Godell Parking V Majlis Bandaraya Petaling

Godell Parking Sdn Bhd
[2018] MLRHU 1410 v. Majlis Bandaraya Petaling Jaya pg 1
GODELL PARKING SDN BHD

v.
MAJLIS BANDARAYA PETALING JAYA
High Court Malaya, Shah Alam

Mohamad Shariff Abu Samah JC
[Suit No: BA-22NCVC-546-09/2017]
3 October 2018
Case(s) referred to:

Attorney General of Belize v. Belize Telecon Ltd [2009] 1 WLR 1988 (refd)
Industrial & Agricultural Distribution Sdn Bhd v. Golden Sands Construction Sdn
Bhd [1993] 5 MLRH 610; [1993] 3 MLJ 433 (refd)
Legislation referred to:

Limitation Act 1953, s 6(1)
Other(s) referred to:

Dato' Seri Visu Sinnadurai, The Law of Contract, 4th Edn, Vol 2, 2011, p 939
Counsel:
For the plaintiff: K Selvakumaran; M/s Rose Hussin
For the defendant: Kenny Chan (Shafrina Shahidan with him); M/s Azman
Davidson & Co
[Dismissed the plaintiff's claim with cost.]
JUDGMENT
Mohamad Shariff Abu Samah JC:
Introduction
[1] In the Main Claim, the Defendant terminated the Concession Agreement
dated 5 August 1999 on the ground that the Plaintiff failed to pay the monthly
rental due under the Concession Agreement, among other reasons. The
Plaintiff claimed that the termination was unlawful and thus commenced the
present action against the Defendant for damages. The Plaintiff claims for the
following:
(i) A declaration that the termination for the Concession Agreement

dated 5 August 1999 between the Plaintiff and the Defendant is
unlawful and void;
(ii) Special damages of RM21,190,530-76;
(iii) General damages;

pg 2 v. Majlis Bandaraya Petaling Jaya [2018] MLRHU 1410
(iv) Exemplary damages;
(v) An interest at a rate of 5% on the damages awarded by this

Honourable Court from the date of judgment till the full settlement;
(vi) Cost for this action; and
(vii) Other reliefs
[2] In the Defence and Counterclaim, the Defendant raises its defence as
follows:-
(a) that the Plaintiff failed to make full payment of the monthly fixed
rental and failed to provide evidence or details for the alleged
obstructions to parking lots under its management to enable any
adjustment to be made pursuant to cl 2.5 of the Concession
Agreement;
(b) that the Plaintiff failed to diligently and efficiently maintain the
Pay and Display facilities and other facilities in the Concession Areas
required under cl 5.2 of the Concession Agreement;
(c) that the Plaintiff failed to maintain the marking lines and signages
in the Parking Bays under its management to ensure they were in good
condition as required under cl 5.2 of the Concession Agreement;
(d) that the Defendant has no obligation to set up a Committee under

cl 4.5 of the Concession Agreement and alleging that there were
adequate avenues of communication between the parties;
(e) that the Plaintiff failed to fulfil its obligation in assisting the
Defendant in the enforcement activities at the parking areas and
stating that the Plaintiff cannot blame the Defendant for any alleged
shortfall in enforcement activities in the parking areas;
(f) that the Defendant had no obligation to give the Plaintiff to manage
any new parking areas as they were outside the Concession Area
under the Concession Agreement;
(g) that the Plaintiff was unable or unwilling to manage and operate
the new parking areas within a reasonable time in 2010; and
(h) that the Plaintiff's cause of action against the Defendant in relation
to the operation and management of the new parking areas which
arose in or around July 2010 was time barred by s 6(1) of the
Limitation Act 1953.
The Defendant made a counterclaim which are as follows:-

(i) that the Plaintiff refused or failed to remedy the Plaintiff's breaches
of Concession Agreement which are stated in para 15(a) to (h) above
after receiving the Defendant's Notice of Default dated 25 May 2017,
the Defendant terminated the Concession Agreement.
(ii) that the Defendant claimed for losses as a result of the Claimant's
breaches of cls in the Concession Agreement which are as are as
follows:-
(a) Loss of unpaid monthly rental (excluding late payment

interest under cl 2 April 2 of the Concession Agreement) up to
the date of termination of the Concession Agreement for the
sum of RM 7,457,735.89;
(b) Late payment interest on monthly rental pursuant to cl 2

