KAM SWEE KEONG v 1. ) LOW WEN LOONG 2. ) EE INN LIAN

Case Significance

Confines the double-rental remedy under section 28(4)(a) of the Civil Law Act 1956 to a genuinely defaulting holding-over tenant, not one whose delivery of possession was frustrated by the landlord.

This High Court decision at Shah Alam, delivered by Noor Hayati binti Haji Mat J, is an appeal from the Sessions Court in a tenancy dispute. The appellant was the tenant of premises let under a tenancy agreement dated 8 February 2022 for a fixed two-year term at a monthly rental of RM4,000, commencing 1 March 2022 and ending 28 February 2024, with an option to renew for a further two years subject to a 5% increase under clause 16. The respondents were the owners of the premises. The dispute concerned the termination of the tenancy, the return of the deposit, and the respondents' claim in the Sessions Court for double rental under seksyen 28(4)(a) Akta Undang-Undang Sivil 1956 (section 28(4)(a) of the Civil Law Act 1956).

The controversy began when, in February 2024 and before the initial term expired, the owners informed the tenant that the monthly rental would be raised to RM4,700 — an increase that did not accord with the renewal option, which would have produced a rental of only RM4,200. The tenant did not agree to the increase and decided to vacate. The central questions on appeal were whether the tenant was the defaulting party, whether he had failed to deliver vacant possession, and whether the statutory double-rental remedy for a tenant who holds over was engaged on these facts.

The Court held that the tenant was not in default and could not be said to have failed to deliver vacant possession: the failure of delivery on 1 May 2024 was caused by the owners' own non-attendance, so section 28(4)(a) did not apply. Because the owners were the defaulting party and were not entitled to double rental, there was no lawful basis to retain the balance of the deposit, and the Sessions Court had erred by not determining the tenant's counterclaim. The Court allowed the appeal, set aside the decision of the Sessions Court, allowed the tenant's counterclaim for the balance of the deposit in the sum of RM7,800, and awarded costs of RM5,000 subject to allocatur. The judgment is a useful illustration of how the double-rental provision is confined to a genuinely defaulting holding-over tenant, and does not reach a tenant whose delivery of possession was frustrated by the landlord.