Peluang Karisma Sdn Bhd v Lee Hock Guan (BA-22NCvC-112-03/2018)

days from the date of the said notice; vis-à-vis 9.1.2018 to rectify the alleged breaches. [b] On 17.1.2018, the Defendant issued the 2nd notice (Exhibit P10) that the Defendant is entitled to terminate the TA, forfeit all the deposit and repossess the property. The Defendant gave the Plaintiff seven (7) days from the date of the 4 said letter to return the keys and inventory items belonging to the Defendant. [c] On 22.1.2018 the 3rd notice (Exhibit P11) was issued by the Defendant alleging that the Plaintiff failed to use the property for lawful business of restaurant and that the Plaintiff had permitted or sublet or carried out other business at the property without prior consent from the Defendant. The Defendant demanded for RM280,000.00 as damages to be paid by the Plaintiff within seven (7) days from the date of the said notice. [d] On 23.1.2018 (Exhibit P12) the 4th notice was issued in that the TA was deemed terminated because the Plaintiff failed to pay rental on or before the 7th day of each month and had failed to use the property for restaurant business instead has permitted or sublet or carried out other business at the Premise without prior consent of the Defendant. The Plaintiff also failed to pay all bills and charges including late charges. 5 [5] Prior to the 3rd notice, the Defendant on 20.1.2018 visited the Premise and discovered few foreign workers were sleeping inside and there were also no sign of renovation works done. The Defendant then took back the possession of the Premise on the same day. This had resulted to the issuance of the 3rd notice (Exhibit P11) and 4th Notice (Exhibit P12). [6] The Defendant terminated the TA on the ground that the Plaintiff failed to comply the term and conditions set out in the TA with regard to the payment of rental, utilities, the purpose of renting the Premise as restaurant and the usage of the Premise as housing foreign workers. In addition, the Plaintiff also failed to complete the renovation work as promise prior concluding the TA. On 1.3.2018, the Defendant rented the Premise to a new tenant for textile business (Exhibit D28). [7] The Plaintiff on the other hand contended that the termination of the TA was wrong and unlawful because the Defendant had failed to comply with the terms and condition set out in the TA prior terminating the TA. Since the termination of 6 the TA is wrong and/or unlawful, the Plaintiff submitted that the TA remains valid and subsisting. C. AGREED FACTS [8] The Plaintiff rented the Premise from the Defendant to operate a business in accordance with the terms and condition of the TA. The vacant possession of the Premise was handed to the Plaintiff in October 2017 for the Plaintiff was to carry out renovation works subject to the payment of the utilities bills in accordance Part 2, Schedule 2 of Exhibit P1. [9] The Defendant has rented the Premise to a 3rd party on 15.2.2018 and the said 3rd party commenced business at the Premise on 1.3.2018. D. LIST OF WITNESSES [10] The Plaintiff called 4 witnesses: [a] Loh Kok Sin (PW1) – real estate negotiator. [b] Suhaidi bin Jamiun (PW2) – the Plaintiff’s director 7 [c] Mohd Nizar bin Mahamad Yusof (PW3) - Jakel Trading Sdn Bhd’s Facility Manager [d] Roszellane Noor Doria binti Razali (PW4) - Plaintiff’s Executive [11] The Defendant called one witness which was himself (DW1). E. ISSUES [12] The issues: [a] Whether the Plaintiff has breached any of the terms in the TA. [b] Whether the termination of the TA is valid and proper. [c] Whether the vacant possession was handed over to the Defendant on 20.01. 2018. 8 F. PLAINTIFFS CASE [13] The Plaintiff contended the termination of the TA dated 5.12.2017 by the Defendant is wrong and unlawful. The Plaintiff submitted that Clause 5(b) of the TA that if the Plaintiff breached any of the terms in the TA, the Defendant has to give the Plaintiff 14 days period to remedy the breach and if in the event that the remedy is not remedied by the Plaintiff, the Defendant can give the Plaintiff a notice to terminate and the TA will be terminated upon expiry of 30 days from the date of the said notice as stipulated in Clause 5(c) TA. Therefore the whole process of termination will take 44 days. All the notices issued by the Defendants were in breached of Clause 5 (a) and

