QUARRY VENTURES HOLDINGS SDN BHD v 1. ) Kerajaan Negeri Johor (JA-21NCvC-37-10/2021)

PERBADANAN SETIAUSAHA KERAJAAN JOHOR ... DEFENDANT ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ GROUND OF JUDGMENT ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ 25/05/2023 23:00:03 JA-21NCvC-37-10/2021 Kand. 61 S/N nnoZZMg0OrfgmrCTw8pw INTRODUCTION [1] The First Defendant (“D1”) has filed an application to strike out the Plaintiff’s claim under Order 18 rule 19(1)(a), (b) and/ or (d), Rules of Court 2012 (“ROC 2012”) (Enclosure 23). [2] Second Defendant (“D2”) has filed an application to strike out the Plaintiff’s claim under Order 18 rule 19(1)( b) and/or (d)ROC 2012 (Enclosure 20). [3] For Enclosure 20, the following cause papers are filed by the

D2’s Affidavit in Support affirmed by Ambok Nani bin

(ii) Plaintiff’ s Affidavit in Reply affirmed by Dato’ Muthanna bin Abdullah on 13 .7.2022 (Enclosure 26); and

(iii) D2’s Affidavit in Reply affirmed by Ambok Nani bin Muhamad Nor on 17.8.2022 (Enclosure 29). [4] For Enclosure 23, the following cause papers are filed by the Parties:

D1’s Affidavit in Support affirmed by Mohd Gadaffie bin

(ii) Plaintiff’ s Affidavit in Reply affirmed by Dato’ Muthanna bin Abdullah on 13 .7 .2022 (Enclosure 25); and

(iii) D1’s Affidavit in Reply affirmed by Dr. Amirul Haffiz bin Ariff S/N nnoZZMg0OrfgmrCTw8pw on 25.8.2022 (Enclosure 31). [5] Both the applications were heard together as they involved same facts and same Parties. After considering the applications, Affidavits and submissions by the Parties, the court allows Enclosure 20 and Enclosure 23 with costs of RM1000, to be paid by Plaintiff to each Defendant. [6] The Plaintiff dissatified with the decisions of this court, have filed notice of appeals (Enclosure 52) appeal against the decisions for Enclosure 20 and notice of appeal (Enclosure 53) appeal against the decisions for Enclosure 23. [7] The grounds of judgment are prepared for both appeals. Background Facts [8] The background facts in these applications are as gathered from the Affidavits and submissions filed by the Parties and stated in chronological order. [9] On 9.8.2003, the Plaintiff and the Defendants entered into a Privatisation of Quarry Agreement ("1st PQA”) where D1 granted the Plaintiff the right to carry out and undertake quarry operations activities on two (2) pieces of land (“the said Lands”) for a period of ten (10) years ending on 8.8.2013, subject to the terms and conditions thereto. [10] Pursuant to the 1st PQA, the Plaintiff had entered, occupied, and undertook the quarry operations on D2’s lands, and paid a S/N nnoZZMg0OrfgmrCTw8pw monthly fee to D2 through D1. Copies of the State Government’ s official receipts to the Plaintiff on the payment of the monthly fee for the period from 2014 to 2019 [see pages 45 – 62 of Enclosure 26]. [11] As part of the quarry operations, the Plaintiff had also occupied and utilised a jetty situated at PTD 1891, Mukim Tanjung Surat, Daerah Kota Tinggi (the “Jetty”), which is approximately one kilometer away from where the Plaintiff operated the quarry operations. The Jetty is an essential part of the quarry operations for it is used as a landing point by the Plaintiff to ship and transport quarry products to its customers. [12] The Plaintiff had occupied the Jetty by way of a Temporary Occupation License (“TOL”) which was granted by the Pengerang District Land Office since 21.12.2005. The TOL was renewed on a yearly basis and the last time it was renewed was in December 2018, where the Pengerang District Land Office granted the TOL for the year of 2019 [see pages 63 – 65 of Enclosure 26]. [13] The Plaintiff exercised the option under the 1st PQA to extend the term of the 1st PQA for a further period of ten (10) years subject to the terms and conditions as may be agreed by D2. [14] On 22.7.2014, the Plaintiff and the Defendants entered into a new Privatisation of Quarry Agreement (“2nd PQA”) [see Exhibit “MGAA-1” of Enclosure 24] where D1 granted the Plaintiff the right to carry out and undertake quarry operations on the said Lands for a period of five (5) years from 1.1.2014 until 31.12.2019 (“Term”). S/N nnoZZMg0OrfgmrCTw8pw [15] The salient terms of the 2nd PQA are inter alia –

Clause 5.1 (a) provides that the Plaintiff shall pay to D2 a sum equivalent to RM1.00 per metric tonne of the quarry products extracted and transported out of the said Lands on a monthly basis in the manner described in sub-clause 5.1 (b) (" Monthly Fee”); and

