LAW035 Nov 2024 NFN 2024

Practice Set 2 - LAW035

PART A

For Question 1 - 10, classify the following either as primary sources or

secondary sources of civil law: (10 marks)

Sources Classification of
Sources
1) A case report of Public Prosecutor v. Khong Chee Wei,
which is a landmark decision.

2) A textbook on Malaysian administrative law outlining

principles and case law.

3) The Federal Constitution of Malaysia, outlining the

framework of the legal system.

4) A summary of legal principles from a law firm’s website.

5) The Contracts Act 1950, detailing the rules regarding

contracts in Malaysia.

6) An article analyzing the impact of recent changes to the

Companies Act 2016.

7) The Arbitration Act 2005, which provides for the

resolution of disputes through arbitration.

8) A research paper evaluating the effectiveness of the

Malaysian judicial system

9) A government white paper proposing amendments to the

civil procedure rules.

10) A seminar paper discussing emerging trends in

commercial law.

For Question 11 - 25, identify specific types of legal reference for the following:
(e.g.: Cambridge Law Journal - law journal) (25 marks)

11) This reference source is arranged alphabetically and helps users understand legal
terms that may have different meanings in a legal context compared to everyday
usage. This refers to a:
A. Law Journal
B. Legal Dictionary
C. Case Digest
D. Legal Encyclopedia

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LAW035 Nov 2024 NFN 2024

12) The Industrial Law Reports (ILR) focus solely on decisions from the Industrial
Court and cases regarding industrial disputes. What type of legal reference is this?
A. Specialist Journal
B. Case Digest
C. Law Report
D. Legal Dictionary

13) The Cambridge Law Journal is a peer-reviewed academic journal that publishes
scholarly articles on a wide range of legal subjects. What type of legal reference
does this publication represent?
A. Law Report
B. Law Journal
C. Law Dictionary
D. Legal Encyclopedia

14) The Weekly Law Reports provide broad coverage of significant House of Lords
and Privy Council cases, published on a weekly basis. What type of legal
reference does this represent?
A. Law Journal
B. Law Report
C. Academic Journal
D. Legal Dictionary

15) A secondary source that provides definitions, identifies authorities, and offers
analysis of legal concepts, such as Australian Administrative Law, is known as a:
A. Legal Commentary
B. Legal Text
C. Legal Index
D. Legal Digest

16) The Australian Current Law Reporter provides a comprehensive summary of

judgments from various courts, organized by subject and jurisdiction. What type
of legal reference does this represent?
A. Legal Text
B. Legal Index
C. Legal Digest
D. Legal Commentary

17) A compilation organized by author, title, or subject that assists in finding law
review articles quickly is known as a:
A. Legal Digest
B. Legal Commentary
C. Legal Index
D. Legal Text

18) A contract is an authoritative legal text that creates, modifies, or terminates rights
and obligations. What type of legal reference does this represent?
A. Legal Commentary
B. Legal Index

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LAW035 Nov 2024 NFN 2024

C. Legal Text
D. Legal Digest

19) This type of publication is used to define legal terminology, identify authorities,
and provide insights into various legal concepts, often including expert analysis.
What type of legal reference is this?
A. Legal Index
B. Legal Text
C. Legal Commentary
D. Legal Digest

20) Legal documents such as constitutions and wills are examples of texts that
establish or change rights and obligations. What type of legal reference do these
documents fall under?
A. Legal Index
B. Legal Digest
C. Legal Commentary
D. Legal Text

21) This publication contains concise summaries of important legal decisions, often
categorized by subject or jurisdiction, but does not include the full judgment.
What type of law reference is this?
A. Legal Encyclopedia
B. Case Digest
C. Full Text Law Report
D. Law Review

22) This publication aims to disseminate court judgments to enhance legal knowledge
and prevent conflicting decisions on similar legal issues. What is this type of
publication?
A. Legal Digest
B. Law Report
C. Legal Encyclopedia
D. Law Commentary

23) The West's Encyclopedia of American Law is a form of:

A. Legal Encyclopedia
B. Legal Index
C. Law Report
D. Legal Digest

24) LegalTrac is a comprehensive database that indexes law reviews and legal
publications, making it easier to find legal articles based on specific topics. What
type of legal reference is this?
A. Law Report
B. Legal Commentary
C. Legal Index
D. Legal Digest

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25) The Malaysian Current Law Journal (CLJ) publishes detailed reports of
significant Malaysian court decisions, providing summaries and headnotes of the
judgments. What type of legal reference does this represent?
A. Legal Index
B. Legal Digest
C. Law Report
D. Legal Text

For Question 26 - 30, answer based on the following Figure 1:

(10 marks)

Figure 1

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LAW035 Nov 2024 NFN 2024

26) The phrase “to revise and consolidate the laws relating to local government”
serves what purpose in the context of the Act?
A. It defines the jurisdiction of the Act.
B. It outlines the objectives of the legislation.
C. It states the penalties for non-compliance.
D. It specifies the enforcement mechanisms.

