Court DecisionMY-HC

BA-12B-107-12/2022

Seven Alis Venture Sdn. Bhd v Perbadanan Aset Keretapi (BA-12B-107-12/2022)

High Court of Malaysia23 Jan 2024

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Refers toContacts ActExternal
“the Sessions Court had not erred in law and/or in fact in dismissing the Appellant’s counterclaim. [30] On the defence of frustration raised by the Appellant, the Respondent relied on section 57(2) Contacts Act 1950 and the Court of Appeal decisions in BIG Industrial Gas Sdn Bhd v Pan Wijaya Property Sdn Bhd and anothe”
Refers toCONTRACTS ACT 1950Legislation
“of plans for planning permission from Majlis Perbandaran Selayang rendered the two Tenancy Agreements impossible of performance, frustrated, void and/or unenforceable under sections 57 and 66 of the Contracts Act 1950 as any development of the said land for the business as set out in the two Tenancy Agreements would be”
Refers toCountry Planning ActExternal
“y the originality of this document via eFILING portal 8 [26] Assertions pertaining to breaches of the various provisions of the law in the National Land Code, the Railways Act 1991 and the Town and Country Planning Act 1976 by the Respondent were also made by the Appellants. The provisions in question include sections”
Refers toNational Land CodeExternal
“leged misrepresentation, frustration of the contract, breach of duty on the part of the Respondent to comply with the terms in the Letter of Offer and other non-compliances with the provisions of the National Land Code and the Railways Act 1991. The Proceedings in and the Decision of the Sessions Court [12] At the tria”
Refers toPublic Cleansing Management ActExternal
“or the proposals relating to those provisions; (ba) the provisions of *the Sewerage Services Act 1993 [Act 508]; (bb) the development proposal report; (bc) the provisions of the Solid Waste and Public Cleansing Management Act 2007 [Act 672]; and”

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Refers toRailways ActExternal
“hd, is a private limited company. [6] The Respondent, Perbadanan Aset Keretapi (Railway Assets Corporation), is a Federal Statutory Body under the Ministry of Transport. It was established under the Railways Act 1991 (Act 463). The Respondent is the manager and administrator of railway assets in Malaysia. [7] The Respo”
Refers toSewerage Services ActExternal
“(b) the provisions that it thinks are likely to be made in any development plan under preparation or to be prepared, or the proposals relating to those provisions; (ba) the provisions of *the Sewerage Services Act 1993 [Act 508]; (bb) the development proposal report; (bc) the provisions of the Solid Waste and Public Cl”
Cites[2010] MLJU 2225External
“erred in law and/or in fact. [20] The Appellant also referred this Court to the Federal Court case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338; [2010] 9 CLJ 785; [2010] MLJU 2225; [2010] 2 MLRA 668 for the proposition that an appellate court will not generally intervene with a decis”
Cites[2017] AMEJ 0289External
“spondent agreed unreservedly to the principle enunciated by the apex court and had also drawn this Court’s attention to another decision of the Federal Court in CKH Engineering Sdn Bhd v Lim Beng Kit [2017] AMEJ 0289; [2017] CLJU 286; [2017] MLJU 280; [2017] 6 MLRA 55 (“CKH Engineering”). [37] This Court has taken judi”
Cites[2017] CLJU 286External
“reservedly to the principle enunciated by the apex court and had also drawn this Court’s attention to another decision of the Federal Court in CKH Engineering Sdn Bhd v Lim Beng Kit [2017] AMEJ 0289; [2017] CLJU 286; [2017] MLJU 280; [2017] 6 MLRA 55 (“CKH Engineering”). [37] This Court has taken judicial notice of the”
Cites[2017] MLJU 280External
“principle enunciated by the apex court and had also drawn this Court’s attention to another decision of the Federal Court in CKH Engineering Sdn Bhd v Lim Beng Kit [2017] AMEJ 0289; [2017] CLJU 286; [2017] MLJU 280; [2017] 6 MLRA 55 (“CKH Engineering”). [37] This Court has taken judicial notice of these authorities whe”
Cites[2018] AMEJ 0048External
“tion raised by the Appellant, the Respondent relied on section 57(2) Contacts Act 1950 and the Court of Appeal decisions in BIG Industrial Gas Sdn Bhd v Pan Wijaya Property Sdn Bhd and another appeal [2018] AMEJ 0048; [2018] 9 CLJ 1; [2018] 3 MLJ 326; [2018] 2 MLRA 577, Hong Leong Bank Bhd v Tan Siew Nam & **Note : Ser”
Cites[2020] CLJU 1777External
“he originality of this document via eFILING portal 9 Anor [2014] 4 AMR 189; [2014] 5 MLJ 34; [2015] 3 MLRA 681 and Danga Bay Sdn Bhd v Hamimah bt Hussin & Anor (Affin Islamic Bank Bhd, third party) [2020] CLJU 1777; [2021] 2 MLJ 22. [31] The essence the Respondent’s submission is that if indeed there was frustration, i”