Clause 5.2 provides an option to extend the Term for a further period of five (5) years from 1.1.2020 until 31.12.2025. [16] On 19.8.2019, the Plaintiff sought to exercise the option for extension of the right to carry out the quarry operations for a further period of five (5) years from 1.1.2020 to 31.12.2025 by serving a written notice of intention [see Exhibit “MGAA-3” of Enclosure 24]. [17] On 13.1.2020, the meeting was held (the “1 st Meeting”) inter alia, to discuss the status of the outstanding payment of the Monthly Fee for the month of November and December 2019 and the Plaintiff’s application for extension. A copy of the said notice of meeting [see Exhibit “MGAA-5” of Enclosure 24]. [18] After the 1st Meeting the Plaintiff paid the Monthly Fee for the month of January 2020 on 26.2.2020. D1 received payment on 11.3.2020. The Economic Planning Unit of the State Government (“EPU”) subsequently circulated the minutes of the January 2020 Meeting (“Minutes”), among others, to the Plaintiff S/N nnoZZMg0OrfgmrCTw8pw and D2. [19] D1 has through EPU issued a letter dated 19.3.2020 to the Plaintiff to inform them that 2nd PQA has lapsed on 31.12.2019 and the Plaintiff was instructed to stop all the quarry operations immediately untill further instructions given by the State Government. On 5.5.2020, the Plaintiff received a letter from the Pengerang District Land Office, where the Plaintiff was informed that its application to renew its TOL over the Jetty was denied. A copy of the letter by the Pengerang District Land Office [see page 75 of Enclosure 25]. [20] On 13.5.2020, the Plaintiff sought to appeal against the Pengerang District Land Office’s decision to deny the renewal of the Plaintiff’s TOL. However, the Pengerang District Land Office did not reply. On the same date, the Plaintiff vide a letter requested inter alia that D1 permits the Plaintiff to continue the quarry operations as agreed during the 1st Meeting. [see pages 76–84 of Enclosure 25]. [21] On 1.7.2020, a meeting between the Plaintiff’ s director and the Director of EPU, Dato’ Dr Badrul Hisham Kassim (the “2nd Meeting”). [22] D1 vide a letter dated 14.9.2020 informed the Plaintiff that 2nd POA had expired on 31.12.2019 and also returned the cheques for Monthly Fee for the months of January to March 2020 to the Plaintiff [see Exhibit “MGAA-6” of Enclosure 24]. S/N nnoZZMg0OrfgmrCTw8pw [23] On 19.10.2021, the Plaintiff filed an action against the Defendants to seek, among others, declaratory reliefs that there is purportedly an agreement between the Plaintiff and the Defendants where the Plaintiff is allowed to carry out the quarry operations on the said Lands for a further period of five (5) years from 1.1.2020 until 31.12.2025, subject to the same terms and conditions of the 2nd PQA. The Plaintiff argued that such agreement was given by D1 during the 1st Meeting. [24] On 24.5.2022, D2 filed Enclosure 20 to strike out the Plaintiff’s Statement of Claim dated 18.10.2021 and Writ of Summons. D1 has on 9.6.2022 vide Enclosure 23 seeks to strike out the Plaintiff’s Statement of Claim dated 18.10.2021 and Writ of Summons. Both applications are based on the grounds there is no cause of action against D1 and D2 since there is no extension granted to the Plaintiff. Submission of Parties D2’s submission [25] D2 contended that—

the Plaintiff did not comply with the terms of the 2 nd PQA, in particular Clause 5.2, in exercising the option to extend the term of the 2 nd PQA. The Plaintiff’ s notice dated 19.8.2019 issued after the deadline was therefore invalid. Consequently, the 2 nd PQA had lapsed on 31.12.2019;

in any event, no concluded or enforceable contract as any extension is subject to further terms and S/N nnoZZMg0OrfgmrCTw8pw conditions to be agreed by D2, as provided under Clause 5.2 of the 2 ndPQA. It is undisputed there wasn’t any discussion between D2 and the Plaintiff on any term and condition for any extension of the term of the 2nd PQA;

the decision of whether to extend the Term for a further period of five (5) years until 31.12.2025 is subject to two (2) conditions—

D1 is satisfied that the Plaintiff has performed and observed all terms and covenants contained in the 2nd PQA and all other related documents relating to or touching on the quarry operations; and

