Swift Logistics Yard Sdn Bhd v North West Depoh Sdn Bhd (BA-22NCvC-427-10/2022)

RM146,184.35 16-4-2015 letter (reduction of rental area from 870,702 square feet) 6 acres (549,292 square feet) 16-4-2015 to 15- 1-2017 RM189,231.02 11-9-2015 letter (increase of rental area from 12.6 acres) 20 acres (870,702 square feet) 16-9-2015 to 15- 1-2017 RM276,883.24 20-2-2017 letter (renewal of existing tenancy) 20 acres (870,702 square feet) 16-1-2017 to 15- 1-2019 RM295,342.12 12-12-2018 letter (renewal of existing tenancy) 20 acres (870,702 square feet) 16-1-2019 to 15- 1-2021 RM287,331.66 25-9-2019, 6-10-2019 letters (increase of rental area to 1,215,844 square feet) 27 acres (1,215,844 square feet) 6-10-2019 to 15- 1-2021 RM401,228.52 14-1-2021 (renewal of existing tenancy) 27 acres (1,215,844 square feet) 16-1-2021 to 15- 1-2022 RM413,386.96 11-10-2021 (extension of existing tenancy 27 acres (1,215,844 square feet) 15-1-2022 to 31- 3-2022 RM413,386.96 28-1-2022 (extension of existing tenancy and reduction of rental area from 1,215,844 to 435,600 square feet) 10 acres (435,600 square feet) 1-4-2022 to 15-1- 2023 RM178,596.00 Meeting on 22-3-2022 and unsigned Addendum temporary increase of rental area with additional 5 acres (217,800 square feet) a) 10+5 acres (217,800 square feet) b) 10 acres (435,600 square feet) 1-4-2022 to 31-7- 2022 1-8-2022 to 15-1- 2023 RM267,894.00 RM178,596.00 [6] A to have ended in stages as follows: a) On 31-3-2022 with the return of 12 acres of the Land. b) On 31-7-2022 with the return of 5 acres of the Land c) On 15-1-2023 with the return of the last 10 acres of the Land [7] The unchallenged correspondence between the parties ( ) showed the following: a) On 28-3-2022, the Plaintiff sent an email to remind the Defendant to take steps to surrender 12 acres by 1-4-2022 b) On 29-3-2022, the Defendant replied to say that it was taking steps, sought a 2-week extension and prop area for the remaining 15 acres c) On 6-4-2022, the Plaintiff sent an email with the following message:

of the 12 Acres was still very slow;

(ii) the Plaintiff shall continue to bill the Defendant for the whole twenty-seven (27) acres and/or 1,215,844 square feet of the said Land until the delivery of vacant possession of the 12 Acres by the Defendant;

(iii) the Defendant should refrain from utilizing the front door of the said Land; and