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Content

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: BA-12B-107-12/2022 ANTARA SEVEN ALIS VENTURE SDN. BHD. [NO. PEN.: 201601013678 (1184609-H)] … PERAYU DAN PERBADANAN ASET KERETAPI … RESPONDEN (Dalam Mahkamah Sesyen Di Selayang Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman No.: BD-B52NCVC-5-09/2020 Antara Perbadanan Aset Keretapi … Plaintif Dan Seven Alis Venture Sdn. Bhd. [No. Pen.: 201601013678 (1184609-H)] … Defendan (yang diputuskan oleh Hakim Mahkamah Sesyen Puan Nor Rajiah Binti Mat Zin di Mahkamah Sesyen Selayang pada 29.11.2022))

Judgment

Introduction

The derailment of a proposed project on a railway reserve land. That explains the root cause of the dispute between the parties in the present appeal before this Court.

The Respondent (Plaintiff in the court below) had commenced an action against the Appellant (Defendant in the court below) for overdue monthly rental payments and the latter had counterclaimed, seeking a declaration that the former had breached the tenancy agreement and for general and special damages. The present appeal by the Appellant is against the decision of the Sessions Court after full trial whereby the Sessions Court had allowed the Respondent’s claim and dismissed the Appellant’s counterclaim.

The Issues in this Appeal

The overriding issue in this appeal, as in any appeal, is whether the learned Sessions Court Judge had erred in law and in fact in arriving at its decision, which in the instant case was in allowing the Respondent’s claim and in dismissing the Appellant’s counterclaim.

Arising from the above core issue are the following pertinent issues, namely:

Whether the Appellant had breached the terms of the tenancy agreement;

Whether the Respondent had committed misrepresentation with regards to the tenancy agreement;

Whether there was frustration of the contract; and

Whether there was breach of duty of the part of the Respondent to comply with the terms in the tenancy agreement and the provisions of various statutes. The Parties and the Pertinent Background Facts: [5] The Appellant, Seven Alis Venture Sdn Bhd, is a private limited company. [6] The Respondent, Perbadanan Aset Keretapi (Railway Assets Corporation), is a Federal Statutory Body under the Ministry of Transport. It was established under the Railways Act 1991 (Act 463). The Respondent is the manager and administrator of railway assets in Malaysia. [7] The Respondent had entered into two tenancy agreements with one Teraju Biru Enterprise (TBE) for the latter to “develop and carry out its business of extreme sports, tourism and mechanical business”. The first tenancy agreement was for the period from 1 July 2012 – 30 June, 2015 and the second tenancy agreement was for the period from 1 July 2015 – 30 June, 2018.The 3-year tenancy period came with an option for renewal. [8] With the consent of the Respondent, the terms in the second agreement were assigned to the Appellant. [9]

