and an affirmation that the Tenancy Agreement remains valid and subsisting; b) Whether the letters of demand/ notices of termination dated 12 and 13 November 2024 were effective and valid; c) Whether the plaintiff is entitled to double rental under section 28(4) of the Civil Law Act 1956 in the absence of a valid and effective termination of the Tenancy Agreement. S/N BazoNtp9E2zqMviJhqOg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The first issue to be determined is whether the plaintiff’s conduct of accepting rental payments without objection after the alleged termination amounts to a waiver of notice of termination and an affirmation that the Tenancy Agreement remains valid and subsisting.

It is the plaintiff’s submission that the defendant had defaulted three months' rental payment amounting to RM36,000.00 as at 12 November 2024, thus breached Clause 4 of the Tenancy Agreement. The plaintiff submitted that even though the rental payments had been accepted by the plaintiff, that does not mean that the plaintiff had waived its right to terminate the tenancy. Furthermore, it is the plaintiff’s submission that the rental payment was accepted without prejudice basis. (Refer to Amalan Setar (M) Sdn Bhd v Akar Serantau Sdn Bhd & Ors [2021] MLJU 1924; Keris Electrical Sdn Bhd v Millenium Substrates Sdn Bhd [2023] MLJU 324; Steven Cheah Hon Yin v Teh Sok Hoon [2020] MLJU 2036)

The defendant, however, argued that he had since paid all the outstanding rental amount, including the allegedly defaulted sum. The defendant submitted that the plaintiff has accepted every monthly payment from the defendant despite the delay. The payment bank slips were produced and exhibited in the affidavit in reply. This is not disputed by the plaintiff. Therefore, the defendant S/N BazoNtp9E2zqMviJhqOg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 submitted that the plaintiff has accepted the rental payment by his conduct and thus affirming the continuation and validity of the Tenancy Agreement. (Refer to Geneva Malaysia Sdn Bhd v Tio Jit Hong & Ors [2020] 6 MLJ 703; Lim Lay Sooi & Anor v Merah Rubber Estates (1931) Ltd [1951] 17 MLJ 246; Toys Box

Based on the facts, the plaintiff alleged that the defendant had defaulted on three months' rental payment. He then proceeded to issue a notice of demand and then a termination notice dated 12 and 13 November 2024 and subsequently on 17 December 2024 filed this action. The defendant averred that he had settled the defaulted rental payments on 16 November 2024 and then made payments for rental for the month of September 2024 rental up to April 2025 monthly rental on 1 December 2024, 16 December 2024, 2 January 2025, 6 January 2025, 1 February 2025, 26 February 2025 and 1 March 2025. The payment slips of the monthly rental are exhibited in the defendant’s affidavit in reply. According to the defendant, the payment slips were sent to the plaintiff through his mobile number on WhatsApp communications, and the plaintiff did not make any objection on the payment. This fact was never disputed by the plaintiff.

In Toys Box Marketing (M) Sdn Bhd v Penn-Mart Toys (M) Sdn Bhd [2020] 1 LNS 1171 (supra), the High Court in allowing the appeal held that the conduct of the plaintiff in continuing to S/N BazoNtp9E2zqMviJhqOg accept rent from the defendant after dateline in the Notice to Quit all pin-pointed to waiver of the Notices to Quit by the landlord. Wilson J in Lim Lay Sooi & Anor v Merha Rubber Estates (1931) Ltd [1951] 17 MLJ 246 have also held that the act of accepting the rent would clearly point to waiver. [10] It is not disputed that the plaintiff had sent a notice of demand and notice of termination to the defendant. Under the said notices, the deadline given to settle the outstanding and to surrender the vacant possession was on 26 November 2024. It is evident that the defendant continued to pay the rent to the plaintiff starting from 16 November 2024 and had made payments for the next six months' rental. The defendant had also continued to stay on the said property and did not deliver vacant possession. And most importantly, the plaintiff did not take any legal action to enforce or execute the notices and did not even protest. He had accepted the rental payments without any protest. In my view, the fact that the plaintiff did not protest or do anything about the rental payments only led to the fact that he did not intend to enforce the said notices. His conduct to accept the rental payments shows that the notices sent has been abandoned. As decided by the Court of Appeal in Genneva Malaysia Sdn Bhd v Tio Jit Hong & Ors [2020] 6 MLJ 703, it is trite law that apart from writing, conduct of parties may amount to acceptance. (See also Eckhardt Marine Gmbh v Sheriff, High Court of Malaya, Seremban & Ors [2001] 4 MLJ 49). Hence, on a balance of S/N BazoNtp9E2zqMviJhqOg probabilities, I found that Tenancy Agreement remains valid and subsisting based on the plaintiff’s conduct in accepting the rental payments for the subsequent months, up to April 2025. The plaintiff’s conduct in continuing to accept the rental payments after the notices of demand and termination being sent had clearly waived his right to terminate the Tenancy Agreement. (See Toys Box Marketing (M) Sdn Bhd v Penn-Mart Toys (M) Sdn Bhd [2020] 1 LNS 1171 (supra)). [11] Since it is the Court’s finding that the Tenancy Agreement remains valid and subsisting, therefore it follows that there would be no necessity for the Court to deal with the other two issues. [12] Based on the above reasons, the plaintiff’s application is dismissed with costs of RM3,000.00. Dated: 8 August 2025. (Fadzlin Suraya binti Mohd Suah) Judge Sessions Court Ampang, Selangor Darul Ehsan. S/N BazoNtp9E2zqMviJhqOg