27) In which geographical area does the Local Government Act 1976 apply?
A. Sabah and Sarawak
B. Peninsular Malaysia
C. The whole of Malaysia
D. Urban areas only

28) What is the significance of the phrase "WHEREAS it is expedient for the purpose
only of ensuring uniformity of law and policy to make a law with respect to local
government"?
A. It states the short title of the Act.
B. It outlines the rationale behind the legislation.
C. It specifies the penalties for non-compliance.
D. It identifies the parties involved in the legislation.

29) According to the Act, who has the authority to determine the date when the Act
comes into force in a State?
A. The Prime Minister
B. The Seri Paduka Baginda Yang di-Pertuan Agong
C. The State Authority, after consulting with the Minister
D. The Dewan Negara

30) In the context of the Local Government Act 1976, what does the phrase "BE IT
ENACTED, by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice
and consent of the Dewan Negara and Dewan Rakyat" signify?
A. It indicates the legislative history of the Act.
B. It demonstrates the constitutional authority under which the Act is established.
C. It summarizes the objectives of the legislation.
D. It specifies the geographic application of the Act.

31) Where would you typically find provisions that outline how existing laws are
affected by a new statute?
A. Transitional Clauses
B. Preamble
C. Enacting Clause
D. Sections

32) What is the primary purpose of the explanatory notes in a statute?

A. To define terms used within the Act
B. To provide context and clarify the intent of the law
C. To list the short title of the Act
D. To detail enforcement procedures

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33) When would you refer to the Schedules of a statute?

A. To find the short title of the Act
B. To understand the specific penalties for non-compliance
C. To access supplementary regulations or forms that support the main provisions
D. To determine the effective date of the legislation

34) In a statute, which section typically indicates that certain provisions are subject to
additional requirements outlined in the Schedules?
A. Enacting Clause
B. Transitional Clauses
C. Schedules
D. Sections

35) How do saving provisions assist in the legal system when new legislation is
enacted?
A. They provide definitions for terms and principles in the new law to prevent
confusion.
B. They help prevent legal disputes by clarifying the treatment of existing rights and
obligations.
C. They specify how the new law will be enforced to avoid ambiguity
A. D. They outline the process for amending the statute and its enforcement

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PART B

Answer the following questions based on the case of PGC Golf Management
Sdn Bhd v Sarawak Stadium Corp [2006] 7 MLJ 104.

In your answers, please include the relevant paragraph numbers or line and
page number from the case report to support your responses.

a) Name the main parties involved in the case and the nature of the relationship or
contractual agreement between the parties. (4 marks)
b) Summarize the key facts of the case and provide a brief context of the dispute
between the parties. (6 marks)
c) Identify two main legal issues in the case. (4 marks)
d) Describe the court’s approach to the two main issues and analyze the ratio
decidendi used by the court in making its decision. (12 marks)
e) Summarize the court's final decision in the case and the outcome for each party.
(4 marks)

7
104 Malayan Law Journal [2006] 7 MLJ

PGC Golf Management Sdn Bhd v Sarawak Stadium Corp A

HIGH COURT (KUCHING) — SUIT NO 22–33 OF 1998-III (I)

DAVID WONG JC B
29 JUNE 2006

Civil Procedure — Pleadings — Parties bound by — Claim of breach of contract and

implied term — Claim disallowed C

Contract — Breach — Damages — Tenancy agreement — Termination as a result of

rental arrears by plaintiff — Defendant took possession of land prior to the expiration of
the three months period provided for under the tenancy agreement — Plaintiff alleged that D
it was prevented from removing its trade fixtures on land — Whether plaintiff had not
suffered any damages as a result of the defendant taking possession of the land

Contract — Breach — Implied term — Construction of tenancy agreement — Implied

E
term that that the plaintiff was entitled to remove the fixtures when the tenancy agreement
was terminated — Whether such term should be implied