Preamble

Pursuant to the 1977 Federated Malay States Government Gazette, land which forms the subject matter of this appeal is “to be reserved for the purpose of a Railway Station to be maintained by the officer for the time holding the appointment of General Manager for Railways, Federated Malay States”. [10] The case for the Respondent was that the Appellant had breached the terms and conditions stated in the Letter of Offer that formed the tenancy agreement when the Appellant failed, neglected, and/or refused to make monthly rental payments to the Respondent, which were due until the end of the rent period on 30.6.2018, amounting to a total sum of RM1,107,409.20. [11] As far as the Appellant was concerned, the case was not as straightforward as made out by the Respondent. The Appellant alleged misrepresentation, frustration of the contract, breach of duty on the part of the Respondent to comply with the terms in the Letter of Offer and other non-compliances with the provisions of the National Land Code and the Railways Act 1991. The Proceedings in and the Decision of the Sessions Court [12] At the trial before the Sessions Court, a total of twelve witnesses testified, five for the Respondent and seven for the Appellant. [13] On the issue of whether the Appellant had breached the terms of the tenancy agreement, the learned Sessions Court Judge answered this question in the affirmative. The reasonings of the learned Sessions Court Judge are clarified in paragraphs [20] – [30] of her grounds of judgment. [14] The learned Session Court Judge specifically dealt with the issue of misrepresentation at paragraphs [56] – [59] of her grounds of judgment and concluded that there was no misrepresentation by the Respondent. [15] Likewise, the learned Sessions Court Judge had also carefully and extensively considered the position of the law relating to the doctrine of frustration and applied these to the facts in this case. These are found in paragraphs [31] – [47] of her grounds of judgment. Once again, the learned Sessions Court Judge did not find any basis to support the invocation of the doctrine of frustration to the facts in the matter before her. [16] Finally, on the issue of non-compliances with the with the various provisions of the law, such as the National Land Code and the Railways Act 1991, the deliberations by the learned Sessions Court Judge can be traced to paragraphs [48] – [51] and [60] – [67] of her grounds of judgment. The conclusion reached was that the arguments raised were unmeritorious. [17] The Appellant’s counterclaim was set out, dealt with and dismissed by the learned Sessions Court Judge. These can be found at paragraphs [68] – [70] of the grounds of judgment. [18] In view of the above findings and as evident from the various foregoing paragraphs, the Sessions Court had allowed the Respondent’s claim and dismissed the Appellant’s counterclaim. The Sessions Court also awarded costs of RM80,000 to the Respondent. The Parties’ Contention in the Present Appeal [19] The Appellant cited 19 instances/grounds which allegedly demonstrated that the learned Sessions Court Judge having erred in law and/or in fact. [20] The Appellant also referred this Court to the Federal Court case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338; [2010] 9 CLJ 785; [2010] MLJU 2225; [2010] 2 MLRA 668 for the proposition that an appellate court will not generally intervene with a decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision and a plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. [21] On the issue and defence of misrepresentation, it was contended by the Appellant that the Respondent had misrepresented to it regarding the Appellant’s ability to develop and carry out the proposed business. According to the Appellant, the Respondent had made representations to both TBE and the Appellant that it could develop and carry out its business and based on those representations, the Appellant had paid all rentals owed by TBE to the Respondent. [22] It was pointed out by the Appellant that Clause 2(c) of the agreement provides that the said land was specifically to be developed for the Appellant’s business and Clause 3(v) requires development plans to be submitted to the Respondent for its approval. The Appellant claimed that 11 sets of plans were submitted to the Respondent on 21 March, 2017 for its signature and approval for purposes of submission to Majlis Perbandaran Selayang for “planning permission” and there was a breach of Clause 3(v) for failure and refusal on the part of the Respondent to sign the 11 sets of plans. [23] The Appellant also claimed that the Respondent had failed to evict the squatters from the said land. Since the Respondent had issue Notices to evict squatter prior to the execution of the second Agreement, this, according to the Appellant amounted to a representation and in reliance on that representation, the Appellant claimed to have incurred expenses in preparing the land to commence its business. [24] In addition to the above claims, the Appellant also raised an allegation that the Respondent had made a representation that the subject-matter in this matter was “vacant land” and henceforth the Appellant was entitled to rely on the doctrine of legitimate expectation. It was also submitted by the Appellant that proceedings under Order 89 of the Rules of Court 2012 can only be invoked by the Respondent as landlord of the land. [25] As for the doctrine of frustration, the Appellant’s contention was that failures by the Respondent to first, change or convert the status of the land from railway reserve to commercial or industrial and second, return the 11 sets of plans for planning permission from Majlis Perbandaran Selayang rendered the two Tenancy Agreements impossible of performance, frustrated, void and/or unenforceable under sections 57 and 66 of the Contracts Act 1950 as any development of the said land for the business as set out in the two Tenancy Agreements would be unlawful, null and void, and contrary to public policy. [26] Assertions pertaining to breaches of the various provisions of the law in the National Land Code, the Railways Act 1991 and the Town and Country Planning Act 1976 by the Respondent were also made by the Appellants. The provisions in question include sections 52, 62, 63, 124 and 425 of the National Land Code, sections 2, 89(1), (2), (7) and (8) of the Railways Act 1991 and sections 19, 21 and 22 of the Town and Country Planning Act 1976. [27] The counterclaim by the Appellant was thus premised on the supposed misrepresentation and breaches of the various statutes. [28] The Respondent maintained that it had succeeded in obtaining a judgment in its favour at the Sessions Court because there was an outstanding rental amount in accordance with the terms of the tenancy agreement and the Appellant has failed, neglected and/or refused to pay the monthly rental fees to the Respondent as claimed in the Respondent's statement of claim. Hence, the Respondent submitted that Sessions Court was correct in deciding that the Respondent has proven their claim on a balance of probabilities during the trial court and therefore this appeal by the Appellant ought to be dismissed with costs. [29] The Respondent also submitted that the Sessions Court had not erred in law and/or in fact in dismissing the Appellant’s counterclaim. [30] On the defence of frustration raised by the Appellant, the Respondent relied on section 57(2) Contacts Act 1950 and the Court of Appeal decisions in BIG Industrial Gas Sdn Bhd v Pan Wijaya Property Sdn Bhd and another appeal [2018] AMEJ 0048; [2018] 9 CLJ 1; [2018] 3 MLJ 326; [2018] 2 MLRA 577, Hong Leong Bank Bhd v Tan Siew Nam & Anor [2014] 4 AMR 189; [2014] 5 MLJ 34; [2015] 3 MLRA 681 and Danga Bay Sdn Bhd v Hamimah bt Hussin & Anor (Affin Islamic Bank Bhd, third party) [2020] CLJU 1777; [2021] 2 MLJ 22. [31] The essence the Respondent’s submission is that if indeed there was frustration, it was self-induced frustration. [32] An additional authority cited by the Respondent is Yee Seng Plantations Sdn Bhd v State Government of Terengganu & Ors [2000] 3 AMR 3209; [2000] 3 CLJ 666; [2000] 3 MLJ 699; [2000] 1 MLRA 427, where the Court of Appeal reiterated the point that “self-induced frustration is no frustration”. [33] As for the defence of misrepresentation relied by the Appellant, this was outright denied by the Respondent. [34] Reference was made to section 18 of the Contracts Act 1950 and the decision of the Court of Appeal in Ape Electrical Sdn Bhd v Chandra Segar L Marullamulth & Anor Another Appeal [2022] 1 LNS 2175; [2023] 1 MLJ 557; [2023] 1 MLRA 571 (“Ape Electrical Sdn Bhd”). [35] Last but not least, the Respondent denied having breached any of the provisions of the law. The Law and Applicable Principles Appellate Intervention [36] The principle in relation to appellate intervention is well-established. As noted, the Appellant had referred this Court to the Federal Court case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338; [2010] 9 CLJ 785; [2010] MLJU 2225; [2010] 2 MLRA 668 (“Genisys Integrated Engineers”). The Respondent agreed unreservedly to the principle enunciated by the apex court and had also drawn this Court’s attention to another decision of the Federal Court in CKH Engineering Sdn Bhd v Lim Beng Kit [2017] AMEJ 0289; [2017] CLJU 286; [2017] MLJU 280; [2017] 6 MLRA 55 (“CKH Engineering”). [37] This Court has taken judicial notice of these authorities where in CKH Engineering, it was held that an appellate court will be slow to intervene in the finding of facts and Genisys Integrated Engineers where the guiding principle is that an appellate court will not generally speaking intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision and a plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence). This Court is guided by and will approach the current appeal based on the principles as enunciated. Frustration [38] Section 57(2) of the Contracts Act 1950 reads: Contract to do act afterwards becoming impossible or unlawful A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.” [39] The principles which relate to doctrine of frustration that can be distilled from the authorities cited in paragraphs [30] and [32] above are that: 1) The doctrine of contract frustration only applies if the purpose of the contract becomes impossible to perform; 2) The reason that the contract's purpose is difficult to achieve does not mean that the contract is frustrated; and 3) Frustration caused by the party itself (self-induced frustration) does not equate with the principle of contract frustration. [40] On “self-induced frustration” see also Neil Andrews, Contract Law in Practice, OUP 2021 at para 26.30. [41] While this Court agrees that the said land may (as opposed to it absolutely cannot) be utilised for the intended purpose as stated in the Agreements, the key issue that remains for determination is whether obtaining the planning permission was an impossibility. [42] This Court is of the considered view that the learned Sessions Court Judge had applied her mind to the issue and considered the evidence before the court and arrived at the correct conclusion that the blame fell squarely on the Appellant’s agent, Arah Rancang. As such, this was a case of self-induced frustration. Misrepresentation [43] Section 18 of the Contracts Act 1950 provides as follows: "Misrepresentation" includes –