April 2. of the Concession Agreement as at 02 November 2017
for the sum of RM 409,943.59;
(c) Loss of income under the Concession Agreement from the

date of termination of the Concession Agreement until the
expiry of the Initial Concession Period under the Concession
Agreement on 31 December 2019;
(d) Costs incurred by the Defendant to manage, maintain and

operate the parking areas and facilities covered by the
Concession Agreement from the date of termination of the
Concession Agreement until the expiry of the Initial
Concession Period under the Concession Agreement on 31
December 2019; and
(e) Late interest charges of 8% per annum pursuant to cl 2

April 2 of the Concession Agreement on the outstanding
monthly rental sum of RM5,721,390.70 until the date of full
settlement.
(f) that the Defendant encashed an amount of RM 874,277.51

under three(3) bank guarantees furnished by the Plaintiff and
forfeited a cash deposit in amount of RM 1,312,067.68
provided by the Plaintiff pursuant to cls 2.2 and 2.3 of the
Concession Agreement;
[3] In deciding this case, I have taken notes and considered all relevant
documentary evidences and the cause papers as follows:
(a) Common Agreed Bundle of Documents Vol 1 (Bundle A);
(b) Common Agreed Bundle of Documents Vol 2 (Bundle B);
(c) Common Agreed Bundle of Documents Vol 3 (Bundle C);

(d) Common Agreed Bundle of Documents Vol 4 (Bundle D);
(e) Common Agreed Bundle of Documents Vol 5 (Bundle E),
(f) Common Agreed Bundle of Documents Vol 6 (Bundle F);
(g) Common Agreed Bundle of Documents Vol 7 (Bundle G);
(h) Defendant's Bundle of Documents Vol 5 (Bundle H1);
(i) Defendant's Bundle of Documents Vol 6 (Bundle H2);
(j) Bundle of Pleadings (Bundle I);
(k) Md Zaki Omar's Witness Statement (SP-1);
(I) Mohd Sufian Sahran's Witness Statement (SP-2);
(m) Hajah Sa'diyah Khasimah's Witness Statement (SD-1);
(n) Khairulanwar Mohammad Bon's Witness Statement (SD-2);
(o) Mohd Fauzi Maarop's Witness Statement (SD-3);
(p) Mohd Yusof Che Aziz's Witness Statement (SD-4);
(q) "Minit Mesyuarat Jawatankuasa Kecil Pelaksanaan Penswastaan

Sistem Letak Kereta Bil. 2 Tahun 2010" dated 28 June 2010 (D1);
(r) Government of Selangor Gazette published by authority dated 29

April 2010 pursuant to Road Transport Act 1987 (D2); and
(s) Notes of Proceeding.
[4] During the trial, the Plaintiff had called 1 witness namely:
(a) Md Zaki Omar (SP-1);
(b) Mohd Sufian Sahran (SP-2);
The Defendant had called 4 witnesses as follows:
(a) Hajah Sa'diyah Khasimah(SD-1);
(b) Khairulanwar Mohammad Bon (SD-2);
(c) Mohd Fauzi Maarop (SD-3);

(d) Mohd Yusof Che Aziz (SD-4);
[5] This proceedings took for four days of full trial on 13 August, 14 august, 15
August and 29 August 2018.
The Essential Facts
[6] The Plaintiff's case:
(a) Plaintiff is a company incorporated under Companies Act 1956

and having its business which involves street parking and also other
than the street parking;
(b) Defendant is a local government which is established under the

Local Government Act 1976 and is local government for the Petaling
Jaya city;
(c) Plaintiff was offered by the State Government of Selangor Darul

Ehsan through a letter dated 26 May 1998 to take over the Street
Parking Collection System in Petaling Jaya;
(d) Subsequently, the Plaintiff perfected a Memorandum of

Understanding dated 10 September 1998 (hereinafter referred to as
"the Memorandum of Understanding") with the State Government of
Selangor Darul Ehsan to take over the Street Parking Collection
System in Petaling Jaya;
(e) Finally, the Plaintiff entered into a Concession Agreement dated 05