(ii) D1 has absolute discretion and the terms and conditions of the PQA as may be agreed by the D2. [26] D2 argued that the Plaintiff has failed to comply with the condition precedent of six (6) months’ written notice of intention required under Clause 5.2 of the 2nd PQA and therefore lost its right to exercise the option for extension. The notice dated 19.8.2019 was invalid and the Plaintiff cannot demand for any extension. Consequently, the 2nd PQA had lapsed on 31.12.2019. Hence, there was no contract in existence for any extension of the term of the 2nd PQA. [27] Further, D2 argued that even if there was a valid exercise of S/N nnoZZMg0OrfgmrCTw8pw the option for extension under Clause 5. 2 by the Plaintiff and there was purported agreement by D1 to extend the term of the 2nd PQA (all of which are denied), such extension is subject to terms and conditions as may be agreed by D2. D2 has the right to impose new terms and conditions for any extended period pursuant to Clause 5.2 of the 2nd PQA. D2 had never discussed with the Plaintiff any term and condition of the extension (if any and which is denied). Therefore, clearly no consensus ad idem between the Plaintiff and the Defendants for the alleged extension of a further period of five (5) years based on the same terms and conditions of the 2 nd PQA. [28] Given the lack of certainty as to the terms and conditions such as the consideration/Monthly Fee payable to the Defendants for the extended term alleged by the Plaintiff (if any and which is denied), there cannot be any concluded or enforceable contract or any extended term alleged by the Plaintiff. D2 has cited section 30 Contract Act 1950 [Act 136] and the case of Wisma Sime Darby Sdn Bhd v Wilson Parking ( M) Sdn. Bhd. [1996] 2 MLJ 81 and Common Ground TTDI Sdn. Bhd. v Ken TTDI Sdn. Bhd. [2021] MLJU 1925 to support their arguments. [29] D2 argued that there is no delay in filing Enclosure 20 as D2 can file the application at any stage of proceedings even after the pleadings are closed. D2 has cited Order 18 rule 19(1) ROC and the case of Neoh Hong Sang (t/a Neoh Hong Sang Contractor) v Lye Weng Enterprise Sdn. Bhd. [2008]1 MLJ 623 to support its contentions. Further, D2 contended that the Plaintiff did not raise any objection during the e-review on 5.4.2022. In fact, the Plaintiff stated that D2 is at liberty to file any S/N nnoZZMg0OrfgmrCTw8pw interlocutory application. Therefore, D2 submitted the preliminary objection raised by the Plaintiff should be dismissed. [30] Therefore, the totality of the matters stated above renders the Plaintiff’s action scandalous, frivolous and/or vexatious, and its continuation is an abuse of court process. The Plaintiff’ s claim therefore ought to be struck out. D1’s submission [31] D1 has advanced the same arguments as D2. In essence, D1 contended that—

Plaintiff’s claim against D1 does not disclose any reasonable cause of action, it is scandalous, frivolous and/or vexatious, and its continuation is an abuse of court process;

(ii) 2nd PQA entered between the Parties has lapsed on 31.12.2019;

(iii) clause 5.2 of 2nd PQA provides that the Plaintiff is required to serve six (6) months’ written notice of intention required under Clause 5.2 of the 2nd PQA prior to the expriy of 2nd PQA.The written notice should be served on the Defendants not later than 30.6.2019;

(iv) the written notice dated 19.8.2019 to extend the period of PQA only serve on D1 on 19.9.2019, which is three

months and twelve (12) days prior to the expiry of 2nd PQA; S/N nnoZZMg0OrfgmrCTw8pw

the Plaintiff has failed to comply with pre-conditions under Clause 5.2 of 2nd PQA;

(vi) D1 never at any time exercise its absolute discretion to cause D2 to further extend the period of PQA for another five (5) years;

(vii) even if there was a valid exercise of the option for extension under Clause 5. 2 by the Plaintiff and (all of which are denied), such extension is still subject to the discretion of D1 whether to cause D2 to extend the Term for another 5 years and the extension is subject to the terms and conditions as may be agreed by D2;

(viii) the discretion exercise by D1 is an absolute discretion and it cannot be challenged by the Plaintiff;

(ix) there is no consensus for the extension of the PQA and the lapsed of 2nd PQA on 31.12.2019 which has been confirmed by EPU vide their letters on 19.3.2020; and

the cheques for Monthly Fee for the month of January, February and March 2020 have been returned to the Plaintiff. [32] Based on the reasons stated above, the Defendant submitted that the PlaintIff is using the court as a platform to force the Defendants to continue and to extend PQA and also to rewrite the terms and conditions S/N nnoZZMg0OrfgmrCTw8pw of PQA. Therefore, the cause of action by the Plaintiff is an abuse the process of the court and it is also scandalous, frivolous and/or vexatious. Therefore, the Plaintiff’s claim should be struck off. [33] In respond to the preliminary objection raised by the Plaintiff as to the delay in filing Enclosure 23 where it was filed after the close of pleadings, D1 contended that the application to strike out can be filed at any time and the court can decide the matter. The application filed by D1 would not prejudice the Plaintiff. Further, the case cited by the Plaintiff in support their objection, namely Federal court decision in Boo Are Ngor