(iv) the Plaintiff requested the Defendant to execute an addendum to the Tenancy Agreement to reflect the hereinabove revised Tenancy Agreement. d) On 18-4-2022, the Plaintiff issued a formal notice to the Defendant to vacate the 12 acres. [8] As there was a change of control in the Plaintiff company in that its shares were acquired by Swift Haulage Bhd on or about 15-7-2021, the Defendant alleged that Swift Haulage Bhd were part of a competitor of the Defendant and that this prompted a change of attitude in 2022 and the [9] As the Defendant remains in occupation of all 27 acres (1,215,844 square feet), the Plaintiff calculated rental payable at RM498,496.04 per month based on the last rental rate of RM0.41 per square feet. Analysis and Findings [10] The Defendant opened its post-trial submissions by raising 2 unpleaded issues: a) locus standi to sue The Plaintiff was neither the registered owner nor lessee of the Land when this suit was initiated b) Unlawful sub-letting of the Land The Plaintiff did not have the consent of the registered proprietor to sub-let the Land [11] In He-Con Sdn Bhd v Bulyah bt Ishak & Anor (as administrators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal [2020] 4 MLJ 662; [2020] 5 MLRA 98 the Federal Court held: pleadings, or the lack of it. What a party does not plead, he cannot lead fact or issues on the non-pleaded facts. Again, Samuel Naik case is instructive on this point. Learned Justice Ramly Ali FCJ writing on behalf of the apex court in the Samuel Naik case said as follows in the matter of the pleading point: Parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded. Where a vital point is not raised in the pleadings it cannot be allowed to be argued and to succeed on appeal. [68] Indeed, the courts should only consider the pleaded case of the parties before them. In Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2003] 2 MLRA 313, it was said that: But once a defendant takes that course, he must stand and fall on his pleaded case. He cannot simultaneously put forward an unpleaded case of justification for his conduct. [12] In any event, this Court finds that the arguments on locus standi and the related allegation of unlawful sub-letting are non-issues based on the law, facts and evidence. As registered lessee, the Plaintiff had proprietary rights to the Land and was at all material times thereafter, the beneficial owner of the Land. The evidence showed that it entered into a sale and purchase agreement to purchase the Land from PKNS on 26-8- 2021 and completed the purchase on 21-11-2022. [13] Further, the Plaintiff sued the Defendant as landlord and tenant. It is a contractual claim. Unless there is some restriction or prohibition, a lessee or any party in lawful possession of land for that matter, can sub-let it and sue in contract for repossession (J Selvam & Anor v S Mehta & Anor [1981] 2 MLJ 45 cited in Sin Chuan Aik Brothers Realty Sdn Bhd v Inti Higher Learning Centre Sdn Bhd [2008] 7 MLJ 633; Arrow Express (M) Sdn Bhd v Majlis Bandaraya Shah Alam [2022] MLJU 2709). [14] On the related allegation that the Plaintiff sub-let the Land without the permission of PKNS, there was no evidence that the Plaintiff did so in breach of its lease agreement with PKNS or acted unlawfully in any way that affected the validity of the tenancy. If there was any legal or factual basis for the argument, it behoved the Defendant to subpoena PKNS and adduce the necessary evidence to support its allegation. The validity of the tenancy is not otherwise impugned by the Defendant. In fact, the Defendant is relying on it to justify its continued occupation of the Land. [15] Save for the termination of the tenancy and yielding up of possession of the Land, the Defendant has not seriously disputed the Oral or implied contract [16] s and/or alleged condition was that the Defendant would have an indefinite extension of the Tenancy Agreement. For completeness, it is noted that the Defendant also introduced oral evidence that the right to remain was to continue for a further 30 years with the extension of the Plaintiff s lease by PKNS and that the Defendant was given a first right of refusal to purchase the Land. However, these were also material facts not pleaded by the Defendant. [17] This Court noted that the Tenancy Agreement and written extensions thereto were consistently fixed with definite terms ( ). The Defendant had expressly covenanted in clause 3(g) of the Tenancy Agreement which applied throughout the relationship, that it yield up the Demised Premises at the end of the Tenancy Term peacefully and quietly. There were also the following no waiver, termination for convenience and time of the essence provisions in clause 5 of the Tenancy Agreement: [18] The effect of the written terms of the tenancy in this case is that the parol evidence rule as encapsulated in section 92 of the Evidence Act 1950 would operate to render inadmissible, evidence of any alleged oral agreement between the parties to contradict, vary, add to or subtract from its terms. The proviso for an oral collateral contract was not pleaded or argued, nor would it apply to the alleged condition of the tenancy since it would be inconsistent with clauses 3(g) and 5(e) of the Tenancy Agreement (Kuala Dimensi Sdn Bhd v Port Kelang Authority [2025] MLJU 320). [19] In any event, the viability of this defence is also subject to proof that the oral collateral contract existed. The findings of the Court on what the parties to the Tenancy Agreement may have represented to each other are dealt with in the next section. Tenancy coupled with equity [20] As noted, the Defendant also claims that it has a tenancy coupled with equity. This is a concept derived from the doctrine of estoppel and is enforceable by a court of equity. In Malaysia, land law under the Torrens system countenances such an equitable concept as an in personam claim against the party who induces the claimant land. The Federal Court case in Mok Deng Chee v. Yap See Hoi & Ors [1981] 2 MLJ 321 recognized that: The principle is also known as equitable estoppel, because the landowner whose conduct has raised an expectation of his tenant of being allowed to stay on and thereby inducing him to spend money in respect of the tenancy is prevented from taking any [21] Thus, the primary issue for determination in this case is whether the Defendant has a tenancy coupled with equity or not, and this in turn, depends on the answers to the following questions:

Whether there was a representation to the Plaintiff that the Defendant will be spending a lot to develop the Land for its business and a representation by the Plaintiff that the Defendant can occupy or remain on the Land for as long as it wished the alleged Representations