August 1999 (hereinafter referred to as "the Concession Agreement")
with the Defendant for a period of 20 years since 01 January 2000;
(f) The parties agreed in cl 2.6 of the Concession Agreement that:-
2.6 Initial Concession Period
Unless otherwise extended or terminated in accordance

herein, this Agreement shall become effective from the
Effective Date and shall continue in full force and effect until
the date falling twenty (20) years after the Takeover Date ("the
Initial Concession Period")
(g) Since the terms of the Concession Agreement are not amended, the
cl 2.6 shall be enforced and the Plaintiff was awarded a Concession
Agreement of 20 years from the Effective Date, 01 January 2000,
which lapses on 31 December 2019;
(h) The Plaintiff emphasizes that the Plaintiff was the "sole and
exclusive" Concession Agreement holder to the Concession
Agreement. The Art 2.1 of the Concession Agreement provides that:-
2.1 Grant of Concession
Subject to the terms and conditions of this Agreement and the

provisions of the Act and the Company's compliance with
those terms, conditions and provision, the Council hereby
grants the Company the sole and exclusive rights to take over
the operation, management and maintenance of the Parking
Places, the Parking Bays thereof and available parking
facilities therein in accordance with this Agreement and to
that end..."
(i) The Plaintiff was awarded an exclusive right to the operation,

management and administration of the facilities and service of the
parking system in the Concession area, inter alia, Petaling Jaya;
(j) Pursuant to the Concession Agreement, the Plaintiff is to bear the

cost for the following matters:-
(i) payment of the monthly fixed rental less the amount

allowed to be deducted pursuant to the Concession
Agreement;
(ii) purchase and installation of the Pay & Display parking

machines in the whole of the Concession Areas; and
(iii) maintenance of the Pay & Display facilities, including

machines and marking lines at the Parking Bays in the
Concession areas during the period of the Concession
Agreement.
(k) It is the Plaintiff's case that the Defendant has breached its
obligations in the Concession Agreement which are as follows:-
(i) Failure to maintain a Committee pursuant to cl 4.5 of the

Concession Agreement to have meetings with the Plaintiff
after 12 March 2010 which has caused the Plaintiff not to have
a platform to discuss and solve issues in relation to the Parking
system;
(ii) the Defendant has taken over a few new parking places in
Petaling Jaya since 2011 although the Parking Bays were
within the Concession areas under the Concession Agreement
and the Concession Agreement has not lapsed yet at that time;
and
(iii) the Defendant has failed to do sufficient enforcement of

by-laws in the Concession areas in Petaling Jaya since the year
2011 when the Defendant has taken over a few parking areas
for themselves.
[7] The Defendant's case:
(a) The Defendant is the local authority for Petaling Jaya;
(b) On 5 August 1999, the Defendant granted a concession to the

Plaintiff (formerly known as Swastapark Sdn Bhd) for the operation,
management and maintenance of parking spaces within the
Defendant's local authority area by way of a Concession Agreement
dated 5 August 1999 ("the Agreement");
(c) The grant of the concession was subject to the terms and conditions
of the Agreement. The salient terms and conditions of the Agreement
were, inter alia, as follows:
(i) Pursuant to cl 2.4.1 of the Agreement, the Plaintiff shall

pay the Defendant a monthly rental until the expiry of the
concession period. The monthly rental rate was computed
based on the number of parking bays operated, managed and
maintained by the Plaintiff during a particular month. The
monthly rental was required to be paid by the Plaintiff not
later than the 15th day of each month;
(ii) Pursuant to cl 2.5.1(a) of the Agreement, the monthly

rental for each of the parking bays that had been rendered
unusable shall be waived, proportionate to the number of days
of which the parking bays were obstructed;
(d) Thus, the Defendant will inform the Plaintiff each month the
amount of monthly rental that is due under the Agreement. Once the
Plaintiff computes the number of obstructed parking bays for that
month, the Plaintiff will request the Defendant for the reduction of
monthly rental proportionate to the number of obstructed parking
bays. Where the Plaintiff's request has been approved by the
Defendant, the Defendant will then make the appropriate deduction in
the monthly rental;
(e) However, from March 2006 until November 2016, the Plaintiff did
not make full payment of the monthly rentals under the Agreement.
As a result, there were monthly rentals that were outstanding every
month from March 2006 to November 2016;
(f) As of May 2016, the outstanding amount of rental had accumulated

up to RM2,309,286.08. Thus, on 25 August 2016, the Defendant
issued a notice of reminder to the Plaintiff and on 29 August 2016, the
Defendant issued a Notice of Default to the Plaintiff claiming that the
Plaintiff had since June 2016 defaulted in paying the monthly rental to
the Defendant in full. The amount claimed in the Defendant's Notice
of Default dated 29 August 2016 was as follows:
(g) The Plaintiff replied to the Defendant on 13 September 2016. In