TA and therefore the Defendant termination of the TA was wrong and unlawful and it follows that the repossession of the Premise was also unlawful. [14] The Plaintiff contended that even the Plaintiff had committed the breaches stated by the Defendant ‘s 1st notice, such breaches had been remedied within 14 days from the date of 9.1.2018 in accordance with Clause 5 (b) TA where the 9 Plaintiff had settled the water and electricity bills on 22.1.2018 and had paid the January rental on 16.1.2018. The Defendant was in breach of Clause 5 (b) TA when the Defendant only gave the Plaintiff 7 days to remedy the alleged breaches instead of 14 days. The other notices dated 22.1.2018 and 23.1.2018 was wrong for the Defendant in terminating the TA and in fact the said notices were issued after the Defendant has taken back vacant possession of the Premise on 20.1.2018. [15] The Plaintiff submitted that the Defendant’s allegation as to the Premise was not used to operate a lawful business as a restaurant was untrue since Clause 3(b) as well as Section 1 of 2nd Schedule to the TA only states that the Plaintiff ought to use the Premise for its lawful business. The said Clause did not mention that the lawful business must be a restaurant and has allowed the Plaintiff to have quiet enjoyment of the Premise so long as the Plaintiff carried out its covenants in the TA. 10 [16] The Plaintiff submitted that the Defendant allegation that the Plaintiff had permitted or sublet the Premise as hostel for foreign workers was untrue since Jakel Trading’s foreign worker had their own hostel at Ostia Bangi. Even if it is true, the Plaintiff submitted that the Defendant must follow the steps in clause 5 (b) and 5 (c) of the TA before the termination can be done but the Defendant failed to do so. In fact, the allegation of foreign workers was made in 3rd and 4th notices after the Defendant had taken back vacant possession of the Premise on 20.1.2018. [17] The Plaintiff contended that the Defendant has committed trespass when he took back the vacant possession on 20.1.2018 because the Plaintiff had remedied the alleged breaches as stated in the Defendant’s 1st notice by paying the January 2018’s rental on 16.1.2018 and the outstanding utilities on 22.1.2018 which were within the 14 days remedial period stated in clause 5 (b) of the TA. The Plaintiff is entitled to quiet enjoyment of the property as per clause 4 (a) of the TA. Therefore, the Defendant had committed trespass on 20.1.2018 11 and continues to do so when the Plaintiff asked the Defendant to return vacant possession of the Premise but was refused by the Defendant. In the light of the invalid and unlawful termination of the TA by the Defendant, the Plaintiff submitted that they are entitled for the relief sought. G. THE DEFENDANT’S SUBMISSION. [18] The Defendant submitted that the Plaintiff had failed to pay the rental of the Premise not later than the 7th day of each calendar month without formal demand from the Defendant as stipulated in Clause 3(a) TA. The failure to pay the rental is a fundamental breach of the TA and as the Plaintiff had failed to comply within the time limit stipulated, the Plaintiff shall be deemed to have repudiated the TA [19] The Defendant submitted that the Plaintiff’s reliance on Clause 5(b) and (c) to claim that they are not in breach is wrong because Clause 5(a) should be read within its’ own confines. The remedy for the Defendant as landlord when any breach within Clause 5(a) (i) - (v) is committed, the Defendant is to act in accordance to Clause 5(b) and (c). 12 [20] The Defendant contended that after the issuance of the 1st notice, the Plaintiff did not take any steps to rectify the breach. The Plaintiff only replied to the Defendant after 4 notices were issued and also after the commencement of this suit. The Plaintiff continued to pay rental until June 2018 and every payments was made after the 7th day of each month. [21] The Defendant also submitted that the Plaintiff had breached Clause 3(b) TA where the Plaintiff acted in breach of express or implied terms of the TA for not operating the Premise as a restaurant contrary to the earlier intention of renting the Premise from the Defendant. Instead the Plaintiff sublet or permitted a third party to use the Premise without prior consent of the Defendant to house foreign workers. This act tantamount to a fundamental breach of the terms of the TA particularly Section 1 of the 2nd Schedule TA. [22] The Defendant also submitted that the vacant possession of the Premise was given voluntarily to the Defendant by the Plaintiff’s agent on 20.1.2018 and the Plaintiff did not at any reasonable time thereafter make any attempts to meet with the 13 Defendant to resolve the issue nor remedy their breach nor request for the return of vacant possession of the Premise. The Plaintiff did not or failed to rectify the breach until 25.1.2018 only after receiving the Final termination, the Plaintiff replied all the letters and notices sent to them since 2.1.2018. [23] The Defendant submitted that the conduct of the Plaintiff was detrimental to the Defendant’s well-being and property and therefore the termination notices were valid and legal. The Defendant however submitted that if the termination is deemed to be unlawful, the Plaintiff only entitled to nominal damages. [24] The Defendant also submitted that the Premise was rented out to a new tenant on 1.3.2018 where the new tenant had taken possession of it before the filing of this suit and had commence their business. There was no letter of demand by the Plaintiff to the Defendant prior to this suit and the remedy to the Plaintiff, if any, would be damages which the Plaintiff has to prove. Above all, the Defendant submitted that the Defendant did not act in any manner that is injurious to the Plaintiff and such acts were reasonable as a property owner to protect 14 himself and his property from any harm. In fact the Plaintiff has also failed to prove that the Defendant is liable for the Plaintiff is to be entitled to exemplary damages. [25] As to the Special damages of RM5 million pursuant to the JVA, the Defendant submitted that the JVA was not made known to the Defendant at any material time before the commencement of this suit. The JVA does not form any part of the TA between the Plaintiff and the Defendant nor the tenancy agreement for the neighbouring lots of the Premise. In fact the Plaintiff did not bring any evidence to prove that they had suffered damages of RM5 million under the JVA. The Defendant submitted that the conduct of the Plaintiff shows that the Plaintiff had by its’ own acts repudiated