Top Speed Property Management Sdn. Bhd. v Vmall Enterprise Sdn. Bhd. (BA-22NCvC-250-06/2022)

These are my grounds of judgment in respect of two consolidated actions between the same parties arising out of a landlord-tenant dispute concerning a substantial commercial building known as Wisma Top Speed, located at Persiaran Perpaduan, Subang Jaya. The Plaintiff is the landlord. The Defendant is the tenant. The parties had entered into a written tenancy agreement dated 26.4.2017 (“the Written Tenancy”), under which the Plaintiff let and the Defendant accepted a tenancy over the sub-basement, basement and Levels 1 to 9 of the 07/05/2026 15:19:56 BA-22NCvC-250-06/2022 Kand. 153 building for a term of three years, commencing from 1.6.2017 and ending on 30.5.2020, at a monthly rental of RM266,000.00.

Under the Written Tenancy, the Defendant paid deposits which initially totalled RM1,197,000.00. It is not disputed that part of the utilities deposit amounting to RM83,000.00 was later returned to the Defendant. The sum that remained retained by the Plaintiff is RM1,114,000.00. That sum forms the centrepiece of the competing claims and counterclaims before this Court.

The Written Tenancy expired on 30.5.2020. No fresh written agreement was executed. Yet the Defendant remained in occupation after that date and continued paying monthly rent at RM266,000.00. The Plaintiff accepted those payments. The Defendant remained in possession until on or about 22.6.2022, when vacant possession was delivered.

The Plaintiff’s case, in broad outline, is that although the fixed term expired, the relationship continued on a month-to-month or tenancy-at-will basis upon the same terms as the Written Tenancy. It says the Defendant subsequently terminated that tenancy by letter dated 4.3.2022, whereupon the Plaintiff offered a temporary occupation licence by letter dated 16.3.2022 and further provided that failing acceptance, the same letter would operate as a notice to quit. The Plaintiff contends that the Defendant did not accept the temporary occupation licence, remained thereafter in unlawful occupation, became liable to pay double rental, and also became liable to forfeiture of the deposits.

The Defendant’s position is materially different. It says that after 30.5.2020 there existed only a lawful monthly tenancy without any written terms importing the entirety of the Written Tenancy. It contends that the 16.3.2022 letter did not constitute a valid and effective notice to quit, whether for ambiguity or insufficiency. It further contends that even if the Plaintiff had sought to determine the tenancy, the Plaintiff’s subsequent conduct in continuing to accept monies and issuing invoices describing them as “rental” was inconsistent with any assertion that the Defendant had become a trespasser or tenant at sufferance. The Defendant says the Plaintiff is therefore not entitled to double rental and cannot lawfully forfeit the deposits.

At trial, each party called one witness only: SP1 for the Plaintiff and SD1 for the Defendant. I have considered their evidence, the contemporaneous correspondence, the agreed and common bundles of documents, the notes of proceedings, and the detailed submissions and reply submissions filed by learned counsel on both sides. For reasons which follow, I find that the Defendant has the stronger case on the principal issues. The material facts

The material factual chronology is substantially borne out by the contemporaneous correspondence.

The Written Tenancy expired on 30.5.2020. No fresh written tenancy was ever entered into. Nonetheless, the Defendant remained in occupation from 1.6.2020 onward, and the Plaintiff continued accepting rent of RM266,000.00 per month. This continued state of affairs persisted until June 2022.

The parties’ submissions show that there was also a related issue concerning a right of first refusal (“ROFR”) for the purchase of the premises. Considerable rhetorical emphasis was placed by the Plaintiff on the Defendant allegedly leading the Plaintiff on in respect of a possible purchase and thereby keeping the Plaintiff in uncertainty. The Defendant, for its part, accused the Plaintiff of presenting a narrative unsupported by pleadings and evidence. In my judgment, while the ROFR correspondence forms part of the background, the present dispute ultimately turns less on the ROFR itself and more on the legal incidents of the post-expiry occupation, the March 2022 correspondence, and the subsequent conduct of the parties.