(P) v Chua Mee Liang (P) [2009] 6 MLJ 145 and Court of Appeal decision in Pengarah Hospital Selayang & Ors v Ahmad Azizi bin Abdullah James & Ors [2012[ 5 MLJ 679 can be distinguished. As such, D1 submitted the court may hear the application and determine the application based on merits. Hence, D1 prays the preliminary objection be dismissed. Plaintiff’s submission [34] In respect of D1, the Plaintiff submiited that the filing of pleadings closed on 19.1.2022 after the Plaintiff filed its Reply to Defence under Enclosure 10. In respect of D2, the filing of pleadings closed on 11.3.2022 after the Plaintiff f iled its Reply to Defence under Enclosure 19. D1 only filed its application under Enclosure 23 more than nine (9) weeks after D1’s first indication to do so on 5.4.2022, and twenty (20) weeks after the close of pleadings. D1 also did not comply with the direction by this court for D1 to file its application on or before 1 .6.2022. [35] D2 only filed its application under Enclosure 20 seven (7) S/N nnoZZMg0OrfgmrCTw8pw weeks after its indication to do so on 5.4.2022, and ten (10) weeks after the close of pleadings. As a result of the Defendants’ f iling of the striking out applications, both of which were done so late in the day, the court did not give any pre-trial directions at the further case management by e-review on 14.6.2022, and the Plaintiff is prejudiced from not being able to proceed with its claim in a timely manner. [36] Further, the Plaintiff contended that by exercising the option on 19.8.2019, attending the 1st Meeting on 13.1.2020 which was organised by the Defendants, to meet representatives of the Defendants and paying the Monthly Fee for the month of January to March 2020, the conduct of Plaintiff shows that there was an understanding (if not an agreement) that the Defendants had agreed to extend the Plaintiff’s rights to carry out the quarry operations for a further period of f ive (5 ) years. [37] The Plaintiff further submitted that if there was no agreement during the 1st Meeting on 13.1.2020, the Plaintiff would not have had paid the Monthly Fee on 26.2.2020, 27.4.2020 and 12.5.2020. Copies of the Plaintiff’s letter on the payment of Monthly Fee can be seen at pages 66 – 74 of Enclosure 25. [38] The Plaintiff argued that due to the changing of decision by the Defendants, the Plaintiff was halted from carrying out the quarry operations since March 2020. The Plaintiff’s quarry products and equipment from the quarry operations had to be abandoned and they continue to remain abandoned to date. S/N nnoZZMg0OrfgmrCTw8pw [39] Therefore, Plaintiff submitted that since the Defendants have disputed that there was any acceptance to the Plaintiff’ s exercise of option and contradiction of evidence in the affidavits filed before the court necessitates a fact-finding exercise at trial. Further, the Plaintiff has set out in the Statement of Claim all the essential ingredients comprising of the cause of action of breach of contract. Accordingly, there is no basis for the Defendants to strike out the Plaintiff’ s claim pursuant to Order 18 rule 19(1)(a),

and/or (d) ROC 2012. Hence, following the decision of Court of Appeal in Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012 ] 1 MLJ 473 which state that striking out should “not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial.”. Court analysis and findings [40] Based on the Affidavits and submissions made by Parties, it can gather there are three issues below are to be decided by the court:

whether the Plaintiff exercised the option to extend the term of the 2 nd PQA was in accordance with the terms of the 2 nd PQA?

whether failure of Plaintiff to comply the time period stipulated in Clause 5.2 is fatal and hence lost its rights to exercise the option and render the written notice given by the Plaintiff invalid?

whether Defendants have agreed in the 1st Meeting to allow the Plaintiff to carry on the quarry operations S/N nnoZZMg0OrfgmrCTw8pw for a further period of five (5) years until 31.12.2025 based on the same terms and conditions under 2nd PQA? [41] In the event the court finds that all the questions are in negative, the court will then determine whether the cause of actions against D1 and D2 are reasonable cause of action and whether it is scandalous, frivolous and/or vexatious, and its continuation is an abuse of court process which ought to be struck out under Order 18 rule 19(1)(a), (b) and/ or (d) of ROC 2012. [42] Clause 5.2 of 2nd PQA provides that— “Clause 5.2 Option for Extension If the Company is desirous of extending the said Term for a further period of five (5 ) years, the Company shall deliver to the State Government notice in writing not less then six (6 ) months before the expiration thereof and if the State Government is satisfied that the Company has performed and observe all terms and covenants contained in this Agreement, and all other related documents relating to or touching on the Quarry Operations then, at the cost and expense of the Company, the State Government may at its absolute discretion, cause SSI (D2) to extend the said Term for a further period of f ive (5 ) year period and upon such terms and conditions as may be agreed by SSI. ”. [Emphasis added] [43] Based on clause 5.2 of 2nd PQA, the Plaintiff is required to serve the written notice of its intention to extend the agreement for further term of five (5) years, not less than six (6) months before the expiry of the 2nd PQA, which was expired on 31.12.2019. In the present case, it was undisputed that the Plaintiff has vide letter dated 19.8.2019 served the written notice to D1 on 19.9.2019, which is three (3) months and twelve

