Plaintiff has about 200 other sub-tenants or traders contracted with him to operate the business site. These sub-tenants and traders will suffer losses, which will affect their business if the site has to be vacated. Analysis and Findings [35] The matter's thrust was that Plaintiff had vehemently contended that he had the right to continue the permitted use of the site by occupying and operating the Santai SA site even without a licence from the competent authority. Letters from MBSA were undisputedly received, and Plaintiff conceded that he is operating the site without a valid licence. [36] On this point, I am of the view that the Defendant, as an entity having legal control over the premises (as the registered tenant), must abide by all legal requirements set by the regulating authority (MBSA). [37] Admittedly, I did state in my grounds of judgment, in refusing the interim injunction application that to allow an injunction on this factual circumstance would be "equivalent to this Court, at the present moment, colluding in an unlawful pursuit allegedly by Plaintiff, unless proven to the contrary, which is to be determined later at the trial". I further held that the questions posted by Plaintiff are valid questions to be resolved; however, for the purposes of an injunctive relief, these were "purely profit-oriented outcomes that could be adequately compensated by damages if the Plaintiff were successful in its action". [38] The above considerations were made to weigh the probability of whether an injunctive relief would favour the Plaintiff. However, different considerations apply to a striking-out application, as in the latter, the issue is directly on the existence of a reasonable cause of action, which, upon perusal of the affidavits, I find that the Plaintiff's claims are untenable. [39] Considering the entire scenario of this case, I am of the view that the Plaintiff's reluctance to abide by the statutory requirement to obtain the relevant licences and the deliberate shifting of the obligation to the Defendant shows his possible dishonest intent, which means that the claim is, in fact, not arguable. [40] The above stand is not unprecedented. Citing the case of Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd (1993) 4 CLJ 7, the Court held that if the point of law does not require any serious discussion, such claim asserted is not, arguable and therefore causes the questions raised by Plaintiff, no matter how thorough, obviously unsustainable. For easy reference, I quote the relevant paragraph as follows: "The principles upon which the Court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it 'obviously unsustainable' (see AG of Duchy of Lancaster v L & NW Rly Co 8). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors 9). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable." [41] Plaintiff's act of disregarding the requirement of the law (sekyen 3 Undang-Undang Kecil Perlesenan Tred, Perniagaan and Perindustrian (Majlis Bandaraya Shah Alam) 2007, seksyen 6(1) Enekmen Hiburan dan Tempat-Tempat Hiburan 1995 and sekyen 70(1) Akta Jalan, Parit dan Bangunan 1974), amongst others, by not having a valid entertainment licence from MBSA is a crucial fact disentitling this Court from exercising any discretionary powers be it to restrain nor to allow related causes of action to be litigated as the same is clearly an illegal act. [42] I agree with the Defendant's reference to a common law principle, the maxim ex turpi cause non oritur action - "no action can arise from an unlawful cause" and commodum ex injuria sua nemo habere debet - "no party can take undue advantage" to rebut Plaintiff's allegation of possible bona fide issues to be tried. These maxims proffer a doctrine that a person will not be able to pursue a cause of action if it arises from his own illegal act, and that nobody should profit from his own wrongdoing. [43] The Court of Appeal case of Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626 was referred, and I quoted the relevant paragraphs: [67] In evaluating the available evidence, the Plaintiff as the tenant was in clear breach of the terms of the tenancy agreement. The Plaintiff had breached the express covenants of the tenancy agreement with impunity and this Court will not lend its assistance to the Plaintiff. It is quite apparent that the Plaintiff is relying on its illegal acts in not procuring the building plan and the licence to operate the entertainment outlet in the building to advance its claim against the Defendant. I have no hesitation in striking out the Plaintiff's claim based on the ex turpi causa non oritur actio principle. It is a principle that is applicable to all causes of action including claims in tort. Beldam LJ delivering the judgment of the Court in Clunis v. Camden and Islington Health Authority[1998] QB 978, CA, at p. 987 had this to say about the ex turpi causa non oritur actio principle: But whether a claim brought is founded in contract or in tort, public policy