The proceedings arise out of a claim by the plaintiff for damages arising from an F
alleged breach (cll 5 and 9) of a tenancy agreement (‘the tenancy agreement’) in
respect of a piece of land (‘the land’) by the defendant. The alleged breach related to
the defendant repossessing the land prior to the expiration of the three months period
provided for under cl 5 of the tenancy agreement. The defendant denied such breach
and further made a counterclaim of RM23,081.06 being outstanding rentals and G
water consumed by the plaintiff. The plaintiff ’s case was that despite the fact that the
tenancy agreement was terminated pursuant cl 5, it still had the right to remove the
trade fixtures. The plaintiff conceded that there was no specific provision in the
tenancy agreement to allow the plaintiff to remove the trade fixtures if the tenancy
agreement is terminated pursuant to cl 5. However, the court was urged to look at
the surrounding circumstances in which the tenancy agreement was entered into to H
ascertain the true intentions of the parties. By surrounding circumstances, the
plaintiff referred to the length of the tenancy, the capital investment injected by the
plaintiff and the negotiations conducted by the plaintiff and the defendant.
Further the plaintiff urged the court to utilize the principle of equity to imply that
there was a tenancy coupled with an interest. It was submitted that to interpret cl 5 I
of the tenancy agreement to mean that the plaintiff had no right to remove the
fixtures would be manifestly unfair in the circumstances. The court was asked to
imply a term in the tenancy agreement to allow the plaintiff to remove the trade
fixtures.
 PGC Golf Management Sdn Bhd v Sarawak Stadium Corp
[2006] 7 MLJ (David Wong JC) 105

A Held, dismissing the plaintiff ’s claim and allowing the defendant’s counter claim:
(1) In so far as the alleged breach of cl 9 of the tenancy agreement it was
inconsequential as there was no dispute that the plaintiff had received the letter
informing the plaintiff that it was in arrears of 4 months rental and gave the
plaintiff a 3 months written notice to deliver vacant possession of the land to
B the defendant pursuant to cl 5 of the tenancy agreement as this fact was part
of the parties’ agreed facts. As for the breach of cl 5, it was again of no relevance
as it was the plaintiff itself who ceased operations and vacated the land.
The allegation that the plaintiff was prevented from removing the fixtures was
irrelevant as its right to remove the trade fixtures depended on the
C interpretation of the tenancy agreement. The plaintiff had not suffered any
damages as a result of the defendant taking possession of the land (see para 13).
(2) The plaintiff ’s contention completely departed from its pleadings which were
grounded on its claim on the breach of cl 5 and 9 the tenancy agreement by
the defendant. It is trite law that parties are bound by their pleadings and
D courts will not decide on matters which had not been pleaded. What has not
been pleaded here was that there was an implied term in the tenancy agreement
that the plaintiff was entitled to remove the fixtures when the tenancy
agreement was terminated under cl 5. The plaintiff ’s attempt to say that the
tenancy agreement was a lease coupled with an interest was improper
(see para 14).
E
(3) The court will only imply a term when the parties must have intended to
include though it has not been expressly set out in the agreement.
In interpreting any contract, the court must look at the words used within the
four corners of the agreement to ascertain the intention of the parties and must
interpret the clause in the context of the whole agreement. In this case, the
F
parties had thought about the inequity of a situation if the tenancy agreement
were terminated prior to the expiration of the seven years period in view of the
heavy investment by the plaintiff. Furthermore, this tenancy agreement was
drawn up by a firm of solicitors, whom would have been given all the relevant
instructions by both the plaintiff and the defendant. There were no evidences
G to the contrary. Once the tenancy agreement was drafted and executed by the
parties, the court was only entitled to look at the words employed in it
(see paras 15, 17, 23).

[Bahasa Malaysia summary

H
Prosiding ini berbangkit dari tuntutan plaintif untuk gantirugi yang didakwa
berpunca dari pengingkaran (klausa 5 dan 9) perjanjian penyewaan (‘Perjanjian
tersebut’) berhubung dengan sebidang tanah (‘Tanah tersebut’) oleh defendan.
Pengingkaran yang dikatakan itu berhubung dengan tindakan defendan mengambil
semula Tanah tersebut sebelum tamat tempoh tiga bulan sebagaimana yang
I
diperuntukan dibawah kl 5 perjanjian tersebut. Defendan menafikan pengingkaran
tersebut dan selanjutnya membuat satu tuntutan balas sebanyak RM23,081.06 iaitu
merupakan sewaan tertunggak dan air yang digunakan oleh plaintif. Kes plaintif
adalah bahawa walaupun perjanjian tersebut telah ditamatkan dibawah kl 5, ia masih
mempunyai hak untuk mengalih lekapan-lekapan perniagaan. Plaintif bersetuju
106 Malayan Law Journal [2006] 7 MLJ