On 4.3.2022, the Defendant’s solicitors wrote to the Plaintiff’s solicitors. The material portion, much debated before the Court, states that the Defendant “hereby tenders the notice of termination of tenancy effective from today, 4.3.2022”. The Plaintiff says these words are unequivocal. The Defendant later attempted to argue that the letter should be read as a proposal when viewed as a whole.

On 16.3.2022, the Plaintiff’s solicitors replied. That letter recorded that the Plaintiff had taken note of the Defendant’s termination effective 4.3.2022 and, “be that as it may”, offered a temporary occupation licence for six months subject to certain licence conditions. The letter further stated: “If we do not receive your reply in writing signifying the Tenant’s agreement to the License Conditions within seven (7) calendar days of this letter, this letter shall be deemed as a notice to quit effective on 24 March 2022.”

The Defendant did not accept that temporary occupation licence. However, the Defendant also did not vacate immediately. It remained in occupation until June 2022. In the meantime, the Plaintiff continued receiving monies from the Defendant.

Critically, documents relied on by the Defendant show that the Plaintiff issued invoices referring to the sums paid as “rental” for April 2022, May 2022 and June 2022. The Defendant places heavy reliance on these invoices as objective evidence that the Plaintiff itself continued to regard the Defendant as a lawful tenant rather than a trespasser or mere tenant at sufferance.

The Plaintiff seeks to meet this difficulty by referring to its later letter dated 28.4.2022, in which it expressly stated that double rental would be chargeable until possession was given up, and that any payment received would be accepted on a strictly without prejudice basis and would not amount to waiver. The Plaintiff says that by this express reservation, there could be no inference that a fresh tenancy arose or that any prior notice was waived. The parties’ cases The Plaintiff’s case

The Plaintiff’s case may be summarised thus.

First, although the fixed term under the Written Tenancy expired on 30.5.2020, the Defendant’s continued occupation, continued payment of the same rent, failure to ask for return of the deposits, and references in correspondence to the Written Tenancy all show that the parties intended to continue the relationship on the same terms as the Written Tenancy, albeit on a monthly basis or as a tenancy at will. The Plaintiff relies on Araswathy Ammal & Anor v Central Bank of Malaya Ltd [1960] 1 MLJ 8, Cheong Lep Kee & Anor v Tan Tin Kek [1968] 2 MLJ 126, and Poul Shen Rearing (Pte) Ltd v Ang Kok Kuan [1980] 1 MLJ 279 for the proposition that a periodic tenancy arising on holding over may continue on the terms of the earlier tenancy, so far as applicable and not inconsistent.

Secondly, the Plaintiff says that the Defendant’s letter dated 4.3.2022 was a clear and binding election by the Defendant to terminate the tenancy with immediate effect. The Plaintiff invokes the doctrine of election and cites Yam Sau Wah & Ors v Chan Sau Yin & Ors [2016] MLJU 372, as well as Eastern Mining and Metal Company Sdn Bhd v MM Ismail & Ors [1976] 1 MLJ 166, to argue that the Defendant cannot now approbate and reprobate by relying on the termination when convenient and denying it when inconvenient.

Thirdly, the Plaintiff says that once the Defendant had terminated the tenancy, the Plaintiff was entitled to decide whether to permit any continued occupation. It chose to offer a temporary occupation licence. That licence was rejected. By virtue of the same 16.3.2022 letter, the Plaintiff says a notice to quit then took effect on 24.3.2022. The Plaintiff argues that the authorities cited by the Defendant on monthly notices to quit, such as Saadian bte Karim v Ong Ting Chai [1996] 5 MLJ 646 and Ko Teck Kin v Watkinson [1961] 27 MLJ 73, are distinguishable because those cases concern a landlord seeking to terminate a subsisting periodic tenancy, whereas here the Defendant had already terminated the tenancy itself and the 16.3.2022 letter was only dealing with post-termination occupation.

