MALAYSIA AIRPORTS (SEPANG) SDN. BHD. v PLAZA PREMIUM LOUNGE MALAYSIA SDN. BHD.

wa-24ncvc-1284-03-2025 High Court (Mahkamah Tinggi) 22 September 2025 • WA-24NCvC-1284-03/2025 • 8 min read

4 cases cited (0 SG, 4 foreign)

Catchwords

This Court’s assessment [12] This Court was unable to accept the Defendant’s reasons to convert the OS into a writ action because the factual matrix is not disputed. The Tenancy Agreement and the clauses contained therein, the fact that the Defendant uses POS System and LMS to record transactions of the Lounge, and also that the Defendant had failed to provide the documents sought by the Plaintiff. [13] Thus, this matter is most suitable to resolve by way of OS. The Court of Appeal had ruled in NVJ Menon v The Great Eastern Life Assurance Co Ltd [2002] 2 MLRA 510; [2004] 3 MLJ 38; [2004] 3 CLJ 96; [2004] 4 AMR 164 that witnesses’ view or impressions of the contract are irrelevant because the construction of it is a question of law to be determined by the court, not by oral testimonies of witnesses. [14] This Court did not agree to the Defendant’s contention the relief of producing the accounts cannot be done via this OS pursuant to Order 43 Rules of Court 2012 (RoC). The Defendant relied on the usage of the word ‘writ’ in Order 43 Rule 1 RoC where a writ is endorsed with a claim for an account. However, this Court understood that to be an acknowledgment that the relief for account may be granted by way of summarily without requiring a trial – see Ekar Lega Sdn Bhd v Central Spectrum (M) Sdn Bhd [2023] CLJU 2292 and also Yeoh Gaik Tin @ Tao Yong v Khaw Hock Chye & Anor [2019] CLJU 1748. [15] After having scrutinized the Defendant’s argument that there were substantial dispute material facts in its Defence and Counterclaim, this Court found that the numerous allegations in the Defendant’s affidavits are not relevant to the facts in issue of this OS. See GT-Max Food & Beverages Sdn Bhd v Sawit Raya Sdn Bhd & Anor [2024] MLJU 2281; Ultra Racing (M) Sdn Bhd v Hai Soon Leong Sdn Bhd [2020] 1 LNS 1426. [16] The Defendant claimed that the Plaintiff’s averments contradicted those in its affidavit in High Court Suit No. BA-22NCvC-299-07/2024 (Suit 299) where the Plaintiff stated that there was no breach of the Tenancy Agreement. However, that claim was taken out of context. The Plaintiff had stated that there were “No breaches haven been alleged in respect of lounges and storage outlets and no injunction can conceivably be sought in respect of those tenancies.” This was in answer to the Defendant’s application for an injunction which had been since set aside, and irrelevant to the fact in issue of this OS to interpret the Tenancy Agreement to determine the Plaintiff’s contractual rights/the Defendant’s contractual obligations. [17] Therefore, the Defendant’s other claim on the issues of using the Plaintiff’s POS system and the difficulties and practices thereto were also not relevant to the determination of this OS. This Court is to make a finding on the contractual rights of the parties borne out of the Tenancy Agreement regardless of the difficulties, teething issues or the satisfaction of using the Plaintiff’s POS system. [18] The third purported disputed fact that the Defendant submitted that entailed this OS to be converted into a writ action was the claim that this OS was not filed bona fide. The Defendant’s claimed that this OS is a fishing expedition for documents for other suits, which this Court considered upon the submissions by learned counsels of the parties. This Court found that the discovery sought in those other suits was in relation to the sales transactions relating to the food and beverage outlets which are the subject matter of those said suit. That is distinct from the determination of the construction of the Tenancy Agreement which is the subject matter of this OS. The Defendant had failed to show that such allegation of bad faith was with basis so it could not frustrate this OS. [19] Lastly, the Defendant contended that this OS was to circumvent the trial for Suit 299. This Court found the argument without merit as th

Practice Areas

Civil Procedure Landlord & Tenant

Judges (1)

Roz Mawar binti Rozain Delivered

Counsel (7)

Justin Voon Chooi & Wing Firm Shearn Delamore & Co. Firm Ching Hao Yan Counsel Plaintiff Justin Voon Tiam Yu Counsel Defendant K. Shanti Mogan Counsel Plaintiff Victor Pang Chee Siong Counsel Defendant Yiew De Quan Counsel Plaintiff

Parties (2)

Malaysia Airports Sdn Bhd Applicant PLAZA PREMIUM LOUNGE MALAYSIA Sdn Bhd Respondent

Case Significance

Confirms that a dispute over the construction of a contract and a claim for an account may properly proceed by originating summons where the facts are not genuinely disputed, construction being a question of law for the court.

This High Court decision at Kuala Lumpur concerns the appropriate mode of commencing proceedings and an application to strike out or convert an originating summons into a writ action. The plaintiff, Malaysia Airports (Sepang) Sdn Bhd, the operator of Kuala Lumpur International Airport, had filed an originating summons against the defendant, Plaza Premium Lounge Malaysia Sdn Bhd, one of its many tenants, seeking to determine contractual rights under a tenancy agreement whose rent was calculated on the monthly gross sales of the tenant's lounge, and to obtain a contractual audit of the accounts. The defendant applied under Order 28 rule 8 and related provisions to strike out the originating summons or convert it into a writ, arguing that there were substantial disputes of fact, that an account could only be claimed by writ under Order 43, and that the summons was a bad-faith fishing expedition to obtain documents for other suits and to circumvent a separate trial. The court rejected each contention. It held that the factual matrix, including the tenancy agreement and the tenant's use of point-of-sale and lounge-management systems to record transactions, was not genuinely disputed, and that the construction of the agreement is a question of law for the court, not a matter for witnesses' impressions, applying NVJ Menon v The Great Eastern Life Assurance Co Ltd. It held that relief for an account may be granted summarily without a trial, that the defendant's allegations were not relevant to the construction of the tenancy agreement, that the bad-faith and fishing-expedition claims were unsubstantiated because the discovery in the other suits concerned distinct subject matter, and that the summons did not circumvent the other trial since no account was sought there. Finding no basis to invoke the conversion provisions, the court dismissed the application and confirmed the originating summons as the most effective mode, while allowing the defendant to cross-examine the plaintiff's deponents. The judgment is a useful guide to when an account and contract-construction dispute is properly brought by originating summons.

Why did the court refuse to convert the originating summons into a writ?

Because the factual matrix was not genuinely disputed and the construction of the tenancy agreement is a question of law for the court, applying NVJ Menon v The Great Eastern Life Assurance; the defendant's allegations were irrelevant to that construction and disclosed no substantial factual dispute.

How did the court treat the argument that an account can only be claimed by writ under Order 43?

It held that relief for an account may be granted summarily without a trial, so the originating summons was an appropriate mode to seek the contractual audit.

What did the court decide about the bad-faith and fishing-expedition allegations?

It found them unsubstantiated, holding the discovery in the other suits concerned distinct subject matter and the summons did not circumvent the separate trial, and dismissed the defendant's application while allowing it to cross-examine the plaintiff's deponents.

Statutes Cited

Rules of Court 2012

Cases Cited (4)

MY (4)

[2004] 3 CLJ 96 [2004] 3 MLJ 38 [2004] 4 AMR 164 [2024] MLJU 2281

Judgment

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Source: eJudgment (wa-24ncvc-1284-03-2025)