Vista Summerose Sdn Bhd v Datuk Bandar Kuala Lumpur (WA-22NCvC-657-09/2021)

One of the main issue in this case is whether the agreements between the Plaintiff and the Defendant lawful. In this case the Court deemed it necessary to apply Order 33 of the Rules of Court 2012(“the Rules”) to determine this issue thereby saving the Court’s time in assessing the losses claimed by the Plaintiff in the event the agreements are found to be unlawful.

By virtue of Order 33 of the Rules the Court directed the Plaintiff and the Defendant to submit on the issue whether the Main Contract and the Additional Contract between the Plaintiff and the Defendant was lawful or otherwise. If the agreements were found to be lawful the 13/01/2025 14:01:50 WA-22NCvC-657-09/2021 Kand. 120 Court would then proceed to assess the losses suffered by the Plaintiff as claimed.

Order 33(2) of the Rules provides that:

Time of trial of questions or issues (O. 33 r. 2) The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. Brief facts

The Defendant had contracted out the management of parking in Kuala Lumpur to Yayasan Wilayah Persekutuan (YWP) who had in turn sub contracted out the parking management to the Plaintiff.

It is an undisputed fact that by way of Deed of Assignment, YWP had assigned all their right and obligation under the contract with the Defendant to the Plaintiff.

The object of the contracting out the parking management was to assist the Defendant in the management of parking in Kuala Lumpur. The agreement empowered the contracting party, in this case the Plaintiff, in collecting parking charges, issuing compounds and undertaking enforcement operations within the jurisdiction of the Defendant.

In consideration of the assistance rendered by the Plaintiff the proceeds of the work undertaken by the Plaintiff was to be shared with the Defendant in the portion agreed upon under the contract.

The Plaintiff’s claim against the Defendant in this case is failing to share the proceeds of the work undertaken by the Plaintiff as agreed under the contract resulting in losses suffered by the Plaintiff.

The main defence of the Defendant against the Plainitff’s claim is that the duties undertaken by the Plaintiff in issuing compounds and carrying out enforcement are in conflict with the public duty imposed upon the Defendant which a public body therefore rendering the contract to be unlawful. The issue

The crux of the issue for determination in this case is whether the contract between the Plaintiff and Defendant is lawful under section 24 of the Contracts Act 1950 which provides that : The consideration or object of an agreement is lawful, unless-

it is of such a nature that, if permitted, it would defeat any law;

the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. ILLUSTRATIONS

A agrees to sell his house to B for RM10,000. Here, B's promise to pay the sum of RM10,000 is the consideration for A's promise to sell the house, and A's promise to sell the house is the consideration for B's promise to pay the RM10,000. These are lawful considerations.

A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here A's promise is the consideration for B's payment, and B's payment is the consideration for A's promise, and these are lawful considerations. of each party is the consideration for the promise of the other party. They are lawful considerations.

A promises to obtain for B an employment in the public service, and B promises to pay RM1,000 to A. The agreement is void, as the consideration for it is unlawful.

A's estate is sold for arrears of revenue under a written law, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter, and would so defeat the object of the law.

A, who is B's advocate, promises to exercise his influence, as such, with B in favour of C, and C promises to pay RM1,000 to A. The agreement is void, because it is immoral. The agreement is void, because it is immoral, though the letting may not be punishable under the Penal Code.

In this case the Court has to determine first whether the contract between the Plaintiff and the Defendant is forbidden by law and secondly whether the contract is opposed to public policy.

In either situation the contract is void as provided under section 25 of the Contracts Act 1950 which stipulates that: If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void. ILLUSTRATION A promises to superintend, on behalf of B, a legal manufacture of indigo, and an illegal traffic in other articles. B promises to pay to A a salary of RM10,000 a year. The agreement in void, the object of A's promise and the consideration for B's promise, being in part unlawful. Is the contract forbidden by law?

The general powers of enforcement in parking related matters are contained in the Road Transport Act 1987 (“the RTA”). The preamble of the RTA stipulates as follows:

The RTA empowers the Defendant through its Mayor to carry out enforcement for any offences in its jurisdiction: The powers and duties of the Dato Bandar, the Perbadanan Putrajaya, the Mayor of a City Council, the President of a Municipal Council, the Chairman of a Municipal Council and traffic wardens under this Act shall not be exercised outside or in respect of offences committed outside the Federal Territory of Kuala Lumpur, the Federal Territory of Putrajaya, the City Council or the Municipal Council, respectively.

