Malaysia Airports (Sepang) Sdn. Bhd. v Plaza Premium Lounge Malaysia Sdn. Bhd. (WA-24NCvC-1284-03/2025)

[4] Premised on their agreed term in the Tenancy Agreement that rent payable to the Plaintiff is based on the monthly gross sales of the Lounge. The monthly gross sales include the total amount of monthly sales and/or monthly gross receipts and receivables from all sales of goods and/or services provided from the Lounge, or contracts of all sales of goods and/or services. [5] The Defendant uses two systems to capture its sales to its customers – one is the Point Of Sales System (POS) which is used to capture sales made to walk-in customers into the Lounge. The data in the POS System integrated with the Plaintiff’s POS System to enable the Plaintiff to view records captured in the Defendant’s POS System. [6] The other is the Lounge Management System (LMS) which is used to capture sales made to bank and/or airlines which make payment for such sales to the Defendant for customers who get complimentary access to such lounges with bank cards of airlines privileges (Collaborative Partners). [7] The monthly sale statements known as Schedule 11 Submissions which reflect the rent and royalty payable to the Plaintiff. As the Defendant manually input its gross monthly sales into the Schedule 11 Submissions and calculate the corresponding rent and royalty based on those figures, the Tenancy Agreement incorporated provisions to allow the Plaintiff to verify the accuracy of the monthly gross sales. [8] The OS was commenced by the Plaintiff to enforce its contractual rights provided by the Tenancy Agreement. Thus, it sought this Court’s order for:

the records or documents recording all sale transactions entered into the Lounge through the POS System and LMS; and

an account of rent payable to the Plaintiff under the Tenancy Agreement and to pay the rental as per the account provided. [9] Undisputed is the fact that there are variances between the sums declared by the Defendant in the Schedule 11 Submissions and the data in the Plaintiff’s POS System for the Lounge. When queried, the Defendant only provided a lump sum total revenue obtained from airlines, banks and walk in sales without the breakdown of the transactions comprising the total revenue on 4.3.2025. This is also undisputed. [10] This Court is to determine whether the Tenancy Agreement entitles the Plaintiff to seek production of the documents sought for, and whether the Plaintiff is an account of the rent payable by the Defendant pursuant to the documents provided. The Defendant’s Reasons to Strike Out the OS [11] It was claimed that the OS ought to be converted into a writ action because there was serious dispute of facts which directly impact the issues in dispute. The Defendant contended that the OS is not confined to a construction of contract and that the one of the reliefs sought is for an account that ought to be brought by way of a writ action. This Court’s assessment [12] This Court was unable to accept the Defendant’s reasons to convert the OS into a writ action because the factual matrix is not disputed. The Tenancy Agreement and the clauses contained therein, the fact that the Defendant uses POS System and LMS to record transactions of the Lounge, and also that the Defendant had failed to provide the documents sought by the Plaintiff. [13] Thus, this matter is most suitable to resolve by way of OS. The Court of Appeal had ruled in NVJ Menon v The Great Eastern Life Assurance Co Ltd [2002] 2 MLRA 510; [2004] 3 MLJ 38; [2004] 3 CLJ 96; [2004] 4 AMR 164 that witnesses’ view or impressions of the contract are irrelevant because the construction of it is a question of law to be determined by the court, not by oral testimonies of witnesses. [14] This Court did not agree to the Defendant’s contention the relief of producing the accounts cannot be done via this OS pursuant to Order 43 Rules of Court 2012 (RoC). The Defendant relied on the usage of the word ‘writ’ in Order 43 Rule 1 RoC where a writ is endorsed with a claim for an account. However, this Court understood that to be an acknowledgment that the relief for account may be granted by way of summarily without requiring a trial – see Ekar Lega Sdn Bhd v Central Spectrum (M) Sdn Bhd [2023] CLJU 2292 and also Yeoh Gaik Tin @ Tao Yong v Khaw Hock Chye & Anor [2019] CLJU 1748. [15] After having scrutinized the Defendant’s argument that there were substantial dispute material facts in its Defence and Counterclaim, this Court found that the numerous allegations in the Defendant’s affidavits are not relevant to the facts in issue of this OS. See GT-Max Food & Beverages Sdn Bhd v Sawit Raya Sdn Bhd & Anor [2024] MLJU 2281; Ultra Racing (M) Sdn Bhd v Hai Soon Leong Sdn Bhd [2020] 1 LNS

[16] The Defendant claimed that the Plaintiff’s averments contradicted those in its affidavit in High Court Suit No. BA-22NCvC-299-07/2024 (Suit 299) where the Plaintiff stated that there was no breach of the Tenancy Agreement. However, that claim was taken out of context. The Plaintiff had stated that there were “No breaches haven been alleged in respect of lounges and storage outlets and no injunction can conceivably be sought in respect of those tenancies.” This was in answer to the Defendant’s application for an injunction which had been since set aside, and irrelevant to the fact in issue of this OS to interpret the Tenancy Agreement to determine the Plaintiff’s contractual rights/the Defendant’s contractual obligations. [17] Therefore, the Defendant’s other claim on the issues of using the Plaintiff’s POS system and the difficulties and practices thereto were also not relevant to the determination of this OS. This Court is to make a finding on the contractual rights of the parties borne out of the Tenancy Agreement regardless of the difficulties, teething issues or the satisfaction of using the Plaintiff’s POS system. [18] The third purported disputed fact that the Defendant submitted that entailed this OS to be converted into a writ action was the claim that this OS was not filed bona fide. The Defendant’s claimed that this OS is a fishing expedition for documents for other suits, which this Court considered upon the submissions by learned counsels of the parties. This Court found that the discovery sought in those other suits was in relation to the sales transactions relating to the food and beverage outlets which are the subject matter of those said suit. That is distinct from the determination of the construction of the Tenancy Agreement which is the subject matter of this OS. The Defendant had failed to show that such allegation of bad faith was with basis so it could not frustrate this OS. [19] Lastly, the Defendant contended that this OS was to circumvent the trial for Suit 299. This Court found the argument without merit as the Plaintiff did not ask for any relief for account in Suit 299. [20] As such, this Court rejected the Defendant’s submissions it would be prejudiced if this OS proceeds though if converted into a writ action then the Plaintiff would not suffer any prejudice. That submissions were misplaced as there was no basis to convert this OS into a writ action in the first place. [21] The mode of originating summons as opted by the Plaintiff is the most legally effective mode to determine the construction of the wordings of the Tenancy Agreement. If the Defendant was desirous to advance any other issues not related to the determination of this OS, it has the option to ventilate them in a separate writ action instead of delaying the Plaintiff’s request for the contractual audit. Moreover, the others suits have been fixed for trial to determine the respective subject matters therein. [22] There were no reasons to invoke the provisions of Order 28 Rule 8 and/or Order 5 Rule 2 and/or Order 5 Rule 4(1) and/or Order 43 and/or Order 92 Rule 4 RoC. [23] This Court concluded that the issues raised in this OS was best to proceed by way of OS. Encl 12 dismissed. With this decision, this Court allowed the Defendant to cross-examine the deponent(s) for the Plaintiff. The Defendant must inform the Plaintiff and this Court who it wishes to cross-examine. Aside from the parties’ resources, much judicial time and costs would be saved. Costs were ordered to be in the cause. DATED 11 SEPTEMBER 2025 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For the Applicant: K.Shanti Mogan, Yiew De Quan Together Ching Hao Yan Shearn Delamore & Co. For the Respondent: Justin Voon Tiam Yu together Victor Pang Chee