My-Partners Video Technology Solutions Sdn. Bhd. v Universiti Teknologi Mara (Uitm) (BA-22NCvC-53-02/2023)

1.

UNIVERSITI TEKNOLOGI MARA

PROF. MADYA DR. HAIDAR DZIYAUDDIN EFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff is in the business of providing digital media advertising display units and associated services. The 2nd Defendant was the Deputy Vice Chancellor (Development) of the 1st Defendant and the 3rd Defendant was the legal advisor of the 1st Defendant. Both were employees of the 1st Defendant, a statutory body established under the Universiti Teknologi MARA Act 1976 ( i ). 17/01/2025 09:49:48 BA-22NCvC-53-02/2023 Kand. 76 [2] On 15-6-2011, the Plaintiff and the 1st Defendant signed an agreement where it was agreed, inter alia, that the Plaintiff would install 120 digital media display units around the 1st procure commercial advertising deals on a profit sharing basis with the 1st Defendant ( ). The Agreement expired on 14-6-2021. [3] Well before the expiry of the Agreement, in 2018, the parties entered into negotiations to mutually terminate the Agreement. It is not in dispute that no agreement was ever reached. The Plaintiff filed this suit on 2-2-2023 to claim against the 1st Defendant for various breaches of the Agreement and against the 2nd and 3rd Defendants for what is understood to be the tort of negligent and/or fraudulent misrepresentations in the protracted negotiations to mutually terminate the Agreement. [4] The gist of the allegations against the 2nd and 3rd Defendants is that they led the Plaintiff down the garden path, so to speak, inducing the Plaintiff into the belief that there would be a mutual termination involving the purchase of some 40 digital advertising display units for consideration together with a maintenance deal. Analysis and Findings [5] The 2nd and 3rd Defendants have applied in Enclosure 10 to strike out the claim against them on various grounds under Order 18 Rule 19(1) of the Rules of Court 2012. The principal grounds that this Court has considered are as follows:

The 2nd and 3rd Defendants are protected by immunity from suit under the Statutory Bodies (Discipline and Surcharge) Act 2000 and sections 31 and 34A of the UiTM Act; and

No reasonable cause of action has been pleaded against the 2nd and 3rd Defendants. [6] The provisions on immunity from suit that the 2nd and 3rd Defendants say they enjoy as employees of Universiti Teknologi Mara are sections 31 and 34A of the UiTM Act, although it should be apparent that the Public Authorities Protection Act 1948 referred to in section 31 of the UiTM Act only sets a limitation period. No time bar defence was pleaded in this case. [7] Section 34A of the UiTM Act provides as follows: court against

the Board;

a member of the Board;

the Vice-Chancellor;

the Deputy Vice-Chancellor;

the Senate;

a member of the Senate;

a staff of the Universiti; and

a person authorized to act for or on behalf of any of the bodies or persons under paragraphs (a) to (g), for any act or omission done in good faith in the exercise or discharge of its or his powers or duties under this Act in a reasonable belief that it was necessary for the purpose intended to be served thereby. [8] As a matter of statutory interpretation, it is unambiguous that section 34A of the UiTM Act act or omission done in good faith in the exercise or discharge of his powers or duties under this Act in a reasonable belief that it was necessary for the purpose intended to be served thereby [9] This Court finds that it is neither plain nor obvious that the complaints of negligent and/or fraudulent misrepresentation (deceit) by the 2nd and 3rd Defendants in the course of negotiations for the mutual termination of the Agreement can be considered to be acts or omissions done in good faith in the exercise or discharge of their statutory powers or duties as necessary under the Act. [10] However, this Court has no reservations on the secondary ground for striking out based on the pleading point. As noted, the only discernible cause of action pleaded against the 2nd and 3rd Defendants is in tort. It is trite that damages are a necessary element to complete a cause of action in the pleaded torts. [11] In this case, the Plaintiff seeks recovery of an unparticularised sum of damages in the sum of RM3,911,238.00 jointly and severally against the Defendants. Yet, in paragraph 19 of the Statement of Claim, the Plaintiff has quite clearly pleaded that that is the amount it has allegedly expended in the performance of its obligations under the Agreement. The relevant pleading are as follows: [12] The 2nd and 3rd Defendants are not privy to the Agreement and liability for the alleged breach of contract by the 1st Defendant is not co-extensive with that of the 2nd and 3rd Defendants for the entirely separate tort of misrepresentation. [13] , the alleged loss and damage in the sum RM3,911,238.00 stems from the Agreement which expired, and there is no nexus between the alleged loss and damage and the alleged tort of misrepresentation by the 2nd and 3rd Defendants. The whole claim against the 2nd and 3rd Defendants is that there was ultimately no agreement to mutually terminate the Agreement and that the Plaintiff allegedly suffered a loss for having been strung along by the misrepresentations of the 2nd and 3rd Defendants. [14] On first principles however, damages in tort are intended to put the injured party in the position, so far as money can do it, in same position if the tort had not occurred. Based on the pleaded case, that position for the Plaintiff will still entail an already accrued expenditure of RM3,911,238.00 and the expiration of the Agreement. [15] In other words, there is no nexus between the claimed sum and the alleged tort or any other pleaded damage arising from the alleged tort to complete the pleaded causes of action against the 2nd and 3rd Defendants. Conclusion [16] For the above reason, this Court finds that the claim against the 2nd and 3rd Defendants discloses no reasonable cause of action and is obviously unsustainable on the face of the pleadings. Enclosure 10 is accordingly allowed and the action against the 2nd and 3rd Defendants is dismissed with global costs of RM10,000.00 for both Defendants. Bertarikh : 17 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif : Shakila Binti Naseer Ahmad, Messrs Noor Amran & Co. Untuk Defendan-Defendan : Juanita Johari, Messrs Abu Talib