We mentioned that if you have new partners to participate in the project, then it is your internal affairs which we won’t interfere. However, as per our meeting, you are not allowed to literally sell the show as there's lots of complex issues involved. In addition to the above, we would like to stress again that we would not want to work with GFS or Dream Maker for the MLTR KL show. …..” (own emphasis added) [24] Between 16.1.2020 and 31.1.2020, the evidence shows multiple requests from the Appellant for the Respondent to confirm critical event details including venue, marketing plans, ticket prices and permit applications, all of which went unanswered. [25] Instead, on 30.1.2020, via Whatsapp message the Respondent raised for the first time a desire to postpone the concert until the end of the year. No cogent reason was given by the Respondent and COVID-19 was not raised at all. [26] The Respondent’s above proposal was rejected by the Appellant as it fell outside the agreed February 2020 timeframe. [27] It was only after these failed attempts: i) first to can cancel the KL Concert (via Whatsapp on 1.1.2020); Page 8 of 18 ii) second to sell the concert rights to a third part (GFS Asia) (vide the Respondent’s letter dated 8.1.2020); and iii) third to postpone the KL Concert to the end of 2020 (via Whatsapp on 30.1.2020), that the Respondent sent an email on 8.2.2020 attempting to invoke force majeure based on COVID-19 concerns. [28] In their email of 8.2.2020, the Respondent wrote, inter alia, as follows: “We would like to request to postpone the MLTR KL Tour (originally dated on 29/2/2019) till further notice due to the Worldwide Serious Infection of Coronavirus. Refer to the our Agreement, CANCELLATION Clause 1, if the Event of Force Majeure continues or a postponed date cannot be agreed between the parties within four (4) months after the original Performance date schedule in this Contract, it is understood and agreed by parties that there shall be no claim for damages by either party against the others and each party’s obligations to this agreement shall be deemed waived and any deposit monies paid to the Artist by the Promoter shall be refunded to the Promoter.” (own emphasis added) [29] I pause here to highlight that the evidence shows that as at 8.2.2020 no significant action was taken by the Respondent to prepare for the KL Concert, even the venue was not confirmed or booked. This will be address in greater detail later in this Judgment. [30] By way of email dated 10.2.2020 the Appellant responded to the Respondent’s email of 8.2.2020 and promptly rejected the Respondent request to postpone the KL Concert. Instead the Appellant gave the Respondent a 24-hour deadline to provide details of the event (KL Concert). Respondent’s Prepared Response [31] It is at this point that the Respondent escalated the matter by sending their solicitor’s letter on 11.2.2020, this time formally invoking the force majeure clause for the first time. Page 9 of 18 [32] It is most surprising that within 24 hours or less of Appellant’s email dated 10.2.2020, the Respondent had already sought the assistance of solicitors to respond to the Appellant, bearing in mind the Respondent had not once corresponded with the Appellant through any solicitor. In fact, neither party had in the past. [33] Notably, throughout December 2019/January 2020 when the Appellant was repeatedly requesting event preparations to proceed, the Respondent never raised any concerns about COVID-19. The relevant part of the Respondent’s solicitors’ letter of 11.2.2020 are reproduced below: “4. It is deeply regrettable that the Coronavirus incident has happened beyond the control of our client and has rendered the Concert infeasible to be continued at the or any agreed date in the month of February. Considering the above, the Coronavirus incident has given rise to a Force Majeure Event. Therefore, our client hereby invokes the Cancellation clause abovementioned in the Agreement and exercises the discretion vested on our client by the same to postpone the Concert to a further date within four (4) months mutually agreed by you and our client.” (own emphasis added) [34] It would appear that the Respondent's solicitors’ letter dated 11.2.2020 was an attempt by the Respondent to justify the postponement of the KL Concert. The fact that the Respondent required solicitors to respond to the Appellant’s otherwise harmless email of 10.2.2020 is, in itself, indicative of the Respondent’s state of mind