Fourthly, the Plaintiff says that later acceptance of monies did not amount to waiver because the Plaintiff expressly stated, in its 28.4.2022 letter, that future payments would be accepted on a strictly without prejudice basis. In that regard, the Plaintiff relies on Ng Eng Hiam v Koh Geok Noi [1965] 1 MLJ 230 and Reshtey v Syed Ahmed Al-Junied & Ors [1966] 2 MLJ 121 for the proposition that qualified acceptance of rent without prejudice does not necessarily create a fresh tenancy and does not necessarily waive a notice to quit.

Fifthly, the Plaintiff says that the Defendant’s continued occupation after the notice to quit rendered it liable to double rental under s 28(4)(a) of the Civil Law Act 1956, as explained by the Federal Court in Rohasassets Sdn Bhd (formerly known as Wisma Perkasa Sdn Bhd) v Weatherford (M) Sdn Bhd & Anor [2020] 1 MLJ 557. The Plaintiff contends that the Defendant was clearly told of the consequences of continued occupation and yet refused to leave.

Sixthly, the Plaintiff says it is entitled to forfeit the deposits because the deposits are creatures of the Written Tenancy and the terms governing them continued during the tenancy-at-will. The Plaintiff says the Defendant cannot deny the applicability of the Written Tenancy while at the same time demanding the return of deposits that arose only under that same Written Tenancy. The Defendant’s case

The Defendant’s case may be summarised as follows.

First, after 30.5.2020 there was only a lawful monthly tenancy without any written agreement and without proof that all the prior terms of the Written Tenancy continued to apply. The Defendant accepts that a monthly tenancy arose, but says it does not follow that all burdensome provisions of the expired Written Tenancy, including forfeiture and holding-over provisions, were imported into the later arrangement.

Secondly, the Defendant contends that the Plaintiff’s letter dated 16.3.2022 was not a valid notice to quit. It says the letter was not a true notice to quit but rather a proposal for a temporary occupation licence, with a deemed notice tucked into it. The Defendant relies on Saadian bte Karim, Ko Teck Kin, Tan Teck Chiang v Yong Joo Chuan & Anor [1980] 2 MLJ 214, and the cases discussed therein, for the proposition that a valid notice to quit in a monthly tenancy must correspond with the tenancy period, expire at the end of the relevant tenancy period, and be clear and unambiguous. It says seven days’ notice for a large commercial building was grossly insufficient.

Thirdly, the Defendant says that even if there was an arguable notice, the Plaintiff waived or abandoned it by continuing to accept payments and by issuing invoices describing those payments as “rental”. The Defendant relies on Toys Box Marketing (M) Sdn Bhd v Penn-Mart Toys (M) Sdn Bhd [2020] 1 LNS 1171 to say that continued acceptance of rent after a notice to quit may amount to waiver or abandonment of the notice.

Fourthly, the Defendant says that the Plaintiff’s reliance on the Defendant’s 4.3.2022 letter does not avail it because the Plaintiff’s subsequent conduct remained inconsistent with immediate treatment of the Defendant as a trespasser. The Defendant points to the Plaintiff’s own witness admissions and the rental invoices as objective evidence that the Plaintiff still recognised the Defendant as a lawful monthly tenant.

Fifthly, the Defendant says the Plaintiff is not entitled to double rental because the prerequisites identified in Rohasassets(supra) were not met. It says there was no valid and effective notice to quit, no proper exercise of an option to charge double rental at the material time, and in any event the Plaintiff’s subsequent conduct was inconsistent with such claim.

Sixthly, the Defendant says the deposits are refundable. The Plaintiff, it says, cannot rely on forfeiture clauses in the expired Written Tenancy to justify forfeiture in respect of alleged breaches said to have occurred during the later monthly tenancy. The Defendant further contends that its claim for return of the deposits is maintainable in any event under general restitutionary principles, including money had and received, unjust enrichment, and s 71 of the Contracts Act 1950. Issues for determination

Having regard to the pleadings, evidence, and submissions, the issues which arise for determination are:

Whether the Defendant’s continued occupation after 30.5.2020 gave rise to a lawful monthly tenancy.

Whether the terms of the expired Written Tenancy continued to govern that later monthly tenancy.