bahawa tidak tedapat peruntukan yang spesifik di dalam perjanjian tersebut yang A
membenarkan plaintif mengalihkan lekapan-lekapan perniagaan jika perjanjian
tersebut ditamatkan dibawah kl 5. Walaubagaimanapun, Mahkamah diujarkan agar
melihat kepada keadaan sekeliling dimana perjanjian tersebut dimasuki untuk
menentukan niat sebenar pihak-pihak. Keadaan sekeliling yang maksudkan oleh
plaintif ialah tempoh sewaan, modal pelaburan yang dikeluarkan oleh plaintif dan
B
perbincangan-perbincangan yang dilakukan oleh plaintif dan defendan. Selanjutnya,
plaintif menyarankan agar mahkamah menggunapakai prinsip ekuiti untuk memberi
implikasi terdapatnya sewaan yang diiringi oleh satu kepentingan. Ianya dihujjahkan
bahawa untuk mentafsirkan kl 5 perjanjian tersebut memberi makna yang plaintif
tidak mempunyai hak untuk mengalihkan lekapan-lekapan tersebut adalah satu
ketidakadilan yang manifest didalam keadaan ini. Mahkamah diminta untuk C
memberi terma tersirat di dalam perjanjian tersebut bagi membenarkan plaintif
mengalih lekapan-lekapan perniagaan.

Diputuskan, menolak tuntutan plaintif dan membenarkan tuntutan balas defendan: D

(1) Berhubung dengan dakwaan pengingkaran kl 9 perjanjian tersebut, ianya tidak
penting kerana tidak dipertikaikan yang plaintif telah menerima sepucuk surat
yang memberitahunya yang ia telah empat bulan tertunggak membayar sewa
dan tiga bulan notis bertulis diberikan kepada plantif untuk memberikan
milikan kosong Tanah tersebut kepada defendan menurut kl 5 perjanjian E
tersebut kerana fakta ini adalah sebahagian dari fakta-fakta yang dipersetujui
oleh pihak-pihak. Berhubung dengan pengingkaran kl 5, ianya juga tidak
relevan kerana plaintif sendirinya telah menamatkan operasinya dan keluar dari
Tanah tersebut. Dakwaan yang plaintif dihalang dari memindahkan
lekapan-lekapan adalah tidak relevan kerana haknya untuk mengalihkan F
lekapan-lekapan perniagaan bergantung kepada tafsiran perjanjian tersebut.
Plaintif tidak menanggung sebarang kerugian akibat dari perbuatan defendan
mengambil milikan tanah tersebut (lihat perenggan 13).
(2) Dakwaan plaintif telah lari jauh dari plidingnya yang mana ianya diasaskan
pada tuntutannya berdasarkan pengingkaran kl 5 dan 9 perjanjian tersebut G
oleh defendan. Ianya satu undang-undang yang sediamaklum bahawa
pihak-pihak adalah terikat dengan pliding mereka dan mahkamah tidak akan
memutuskan perkara-perkara yang tidak diplid. Apa yang tidak diplid di sini
adalah terdapat satu terma tersirat di dalam perjanjian tersebut yang berhak
untuk mengalih lekapan-lekapan apabila perjanjian tersebut ditamatkan
H
dibawah kl 5. Percubaan plaintif mengatakan yang perjanjian tersebut adalah
satu pajakan yang diiringi satu kepentingan adalah tidak betul (lihat
perenggan 14).
(3) Mahkamah hanya akan mengiktiraf terma tersirat apabila pihak-pihak
sememangnya berniat untuk memasukkan terma tersebut walaupun ianya
I
tidak secara nyata dinyatakan didalam perjanjian. Dalam mentafsir sesuatu
kontrak, mahkamah hendaklah melihat kepada perkataan-perkataan yang
digunakan di dalam perjanjian tersebut untuk memastikan niat-niat
pihak-pihak dan hendaklah mentafsirkan sesuatu klausa itu dalam konteks
keseluruhan perjanjian tersebut. Di dalam kes ini, pihak-pihak telah berfikir
 PGC Golf Management Sdn Bhd v Sarawak Stadium Corp
[2006] 7 MLJ (David Wong JC) 107