this reply, the Plaintiff alleged for the first time since the
commencement of the Agreement that it could not meet the monthly
rental payment because of the low collection of revenue due to:
(a) the alleged lack of enforcement activities by the Defendant;

and
(b) the Defendant's alleged breach of the Agreement by

managing new parking areas on its own.
(h) As the Plaintiff still failed to pay in full the outstanding monthly
rentals under the Agreement, the Defendant issued a further Notice of
Default on 22 February 2017 to the Plaintiff;
(i) The Plaintiffs solicitors' responded to the Defendant's Notice of

Default dated 22 February 2017 through its solicitors' letter dated 6
March 2017. The Plaintiff did not indicate any intention to settle the
outstanding monthly rental in this letter;
(j) Therefore on 24 May 2017, the Defendant issued another Notice of

Default to the Plaintiff. In this Notice of Default, the Defendant
claimed that:
(a) the Plaintiff failed, refused and/or neglected to make full

payment of the monthly rental in breach of cl 2.4 of the
Agreement. The accumulated outstanding monthly rental
claimed by the Defendant from the Plaintiff as at 24 May 2017
was RM6,948,108.94;
(b) the Plaintiff failed, refused and/or neglected to maintain

the parking equipment and facilities in the parking areas under
its management, including the P&D system, in breach of cls
2.1, 3.2 (a) and 5.2 (b) of the Agreement; and
(c) the Plaintiff failed, refused and/or neglected to maintain

the marking lines of the parking bays and parking signages in
the parking areas under its management in a good and visible
condition in breach of cls 5.2 (a) and (c) of the Agreement.
The Defendant thus instructed the Plaintiff to rectify the above said
defaults within 15 days from the date of receipt of the Notice of
Default dated 24 May 2017;
(k) On 5 June 2017, the Plaintiff responded to the Defendant alleging,

among other matters, that the Defendant's Notice of Default dated 24
May 2017 was unlawful and unsustainable due to the Defendant's
purported antecedent breaches of cls 2.1, 3.3 (d), 3.3 (e) and 6.2 of the
Agreement. The Plaintiffs contentions were rebutted by the Defendant
in its letter dated 22 June 2017;
(I) On the same day, 22 June 2017, following the failure of the
Plaintiff to rectify the defaults stated in the Notice of Default dated 24
May 2017 within the period stated therein, the Defendant terminated
the Agreement by issuing a Notice of Termination dated 22 June 2017
pursuant to cl 10.3.1 of the Agreement;
(m) On 10 August 2017, the Plaintiff through its solicitors, contended

that the Defendant's termination of the Agreement was unlawful and
demanded the payment of a sum of RM21,190,530.76 from the
Defendant as damages due to the alleged unlawful termination;
(n) On 11 August 2017, the Defendant through its solicitors denied the
allegations made by the Plaintiff's solicitors and counter- demanded a
sum of RM5,271,390.70 being the outstanding monthly rental charges
owing by the Plaintiff to the Defendant;
(o) On 21 September 2017, the Plaintiff commenced the suit herein

against the Defendant.
Issues To Be Tried And Determination
[8] Having heard the evidence and upon scrutinized the documents before me,
there are several issues for this court determination and can be concluded as
below:
(a) Termination of the Concession Agreement by the Defendant -

Which provisions and Clauses?
- Reference to the State Government or to the mediation

under cl 11 of the Concession Agreement - is it a
precondition?
(b) Whether the Plaintiff had failed to pay the monthly rental under
the Agreement?
- If the Defendant had breached the terms of the Concession

Agreement first and the Plaintiff had not waived any breaches,
is the Plaintiff being excused of paying the undisputed amount
of monthly rental?
- Defendant has the intention to terminate the Agreement as

early as June 2010 - is it true?
(c) Maintenance Issue:
(i) Whether the Plaintiff had failed to maintain the parking

equipment and facilities in the parking areas under its
management?
(ii) Whether the Plaintiff had failed to maintain the marking

lines of the parking bays and parking signages in the parking
area under its management in a good and visible condition?
(d) Enforcement Issue
(i) Whether there was an agreement between the Plaintiff and

the Defendant that the Plaintiff has the obligation to carry out
the enforcement activities?
(ii) Whether it is the Defendant's Obligation to carry out its

enforcement functions under the Concession Agreement?
(e) Whether the Defendant breached cls 2.1 and 3.3(d) of the
Concession Agreement to take over the new parking areas?
The Court's Finding
[9] For the purpose of this judgment, I shall categorise each of the above issues
separately according to its merit and justification. In the course of this
judgment, I shall consider the merit of the Main Claim by the Plaintiff and
also the Defendant's Counter Claim against the Plaintiff.
First Issue
Termination Of The Concession Agreement By The Defendant - Which