Whether the Defendant’s letter dated 4.3.2022 effectively terminated the tenancy.

Whether the Plaintiff’s letter dated 16.3.2022 constituted a valid and effective notice to quit.

Whether the Plaintiff’s subsequent conduct amounted to waiver or continued recognition of the Defendant’s tenancy.

Whether the Plaintiff is entitled to double rental.

Whether the Plaintiff is entitled to forfeit the deposits.

Whether the Defendant is entitled to return of the deposits and the ancillary sums claimed. I shall deal with these in turn. Issue 1: whether a lawful monthly tenancy arose after 30.5.2020

On the evidence, I have no difficulty concluding that after the Written Tenancy expired on 30.5.2020, the Defendant continued to occupy the premises with the Plaintiff’s assent and paid monthly rent which the Plaintiff accepted. That later arrangement was, in law, at the very least a lawful monthly tenancy.

Indeed, despite later disputes as to the precise incidents of that tenancy, both parties’ own submissions substantially accept that some form of month-to-month occupation existed. Their real contest is whether such tenancy remained governed by the earlier Written Tenancy or whether it was a looser monthly tenancy not governed by the previous written terms. Issue 2: whether all terms of the Written Tenancy continued to govern the monthly tenancy

The Plaintiff relies on Araswathy Ammal & Anor v Central Bank of Malaya Ltd [1960] 1 MLJ 8, Cheong Lep Kee & Anor v Tan Tin Kek [1968] 2 MLJ 126, and Poul Shen Rearing (Pte) Ltd v Ang Kok Kuan [1980] 1 MLJ 279 for the proposition that where rent continues to be paid and accepted after expiry, the tenancy continues on the same terms so far as applicable and not inconsistent. That proposition is not, in general, controversial.

In Araswathy Ammal (supra), the court emphasised the question of intention. In Cheong Lep Kee (supra), there is recognition that a periodic tenancy may arise on the terms of the earlier arrangement so far as applicable and not inconsistent. Those are useful statements of principle. But they do not relieve the Court of the need to examine the actual evidence in the present case.

The Plaintiff says the parties’ intention to continue under the same terms is evidenced by the continued payment of the same rent, the absence of any demand for return of deposits, and references in the correspondence to the Written Tenancy. The Defendant says none of those features is conclusive.

In my judgment, the Defendant is correct on this point.

The continued payment of the same rental figure proves the existence of a rental relationship. It does not, by itself, prove that every term of the earlier Written Tenancy remained binding. One cannot leap from “same rent continued” to “all clauses, including forfeiture and double rent clauses, continued automatically”.

The Plaintiff further relies on the Defendant’s letter dated 10.6.2020, which stated, among other things, that unless otherwise stated, the remaining clauses of the tenancy agreement would remain the same. However, the Defendant is right that this letter must be read as a whole. Read fairly, it is plainly a proposal. It ends by asking whether the landlord is agreeable to the tenant’s proposal.

The very existence of such proposal strongly suggests that there was then no concluded agreement that all the old terms already governed the new monthly arrangement. Moreover, the Defendant points out, and I accept, that the Plaintiff later rejected that proposal. The Plaintiff therefore cannot selectively seize on one sentence of the proposal letter and ignore the fact that it was never accepted and was later rejected.

The Plaintiff also places weight on the fact that the Defendant did not demand the return of the deposits immediately after expiry of the Written Tenancy. I am unable to draw from that omission the broad inference invited by the Plaintiff. Silence in relation to deposits may arise from many practical or commercial reasons. It does not necessarily follow that both parties thereby agreed that all the terms of the expired Written Tenancy continued in force. The Defendant is also correct that its right to claim return of deposits is not solely dependent on importing every clause of the Written Tenancy into the later monthly tenancy.