days prior to the expiry of 2nd PQA. However, the Plaintiff argued that as long as they have sent the written notice of intention to the Defendants S/N nnoZZMg0OrfgmrCTw8pw prior to the expiry of the 2nd PQA, namely before 31.12.2019, the Plaintiff is considered has complied Clause 5.2. Therefore, the question arises whether failure of the Plaintif to comply with the time period stipulated in Clause 5.2 is fatal and hence lost it rights to exercise the option and render the written notice is invalid. [44] The court refer to Clause 14.7 of 2nd PQA whcih states that “Time shall be the essence of this Agreement”. Further, the court refer to Court of Appeal decision in the case of Selaman Sdn Bhd & Anor V. Pinang Sari Sdn Bhd [2017] 9 CLJ 366 where it was held that— “…[23] As a general rule, the time fixed for performance under a contract is determined by reference to the intention of the parties as expressed in the contract. It is generally accepted that in contracts where the phrase ‘time is of the essence’ is employed, the parties in these cases have clearly intended that the provisions dealing with time is an essential term of the contract. In this case, cl. 13 is quite clear and unambiguous as to its intent and meaning. It stipulates that ‘Time whenever mentioned in this agreement shall be of the essence.’ As such, the court must give effect to the plain meaning of the words. Accordingly, we do not agree with the learned judge’s reasoning that the extended dates do not come within the ambit of cl. 13 because the new time frames are outside the ambit of the SSA and therefore not essential to the SSA. [24] Be that as it may, the very fact that cl. 13 provides that time is of the essence does not necessarily mean that time is of the essence. The test to be applied in determining this question has been enunciated succinctly by our apex court in the following passages: Whether or not time is of the essence of a contract must depend on the facts and circumstances of each case. Intention of the parties gathered from the instrument itself together with the surrounding circumstances must be looked at. per Gunn Chit Tuan SCJ at p 295 in Associated Pan Malaysia Cement S/N nnoZZMg0OrfgmrCTw8pw Sdn Bhd v. Syarikat Teknikal & Kejutureraan Sdn Bhd [1990] 3 MLJ 287 (SC). … [W]hether or not time had been intended to be of the essence would depend on the conduct and the dealings of the parties. There is no necessity in law that a clause making time of the essence must be expressed in any given contract. Similarly, the fact that there is a clause stating that time is of the essence does not ipso facto result in time being of the essence. per Richard Malanjum CJSS at p. 478 in Damansara Realty Bhd v. Tan Sri Khoo Teck Puat & Anor (supra). [25] Applying the principles enunciated above, it falls to be determined whether in all the circumstances of the case, it can be said that the parties intended that time to be of the essence for the performance of the third payment after the expiry of the third extension. This is a question of fact to be determined by reference to the conduct and dealings of the parties.”. [Emphasis added] [45] Applying the said principle enunciated above, the court has to determine whether the series of events and conducts of the Defendants after expiry of 2nd PQA, have vitiated the intention of the Parties that times are no longer the essence of this Agreement. [46] It is not disputed by the Parties that the 1st Meeting was held on 13.1.2020, inter alia, to discuss the status of the outstanding payment of the Monthly Fee for the month of November and December 2019 and the Plaintiff’s application for extension. However, there is a dispute as to whether there is an agreement by the Defendants for the Plaintiff to carry out the quarry operations for five (5) years. [47] The court has examined the Minutes of 1st Meeting as annexed S/N nnoZZMg0OrfgmrCTw8pw in the exhibit of MGAA-5 of Enclosure 24, finds that no where in the Minutes shown decision has been made by the Defendants. The Minutes shown that the representative of D1 informed the Plaintiff that the matter will be reviewed, studied and refined with D1 for improvement purposes and the matter will be broungt to the top management for decision as soon as possible. Minutes, in particular paragraphs 4 and 6 below are produced to show what was decided on that day: “4. Pengerusi menjelaskan bahawa BPENJ telah menerima permohonan penyambungan pajakan bagi tempoh lima (5) tahun lagi daripada QVHSB. Pihak BPENJ dalam tindakan untuk memproses permohonan tersebut bersama-sama pihak Perbadanan Setiausaha Negeri Johor (SSI). BPENJ akan mengadakan satu mesyuarat bagi membincangkan khusus berkaitan permohonan penyambungan tempoh pajakan tersebut. Pengerusi berpandangan bahawa secara dasarnya BPENJ tiada halangan terhadap permohonan tersebut namun begitu, ianya perlu disemak, diteliti dan diperhalusi bagi tujuan penambahbaikan terlebih dahulu bersama pihak SSI.