the express and implied terms of the TA. H. EVALUATION AND FINDINGS [26] From the facts above it is clear that the Plaintiff is seeking relief and damages arising from the alleged wrongful termination of TA by the Defendant. Therefore the core issue before this Court is whether the TA dated 5.12.2017 was 15 wrongfully and invalidly terminated by the Defendant. On this basis the Defendant relied the termination was valid and lawful based on the followings:- [a] The Plaintiff had breached Clause 3(a) TA for failing to pay rental due since 1.1.2018 as well as to Clause 5(a) iv TA to pay utility bills or charges for more than 30 days due since 1.12.2017. [b] The Plaintiff has sublet or permitted a 3rd party to use the rented premise without prior written consent of the Defendant in contrary to Section 1 of the 2nd Schedule of TA. [27] In considering the disputes of the parties, it must be borne in mind that the general principles of construing a contract is a question of law and where the contract is in writing the intention of the parties must be found within the four walls of the contractual documents; it is not legitimate to have regard to extrinsic evidence. A contract must be construed as at the date it was made and it is not legitimate to construe it in the light of what happened years or even days later. Finally, the contract must be construed as a whole, and also, so far as practicable, 16 to give effect to every part of it. Therefore it is the court's duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The Court must give effect to the plain meaning of the words however much it may dislike the result. (see The Royal Selangor Golf Club v. Anglo-Oriental (Malaya) Sdn Bhd [1990] 1 CLJ 995; [1990] 3 CLJ (Rep) 37 HC; Mulpha Pacific Sdn Bhd v. Paramount Corporation Bhd [2003] 4 CLJ 294 CA and Usima Sdn Bhd v. Lee Hor Fong [2017] 9 CLJ 646 FC) [28] As to the 1st basis of the termination mentioned in paragraph 26(a) above, there was no disputed that the Defendant had given the notice on 9.1.2018 (Exhibit P7) to the Plaintiff to rectify the alleged breach within 7 days from the date of said notice. It is clear from the evidence that on 17.1.2018, the Defendant issued a notice of termination (Exhibit P10) due 17 to the alleged breach. Having perused Clause 3 (a) TA, it is clear that the Plaintiff is to pay the monthly rental promptly and punctually and not later than 7th day of each calendar month without formal demand from the Defendant. From the evidence the Plaintiff did not deny that the rental was paid after the 7th day of the month. At this juncture I am satisfied that the Plaintiff had breached Clause 3(a) of the TA for the non-compliance of the requirement in the payment of rental of the Premise. Being that is the position, it is justified for the Defendant to terminate the TA in accordance with the terms laid out in the TA and specifically under Clause 5 (b) TA. [29] Clause 5 (b) TA states that if the Plaintiff breached any of the terms in the TA, the Defendant has to give the Plaintiff a 14 days period to remedy the breach. Clause 5(c) then stipulates that in the event the breach is not remedied by the Plaintiff, the Defendant can give the Plaintiff a notice to terminate and the TA will be terminated upon expiry of 30 days from the date of the said notice. It is not disputed that Exhibit P7 only provides a 7 day notice to the Plaintiff to remedy the breach which, in my 18 view that such notice was not in accordance with Clause 5(b) TA. I am unable to agree with the Defendant that when the Plaintiff failed to pay the rental on time in accordance to Clause 3 (a) TA then the TA is therefore terminated an account of non-payment of rental within time. From the reading of Clause 3 (a) it is mandated the Plaintiff to pay the rental within the stipulated time but any breach thereof, in my view, it must fall back to Clause 5 (b) of the TA for the subsequent action. Clause 5 provides the Defendant’s rights and remedies on the default of the Plaintiff which includes in the event the Plaintiff failed to pay any other money due to the Defendant as landlord pursuant to the TA. Therefore I find that Exhibit P7 cannot be considered as a valid notice under Clause 5(b) TA for the Defendant to initiate the subsequent action. Even if the Plaintiff had committed breached as not paying the rental within the stipulated period under Clause 3(a) TA and the issuance of Exhibit P7, the Plaintiff had remedied the said breaches in accordance with Clause 5(b) TA namely within 14 days from the date of Exhibit P7. In fact, the Defendant continues to receive the payment of rental until the month of June where the 19 last payment was made on 13.6.2018 (Exhibit P22) even after the issuance of Exhibit P7 and was accepted by the Defendant. Such conduct, in my opinion, falls within the ambit of Section 40 of the Contracts Act 1950 that reads: “When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance”. [30] Therefore although the Plaintiff had breached Clause 3(a) TA for failing to pay rental due since 1.1.2018 as well as to Clause 5(a) (iv) TA to pay utility bills or charges for more than 30 days due since 1.12.2017 which entitled the Defendant to terminate the TA, but such termination must be executed in accordance with the terms and conditions stipulated therein where in this case the Defendant had failed to do so. [31] As to 2nd basis of termination as mention in paragraph 26[b] above, where the Defendant has alleged that the Plaintiff has failed to use the property for lawful business of restaurant only and that the Plaintiff permitted and/or sublet or carried out 20 other business without prior written consent of the Defendant. In this case the Defendant alleged that the Plaintiff had breached Clause 3(b) TA and Section 1 of the 2nd Schedule of TA which states that the Plaintiff ought to use the property for its lawful business. [32] I took cognizance of the TA and found nothing in the clauses which revealed that the Plaintiff is to operate or promise to operate a restaurant business except only to run the premise for any lawful business. In my view, if the Defendant expressly intended the said premise is only to be used as a restaurant business, it is fundamental for the Defendant to include it as the terms and conditions in the TA and cannot be implied by the Defendant for the Plaintiff to comply with. Thus, the Plaintiff cannot be said to have acted in breach of terms with regard to the usage of the premise as a restaurant. So long as the purpose of the rental of the Premise does not contrary to the terms and conditions of the TA especially under Clause 3