Accordingly, I find that while a monthly tenancy unquestionably arose after 30.5.2020, the Plaintiff has failed to prove that all material terms of the expired Written Tenancy continued wholesale into the later arrangement. At most, there was a lawful monthly tenancy evidenced by continued occupation and payment and acceptance of rent. Issue 3: whether the Defendant’s letter dated 4.3.2022 effectively terminated the tenancy

The Plaintiff’s strongest point lies here. The words used in the Defendant’s letter dated 4.3.2022 are words of termination: “our client hereby tenders the notice of termination of the tenancy effective from today, 4.3.2022”.

The Plaintiff submits that this was a clear election and must be given its natural effect. The Plaintiff cites Yam Sau Wah & Ors v Chan Sau Yin & Ors [2016] MLJU 372 for the doctrine of election, namely that a party who elects between inconsistent courses of action is bound by that election. It also relies on the broader notion of approbation and reprobation.

I agree that, on its face, the letter supports the Plaintiff’s position that the Defendant intended to terminate the tenancy. I do not accept, as a primary construction, the Defendant’s later submission that the letter was merely a proposal. The natural and ordinary meaning of the operative sentence is one of termination.

However, that conclusion does not conclude the whole dispute. The Plaintiff still bears the burden of showing that, after the Defendant’s 4.3.2022 letter, the Plaintiff validly and effectively transformed the Defendant’s subsequent occupation into unlawful holding over so as to justify double rental and forfeiture.

The Plaintiff’s difficulty is therefore not that it has no point at all on the 4.3.2022 letter. It plainly has a point. The difficulty is that the Plaintiff’s later conduct sits uneasily with the full legal consequences it now seeks to draw from that letter. Issue 4: whether the 16.3.2022 letter was a valid and effective notice to quit

The Plaintiff’s next step is to say that, following the Defendant’s self-termination, the Plaintiff offered a temporary occupation licence and further stipulated that, absent agreement, the same letter would be deemed a notice to quit effective 24.3.2022. The Plaintiff says that because the Defendant had already terminated, the ordinary authorities on monthly notices to quit are inapplicable or at least distinguishable.

The Defendant responds that the 16.3.2022 letter is not a valid notice to quit because it was ambiguous, because it gave only seven days’ notice, and because in any event a monthly tenancy required fuller notice expiring at the proper tenancy period. The Defendant relies on Saadian bte Karim v Ong Ting Chai [1996] 5 MLJ 646 and Ko Teck Kin v Watkinson [1961] 27 MLJ 73, and the principles drawn from those cases.

In my judgment, the Defendant’s argument is the stronger one.

First, whatever may have been the Defendant’s intention in its 4.3.2022 letter, the later legal relationship between the parties still required coherent legal handling by the Plaintiff. On the evidence before me, the Plaintiff cannot simply assume that because the Defendant used words of immediate termination, the Defendant automatically became a trespasser absent a valid and effective demand and notice structure, especially where occupation had long since become monthly and consensual.

Secondly, the 16.3.2022 letter is indeed a composite document. It is principally a letter proposing a temporary occupation licence upon specified terms. Only upon non-acceptance does it purport to become a notice to quit. In my view, the Defendant is entitled to say that such a document lacks the clarity and certainty usually expected of a notice to quit.

Thirdly, if there remained a monthly tenancy, the seven-day period was plainly insufficient. The authorities cited by the Defendant are substantial on this point. In Saadian bte Karim (supra), the notice must correspond with the period of tenancy. In Ko Teck Kin(supra), a monthly tenancy requires notice expiring at the proper period. The Defendant also cited business premises authorities in its reply to illustrate the practical unreasonableness of very short notice for large commercial premises.

The Plaintiff’s attempt to distinguish those authorities on the basis that the Defendant had already terminated the tenancy is not without ingenuity, but I am unable to accept it on the facts here. If the Plaintiff’s own later conduct showed continuing treatment of the relationship as one involving rent and tenancy, it becomes difficult for the Plaintiff to bypass the ordinary law governing notices to quit in monthly tenancies.

I therefore hold that the Plaintiff has failed to establish that the 16.3.2022 letter constituted a valid and effective notice to quit. Issue 5: whether the Plaintiff’s subsequent conduct amounted to waiver or continued recognition of tenancy

This, in my view, is the issue that decisively weakens the Plaintiff’s case.