…

Pengerusi menjelaskan bahawa pihak BPENJ akan mengadakan mesyuarat penyelarasan dan membawa kertas perakuan bagi pertimbangan kerajaan negeri dengan kadar segera. Berkaitan pengeluaran surat kebenaran kepada pihak QVHSB bagi membenarkan pengeluaran bahan batuan sebelum keputusan kerajaan diperolehi, Pengerusi akan membawa perkara in untuk pertimbangan Pengurusan Tertinggi BPENJ.”. [Emphasis added] [48] According to the Defendants, a copy of Minutes was circulated to the Plaintiff end of January 2020. Plaintiff contended that the Minutes did not capture the matters that have been discussed at the 1st Meeting or inaccurate. Plaintiff in their submissions argued that a copy of Minutes was not circulated to them having regard to Exhibit SSI-5 of Enclosure 21 S/N nnoZZMg0OrfgmrCTw8pw where a copy of the Minutes was sent by D1 to D2. However, the Plaintiff never state in their Affidavit in Reply (Enclosure 25) about non-receiving of Minutes and they merely state the Minutes was not confirmed by them. [49] Further, if the allegations of the Plaintiff are true, the Plaintiff would not have known about the Minutes did not capture what was decided on 1st Meeting. However, they claimed the Minutes, which they denied received it, did not capture what was decided. It is illogical that the Plaintiff would not have request a copy of the Minutes as they claimed that the Defendants have agreed during the 1st Meeting to allow them to carry out the quarry operations for five (5) years. Therefore, the court is of the view that the issue about non-receiving of Minutes raised by the Plaintiff in the submissions is an afterthought and cannot be considered. [50] After the 1st Meeting, the Plaintiff continue to carry out the quarry operations with the assumption that approval was given for them to do so. D1 has vide a letter dated 19.3.2020, informed the Plaintiff to stop the quarry operations immediately until further instuctions given by the State Government. Despite the issuance of the said letter by D1, the Plaintiff has continued to carry out the quarry operations and has sent the cheques for Monthly Fee for the month of January 2020 vide a letter dated 26.2.2020 which was received by D1 on 11.3.2020, Monthly Fee for the month of February 2020 vide letter dated 21 February 2020 and Monthly Fee for the month of March 2020 vide letter dated 12 May 2020. However, D1 vide the letter dated 14.9.2020 informed the Plaintiff that 2nd POA had expired on 31.12.2019 and as such they returned the cheques for Monthly Fee for the months of January to March 2020 to the Plaintiff. D1 explained the delay in returning the cheques to the Plaintiff was due to the implementation of Movement Control Order during that S/N nnoZZMg0OrfgmrCTw8pw time. [51] Based on the series of events after the 1st Meeting and couple with the Minutes, the conducts of the Defendants are consistent in asserting that the failure of the Plaintiff to comply with the time period stipulated in Clause 5.2 is fatal. Consequently, the Plaintiff has lost it rights to exercise the option and rendered the written notice of intention invalid. Therefore, it is clear that the Parties intended that the provisions dealing with time is an essential term of the agreement. Delay in submitting the written notice of intention under Clause 5.2 of 2nd PQA is at Plaintiff’s fault and the Plaintiff cannot blame the Defendants for not extending the PQA for five (5) years. The Plaintiff also failed to explain the delay. Instead, the Plaintiff argued that as long as they serve written notice of intention prior to 31.12.2019, they have complied with Clause 5.2 of 2nd PQA and thus its written notice of intention is valid. However, the court cannot agree with the Plaintiff’s arguments since provisions dealing with time is an essential term of the agreement. The court has to give effect to the intention of the Parties. [52] Further, the court finds the arguments of the Plaintiff claiming that the existance of an enforceable or concluded agreement based on the same terms and conditions of 2nd PQA are devoid of merit and ought to be dismissed. As stated in paragraph 25(c) above, there are two (2) conditions need to be fullied, apart the written notice of intention, namely—

D1 is satisfied that the Plaintiff has performed and observed all terms and covenants contained in the 2nd PQA and all other related documents relating to or touching on the quarry operations; and S/N nnoZZMg0OrfgmrCTw8pw