TA, the Defendant is not justified to terminate the TA. On this score, there is no evidence before me that the premise was 21 used contrary to the terms and conditions in the TA i.e the Plaintiff had conducted any unlawful business. [33] As to the allegation of sublet to 3rd party, there is no evidence before me to support such contention. There was also no substantive evidence with regard to the Defendant’s claim that the Plaintiff had permitted foreign workers to use the premise as hostel. The Defendant by discovering the presence of foreign workers at the premise cannot be treated as conclusive evidence that proved the premise was use as hostel to house the foreign workers. Furthermore, there is no evidence that the said foreign workers were illegal workers in contravention of our laws especially the Immigration law. Even if the allegation is true, the Defendant did not issue any notice to the Plaintiff to remedy the breach under Clause 5 (b) instead the Defendant issued Exhibit P10 to terminate the TA and only gives 7 day notice to surrender the Premise. Clause 5(c) TA stipulates that only in the event that the breach is not remedied by the Plaintiff, the Defendant only can issue a notice to terminate the TA and subsequently the TA will be terminated 22 upon expiry of 30 days from the date of the said notice. In my view Exhibit P10 is in contrary to Clause 5(c) TA since there was no breach by the Plaintiff and hypothetically even there was a breach, Clause 5(b) was not comply with by the Defendant. [34] In the normal circumstances, without any breaches presence, if the Defendant intended to terminate the TA, he must comply with the termination clauses under the TA. In this present case, I find that the TA was wrongfully and invalidly terminated by the Defendant. On the totality of the evidence adduced by the Plaintiff through its witness both testimonial and documentary and having evaluated the evidence of the Defendant, I on the balance of probability, satisfied that the Plaintiff had established its pleaded case against the Defendants premised on breach of TA. Therefore the TA dated 05.12.2017 between the Plaintiff and the Defendant is still valid and enforceable and binding on the parties. Hence, the Plaintiff's claim against Defendants is allowed. 23 [35] Now I touch on the issue of damages claimed by the Plaintiff, which were general damages to be assessed and special damages for a sum of RM5 million for loss of business opportunity with a 3rd party i.e. Jakel Trading, interest and costs. It is trite law that the Plaintiff must first prove the claims for the damages that he had in fact suffered. If the claim is unsustainable in law, the lack of challenge of the calculations would not entitle the Plaintiff to these unjustifiable claims. This can be seen in the Federal Court case of Datuk Mohd Ali bin Hj Abdul Majid & Anor v. Public Bank Bhd [2014] 6 CLJ 269; [2014] 4 MLJ 465 at 476 where it was held that:- "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages.' They have to prove it." [36] The basis for the general damages which the Plaintiff is entitled to under the law is governed by s. 74(1) and (2) of the Contracts Act 1950 which provides:-" 24