and true intentions. [35] The above sequence of events led me to conclude that the Respondent had formed an intention not to proceed with the KL Concert as early as December 2019/January 2020, and their subsequent invocation of the force majeure clause appeared to be an attempt to avoid the financial consequences of cancellation that they had earlier inquired about. [36] The KL Concert could not have proceeded as scheduled in February 2020, regardless of the COVID-19 pandemic, due to the Plaintiff’s lack of preparation. Page 10 of 18 No Force Majeure Occurrence [37] Furthermore, the evidence shows that in February 2020: i) There was no movement control order (MCO) or prohibition against mass gatherings in Malaysia; ii) Other concerts of similar scale were still being held, including Ronan Keating’s concert on 14.2.2020 which had 4,000 attendees; iii) The Respondent’s own witness SP1 Winfred admitted under cross-examination that the Malaysian government had not imposed any restrictions on concerts; iv) There was even a third party willing to take over organising the KL Concert in February 2020. [38] Significantly, the Respondent failed to produce any evidence from the World Health Organization or Malaysian Ministry of Health regarding the status of the COVID-19 outbreak at the material time, or how it specifically affected the feasibility of holding concerts in Malaysia in February 2020. [39] Therefore, I found that the Respondent had failed to prove that COVID-19 had prevented or rendered impossible the performance of the KL Concert in February 2020. [40] The evidence further revealed that the real reason the Respondent sought to postpone was concerns over potential poor ticket sales and financial loss: i) The Respondent’s witness SP1 Winfred admitted under cross-examination that they wanted to postpone due to worries about ticket sales; ii) SP2 Wendy testified that they could have proceeded with the concert but chose not to because of concerns over attendance. [41] It is settled law that a force majeure clause cannot be invoked merely to avoid a bad bargain or potential financial loss. As held Page 11 of 18 in Global Destar (M) Sdn Bhd v. Kuala Lumpur Glass Manufacturers Co Sdn Bhd [2007] MLJU 91: "….. The ups and downs of business or economic climate are part of the risk of doing business. The term force majeure is not intended to enable one party to renege upon its contract to take advantage of and profit from better deals available ….." (see also Universiti Teknologi Malaysia v. Maraya Sdn Bhd [2009] MLJU 295 (COA)) [42] Further, in Eastacres Development Sdn Bhd v. Fatimah Mutallip & Anor [2000] 7 MLJ 371 the Court of Appeal considered force majeure in terms of frustration and the impossibility of performance and held as follows: “It was part and parcel of my judgment that there was no frustration of the written agreement. As I said earlier the Jabatan Alam Sekitar gave its approval for the project and the conditions that were imposed cannot, per se, render the continuation of the project impossible as alleged. Even if the original layout plans have to be revised or modified as stated in the report of Zaidun-Leeng Sdn Bhd, that cannot, by any stretch of the imagination, prevent the project from being carried out to its final conclusion. This was my judgment and I so hold accordingly.” (own emphasis added) E] FAILURE TO MAKE CONCERT PREPARATIONS [43] Under the Agreement, the Respondent was responsible for: i) Arranging the concert venue; ii) Promoting the concert and ticket sales; iii) Obtaining necessary permits and visas; iv) Making all logistical arrangements. Page 12 of 18 [44] The Respondent’s own witnesses (SP1 Wilfred and SP2 Wendy) admitted that preparations should have started 2-3 months before the concert date. However, by mid-February 2020: i) No venue had been confirmed; ii) No ticket sales or promotions had commenced; iii) No permit applications had been submitted; iv) No logistical arrangements had been made. [45] The Respondent’s witness SP1 Winfred candidly admitted they had no documents to show any substantial preparations had been made, except for some preliminary venue surveys. [46] The evidence revealed a complete lack of concert preparations by the Respondent. WhatsApp communications from mid-January 2020 showed the Appellant repeatedly requesting basic concert requirements including venue confirmation, marketing plans, ticket pricing, and promotional materials. These requests went unanswered. The Respondent's witness