only requires the Court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts. [68] And Lord Mansfield in Holman ET AL' v. Johnson, alias Newland [1775] 98 English Reports, 1 Cowp. 342, 343 explained the ex turpi causa non oritur actio principle in broad terms in this way: No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the Plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the Defendant, but because they will not lend their aid to such a plaintiff." - emphasis added [44] The Plaintiff indisputably admitted that he operated the site without a licence. Who was required to apply for such a licence remains a mere allegation. Without evidence, the fact stands that his activities on the Santai SA site were illegal. [45] In the present case, the existence of an uncorporated joint venture agreement, as alleged by the Plaintiff, was uncertain because of the existence of the Operator's Agreement and, moreover, the Defendant was not even the owner of the business site. They themselves are obliged to fulfil their contractual obligations to the owner of the land. The Plaintiff's requests (in the amended SOC) to allow them to continue operating on the site will definitely affect the rights of a third party. [46] In addition, the Plaintiff's allegations of an uncorporated joint venture agreement were not supported by any documentary evidence. Even if Plaintiff attempted to produce oral evidence of the same, I am of the view that the terms and conditions in the Letter of Offer and the Operator's Agreements will still prevail (see Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] CLJU 119). [47] It is pertinent to note that both the Letter of Offer and the Operator's Agreements had embodied an "Entire Agreement Clause" which excludes any reliance on representation or negotiation made prior to the Operator's Agreements. [48] Reference was made to a leading case in the area, Master Strike Sdn Bhd v. Sterling Heights Sdn Bhd [2005] 2 CLJ 596, where the Court of Appeal held: "The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding, in the course of negotiations, some (chance) remark or statement (often long forgotten or difficult to recall or explain) upon which to found a claim, such as the present, to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need that may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that, accordingly, any promises or assurances made in the course of the negotiations (which, in the absence of such a clause, might have effect as a collateral warranty) shall have no contractual force, save in so far as they are reflected and given effect in that document. [49] Hence, I agree with the Defendant that the Plaintiff's assertion on the alleged uncorporated joint venture agreement made between the parties cannot stand and is inadmissible. Therefore, it does not form a meritable or bona fide issues to be tried. [50] On the counterclaim, Plaintiff was paying rental according to the Operator's Agreement and was aware of his obligation to pay the utility bills (refer to clause 23 of the Letter of Offer) and the operating fees. Even after the lapses of the Operating Agreement, Plaintiff had been paying the same on a month-to-month basis. [51] The Defendant issued notices to pay the outstanding charges, and in a letter dated 1.2.2024, the Plaintiff allegedly admitted the debt. Therefore, I find that the Defendant has successfully proved the amount of double operating fees and outstanding utility bills, and the Plaintiff has not convincingly disproved his liability to pay the same. Accordingly, I find that the issues raised by the Plaintiff regarding the outstanding amounts are not triable, and the Defendant should therefore be granted the amount claimed and vacant possession of the business site. Conclusion [52] Having considered all of the above established legal principles and the relevant statutory provisions, as well as the written and oral submissions of the parties, I am of the view that, though initially I state that there were possible issues raised by Plaintiff, however, after further scrutinizing the affidavits and submissions of both parties, I agree with Defendant that Plaintiff's claim are obviously unsustainable, and upon applying the two maxims stated, it would be an abuse of court process to allow Plaintiff to maintain their claim against Defendant. To do so would be tantamount to this Court condoning the illegal act of the Plaintiff. [53] Therefore, both Defendant's application to strike out Plaintiff's claim (enclosure 64) and to record judgment under Order 14 of their counterclaim (enclosure 62) are allowed with cost of RM8000 each to the Defendant, subject to the allocator fees. Dated this: 13th May 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) Judge Shah Alam High Court NCVC 9 Counsels: For the Plaintiff: Dato’ Kamaruzaman Arif together with Nur Syuhada Zulkaple Messrs Kamaruzaman Arif & Sofiah For the Defendant: Habizan Rahman together with Sarina binti Alwi and Anis Afina