When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach." [37] In the case of Subramaniam Paramasivam & Ors v. Malaysian Airline System Bhd [2002] 1 CLJ 230, Kang Hwee Gee J held that there are two basic principles of assessment of damages: firstly, that damages is that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation and secondly, the Plaintiff should not be allowed to profit by it. 25 [38] The Supreme Court case of Malaysian Rubber Development Corp Bhd v. Glove Seal Sdn Bhd [1994] 4 CLJ 783; [1994] 3 MLJ 569 in which Mohamed Dzaiddin SCJ at page 575 held that: "In considering the above question, it is important to bear in mind that the normal measure of damages for breach of contract in this country is prescribed by s. 74(1) of the Contracts Act 1950, which is the statutory enunciation of Hadley v. Baxendale [1854] 9 Ex 341 (Teoh Kee Keong v. Tambun Mining Co Ltd [1968] 1 MLJ 39; Bank Bumiputra Malaysia Bhd Kuala Terengganu v. Mae Perkayuan Sdn Bhd & Ors [1993] 2 MLJ 76, SC). In essence, the section states that the party may recover any loss or damage for any breach which; (a) naturally arose in the usual course of things; or (b) which the parties knew, when they made the contract, to be likely to result from the breach of it. For the sake of completeness, it should be mentioned that our courts have treated the position under the second limb of the section to be similar to the second limb of Hadley v. Baxendale, which is, the party may recover damages which may 'reasonably be supposed to have been in contemplation of both the parties, at the time they made the contract': See Associated Metal Smelters Ltd v. Tham Cheow Toh [1971] 1 MLJ 271". 26 [39] Since the liability has been established, I allowed the general damages to be assessed as per prayer in paragraph 22(iv) of the Statement of Claim. It should be noted the premise had since been rented out to a 3rd party vide Tenancy agreement dated 1.3.2018 and the said party had since commence business. Furthermore, the Plaintiff did not pray for the vacant possession of the premise instead prayed for exemplary damages and in the alternative for general damages to be assessed and special damages for a sum of RM5 million. With this in mind, it is not suitable for the Defendant to return vacant possession of the premise to the Plaintiff and in this aspect I allowed the Plaintiff claim in the alternative. [40] As the Plaintiff was claiming for special damages under paragraph 22(v) Statement of Claim, the onus was on the Plaintiff to prove its actual loss or damages. The Plaintiff had not tendered any proof except the JVA (Exhibit P6) between Plaintiff and Jakel Trading to show that it had in fact incurred such actual losses or damages as claimed by the Plaintiff. In this context, the plaintiff needed to be reminded of the basic 27 cardinal tenets in proving its claim for damages. The classical dictum of Lord Goddard in Bonham-Carter v. Hyde Park Hotel [1948] WN 89 which had been quoted in numerous Malaysian cases and reproduced below as follows: "Plaintiff must understand that if they bring actions for damages it is for them to prove their damages; it is not enough to write down the particulars, and so to speak, throw them at the head of the court, saying, "This is what I have lost, I ask you to give me these damages". They have to prove it." (see the case of Kapt (B) Mohamad Ismail v. Perwira Affin Bank Bhd (No. 2) [2001] 5 CLJ 184; Sunlite Textile Sdn Bhd v. Motilal Realty Sdn Bhd [2008] 7 CLJ 97; Letrik Bandar Hup Heng Sdn Bhd v. Wong Sai Hong [2002] 5 CLJ 170). [41] In Cotton Home Sdn Bhd v. Wong Kau @ Wong Kon Lin & Anor [2013] 1 LNS 1234; [2014] 3 MLJ 580 CA: "[31] It is trite law that special damages must be specially proved. Once the trial court accepted that the respondents had failed to substantiate their claim for special damages, the proper order would be to dismiss the claim and not to award a reduced figure based on conjecture." 28 [42] The special damages in this paragraph is disallowed. [43] The Plaintiff had also claimed for exemplary damages for the unlawful termination of the TA. The principles and the categories of cases where the Court could award exemplary damages had been illustrated in the case of Rookes v. Barnard [1964] AC 1129 as follows:

oppressive, arbitrary or unconstitutional acts by government servant;

where the defendant's conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; and

where the award is expressly authorised by statute. [44] In awarding the above types of damages, it is appropriate for the Court to direct its mind to the way in which the Defendant had behaved towards the Plaintiff. It had to be a sum adequate to punish the Defendants for their outrageous conduct, to mark the Court's disapproval of such conduct and to deter the defendants from repeating the same acts. The Plaintiff must show some form of outrageous conduct involving 29 intentional wrongdoing coupled with element of oppression, cynicism or flagrancy on the part of the tortfeasor. The test of outrageousness had been established in the Privy Council case of A v. Bottrill [2003] 1 AC 449 at page 456 where the said Court held as follows: "Cases satisfying the test of outrageousness will usually involve intentional wrongdoing with, additionally, an element of flagrancy or cynicism or oppression or the like; something additional rendering the wrongdoing or the manner or circumstances in which it was committed particularly appalling". [45] In this case, I awarded RM30,000.00 as an exemplary damages to make the Defendant responsible for not complying the terms and clauses TA, taking the law into his own hands by chaining and locking up the premise, wrongfully repossessed the property on 20.1.2018, disregard the Plaintiff’s rights of the TA and entering into another agreement with a 3rd party, and in all circumstances had deprived the Plaintiff for the use and peaceful enjoyment of the rented premise. 30 [46] I also awarded costs of RM15,000.00 to the Plaintiff subject to allocatur. Interest of 5% is also allowed as paragraph 22 (vii) and (viii). ROZANA ALI YUSOFF JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT DATED: 17 DECEMBER 2018 31 Counsels for the Plaintiff: Encik Frank Wong Tetuan Rahman Rohaida E-07-07, Menara Suezcap 2, KL Gateway, No 2, Jalan Kerinchi, Gerbang Kerinchi Lestari 59200 Kuala Lumpur Counsels for the Defendant: Encik James D Culaz & Cik Sonia Deva Doss Tetuan Culaz & Associates No. 16, 2nd Floor, Jalan KP 1/1 Kajang Prima 43000 Kajang Selangor Darul Ehsan 32 References:- Case(s) referred to:

The Royal Selangor Golf Club v. Anglo-Oriental (Malaya) Sdn

Bhd [1990] 1 CLJ 995; [1990] 3 CLJ (Rep) 37 HC Mulpha Pacific Sdn Bhd v. Paramount Corporation Bhd [2003]

Usima Sdn Bhd v. Lee Hor Fong [2017] 9 CLJ 646 FC

Datuk Mohd Ali bin Hj Abdul Majid & Anor v. Public Bank Bhd [2014] 6 CLJ 269; [2014] 4 MLJ 465

Subramaniam Paramasivam & Ors v. Malaysian Airline System

Bhd [2002] 1 CLJ 230 Malaysian Rubber Development Corp Bhd v. Glove Seal Sdn

Bhd [1994] 4 CLJ 783; [1994] 3 MLJ 569

Bonham-Carter v. Hyde Park Hotel [1948] WN 89 Kapt (B) Mohamad Ismail v. Perwira Affin Bank Bhd (No. 2) [2001] 5 CLJ 184

Sunlite Textile Sdn Bhd v. Motilal Realty Sdn Bhd [2008] 7 CLJ 97

Letrik Bandar Hup Heng Sdn Bhd v. Wong Sai Hong [2002] 5

CLJ 170 Cotton Home Sdn Bhd v. Wong Kau @ Wong Kon Lin & Anor [2013] 1 LNS 1234; [2014] 3 MLJ 580 CA

Rookes v. Barnard [1964] AC 1129

Council case of A v. Bottrill [2003] 1 AC 44 Legislation referred to:

Contracts Act 1950