An offence is committed under RTA as specified under section 119 of the RTA are as follows:

Any person who-

without lawful excuse, proof of which shall lie on him, refuses or neglects to do anything he is by this Act required to do;

without lawful excuse, proof of which shall lie on him, fails to comply with the requirements of any notice served on him under this Act; or

without lawful excuse, proof of which shall lie on him, contravenes or fails to comply with any provisions of this Act, shall be guilty of an offence.

The powers to issue compounds for any offences is given as stipulated under section 120 of RTA :

Any of the following officers, that is to say-

a Chief Police Officer, a Commissioner of Police or any police officer not below the rank of Inspector specially authorised in writing by name or by office in that behalf by the Minister charged with the responsibility for the police;

the Director General or Director or any road transport officer specially authorised in writing by name or by office in that behalf by the Director General;

the Dato Bandar; (ca) the President or any officer of the Perbadanan Putrajaya specially authorized in writing by name or by office in that behalf by the President; [Renumbering Act A1512:s.13] (cb) the Mayor of a City Council, the President of a Municipal Council or the Chairman of a Municipal Council or the officers of the City Council or the Municipal Council specially authorized in writing by name or by office in that behalf by the Mayor of a City Council, the President of a Municipal Council or the Chairman of a Municipal Council, respectively; [(cb) Ins. Act A1512:s.13; Subs. Act A1585:s.12]

the Director General of Highway Authority Malaysia or any officer specially authorised in writing by name or office in that behalf by the Director General of Highway

an officer of the appropriate authority specially authorised in writing by name or by office in that behalf by the Minister charged with the responsibility for local government, may, with the consent in writing of the Public Prosecutor, compound any such offence against this Act as may be prescribed as an offence which may be compounded by such officer or in the case of an officer mentioned in paragraph (d) or (e) any offence against any order or rules made by the appropriate authority under

A reading of the above provision indicates that general powers to compound is given to the various authorities by the Minister who is empowered to prescribe the offences which may be compounded and the methods and procedure.

In case of parking the Minister has enacted a number of By Laws outlining the method and procedure as well as identify the persons carrying out the related duties.

A relevant By Law to consider is ROAD TRANSPORT (PROVISION OF PARKING PLACES) FEDERAL TERRITORY OF KUALA

This By Law is made by the Defendant through its Mayor under section 72 of the RTA which provides as follows:

Any appropriate authority or public body may, by order published in the Gazette, provide suitable parking places for vehicles or stands for public service vehicles of goods vehicles in accordance with this Act, and for that purpose may-

utilise any lands which may lawfully be acquired or appropriated for the purpose; or

by such order authorise the use as a parking place or stands for public service vehicles or goods vehicles of any part of a road: Provided that- (aa) no such order shall authorise the use of any part of a road so as to unreasonably prevent access to any premises adjoining the road, or the use of the road by any person entitled to the use thereof, or so as to be a nuisance; (bb) an order under this section relating to a Federal road or affecting public service vehicles or goods vehicles shall not be made without the concurrence of the Minister.

The appropriate authority or public body may take all such steps as may be necessary to adapt for use as a parking place or stands for public services vehicles or goods vehicles any land not being part of a road which may be conveniently utilised for that purpose.

An order under subsection (1) may prescribe-

the vehicles or class of vehicles which may use such parking place or stand and the period during which and the conditions subject to which such parking place or stand may be used; and

the charge, if any, to be made for the use of such parking place.

Where any charge for the use of such parking place is to be made or intended to be made pursuant to any order under this section, such order shall specify-

the parking place designated for the leaving of vehicles; and

the times (whether at all times or between such hours) during which vehicles may be parked in a parking place;

Section 2 of the above By Law empowers the Mayor to appoint parking attendants: "parking attendant" means –

a traffic warden appointed by the Datuk Bandar under section 3 of the Act;

a person authorised by the Datuk Bandar to carry out or to enforce the provisions of this Order and to collect prescribed charge; or

a person appointed by the Datuk Bandar to control and supervise parking places or parking spaces and to collect the prescribed charge; "prescribed charge" means the charge prescribed in the Schedule as payment of parking charges in respect of a motor vehicle parked in any parking space;

The above By Law is a clear cut testimony that the powers of not only collecting the prescribed charges but also enforcing the Order can be given to any persons authorised by the Datuk Bandar.

In the Court’s view the “person” will include the Plaintiff a registered company under the Companies Act 2016. The Companies Act 2016 recognises a registered company as a “person” which is a separate entity form its members.