The Defendant relies on the Plaintiff’s own invoices, which described sums received for April, May and June 2022 as “rental”. The Defendant says those invoices are objective documentary evidence of the Plaintiff’s continued recognition of the Defendant as a lawful monthly tenant. It further relies on Toys Box Marketing (M) Sdn Bhd v Penn-Mart Toys (M) Sdn Bhd to say that continued acceptance of rent after a notice to quit may amount to waiver or abandonment of that notice.

The Plaintiff replies by relying on its 28.4.2022 letter and on Ng Eng Hiam and Reshtey (supra). It says the payments were accepted only without prejudice and that qualified acceptance of rent does not create a fresh tenancy or waive a notice to quit.

I accept the principle in Ng Eng Hiam and Reshtey (supra). A landlord may reserve rights and accept payments without necessarily waiving a notice. But the issue here is not one of abstract principle. It is whether, on the totality of the evidence, the Plaintiff has shown a sufficiently clear and consistent reservation of rights.

In my judgment, the Plaintiff has not done so.

The evidence relied on by the Defendant is not a solitary receipt with an ambiguous endorsement. It is a pattern of conduct reflected in multiple invoices generated by the Plaintiff itself, referring to the sums as “rental”. Those invoices substantially support the Defendant’s argument that the Plaintiff continued to treat the occupation as a rental relationship.

The Plaintiff says the 28.4.2022 letter cured everything by declaring that all future payments would be accepted without prejudice. But even accepting that letter at face value, it came after the 16.3.2022 letter and after the relationship had already become factually and legally muddied by the parties’ conduct. More importantly, the documentary evidence after that point still includes rental invoices.

The Plaintiff therefore faces a difficulty of consistency. On the one hand, it says the Defendant had become an unlawful occupier. On the other, its own invoices still referred to sums received as rental. In these circumstances, I find that the Plaintiff failed to maintain a sufficiently clear and consistent position to overcome the inference arising from its own conduct.

I therefore find that the Plaintiff’s conduct materially undermines its present contention that the Defendant had, after 24.3.2022, become no more than a tenant at sufferance or trespasser. Issue 6: whether the Plaintiff is entitled to double rental

The Plaintiff claims double rental under s 28(4)(a) of the Civil Law Act

The principal authority cited by both parties is the Federal Court decision in Rohasassets Sdn Bhd (formerly known as Wisma Perkasa Sdn Bhd) v Weatherford (M) Sdn Bhd & Anor [2020] 1 MLJ

557.

Rohasassets (supra) is clear that holding over simpliciter is insufficient. The landlord must show that the tenant failed or refused to give up possession after being required to do so, and that the landlord properly exercised the option to impose double rental. The claim is penal in nature and the court’s duty is to determine whether the landlord exercised the option lawfully and properly.

Applying those principles here, I am not satisfied that the Plaintiff has established the necessary prerequisites.

First, I have found that the Plaintiff failed to prove a valid and effective notice to quit.

Secondly, even if the Plaintiff intended to insist on immediate or near-immediate vacation, its subsequent conduct in continuing to accept payments as rental materially weakens the assertion that the Defendant was thereafter an unlawful holdover occupier.

Thirdly, although the Plaintiff relies on its later 28.4.2022 letter as a clear statement that double rental would be charged, the overall factual matrix remains inconsistent with the strict penal posture which a double rent claim requires.

In my judgment, the Defendant is correct that the Plaintiff has not crossed the threshold set by Rohasassets (supra). The Plaintiff’s claim for double rental therefore fails. Issue 7: whether the Plaintiff is entitled to forfeit the deposits

The Plaintiff’s case on forfeiture depends on two linked propositions: first, that the terms of the Written Tenancy continued during the monthly tenancy; and secondly, that the Defendant’s post-March 2022 conduct amounted to breach attracting forfeiture.

The first proposition fails for reasons I have already given. The Plaintiff has not proved that the whole apparatus of the Written Tenancy, including the forfeiture clauses, continued wholesale into the later monthly tenancy.