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.” [44] On the elements that must be proven by the party relying on the defence of misrepresentation, Ape Electrical Sdn Bhd explained that the following prerequisites must be present, that is: 1) There must be a false statement of fact; 2) The said statement must be material in nature in that a reasonable man would be influenced by it; 3) The said statement induces the representee to enter into the contract; and 4) To trigger an inducement, two essential elements are necessary, that is: a) the representee must in fact rely on the representor's statement in the contract concerned; and b) the representor, at the time of entering the contract, must have the intention, or at least realise, that the statement will, or probably will, be relied upon by the representee. [45] The facts and evidence presented before the trial court do not demonstrate that the essential elements for the defence of misrepresentation have been proven. Hence, it cannot be said the learned Sessions Court Judge was guilty of no or insufficient judicial appreciation of evidence. Breach of Statutory Provisions [46] As the Appellant had alleged breaches of provisions of the various statutes by the Respondent, it is apposite that the said provisions are reproduced. [47] The pertinent provisions of the National Land Code are sections 52, 62, 63, 124 and 425. These provisions read as follows: Categories of land use and application thereof to lands alienated under this Act

(1) For the purposes of this Act there shall be three categories of land use, to be known respectively as “agriculture”, “building” and “industry”; and, subject to subsection (5), where any land is alienated under this Act —

there shall be endorsed on the document of title thereto such one of those categories as the State Authority may have — i. prescribed by a notification having effect in relation thereto under subsection (2); or ii. in the absence of any such notification, determined in relation thereto pursuant to subsection (3); and

the conditions to which the land becomes subject shall include accordingly — i. such express conditions as may be imposed by the State Authority by virtue of section 121 or 122; and ii. such implied conditions as are applicable thereto by virtue of section 115, 116 or 117.