Whether in reliance upon the alleged Representations, the Defendant spent RM6 million to develop or enhance the Land with the full knowledge of the Plaintiff as contended the alleged Expenditure for declaratory relief is premised on the tenancy coupled with equity or alternatively, recovery of the RM6 million on grounds of unjust enrichment. The alleged Representations [22] The only evidence of the alleged Representations came from the [23] It was not pleaded who made the alleged Representations attributed to the Plaintiffs but the pleading suggested that the alleged Representations were pre-contractual i.e. made before the Tenancy Agreement was entered into on 14-1-2015. [24] Accordin Govindasamy Naidu a/l Gopal, (DW1), the alleged Representations were attributed to Leonard Lim Kian Wat (PW3). In the pleadings and evidence, the Defendant also mentioned Lim Ah Ming (PW1) and Loo Mun Hoong (PW2), both of whom were called to testify. PW1, PW2 and PW3 were all cross-examined and did not waver in their evidence and this Court found no reason to impeach their credibility. [25] PW1, PW2 and PW3 testified as to their different roles and level of contact with the Defendant, but they all testified that they had no knowledge of any alleged Expenditure by the Defendant to enhance the Land or any intention by the Defendant to incur any such expenditure. They also testified that there was no agreement between the parties allowing the Defendant to carry out any construction or build any structures or buildings on the Land. Further, the Plaintiff was never informed or notified of such actions by the Defendant and there was no approval or consent from the relevant authorities for the construction of any structures or buildings on the Land. [26] PW1, PW2 and PW3 also denied that the Defendant was given the right to stay as long as it wished because there was no agreement, express, implied or by way of conduct to that effect based on the terms and conditions of the Tenancy Agreement and the fact that the renewals testified that the Tenancy Agreement was made on 14-1-2015 at a time expire on 20-11-2022. Therefore, the Plaintiff could not have represented to the Defendant that it could remain on the Land for as long as it wished. [27] This Court is guided by the following observations in Tindok Besar Estate Bhd v Tinjar Co [1979] 2 MLJ 229: and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with the purpose of his own to serve and if it did not account for the statements in his documents and writing. Judicial reception of evidence requires that oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should [28] In Armagas Ltd v Mundogas SA, The Ocean Frost [1985] 1 Rep 1, Robert Goff LJ in the English Court of Appeal echoed the same sentiments: cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance t [29] This Court considered the probabilities of the case and found that it was improbable that any representative of the Plaintiff, being lessees on the Land, would have represented to the Defendant that it could remain on the Land indefinitely. If such an important arrangement had been made, it was also improbable that it had not been documented in any record that existed between the parties in the course of their 10-year relationship. As confirmed during the trial, there were many communications, formal and informal, meetings and discussions that led to multiple variations to the tenancy, yet not a single documentary record was produced that mentioned the existence of the alleged Representations. [30] Significantly, there is also no pre-action correspondence alluding to the alleged Representations and the existence, either of an oral collateral contract or a tenancy coupled with equity. Further, the Series of Correspondence and The Defendant was occupying 27 acres at the height and was paring that down, consistent with the agreement between the parties on 28-1-2022 and 22-3-2022. DW1 agreed under cross-examination that consistent with the contemporaneous email correspondences on 10-4-2022 and 29-3-2022, the Defendant had agreed to yield up vacant possession of 12 acres of the Land by 1-4-2022. [31] Despite the 18-4-2022 notice from the Plaintiff, there was no protest by the Defendant based on the existence of the alleged Representations or otherwise. This is also relevant to the defence of duress by the Defendant, presumably in respect of the 28-1-2022 and 22- 3-2022 agreements, evidenced by the unsigned Addendum forwarded to the Defendant on 6-4-2022. [32] On the unparticularised defence of duress, the position of the law in Malaysia has been restated in numerous decisions. As summarized in Zainol @ Zainol Abidin bin Mohamed v Lee Lim Huat [2015] 11 MLJ 395, the courts will be slow to import the concept of economic duress unless there is positive evidence to that effect, which must satisfy the guidelines given by the Privy Council in Pao On & Ors v Lau Yiu Long & Ors [1980] AC 614: to vitiate consent. Their Lordships agree with the observation of Kerr J in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd's Rep 293 at p 336 that in a contractual situation commercial pressure is not enough. There must be present some factor 'which could in law be regarded as a coercion of his will so as to vitiate his consent.' This conception is in line with what was said in this Board's decision in Barton v. Armstrong [1976] AC 104 at p 121 by Lord Wilberforce and Lord Simon of Glaisdale observations with which the majority judgment appears to be in agreement. In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are, as was recognized in Maskell v. Homer [1915] 3 KB 106, relevant in determining whether he acted [Emphasis added] [33] In this case, there was no evidence of any threat amounting to coercion and no proven duress in the light of the Series of Correspondence between the parties. of the improbability of the case put forward by the Defendant, this Court has also found it to be totally unsubstantiated and contradicted by the representations that inferred a concession to moving out their containers to vacate the Land. Therefore, the Defendant failed to discharge its burden of proving the alleged Representations. The alleged Expenditure [34] There was no documentary evidence alleged Expenditure to enhance the Land such as contracts and payment receipts which must exist if there had been any form of construction work to erect fixtures on the Land or even photographs to show the existence of any permanent structures. This Court is constrained to find that there was no alleged Expenditure, much less expenditure on the inducement or encouragement of the Plaintiff. The failure to prove this element is fatal to the claim that there existed a tenancy coupled with equity. The alternative counterclaim of unjust enrichment also fails for the same reason. Conclusion [35] The Defendant conducted itself at significant risk of peril from the outset in insisting on remaining in occupation from 2023 until now, having had ample time to assess the merits of its case against the available evidence and to take steps to mitigate its exposure to an adverse outcome. After hearing and perusing all the evidence, reviewing all written submissions and considering the applicable law, this Court finds that the Defendant failed to prove the existence of any oral collateral agreement or tenancy coupled with equity, and that it is therefore liable as a tenant holding over on an expired tenancy. [36] The m counterclaim is dismissed with costs of RM80,000.00. On the application ordered to be delivered within an extended deadline of 30 days. It is further ordered that all monies held in the stakeholders account by the be applied to set-off against the Judgment sum. Bertarikh : 22 April 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: Bryan Teo (with Ong Shu Cing), Messrs Joel & Mei Untuk Defendan: Shobah Veeraputhran (with Vishnu Varna Mohan), Messrs Hakem Arabi & Associates (Kuala Lumpur)