A mengenai satu situasi yang tidak adil jika perjanjian tersebut ditamatkan
sebelum habis tempoh tujuh tahun memandangkan pelaburan besar yang
dibuat oleh plaintif. Selanjutnya, perjanjian tersebut telah didraf oleh satu
firma guaman dimana semua arahan-arahan yang relevan telah diberikan oleh
kedua-dua pihak plaintif dan defendan. Tiada terdapat keterangan sebaliknya.
Apabila perjanjian tersebut telah didraf dan dimeterai olah pihak-pihak,
B
mahkamah hanya berhak untuk melihat pada perkataan-perkataan yang
digunakan didalamnya (lihat perenggan 15, 17, 23). ]

Notes
For cases on damages for breach of contract, see 3(2) Mallal’s Digest (4th Ed, 2003
C Reissue) paras 2275–2297.
For cases on implied term, see 3(2) Mallal’s Digest (4th Ed, 2003 Reissue)
paras 2316–2317.
For cases on parties bound by pleadings, see 2 Mallal’s Digest (4th Ed) Consolidated
Subject Index paras 4891–4892.
D
Cases referred to
Abdul Johari Abdul Rahman v Lim How Chong & Ors [1999] 5 MLJ 593 (refd)
Commercial Bank of Australia v Amadio [1983] 151 CLR 447 (refd)
Central Bank of India v Hartford Fire Insurance Co Ltd AIR [1965] SC 1288 (refd)
Royal Selangor Golf Club, The v Anglo-Oriental (Malaya) Sdn Bhd [1990] 2 MLJ 163
E (refd)
Mulpha Pacific Sdn Bhd v Paramount Corp Sdn Bhd [2003] 4 MLJ 357 (refd)

Legislation referred to
Civil Law Act 1956 s 11
F Mohamad Ivan Hussein (Ivan Hussein Advocates) for the plaintiff.
Tan Thiam Teck (Reddi & Co Advocates) for the defendant.

David Wong JC:

G THE PROCEEDINGS

[1] The proceedings arise out of a claim by the plaintiff, PGC Golf Management
Sdn Bhd for damages arising from an alleged breach of a tenancy agreement dated
5 July 1994 (‘tenancy agreement’) in respect of land at Siol Batu, Kuching, Sarawak
H containing an area of 11.347 hectares, more or less and described as Lots 1598 and
2693, Block 18, Salak land District (Land) by the defendant. The alleged breach
relates to the defendant repossessing the land prior to the expiration of the three
month period provided for under cl 5 of the tenancy agreement. The defendant
denies such breach and further made a counterclaim of RM23,081.06 being
I outstanding rentals for part of the month of October 1996, the months of
108 Malayan Law Journal [2006] 7 MLJ

November, December 1996 and June, July August, September and October 1997 A
and water consumed by the plaintiff which had been paid by the defendant.

UNDISPUTED FACTS

[2] The defendant has the beneficial interest to the land which contains a driving B
range operated by Awang Kamarudin Awang Mohammad trading under the style and
firm name of Petra Golf Centre.

[3] By a letter dated 29 July 1993 (exh A pp 2–3, also exhibited as RZ1 in PW1-A),
Petra Golf Centre wrote to the defendant to inform that it planned to construct nine
C
greens and tee boxes on the land and requested from the defendant a minimum of
ten years tenancy in light of the expenditure to be incurred in constructing the nine
greens and tee boxes.

[4] The defendant by a letter dated 12 January 1994 (exh A pp 5–6, also exhibited
as RZ2 in PW 1-A) informed the plaintiff that it was agreeable to its proposal to D
build a nine hole golf course. By a letter dated 14 January 1994 (exh A p 7),
the plaintiff replied that it accepted the terms and conditions as stated in RZ-2.

[5] The result of the aforesaid letters is the tenancy agreement entered into between
the defendant and the plaintiff on the 5 July 1994 (exh A, pp 8–15). E

[6] On or about September 1997, the plaintiff had defaulted in its payment of
rental for a number of months. As a result of the default, the defendant on
15 September 1997 issued a letter informing the plaintiff that it is in arrears of four
months rental amounting to RM 19,128.40 and gave the plaintiff a three month F
written notice to deliver vacant possession of the said land to the defendant pursuant
to cl 5 of the tenancy agreement.

[7] By a letter dated 1 October 1997, the plaintiff informed the defendant that it
would return the land after it had cleaned and emptied the buildings thereon which
G
were erected by it. By another letter dated 15 October 1997, the plaintiff informed
the defendant that it was waiting for interested parties to submit proposals for the
acquisition of the plaintiff but if no proposal was acceptable to the plaintiff by the
end of October 1997, the plaintiff intended to cease operations of Petra Golf Course
with effect from 31 October 1997. The plaintiff ceased operations and vacated the
said land on the 31 October 1997. On 1 November 1997, the defendant took H
possession of the land.