The State Authority may, by notification in the Gazette, specify any area of the State, and prescribe a category of land use in relation thereto for the purposes of this section; and that category shall be the one to be endorsed under subsection (1) on the alienation pursuant to any approval given after the notification is published of any State land in that area which has not at any previous time been alienated.

Except in a case falling within subsection (2), the category of land use to be endorsed pursuant to subsection (1) on the document of title to any land shall be determined by the State Authority at the time when the land is approved for alienation.

Copies of any notification under this section shall be published in accordance with section 433.

This section does not apply to any land alienated under this Act in pursuance of an approval given by the State Authority before the commencement thereof; and the State Authority may, on approving the alienation of any land after that commencement, direct that no category of land use be endorsed on the document of title thereto, if satisfied that the use thereof could be more appropriately controlled by the imposition of express conditions under section 120. Power of reservation of State land

62.

The State Authority may by notification in the Gazette reserve any State land for any public purpose.

Any notification gazetted under subsection (1) shall — (a) describe the reserved land; (b) describe the purpose for which the land is reserved; (c) designate the public officer for the time being having the control of the reserved land; (d) be conclusive evidence that the land so described is reserved for a public purpose.

Copies of any such notification shall be published in accordance with section 433.

Without prejudice to the provisions of any other written law for the time being in force, reserved land shall not be—

disposed of by the State Authority except to the extent permitted by, and in accordance with the provisions of, section 63 and Chapters 2, 3 and 4 of this Part; or

used for any purpose other than that for which it is reserved except in pursuance of a disposition made by virtue of any of those provisions. Power to lease reserved land

63.

The State Authority may, on an application made by the officer for the time being having the control of any reserved land, or by any other person or body who has first obtained the approval of that officer, from time to time grant leases of the whole or any part thereof for any period not exceeding twenty-one years.

Any lease granted under this section shall be in Form 4e; and any such lease shall have effect subject to such express conditions or other provisions as may be contained therein and, so far as not inconsistent therewith, to any other conditions or provisions which may be prescribed. Power of State Authority to vary conditions, etc., on application of proprietor

124

(1) The proprietor of any alienated land may apply to the State Authority under this section for—

the alteration of any category of land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any category thereon;

the rescission of any express condition or restriction in interest endorsed on, or referred to in, the document of title thereto, or the removal from that document of the expression “padi”, or any other expression by virtue of which the land is subject for the time being to the implied conditions specified in section 119; or (ba) the removal from the document of title of the expression “rubber”, “kampung” or any other expression pertaining to land use, and the imposition of other express conditions pertaining to land use;

the amendment of any express condition or restriction in interest endorsed on, or referred to in, the document of title thereto, or the imposition of any new express condition or restriction in interest: Provided that the State Authority shall not entertain any such application unless it is satisfied with respect to every person or body having a registered interest in the land, or in occupation of any part thereof under any tenancy exempt from registration, either that he has consented thereto or that his consent ought in the circumstances of the case to be dispensed with: Provided further that the State Authority shall not entertain any such application unless any rent due has been paid and if it relates to express conditions endorsed on the title by virtue of subsection 92b(2) and subsections 92d(2) and (6).

Where the application relates to estate land —

the Land Administrator shall refer it to the Estate Land Board established under section 214a for its recommendations; and

the Secretary of the Estate Land Board shall convey its recommendations as expeditiously as possible to the Land Administrator.

Upon receiving any application referred to in subsection (1), the Land Administrator shall endorse, or cause to be endorsed, a note on the register document of title to the land to which the note relates.

Where the State Authority approves any application under paragraph (1)(a) —

it shall direct that the category of land use specified in the application be endorsed on the document of title to the land, and the existing category, if any, deleted; and

it may if it thinks fit direct that there shall also be endorsed on the document of title such new express conditions as are specified in the direction, being conditions relating to any of the matters mentioned in section 121 or 122; and, as from the date on which the direction is carried into effect —

the land shall become subject to any conditions endorsed pursuant thereto and (according to the category of land use so endorsed) to the conditions implied by section 115, 116 or 117;

(ii) there shall cease to apply to the land all conditions to which it was previously subject except those implied under section 114 and, where applicable, section 118.