(ii) D1 has absolute discretion and the terms and conditions of the PQA as may be agreed by the D2. [53] Based on the Affidavits filed by the Parties, the court finds no where in the Affidavits state that there was a discussion on the terms of the agreement. The court have perused and compared the terms and conditions of 1st PQA and 2nd PQA, find certain terms in both agreements are different, in particular on the payment of the Monthly Fee and any other payment. These terms, amongst others, are important terms that need to be discussed and agreed by the Parties. In this regard, the court referred to the case of the Court of Appeal in Arab Malaysian Finance Bhd v Kah Motor Co Sdn. Bhd. [2010] 5 MLJ 10 held that— “…[15] Conditions precedent are terms to the effect that unless a particular event occurs either no contract arises (a condition precedent to the contract as a whole) or, although a contract may have arisen, i ts performance, in whole or in part, cannot be enforced ( a condition precedent to performance). A classic example of the former category can be found in the case of Gilbert J McCaul ( Australia) Pty Ltd v Pitt Club Ltd ( 1956) 57 SR( NSW) 332 ; while a good example of the latter category is Perri & Anor v Coolangatta Investments Proprietary Ltd ( 1981 – 1982) 149 CLR 537. [16] The facts in Gilbert J McCaul ( Australia) Pty Ltd v Pitt Club Ltd may be stated as follows. There, in a five year lease there was a clause giving the tenant an option of a further five years subject to two conditions — three months' notice of intention to exercise the option, and the punctual payment of rent and due performance of all covenants during the term of the original lease. During the f irst f ive years, the tenant frequently failed to pay the rent punctually. The tenant did, however, give the three months' notice required to exercise the option. The lessor refused the renewal. The tenant sued. It was held that punctual payment of rent was a condition precedent to the tenant's right to exercise the option. The fact that the lessor had never complained about the tenant' s lack of punctuality was not a waiver of that condition precedent. The tenant had not complied with it and hence could not demand renewal.” S/N nnoZZMg0OrfgmrCTw8pw [Emphasis added] [54] Further, the court referred to the Court of Appeal decision in Wisma Sime Darby Sdn. Bhd. (supra), where it was held that– “ The question is whether there was a concluded agreement . If no agreement had been arrived at on that most crucial element of the agreement – rent – there cannot be said to be a concluded agreement. That the parties might eventually agree on the rent does not make for a concluded agreement. The question ' what if they never arrive at an agreement as to the new rent?' brings home the lack of merit in the submission. … A passage in the judgment of the Court of Appeal of Britis h Columbia in Re Express Powers Ltd v Bank of Nova Scotia 73 DLR ( 4th) 400 at p 403, is worth reproducing: The principal question in the appeal is whether the renewal clause was void either for uncertainty or, what is fundamentally the same, as an agreement to agree. The obverse of that question is: I f the renewal clause is not void, what does it mean? What was said by this court about interim agreements in Griffin v Martens [ 1988] 27 BCLR ( 2d) 152 at p 153 10 ACWS ( 3 d) 196( CA) is equally true about leases: It is not the function of the courts to set interim agreements aside for uncertainty because they contain a clause that is not precisely expressed. If such a clause has an ascertainable meaning, then the courts should strive to f ind it. See Hil las & Co Ltd v Arcos Ltd [ 1932] 147 LT 503 ( HL), particularly per Lord Wright at p 514; Meehan v Jones ( 1982) 149 CLR 571 ( Aus HC); and Wiebe v Bobsien 64 BCLR 295 [ 1986] 4 WWR 270, 39 RPR 228, 20 DLR ( 4th) 475 ( CA), particularly per Mr Justice Seaton at p 297. As long as an agreement is not being constructed by the court, to the surprise of the parties, or at least one of them, the courts should try to retain and give effect to the agreement that the parties have created for themselves. On the other hand, it is well established that if all that the parties say is that they will enter into a lease at a rental to be agreed, no enforceable lease obligation is created. S/N nnoZZMg0OrfgmrCTw8pw Coming back to the instant case, we see that rental for the renewal period of the tenancy had to be agreed by the parties. The agreement for renewal was executory and there was no machinery or formula for the court to ascertain the rent if the parties coul d not come to an agreement on the rent . On authority and on principle, the agreement to agree is bad for uncertainty . The court cannot, and should not, make a bargain for the parties. There was no need for a trial to come to that conclusion. ” [ Emphasis added] [55] Thus, based on the cases of Arab Malaysian Finance Bhd. (supra) and Wisma Sime Darby Sdn. Bhd. (supra), the court finds that there is no certainty regarding the terms of the agreement, particularly the consideration/Monthly Fee payable to the Defendants for the extended term alleged by the Plaintiff. Consequently, there cannot be any concluded or enforceable agreement for any extended term alleged by the Plaintiff. Therefore, the Plaintiff’s averment that the Defendants have agreed on the same terms of 2nd PQA for the extended period of five (5) years was unsupported by documents. The court ruled that there is no concluded or enforceable agreement between the Parties. It follows that the allegations of the breach of contact by the Defendants is unsustainable. [56] Further, since there is no enforceable or concluded agreement after the expiry of the 2nd PQA, anything done by the Plaintiff after the expiry of 2nd PQA was done on their own perils. Therefore, they cannot claim their losses from the Defendants. In fact, the Plaintiff has gained profits including the Monthly Fee from January to March 2020 returned by the Defendants, from the illegal operations of the quarry from January till March 2020. [57] The principles governing a striking out application under S/N nnoZZMg0OrfgmrCTw8pw Order 18 rule 19, ROC 2012 are well-settled. It is trite law the Court will exercise its power to strike out a claim which is plainly and obviously unsustainable. See Bandar Builder Sdn. Bhd. & Ors v United Malayan Banking Corporation Bhd. [1993] 3 MLJ 36 and Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 1 MLRA 111. [58] The Federal Court in Seruan Gemilang Makmur Sdn. Bhd. v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 has decided that Order 18 rule19 ROC 2012 is only applicable when –