Issues

[8] In my view, the pivotal issue is the construction of cl 5 of the tenancy I

agreement which states as follows:

If the monthly rent and or any part thereof shall be and remain unpaid for Fourteen (14)
days after becoming payable whether demanded or if any of the covenants of the Tenant’s
part herein contained shall not observed or performed, the landlord shall be at liberty to
 PGC Golf Management Sdn Bhd v Sarawak Stadium Corp
[2006] 7 MLJ (David Wong JC) 109

A terminate this Agreement after giving three (3) months written notice to the Tenant in
which event, the Tenant shall yield up vacant possession of the said land to the landlord
forthwith.
BUT WITHOUT PREJUDICE to the right of the landlord to commence legal action in
respect of any antecedent breach of the Tenant’s covenants herein contained.
B
[9] The plaintiff ’s case is simply that despite the fact that the tenancy agreement
was terminated pursuant to cl 5, it still had the right to remove the trade fixtures as
stated in cl 5 of the statement of claim which are as follows:
C (a) Tee Box
(b) Greens
(c) Fairways
(d) Administration Block
D
(e) Rest hall
(f ) Driving Range Shed

[10] Mr Mohd Ivan Bin Hussein (Hussein), learned counsel for the plaintiff
E concedes that there is no specific provision in the tenancy agreement to allow the
plaintiff to remove the aforesaid fixtures if the tenancy agreement is terminated
pursuant to cl 5. He however submits and urges the court to look at the surrounding
circumstances in which the tenancy agreement was entered into to ascertain the true
intentions of the parties. By surrounding circumstances, Mr Hussein refers to the
length of the tenancy, the capital investment injected by the plaintiff and the
F negotiations conducted by the plaintiff and the defendant evidenced in RZ1 and
RZ2. Further he urges the court to utilize the principle of equity to imply that there
is a tenancy coupled with an interest. In short he says that to interpret cl 5 of the
tenancy agreement to mean that the plaintiff had no right to remove the fixtures
would be manifestly unfair in the circumstances. Put in another way he is asking me
G to imply a term in the tenancy agreement to allow the plaintiff to remove the fixtures.

[11] With respect, Mr Hussein has in his submission completely departed from the
plaintiff ’s pleadings which grounded its claim on the breach of the tenancy agreement
by the plaintiff of cll 5 and 9 of the same (see Clement Skinner J’s ruling on
H 23 September 2004 in this case on plaintiff ’s application to amend its pleadings)

[12] However before I deal with the consequence of Mr Hussein’s departure from
the pleadings, I shall deal with the alleged breach of clauses 5 and 9 of the tenancy
agreement. In so far as the alleged breach of cl 9, it is inconsequential as there is no
I dispute that the plaintiff had received the letter dated 15 September 1997 as this fact
is part of the parties’ agreed facts. As for the breach of cl 5, it is again of no relevance
as it was the plaintiff itself who ceased operations and vacated the said land on the
31 October 1997. The allegation that the plaintiff was prevented from removing the
fixtures is again irrelevant as its right to remove the fixtures depend on the
interpretation of the tenancy agreement. In any event, I agree with Mr Tan Thiam
110 Malayan Law Journal [2006] 7 MLJ

Teck, learned counsel for the defendant that the plaintiff had not suffered any A
damages as a result of the defendant taking possession of the land.

[13] I come back to Mr Hussein’s departure from the pleadings in his submission.
It is trite law that parties are bound by their pleadings and courts will not decide on
matters which had not been pleaded. What has not been pleaded here is that there B
is an implied term in the tenancy agreement that the plaintiff is entitled to remove
the fixtures when the tenancy agreement is terminated under cl 5. This is in fact the
second time the plaintiff is attempting to amend its pleadings. When the trial for this
case started on the 22 September 2004 in court 1, the plaintiff wanted to include the
element of malicious intention on the part of the defendant. That attempt was C
rejected by Clement Skinner J on the grounds that the plaintiff ’s amendment was a
complete departure from the pleaded case and not made in good faith. The learned
judge’s decision was affirmed by the Court of Appeal. For the same reasons, I also find
the plaintiff ’s attempt to say that the tenancy agreement is a lease coupled with an
interest to be improper.
D
[14] Be that as it may, I will deal with Mr Hussein’s submission. The law is that the
court will only imply a term when the parties must have intended to include though
it has not been expressly set out in the agreement. Is this the case here? In interpreting
any contract, the court must look at the words used within the four corners of the
agreement to ascertain the intention of the parties and must interpret the clause in E
the context of the whole agreement. In this case, if one looks at the tenancy
agreement as a whole, one can easily ascertain that the parties had thought about the
inequity of a situation if the tenancy agreement was terminated prior to the
expiration of the seven year period in view of the heavy investment by the plaintiff.
That is the reason for cl 7 of the tenancy agreement which provides that F
Either party herein may opt to terminate this Agreement by giving the other party at least
six (6) month’s written notice to such effect PROVIDED ALWAYS that if the landlord shall
exercise their right to terminate this Agreement before the expire of the term herein created,
the landlord shall compensate the Tenant for the capital expenditure and outlay in respect
of the said golf course for the unused period in proportion to the whole of the term herein G
created AND PROVIDED ALWAYS that the quantum of the compensation shall be on the
basis of independent professional survey and valuation.