Where the State Authority approves any application under paragraph (1)(b), it shall direct that the condition, restriction in interest or expression in question be struck off the document of title to the land or, in the case of any condition or restriction which is merely referred to in the document of title, that a note of its rescission be so endorsed.

Where the State Authority approves any application under paragraph (1)(ba), it shall direct that the expression in question be struck off, and the new express conditions be endorsed on the document of title to the land.

The State Authority may approve any application under paragraph (1)(c) either in the terms in which it was submitted or, with the consent of the applicant and any other persons or bodies whose consent thereto was required under the proviso to that subsection, subject to such modifications as it may think fit, and shall, in either case, direct as appropriate —

the amendment of any condition or restriction in interest endorsed on the document of title to the land; or

the endorsement on that document of title of a note of the amendment of any condition or restriction which is merely referred to therein; or

the endorsement on that document of title of any new condition or restriction in interest.

Any direction given by the State Authority under this section may be made conditional upon all or any of the following matters:

the payment of a further premium; (aa) the payment of any other charges as may be prescribed; (b) the reservation of a new rent;

compliance with such other requirements as the State Authority may think fit.

No condition shall be imposed by virtue of this section which is inconsistent with any implied condition to which the land in question is for the time being subject under section 114 or 119, and no condition shall be amended by virtue of this section so as to become inconsistent with any such implied condition.

Upon approval by the State Authority under this section, the Land Administrator shall sign a memorandum in Form 7c in accordance with the direction of the State Authority and shall present the same, and on the memorial thereof being made, the Registrar shall make an entry on the register and issue documents of title to the land and shall note the date thereof and the authority therefor, and authenticate the same under his hand and seal of which the entry shall be made upon payment in accordance with subsection (8).

The rent and premium in any direction issued by the State Authority under this section shall become due to the State Authority at the time when it approves the application and the Land Administrator shall cause to be served on the proprietor a notice in Form 7g requiring him to pay such sum within the specified time and if any such sum is not paid within such time the approval of the State Authority shall thereupon lapse. Unlawful occupation, etc., of State land, reserved land or mining land

425

(1) Any person who, without lawful authority —

occupies, or erects any building on, any State land, reserved land or mining land, or

clears, ploughs, digs, encloses or cultivates any such land or part thereof; or

cuts or removes any timber or produce on or from such land, commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Any person who abets the commission of an offence under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

For the purpose of this section, State land shall include all land held by or on behalf of Federal or State Government or a local authority or a statutory authority exercising powers vested in it by federal or State law.

(Deleted by Act A264).

(Deleted by Act A264). [48] In terms of the Railways Act 1991, the impugned provision is section

It provides as follows: Establishment, membership and functions of the Railway Assets

Corporation

89.

There shall be established a body corporate by the name of “Railway Assets Corporation” (hereinafter referred to as “the Corporation”) with perpetual succession and a common seal and may sue and be sued in its name and subject to and for the purposes of this Act, may enter into contracts, and may acquire, purchase, take, hold and enjoy movable and immovable property of every description and may convey, assign, surrender, yield up, charge, mortgage, demise, reassign, transfer or otherwise dispose of, or deal with, any movable or immovable property or any interest therein vested in the Corporation upon such terms as it deems fit.

The Corporation shall consist of the following members who shall be appointed by the Minister:

a representative of the Ministry of Transport;

a representative of the Treasury;

a representative of the Economic Planning Unit;

the Federal Lands Commissioner;

the Railway Assets Manager who shall be an ex-officio member; and

not more than two other members.

The Minister shall appoint a person from amongst the members of the Corporation to be the Chairman.

Where the Chairman is unable to attend any meeting of the Corporation due to illness, incapacity or any other reason, the Minister may appoint any other member as he thinks fit to preside over the meeting and that member may exercise all the powers of the Chairman in respect of that meeting.

The Chairman and four other members shall form a quorum at all meetings of the Corporation.

If on any question to be determined there is an equality of votes, the Chairman shall have a casting vote.

The provisions of the Schedule shall apply to the Corporation.

The functions of the Corporation shall be —

to manage, administer and maintain —

all property and rights of the Malayan Railway Administration under the repealed Ordinance which by virtue of section 92 are vested in the

Corporation;

(ii) all property vested in, held or acquired by the Federal Lands Commissioner under the repealed Ordinance which by virtue of section 93 are vested in the Corporation, and to manage and administer all liabilities in respect thereof;

undertake projects for the development or redevelopment of any railway infrastructure or facilities; and

to carry out and perform such other functions as may be prescribed by the Minister under this Act. [49] The provisions of the Town and Country Planning Act 1976 invoked are sections 19, 21 and 22 and they state as follows: Prohibition of development without planning permission

19.