it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answers is on the face of it ‘obviously unsustainable’;

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;

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 of the ROC; and

the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that defences raised are not arguable. [59] Applying the principles enunciated in the case of Bandar Builder Sdn. Bhd. & Ors (supra), Abdul Rahim Abdul Hamid & Ors (supra) and the case of Seruan Gemilang Makmur Sdn. Bhd.(supra), the court finds that the totality of the matters stated above renders the Plaintiff’s claim is plainly and obviously unsustainable. The action is scandalous, frivolous and/or vexatious, and its continuation is an S/N nnoZZMg0OrfgmrCTw8pw abuse of court process. Therefore, the court allows the applications of the Defendants to strike out the Plaintiff’ s claim under Order 18 rule 19(1)(a), (b) and (d) of ROC 2012. [60] The court agrees with the Defendants that Enclosure 20 and Enclosure 23 can be filed at any stage of proceedings and it does not prejudice the Plaintiff. Therefore, the preliminary objection of the Plaintiff is dismissed. Conclusion [61] Based on the aforementioned reasons, the court finds that the Defendants had successfully proven that that the Plaintiff’s Statement of Claim is plainly and obviously unsustainable. Thus, the court allows the Defendants’ applications to strike out the Plaintiff’s claim in Enclosure 20 and Enclosure 23 respectively, with costs RM1000 to be paid by the Plaintiff to each Defendant. Dated : 22 May 2023 Signed, ………………………….. Wong Mee Ling Judicial Commissioner High Court in Malaya Johor Bahru Johor Darul Ta’zim. S/N nnoZZMg0OrfgmrCTw8pw Counsel/Solicitor: For the Plaintiff: Mr. Wong Chee Chien Messrs Lim Chee Wee Partnership 12-1 Lorong Dungun, Damansara Heights, 50490 Kuala Lumpur For the Defendant 1: Mr. Muhammad Azzam Bin Zainal Abidin Pejabat Penasihat Undang-Undang Negeri Johor Aras 2 Bangunan Dato’ Jaafar Muhammad Kota Iskandar 79100 Iskandar Puteri, Johor For the Defendant 2: Mr. Kumar Kanasingam, Ms Ho Ai Ting and Ms. Shaira Shaari Messrs. Lee Hishammuddin Allen & Gledhill Level 6, Menara 1 Dutamas Solaris Dutamas No. 1, Jalan Dutamas 1 50480 Kuala Lumpur Cases referred to:

Wisma Sime Darby Sdn. Bhd. v Wilson Parking ( M) Sdn. Bhd. [1996] 2 MLJ 81 2. Common Ground TTDI Sdn. Bhd. v Ken TTDI Sdn. Bhd. [2021] MLJU 1925 3. Neoh Hong Sang (t/a Neoh Hong Sang Contractor) v Lye Weng Enterprise Sdn. Bhd. [2008]1 MLJ 623 4. Boo Are Ngor (P) v Chua Mee Liang (P) [2009] 6 MLJ 145 5. Pengarah Hospital Selayang & Ors v Ahmad Azizi bin Abdullah James & Ors [2012[ 5 MLJ 679 6. Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012 ] 1 MLJ 473 7. Selaman Sdn Bhd & Anor V. Pinang Sari Sdn Bhd [2017] 9 CLJ 366 S/N nnoZZMg0OrfgmrCTw8pw

Arab Malaysian Finance Bhd v Kah Motor Co Sdn. Bhd. [2010] 5 MLJ 10 9. Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd. [1993] 3 MLJ 36 10. Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 1 MLRA 111 11. Seruan Gemilang Makmur Sdn. Bhd. v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 Legislation referred to:

Contract Act 1950 [Act 136]

Rules of Court 2012 Date of Hearing: 28.2.2023 Date of Decision: 28.2.2023 S/N nnoZZMg0OrfgmrCTw8pw