Provisions And Clauses?
[10] Having read the written submission of both parties, it is best to note that
the issue as to the validity of the termination of the Concession Agreement is
the key question and reflect the utmost important which relates to the claim
made by either party. Furthermore, the relief sought by the Plaintiff or the
Defendant would hinges on this important issue. If this Honourable Court

decided that the termination of the Concession Agreement by the Defendant is
valid and lawful, then the Plaintiff's claim must failed and the Counter Claim
made by the Defendant would be allowed with cost. Nevertheless, in the
alternative, this Court would proceed further on some other issues in deciding
the merit and justification of the Plaintiff's claim.
[11] Before I could proceed further, it is best to view the scenario and
circumstances that lead to the termination notice issued by the Defendant. I
could concluded the scenario happened as below:
(a) The Defendant issued a Notice of Default dated 29 August 2016

upon Plaintiff's default on full payment of the monthly fixed rental.
The Plaintiff replied the notice vide a letter dated 13 September 2016
and raised all the Defendant's failures;
(b) The Defendant failed, refused or neglected to reply to the Plaintiff's

letter dated 13 September 2016 nor denied the Defendant's failures and
breaches. Instead the Defendant again issued a Notice of Default
dated 22 February 2017 alleging the Plaintiff's failure to make full
payment on the monthly fixed rental to the Defendant;
(c) Subsequently, the Plaintiff through its solicitors, Messrs Rose

Hussin & Associates had issued a letter dated 06 March 2017 replied
to the Default Notice and again raised the said failures. The Plaintiff
invited the Defendant to refer the dispute to the State Government of
Selangor Darul Ehsan as required under cl 11 of the Concession
Agreement;
(d) Then the Defendant through its Solicitors, Messrs Azman

Davidson & Co, issued a letter dated 17 May 2017 to reply the
Plaintiff's Solicitors' letter. The Defendant denied the allegation made
by the Plaintiff and denied the reference of dispute between the parties
to the State Government is a pre-condition of the Concession
Agreement;
(e) The Defendant again issued a Notice of Default on 24 May 2017 to

the Plaintiff. The Plaintiff replied the Notice of Default vide a letter
dated 05 June 2017 and again invited the Defendant to refer the
dispute between Plaintiff and the Defendant to the State Government
of Selangor Darul Ehsan pursuant to cl 11 of the Concession
Agreement;
(f) The Plaintiff then unilaterally referred the dispute to the State
Government via a letter dated 06 June 2017. The State Government
has sought co-operation from the Defendant to comply with cl 11 of
the Concession Agreement via a letter dated 21 June 2017;
(g) However, the Defendant has not taken any actions after the State
Government's letter dated 21 June 2017. The Defendant the issued a
letter dated 22 June 2017 to the Plaintiff in replying to the Plaintiffs

letter dated 05 June 2017. In the letter, the Defendant denied all the
alleged breaches and refused to refer the dispute between the Plaintiff
and the Defendant to the State Government;
(h) On the same day, the Defendant issued a Notice of Termination

vide a letter dated 22 June 2017 to terminate the Concession
Agreement if the Plaintiff failed to rectify the alleged defaults within
15 days from the Plaintiff's receipt of the notice;
(i) Pursuant to the Notice of Termination, the Plaintiff replied the