No person, other than a local authority, shall commence, undertake, or carry out any development unless planning permission in respect of the development has been granted to him under section 22 or extended under subsection 24(3). Application for planning permission

(1) An application for planning permission in respect of a development shall be made to the local planning authority and shall be in such form and shall contain such particulars and be accompanied by such documents, plans, and fees as may be prescribed.

If the applicant is not the owner of the land on which the development is to be carried out, the written consent of the owner thereof to the proposed development shall be obtained and endorsed on the application.

Where the development involves the erection of a building, the local planning authority may give written directions to the applicant in respect of any of the following matters, that is to say:

the level of the site of the building;

the line of frontage with neighbouring buildings;

the elevations of the building;

the class, design, and appearance of the building;

the setting back of the building to a building line;

access to the land on which the building is to be erected; and

any other matter that the local planning authority considers necessary for purposes of planning.

The applicant to whom any written directions are given under subsection (3) shall amend the plan submitted with his application accordingly and resubmit the plan within such period or extended period as the local planning authority may specify.

If the plan is not resubmitted within the specified period or extended period, the application for planning permission shall be deemed to have been withdrawn but the applicant may submit a fresh application.

If the proposed development is located in an area in respect of which no local plan exists for the time being, then, upon receipt of an application for planning permission, or, where directions have been given under subsection (3), upon compliance with the directions, the local planning authority shall, by notice in writing served on the owners of the neighbouring lands inform them of their right to object to the application and to state their grounds of objection within twenty-one days of the date of service of the notice.

If objections are received pursuant to subsection (6), the local planning authority shall, within thirty days after the expiry of the period within which objections may be made, hear—

the applicant for planning permission; and

any person who has lodged an objection pursuant to subsection (6) and who, in lodging the objection, has requested a hearing.

In this section, “neighbouring lands” means—

lands adjoining the land to which an application under this section relates;

lands separated from the land to which an application made under this section relate by any road, lane, drain or reserved land the width of which does not exceed 20 metres and which would be adjoining the land to which the application relates had they not been separated by such road, lane, drain or reserved land;

(c)

lands located within a distance of 200 metres from the boundary of the land to which an application under this section relates if the access road to the land to which the application relates is a cul-de-sac used by the owners of the lands and owners of the land to which the application relates. Treatment of applications

(1) As soon as possible after the receipt of an application for planning permission, or, if the application is one to which subsection 21(6) applies, as soon as possible after the expiry of the period within which objections may be made or, if objections have been made, as soon as possible after the objections have been dealt with under subsection 21(7), the local planning authority shall decide on the application for planning permission.

In dealing with an application for planning permission, the local planning authority shall take into consideration such matters as are in its opinion expedient or necessary for proper planning and in particular—

the provisions of the development plan, if any; (aa) the direction given by the Committee, if any;

the provisions that it thinks are likely to be made in any development plan under preparation or to be prepared, or the proposals relating to those provisions; (ba) the provisions of *the Sewerage Services Act 1993 [Act 508]; (bb) the development proposal report; (bc) the provisions of the Solid Waste and Public

Cleansing Management Act 2007 [Act 672]; and

the objections, if any, made under section 21.

Where an application submitted under this section involves—

the development of a new township for a population exceeding ten thousand, or covering an area of more than one hundred hectares, or both;

a development for the construction of any major infrastructure or utility; or

a development affecting hill tops or hill slopes, in an area designated as environmentally sensitive in a development plan, the Committee shall request from the Council its advice on the application submitted.

For the purposes of subsection (2A), development for the construction of major infrastructure or utility shall include—

national infrastructure works such as airports, seaports, railway lines and highways; and

national utility works such as the erection of dams, main power stations and toxic waste disposal sites.

After taking into consideration the matters specified in subsection (2), the local planning authority may, subject to subsection (4), grant planning permission either absolutely or subject to such conditions as it thinks fit to impose, or refuse to grant planning permission.

The local planning authority shall not grant planning permission if—

the development in respect of which the permission is applied for would contravene any provision of the development plan; (aa) the development in respect of which the permission is applied for would contravene the provision of paragraph (2)(aa); or

the applicant for planning permission has neither paid the development charge payable in respect of the development nor obtained the permission of the local planning authority under subsection 34(1) to pay the development charge by instalments.