The second proposition also fares poorly, because the very breaches relied upon by the Plaintiff are chiefly said to arise from the Defendant’s failure to vacate after March 2022. But I have found that the Plaintiff did not prove a valid and effective notice to quit and that the Plaintiff’s own conduct materially undercut its claim that the Defendant had become an unlawful occupier.

The Plaintiff says the Defendant cannot deny the applicability of the Written Tenancy while at the same time claiming the deposits back. I do not accept that this necessarily amounts to impermissible approbation and reprobation. The Defendant is entitled to say that the deposits are returnable either because the refund obligation arose upon expiry of the Written Tenancy, or because, absent lawful forfeiture, the Plaintiff has no proper basis to retain the money. That does not compel the conclusion that every adverse clause of the Written Tenancy remained operative throughout the monthly tenancy.

Accordingly, I hold that the Plaintiff has failed to establish a lawful basis to forfeit the deposits. Issue 8: whether the Defendant is entitled to return of the deposits and ancillary sums

It follows from the foregoing that the Defendant’s counterclaim for the return of the retained deposits succeeds, subject only to any specific deduction strictly and properly proved.

On the materials placed before me, the Plaintiff has not established such a sufficient basis for deduction as would defeat the Defendant’s primary entitlement to the return of the deposits. Credibility, demeanour, and contemporaneous documents

A substantial portion of the Plaintiff’s reply submissions was devoted to defending SP1 against the Defendant’s criticism that he was evasive, uncertain or defensive. The Plaintiff relied on UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd (in receivership) [2018] 11 MLJ 684, and Dato’ Seri Anwar bin Ibrahim v Public Prosecutor and Another Appeal [2004] 3 MLJ 405 to argue that demeanour is not primary, that contemporaneous documents may carry greater evidential weight, and that confusion does not equate to falsehood.

I accept those propositions. My decision does not proceed on the footing that SP1 was deliberately untruthful. Rather, where oral evidence was uncertain or internally inconsistent, I have tested it against the contemporaneous documents and the objective conduct of the parties. That is especially appropriate in a case such as this, where much turns on written correspondence and invoices.

On the critical issues, especially the continued treatment of payments as rental, the documents do not rescue the Plaintiff’s case. If anything, the documents lend substantial support to the Defendant’s contention that the Plaintiff’s conduct was inconsistent with its later attempt to characterise the Defendant as an unlawful occupier during the material period.

Having considered the matter, I make the following findings:

After expiry of the Written Tenancy on 30.5.2020, the parties stood in a lawful monthly tenancy.

The Plaintiff failed to prove that all material terms of the Written Tenancy, including the holding-over and forfeiture provisions, continued wholesale to govern that later monthly tenancy.

The Defendant’s letter dated 4.3.2022 supports the Plaintiff’s argument that the Defendant intended to terminate the tenancy.

However, the Plaintiff failed to establish that its letter dated 16.3.2022 was a valid and effective notice to quit.

In any event, the Plaintiff’s subsequent conduct, including continued acceptance of payments and issuance of invoices describing them as rental, materially undermines its case that the Defendant had become a trespasser or tenant at sufferance.

The Plaintiff has therefore failed to establish entitlement to double rental under s 28(4)(a) of the Civil Law Act 1956.

The Plaintiff has likewise failed to establish a lawful basis to forfeit the deposits.

The Defendant’s counterclaim for return of the deposits therefore succeeds.

Accordingly, the Court orders as follows: i) The Plaintiff’s Statement of Claim dated 3 August 2022 in Enclosure 8 against the Defendant is dismissed; ii) The Defendant’s Counterclaim dated 17 August 2022 in Enclosure 9 against the Plaintiff is allowed; and iii) Costs of RM15,000.00 are to be paid by the Plaintiff to the Defendant. Dated this 7th May 2026 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Mr. Siet Yi Heng Messrs AU & Partners Counsel for Defendant : Mr. Chia Wen Chow (Muhammad Syafiz bin Abdullah and Mr. Zawawi with him) Messrs. Richard Law & Co.