[15] Where however if the plaintiff/tenant fails to comply with the terms of the
tenancy agreement by failing to pay the rentals, cl 5 provides that the defendant can H
terminate it and upon termination the plaintiff is obliged to return the land
forthwith. No compensation is payable to the plaintiff simply because it is in default.
As rightly pointed out by Mr Tan Thiam Teck, the plaintiff can continue to enjoy the
benefit of its investment in the land as long as it pays the agreed rental.
I
[16] Furthermore, this tenancy agreement was drawn up by a firm of solicitors
whom would have been given all the relevant instructions by both the plaintiff and
the defendant (there are no evidences to the contrary). It would have been very easy
for the firm of solicitors to draft the relevant words to reflect the Mr Hussein’s
contention as they had done for cl 7 of the tenancy agreement.
 PGC Golf Management Sdn Bhd v Sarawak Stadium Corp
[2006] 7 MLJ (David Wong JC) 111

A [17] As for the submission by Mr Hussein that not to imply a term as suggested
will be unduly harsh to the plaintiff, I can do no better than refer to the case of
Mulpha Pacific Sdn Bhd v Paramount Corp Sdn Bhd [2003] 4 MLJ 357 where the
Court of Appeal at p 301 states as follows:
In Royal Selangor Golf Club, The v Anglo-Oriental (Malaya) Sdn Bhd [1990] 1 CLJ 995,
B Lim Beng Choon J said:

In considering the disputes of the parties I must first of all bear in mind the general
principles of construction of contract as enunciated in the National Coal Board v Wm
Neill & Son (St Helen) [1984] 1 All ER 555 where it is said at p 560: The first two issues
involve the construction of the contract. 1 bear in mind the principles of construing a
C contract. The relevant ones for the purpose of this case are: (1) construction of a contract
is a question of law; (2) where the contract is in writing the intention of the parties must
be found within the four walls of the contractual documents; it is not legitimate to have
regard to extrinsic evidence (there is, of course, no such evidence in this case); (3) a
contract must be construed as at the date it was made: it is not legitimate to construe it
in the light of what happened years or even days later; (4) the contract must be construed
D as a whole, and also, so far as practicable, to give effect to every part of it.

In Central Bank of India v Hartford Fire Insurance Co Ltd AIR [1965] SC 1288, the Supreme
court of India lays stress on the second principle advocated in the Wm Neill & Sons
(St Helens) Ltd case when it said at p 1290:

E Now it is commonplace that it is the court’s duty to give effect to the bargain of the
parties according to their intention and when that bargain is in writing the intention is
to be looked for in the words used unless they are such that one may suspect that they
do not convey the intention correctly. If those words are clear, there is very little that the
court has to do. The court must give effect to the plain meaning of the words however
much it may dislike the result.
F
The intention of the parties must be ascertained from the words used in the agreement.
Whichever way we look at cl 4.2 of the agreement, we are of the view that the respondent
would be entitled to claim interest for the additional month plus 3 days even if the appellant
had not breached the agreement and had completed the transaction. Our sympathies are
with the appellant. The RM9m which they paid as deposit have been forfeited and,
G in addition to that, they have been ordered to pay interest amounting to the sum of
RM776,712.33 together with interest from 21 November 1997 to date of payment.
But then, the court must give effect to the plain meaning of the words of cl 4.2 of the
agreement however much it may dislike the result (see also the case of Setapak Heights
Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 AMR 410

H
[18] There is of course no allegation by PW1 stating that the tenancy agreement
was an unfair or unconscionable one. In any event for equity to intervene in an
unconscionable agreement, the plaintiff must prove that there is an inequality of
bargaining powers between it and the defendant. In the Australia High Court’s
decision in Commercial Bank of Australia v Amadio [1983] 151 CLR 447, Deane J
I described the jurisdiction of the courts of equity to relieve against unconscionable
dealings is long established, and generally extends to:
(i) a party to a transaction was under a special disability in dealing with the other party
with the consequence that was an absence of any reasonable degree of equality between
them and
112 Malayan Law Journal [2006] 7 MLJ

(ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair A
or “unconscientious” that he procure, or accept, the weaker party’s assent to the
impugned transactions in the circumstances in which he procured or accepted it.
Where such circumstances are shown to have existed, an onus is cast on the stronger
party to show that the transaction was fair, just and reasonable.