Defendant via a letter dated 03 July 2017. The Plaintiff urged the
Defendant again to refer the dispute to mediation as required in the
terms of the Concession Agreement and reserved the rights to take
necessary legal remedies without further reference to the Defendant if
the Defendant failed to refer the dispute to the State Government on
or before 07 July 2017;
(j) The Defendant replied the Plaintiff's letter via a letter dated 07 July
2017 by denying that there is dispute in relation to the termination of
the Concession Agreement. The Defendant stated that the termination
of the Concession Agreement is valid and further stated that the
Plaintiff is allowed to refer the dispute to the State Government in any
event which the Plaintiff wanted to dispute the Defendant's
termination of the Concession Agreement;
(k) In the letter dated 07 July 2017, the Defendant invited the Plaintiff
to carry out inspection of the facilities in the Concession Areas under
the Concession Agreement to determine their present conditions on 10
July 2017. It was to ensure there is no dispute as to the conditions of
the facilities when handing over possession;
(l) The Plaintiff through its Solicitors, Messrs Rose Hussin issued a
letter dated 10 August 2017 insisting the Defendant's termination of
Concession Agreement is unlawful Consequently, the Plaintiff
suffered loss and demanded for the sum of RM 21,190,530.76 as
damages for the unlawful termination and/or repudiation of the
Concession Agreement;
The Defendant then through its Solicitors issued a letter dated 11

August 2017 maintained their position that the termination of the
Concession Agreement is lawful and in accordance with the
Concession Agreement. The Defendant denied that the Plaintiff
suffered loss as a result of the termination and the Plaintiff is not
entitled to any reduction of the monthly rental charges under the
Concession Agreement. The Defendant counterclaim the outstanding
monthly rental of RM 5,271,390.70 owed by the Plaintiff to the
Defendant; and
(n) The Plaintiff commenced this civil suit against the Defendant to
claim for the losses suffered flowing from the termination of the
Concession Agreement by the Defendant via a letter dated 22 June
2017.
[12] The learned counsel for the Plaintiff had submitted that the Defendant
had breached the terms of the Concession Agreement which was entered by
the Plaintiff and the Defendant. The Plaintiff was the sole and exclusive
Concession holder. The Plaintiff was awarded the sole and exclusive rights to
take over the operation, management and maintenance of the Parking Places
and Parking Bays, inter alia, Petaling Jaya under the Concession Agreement
for a period of 20 years from 01 January 2000 till 31 December 2019. The
Defendant has the sole power and authority over the enforcement of the laws
in the Concession areas, while the Plaintiff can only provide necessary
assistance to the Defendant. As required by the Concession Agreement,
"Jawatankuasa Kecil Pelaksanaaan Penswastaan System Letak Kereta", was
established to supervise the administration and operation of the Pay & Display
System in the Concession areas. Nevertheless, the Committee has failed to
serve its function as a platform or forum between the Plaintiff and Defendant
to discuss the issues arose in relation to the Concession Agreement since the
last meeting on 12 March 2010. The Plaintiff has been paying the monthly
fixed rental, bearing the costs for the employment of the enforcers and
maintaining the Parking and Display facilities at its own costs.
[13] In furtherance, the Plaintiff's counsel submitted that the Defendant had
failed to refer the dispute between the Plaintiff and the Defendant to the State
Government of Selangor Darul Ehsan in accordance with cl 11 of the
Concession Agreement. The Plaintiff's several attempts in inviting the
Defendant to refer the disputes to the State Government of Selangor Darul
Ehsan were to no avail. More so, the Defendant also failed to refer the dispute
to mediation before the termination of the Concession Agreement by issuing
the Notice of Termination on 22 June 2017 as required under cl 11 (b) of the
Concession Agreement. On the other hand, the Defendant has issued a Notice
of Termination vide a letter dated 22 June 2017 to terminate the Concession
Agreement between the Plaintiff and the Defendant. Therefore the Defendant's
pre-mature termination of Concession Agreement is unlawful and void.
Sub Issue
Reference To The State Government Or To The Mediation Under Clause 11

Of The Concession Agreement - Is It A Precondition?
[14] It is the Plaintiff's allegation that the Notice of Termination was issued
without resolving the dispute between the Plaintiff and the Defendant
amicably by referring the disputes to mediation as provided under cl 11 of the
Concession Agreement. Due to the allegation that the Plaintiff's breaches of
the Concession Agreement even though on the facts the Defendant had
breached the terms of the Concession Agreement first and the Plaintiff had not
waived any breaches.
ARTICLE XI
SETTLEMENT OF DISPUTES
11. Amicable Settlement
(a) If any dispute or difference of any kind whatsoever

between the Parties hereto during the currency of this
Agreement, the parties hereto shall first negotiate in good faith
with a view to achieve an amicable settlement of the same.
(b) In the event that the Parties hereto are unable to achieve
any amicable settlement of the matter or dispute, any party
hereto shall be entitled by a notice in writing to the other to
require the unresolved matter to be referred to the State
Government, who shall use all its reasonable endeavours to
resolve the disagreement in the best interest of the Parties
hereto. PROVIDED ALWAYS that pending the outcome of
the decision of the State Government, the Parties hereto shall
continue with their responsibilities under this Agreement.
(c) If the State Government shall fail to decide on any matter