SP2 Wendy, who admitted she had no direct involvement in concert preparations and was merely an HR manager, could only point to preliminary venue surveys being conducted. No documentary evidence was produced to substantiate even these basic preparatory steps. [47] By 31.1.2020, the situation had become so critical that the Appellant had to warn there would not be sufficient time to obtain necessary permits. This was particularly significant given that the Respondent’s own witnesses had testified that concert preparations typically required 2-3 months. [48] The Appellant had repeatedly reminded the Respondent about the urgency of making preparations, but to no avail. This is evidenced in the WhatsApp communications between the parties. [49] I found that the Respondent’s failure to make necessary preparations meant the KL Concert could not have proceeded in February 2020 regardless of COVID-19. The evidence pointed to a calculated decision by the Respondent not to proceed with the Concert, followed by an attempt to use COVID-19 as a pretext for invoking the force majeure clause. The Respondent cannot be Page 13 of 18 allowed to rely on force majeure to excuse what appeared to be a premeditated breach of contract. [50] I find support in the following passages from the Federal Court case of Poon Guan Sdn Bhd v. Sem Siong Industries Sdn Bhd [1983] 2 MLJ 317 which in turn quoted New Zealand Shipping Company Ltd v. Societe Des Ateliers Et Chantiers De France [1919] AC 1: “Lord Atkinson said in the New Zealand Shipping case at page 9:- “But if the stipulation be that the contract shall be void on the happening of an event which one or either of them can by his own act or omission bring about, then the party, who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case indirectly in a roundabout way, but in either way putting an end to the contract.” Lord Finlay L.C. in the same case at page 6, puts it more briefly thus: “It is a principle of law that no one can in such case take advantage of a state of things which he himself produced”. (own emphasis added) [51] The distinction between the principle in Poon Guan (supra) and the present case lies in the Respondent’s wrongful invocation of force majeure to avoid fulfilling a contract they had no intention of honouring (a case of “using the ends to justify the means”). F] RESPONDENT IS NOT ENTITLED TO REFUND OF PERFORMANCE FEE [52] There are 2 relevant clauses of the Agreement that are applicable here: i) Clause 2 under CANCELLATION (reproduced earlier); and ii) Clause 5 under CANCELLATION. Page 14 of 18 [53] Clause 5 under CANCELLATION states as follows: “5. If performance is cancelled by the Promoter or due to reasons induced by or within the control of the Promoter, any payment(s) paid to the Artist will be forfeited and there will be no replacement performance. If a performance is cancelled within two (2) months before the Performance Date, the Promoter should pay the full Performance Fee of the cancelled performance to the Agent.” (own emphasis added) [54] Based on Clause 2 (on Cancellation), given that the Artist (MLTR) was ready, willing, and able to perform at the KL Concert in February 2020, regardless of any force majeure event, the Respondent is obligated to pay the full amount of the performance fee for the cancelled event and is therefore not entitled to a refund. [55] Based on Clause 5 (on Cancellation), if the cancellation of the KL Concert or the fact that it cannot proceed was due to (induced by to within the control of) the Respondent’s own act or omission, the performance fee shall be forfeited. [56] Therefore, the Respondent is not entitled to a refund of the USD100,000.00 performance fee or what the Respondent referred to as “deposit” in their email of 8.2.2020 as: i) The Respondent was not entitled to rely on the force majeure clause. ii) The Respondent had breached the Agreement by failing to make preparations as provided under the Agreement. iii) The cancellation or failure to proceed with the KL Concert in February 2020 was caused by the Respondent’s own default, well before the pandemic had even surfaced. iv) Further and in any event, the Respondent had failed to prove the existence of a Force Majeure Occurrence under the Agreement. [57] Accordingly, the Respondent also has no valid claim against the Appellant. Page 15 of 18 [58] Based on Clause 1 (on Termination) of the Agreement, the party that caused the termination of the Agreement due to a breach of the provisions of the Agreement shall have no right to the Agreement. [59] Clause 1 of the Agreement under TERMINATION states as follows: “Each party the Promoter and the Artist or The Agent, shall be entitled to terminate this Agreement with immediate effect by giving written notice to the other party if the latter breaches any provision of this Agreement. Under such circumstances, the breaching party shall have no right at all in relation to this Agreement.” (own emphasis added) [60] Additionally, the Respondent’s claim for both refund of USD100,000.00 and future losses of RM335,000.00 is inconsistent and cannot stand. As held in Delpuri-Harl Corp JV Sdn Bhd v. Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24, a claimant must elect between claiming reliance loss or expectation loss, but cannot claim both. G] CONCLUSION [61] The Sessions Court Judge erred in considering and accepting the Respondent's force majeure argument without proper scrutiny of several critical aspects as stated below. [62] First, the learned SCJ failed to properly consider the chronology of events that showed premeditation by the Respondent. The evidence revealed that as early as January 2020, the Respondent was already exploring cancellation options and attempting to sell the concert rights, well before any COVID-19 concerns were raised. This crucial evidence undermined the credibility of their later force majeure claim. [63] Second, the learned SCJ accepted the Respondent’s claim of COVID-19's impact without requiring proper evidence. At paragraphs 19 and 20 of the Sessions Court’s Grounds of Judgment (“Grounds”) the learned SCJ accepted general Page 16 of 18 statements about COVID-19’s impact without requiring specific evidence about restrictions or conditions in Malaysia during February 2020. This was despite evidence that other concerts, including Ronan Keating’s, proceeded successfully during this period. [64] Third, the learned SCJ misinterpreted the force majeure clause in paragraph 28 of her Grounds by taking a purely literal approach without considering whether the conditions for invoking force majeure had actually been met. Her Grounds focused on the presence of the word “epidemic” in the clause without properly examining whether the epidemic had actually prevented or rendered the concert impossible. [65] Fourth, at paragraphs 29 to 31 of her Grounds, the learned SCJ erroneously accepted commercial concerns about ticket sales as sufficient grounds for invoking force majeure. This fundamentally misunderstood the nature of force majeure, which requires actual impossibility rather than mere commercial inconvenience or potential financial loss. [66] Fifth, the learned SCJ failed to properly consider the Respondent's lack of concert preparations. While noting at paragraph 20 of her Grounds that the Respondent had only conducted venue surveys, the learned SCJ did not appreciate the significance of this failure to make any substantial preparations, which suggested the Respondent never seriously intended to proceed with the KL Concert. [67] Finally, the learned SCJ erred in concluding at paragraph 32 of her Grounds that force majeure was established, leading to an entitlement to refund, when the evidence clearly showed the Respondent’s attempted cancellation preceded any genuine force majeure concerns and appeared to be motivated by commercial rather than epidemic-related considerations. [68] Again, with due respect, these errors demonstrate that the learned SCJ failed to properly evaluate the evidence and misapplied the legal principles relating to force majeure, warranting appellate intervention (Clarke v. Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35; Yuill v. Yuill [1945] P 15; Arab-malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors. [2002] 2 MLRA 319). Page 17 of 18 [69] For the reasons stated above, I allowed this Appeal with costs. The orders made by the Sessions Court on 29.6.2022 were set aside. Dated this 30th day of December, 2024 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) COUNSEL FOR THE APPELLANT/DEFENDANT Tan Yan Hong (Adrian Lee Yung Khin, together with him) Messrs Chee Sun & Associates B-15-1, Megan Avenue 2, 12 Jalan Yap Kwan Seng, 50450 Kuala Lumpur Tel: 03-23800037 Emel: cheesun.associates@gmail.com COUNSEL FOR THE RESPONDENT/PLAINTIFF Lew Cho Kang Messrs Haeme Lew Suite 19A-02, 31st & 32nd Floor, Business Suite, Wisma UOA Centre, No.19 Jalan Pinang, 50450, Kuala Lumpur Tel: 03-84081989 Emel: general@haemelew.com Page 18 of 18