B
[19] Not only is there no evidence on the element of inequality in bargaining
powers between the parties, PW1 comes across from his testimony in court as a
person who is well versed with the intricacy of the business dealings and not one
likely to be misled or bullied by anyone.

[20] As for the case of Abdul Johari Abdul Rahman v Lim How Chong & Ors [1999] C
5 MLJ 593, relied by Mr Hussein, I agree with Mr Tan Thiam Teck that the facts in
that case are different to the present case in that there was no encouragement by the
defendant to expend money into the golf course. The tenancy agreement was entered
into by the parties here after extensive negotiations.
D
[21] Lastly on this issue, reliance was made on para 2.5 of RZ 2 which states as
follows:

Segala Pembinaan yang dimaksudkan di (2.1) adalah kepunyaan Perttabanan Stadium

Negeri Sarawak selesai sahaja kontrek diantara kedua-dua pihak tamat
E
All constructions as stated at (2.1) shall be owned by the State Stadium upon the expiry of
the contract between the two parties (English translation)

[22] The plaintiff contends that the word ‘tamat‘ refers only to the expiration of F
the seven years and not to termination of the tenancy agreement. With respect, this
paragraph does not help the plaintiff as RZ2 contains only the general intention of
the parties and provides the basis for the drafting of tenancy agreement. Once the
tenancy agreement is drafted and executed by the parties, the court is only entitled
to look at the words employed in it. Mr Hussein also relies RZ13 exhibited in
PW1-A which in my judgment had been adequately dealt with by Mr Tan Thiam G
Teck at p 12 of his written reply (encl 140).

[23] I shall now deal with the defendant’s counterclaim of RM23,081.06 being
outstanding rentals for part of month of October 1996, the months of November,
December 1996 and June, July August, September and October 1997 and water H
consumed by the plaintiff which had been paid by the defendant. From the evidences
there appears to be no real challenge by the plaintiff on its liability for those
outstanding rentals and the water bill of RM952.66. The proof of the amount of
RM23,081.06 is contained in DW4-A which in my view had not been shaken by
cross examination.
I
[24] Accordingly for reasons given above, the plaintiff ’s claim is hereby dismissed
with costs to be taxed unless agreed by the defendant. In respect of the defendant’s
counterclaim I enter judgment for the defendant in the sum of RM 23,081.06 with
interest under s 11 of the Civil Law Act thereon at the rate of 4% from the date of
 PGC Golf Management Sdn Bhd v Sarawak Stadium Corp
[2006] 7 MLJ (David Wong JC) 113

A the writ of summons to the date of judgment and thereafter statutory interest at the
rate of 8% from the date of judgment until the date of full payment by the plaintiff
and costs to be taxed unless agreed by the defendant.
Date (of the delivery of judgment): 26 June 2006 (Monday).
Postscript:
B
[25] After the delivery of my judgment, it was brought to my notice by counsel
that my award of pre judgment interests on the counterclaim to run from the date
of the writ of summons may not be proper. Hence on the 29 June 2006, I called
counsels to chambers to inform them that having reread my judgment, I will be
C varying my award of pre judgment interests on the counterclaim as the present
wordings did not reflect the intention of the court. This is obvious as the
counterclaim did not exist on the date of the writ of summons and only came into
being on the date of the counterclaim. Accordingly, I deleted lines 19–21 of p 26 and
lines 1–3 of p 27 of my judgment and substitute the same with the following:
D In respect of the defendant’s counterclaim I enter judgment for the defendant in the sum
of RM23,081.06 with interest under s 11 of the Civil Law Act thereon at the rate of 4%
from the date of the counterclaim to the date of judgment and thereafter statutory interest
at the rate of 8% from the date of judgment until the date of full payment by the plaintiff
and costs to be taxed unless agreed to the defendant
E
Plaintiff ’s claim dismissed. Defendant’s counter claim allowed.

Reported by Peter Ling