Conditions imposed under subsection (3) may include any or all of the following conditions, that is to say, conditions—

to the effect that planning permission granted in respect of any change of use of land or building is only for a limited period and that, after the expiry of that period, the use of the land or building as authorized by the planning permission shall cease and the land or building shall be reverted to its original use;

to regulate—

the development and use of any other land under the control of the applicant that adjoins the land in respect of which the planning permission is granted; and

(ii) as may appear to the local planning authority to be expedient for the development for which planning permission is granted, the works that may be carried out on such other land and the manner in which and the extent to which such works may be carried out;

for securing the development of the land in accordance with the approved layout plans;

prohibiting damage to the land, its physical environment, natural topography and landscape;

prohibiting the removal or alteration of any of the natural features of the land;

prohibiting the felling of trees of a certain size, age, type or species at any particular location, unless it is to comply with any written law;

for securing the planting or replanting of trees of a certain size, age, type or species at any particular location in such manner as may be determined by the local planning authority;

for securing the making up of open spaces in accordance with the approved layout plans;

where the development involves the erection of a new building, or the re-erection or extension of a building or part thereof, conditions to ensure its compatibility with the architecture, character or appearance depicted in the buildings located in the surrounding area, which the local planning authority intends to protect, preserve or enhance;

where the development involves any addition or alteration to an existing building with special architecture or historical interest, conditions to ensure that the facade and other external character of the building is retained; and

where the development involves the re-erection of a building with special architecture or historical interest or the demolition thereof and the erection of a new building in its place, conditions to ensure that the facade and other external character of the demolished building is retained.

It shall be the duty of the local planning authority to ensure where planning permission is granted that a tree preservation order, if any, is complied with.

If planning permission is granted, whether with or without conditions, it shall conveyed to the applicant in the prescribed form and at the same time a notice of the grant thereof shall be given to any person who has made any objection pursuant to subsection 21(6). [50] On the allegation pertaining to breaches of zoning law and the provisions in various statutes as outlined above, this Court is once again unable to agree with the submissions and grounds raised by the Appellant. [51] One point that this Court considers as key to this case is the fact that the Appellant was always aware of the nature of the land, the condition for land use and the risks associated with its proposed business venture on the said land. [52] On the ground of the failure by the Respondent to evict the squatters, this Court is unable to accept the Appellant’s contention that the duty rests solely with the Respondent as owner of the land to invoke Order 89 of the Rules of Court 2012. This relief provided by this provision is not restricted to just the registered owners or landlords of land. Section 425 of the National Land Code does not impose any responsibility solely on the Respondent. [53] This Court is satisfied that the learned Sessions Court Judge has not failed in her duty to evaluate the evidence available before her nor erred in fact and/or in law and thus this is not a proper case for appellate intervention. [54] The decision of the Sessions Court is affirmed save as to costs. The costs of RM80,000 awarded by the Sessions Court is reduced to RM20,000. The Appellant to pay costs of RM20,000 for this appeal to the Respondent, subject to allocator. Dated: 15 March, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Harwinder Kaur Aa/p Harbhajan Singh with Sharanpreet Kaur a/p Parmjit Singh for the Appellant (Messrs. A J Ariffin Yeo & Harpal) Barvina a/p Punnusamy with Zulaika binti Zulkifli for the Respondent (Messrs. Jayadeep Hari & Jamil)

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Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 23 Jan 2024
Case number: BA-12B-107-12/2022
Coram: YA Dr Choong Yeow Choy
Practice area: Contract: Misrepresentation as a vitiating ground – Doctrine of frustration – Contracts Act 1950, sections 18, 24, 57(2) and 66. Landlord and Tenant: Tenancy agreement – Whether there was misrepresentation by the landlord – Whether there was frustration of the contract – Whether there was breach of duty of the part of the landlord to comply with the terms in the tenancy agreement – National Land Code, sections 52, 62, 63, 124 and 425 – Railways Act 1991, sections 2, 89(1), (2), (7) and (8) – Town and Country Planning Act 1976, sections 19, 21 and 22
Version: Alasan Penghakiman 1
Published: 15 Mar 2024
Source ID: d20c2fb4-09ff-4480-a43a-4a4ad86a9cb8

Catchwords

Contract: Misrepresentation as a vitiating ground – Doctrine of frustration – Contracts Act 1950, sections 18, 24, 57(2) and 66. Landlord and Tenant: Tenancy agreement – Whether there was misrepresentation by the landlord – Whether there was frustration of the contract – Whether there was breach of duty of the part of the landlord to comply with the terms in the tenancy agreement – National Land Code, sections 52, 62, 63, 124 and 425 – Railways Act 1991, sections 2, 89(1), (2), (7) and (8) – Town and Country Planning Act 1976, sections 19, 21 and 22

Parties

SEVEN ALIS VENTURE SDN. BHD - appellant - ejudgment_parties
PERBADANAN ASET KERETAPI - respondent - ejudgment_parties

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