DS ELECTRICAL & APPLIANCES SERVICES SDN BHD v ONKING CHAIN-STORE (MALAYSIA) SDN. BHD. PIHAK TERKILAN LOH WAI SENG

Case Significance

Determines summarily under Order 14A that there was no concluded renewal of a tenancy, entering judgment for possession, double rental and damages, and strikes out a third-party notice under Order 18 rule 19 for disclosing no reasonable cause of action.

This High Court (Shah Alam) decision determines a preliminary question of law in a tenancy dispute, together with an application to strike out a third-party notice. The plaintiff applied under Order 33 rule 5 and Order 14A of the Rules of Court 2012 for a question of law to be determined on a preliminary basis, while the third party applied under Order 18 rule 19 of the Rules of Court 2012 to strike out the defendant's third-party notice. Both applications were heard together.

The main issue in the tenancy dispute was whether the tenancy agreement between the defendant and the third party had been validly renewed for a further three years after its expiration, the key question being whether there was a concluded renewed tenancy for the property. On the preliminary question, the court answered the question of law posed in the negative, and accordingly entered judgment against the defendant as prayed for in the relevant paragraphs of the application, with damages to be assessed.

On the third-party notice, the court found that the defendant's third-party notice did not disclose a reasonable cause of action against the third party, and it was therefore struck out with costs. The court reasoned that the third party, as former registered proprietor, had properly given notice of assignment, which the defendant had duly acknowledged, so that the defendant lacked a reasonable cause of action against the third party, having failed to show facts giving rise to an enforceable claim, applying Tenaga Nasional Bhd v Kamarstone Sdn Bhd. Because the question of law was answered in the negative, it followed that the defendant's claim against the third party also fell. In the result the plaintiff's application under Order 14A was allowed, the plaintiff being entitled to possession of the property, double rental for the holding-over period, and damages to be assessed, with costs of RM5,000, and the third-party notice was struck out. The judgment illustrates the summary determination of a tenancy-renewal question under Order 14A and the striking out of a third-party notice that discloses no reasonable cause of action.