There is no provision of the law either in RTA or the By Law which expressly or implicitly forbids or disallows the delegation of duties by the Defendant to any of the persons authorised by the Mayor.

In the Court’s view what is delegated are not the powers but the duties in carrying out the powers. The powers of compounding and enforcement remain with the Defendant. This is clear from the contract between the Plaintiff and the Defendant which states that the role of the Plaintiff under the contract is merely to assist the Defendant in carrying out its powers.

The powers to determine the designate the parking areas and the parking fees remain with the Defendant. The Court also notes that the Plainitff’s issuance of any notice of compound is in the name of the Defendant.

The Court therefore finds that the delegation of collecting the fines and enforcing is not forbidden by the law and on the contrary the law expressly allows for such a delegation when necessary on the discretion of the Mayor.

The Court also takes note of the apex court’s decisions in Maple Amalgamated Sdn Bhd V bank Pertanian alaysia Bhd [2021] 6 MLJ348 and Liputan Simfoni Sdn Bhd V Pembanunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141 which cautions the courts to be circumspect in declaring commercial contract illegal and striking them down. Contract against public policy?

For a similar reason as stated above, the Court does not find the contract to be opposed to public policy. The Court finds the Defendant’s submission that the powers can be misused to the detriment to the public is unfounded. The contract clearly defines the role of the Plaintiff and it is clear the Plaintiff can only act upon the directions of the Defendant and the Plaintiff is not permitted to chart its own course of action.

The Defendant in their own pleaded case have admitted that there were various requests from the Plaintiff in relation to increasing parking fees which the Defendant considers to be injurious to public welfare. The fact that the Plaintiff have to make requests to the Defendant itself shows that the Plaintiff cannot act independently or arbitrarily in matters relating to parking.

The Court finds that the contract between the Plaintiff and the Defendant is not opposed to public policy and on the contrary the contract is designed to facilitate parking in the city in an organised and transparent manner for the benefit of the public. Contract is valid and enforceable

The Court further finds that the contract between the Plaintiff and Defendant is valid and fulfils the criteria of an enforceable contract under section 2 of the Contracts Act 1950 which stipulates: In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context-

when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal;

when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted, becomes a promise;

the person making the proposal is called the "promisor" and the person accepting the proposal is called the "promisee";

when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;

every promise and every set of promises, forming the consideration for each other, is an agreement;

promises which form the consideration or part of the consideration for each other are called reciprocal promises;

an agreement not enforceable by law is said to be void;

an agreement enforceable by law is a contract;

an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract; and

a contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. Approbation and reprobation

In this case the Court also finds that the principle of approbation and reprobation applies. It is a trite principle of law that a party to a contract cannot be allowed to apply a contract only if it is in his favour and on his breach claim that the contract is illegal. In the case of Cheah Theam Kheng v. City Centre Sdn Bhd (In Liquidation) [2012] 2 CLJ 16; [2012] 1 MLJ 761 the Court of Appeal cited Sir Nicholas Browne-Wilkinson VC in Express Newspapers pic v. News (UK) Ltd & others [1990] 3 All ER376 as follows: “There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt once stance, cannot thereafter be permitted to go back and adopt an inconsistent stance".

Based on the factors above the Court found that the contract between the Plaintiff and the Defendant is a valid and enforceable contract and the case to be proceeded for the assessment of the losses suffered by the Plaintiff on proof of any breach by the Defendant under the contract. Dated: 10.1.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Edmund Choi / Razlan Hadri Tetuan Gan Ho & Razlan Hadri (Kuala Lumpur) K-3-10, Level 3, Block K Solaris Mont Kiara 2, Jalan Solaris 50480 Kuala Lumpur For the Defendant: Nama Peguamcara: Nalani a/p Murugiah / B.Thangaraj Tetuan Thangaraj & Assoc. (Kuala Lumpur) Unit D1-3A-13, Blok D1, Solaris Dutamas, No. 1, Jalan Dutamas 1, Hartamas Heights, 50480 Kuala Lumpur.

Maple Amalgamated Sdn Bhd V bank Pertanian alaysia Bhd [2021] 6 MLJ348;

Liputan Simfoni Sdn Bhd V Pembanunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141;

Cheah Theam Kheng v. City Centre Sdn Bhd (In Liquidation) [2012]

The Minister may make rules to prescribe the offences which may be compounded and the method and procedure therefor.

In this section, "appropriate authority" has the same meaning as in section 67.