in dispute referred to them under cl 11(b) within ninety (90)
days from the date of such referral or such other period as may
be agreed to by the Parties hereto or either party is not
satisfied with the decision of the State Government, then in
any such case either party is at liberty to seek recourse through
other legal process including referring the matter to settle the
matter or dispute. PROVIDED ALWAYS it is hereby
declared and irrevocably agreed to by all the Parties hereto
that no party shall be entitled to invoke another process to
settle the matter or dispute in question without first having
referred the matter or dispute for settlement in accordance
with the provisions of cl 11 (b) and each Party hereto waives
its objection as to the enforceability of the provisions of this cl
11 (c) and any claim it may now or hereafter have this
requirement is of no legal effect or force."
[15] Having read cl 11 of the Concession Agreement, if there is any disputes or

differences between the Parties, the Parties shall negotiate in good faith with a
view of settling the matters amicably. If the matters cannot be solved amicably,
then either party shall be entitled by way of notice in writing to the other to
require the matter to be referred to the State Government who will used its
reasonable endeavours to resolve the disagreement in the best interest of the
parties. To this extent, I hardly find anything that would barred the Defendant
from issuing the Notice of Termination. The only thing is that it would only
barred the parties from commencing an action in court without first having
referred the matter to the State Government. As such, to my mind, cl 11 is not
a pre-condition to the issuance of the Notice of Termination, it is merely a pre-
condition to the commencement of action in court .
[16] The next question that comes to my mind, if cl 11 in not the pre-
condition to such action of termination, then what is the pre-condition in cases
of termination. The issue of termination and ceasing of the Concession
Agreement is clearly spelt out under cl 10.3.1 of the Agreement.
10.3 Failure to Remedy Default
10.3.1 If the Company fails to remedy the default specified in the

Default Notice, the Council shall terminate this Agreement after the
expiry of fifteen (15) days from the date of expiry of the Default
Notice.
10.3.2 Where this Agreement is terminated by default of the Company

under this Section, the possession of the facilities available in the
parking bays shall be taken over by the Council and shall not be
removed by any other party without prejudice however to the rights of
Council to take action against the Company for breach of this
Agreement herein.
10.3.3 The Council shall have the right to continued use of such
facilities unless otherwise sooner removes or replaces by the Council.
10.3.4 Nothing herein shall be construed as an Agreement by the

Council to take over the liabilities of the Company as a result of its
taking possession of such facilities.
[17] Under cl 10 above, it provide that if the Plaintiff fails to comply with any
of the term and conditions of the Agreement or fail to pay the monthly rental
specified in the Agreement, then the Defendant may issue Default Notice to
the Plaintiff and thereafter terminate the Agreement if the Plaintiff continues
to fail to remedy the default stated in the Default Notice. As such, it is clear
that there are two pre-conditions to the issuance of the Notice of Termination
under cl 10.3.1 of the Agreement namely the occurrence of the defaults by the
Plaintiff stated in cl 10.1 (a) of the Agreement and also the issuance of a
Notice of Default under cl 10.2.1 of the Agreement to require the Plaintiff to
rectify those defaults
Second Issue
Whether The Plaintiff Had Failed To Pay The Monthly Rental Under The
Agreement?
[18] In reference to this issue, it relates closely to cl 2.4 and 2.5 of the
Concession Agreement as below:
2.4 Council's Consideration
2 April 1 In consideration of the grant of the Concession and

the convenants and obligations to be undertaken by the
Council in respect of the Project, the Company shall pay the
Council the Council's Consideration comprising the Monthly

Rental, which shall be paid to the Council on the expiry of
thirty (30) days from the Takeover Date but not later that the
the next and subsequent Monthly Rentals shall be paid not
later than the fifteenth (15th) day of every succeeding month
following the Takeover Date until the Concession Expiry
Date.
2 April 2 Subject to cl 10.1 of this Agreement, the Company

shall pay interest to the Council at the rate of 8% per annum
to the Council on any late payment of the Monthly Rental due
to the Council.
2.5 Adjustment of Monthly Rental
In any event any customer is at any time prevented from utilizing any
Parking Bay or Parking Place for purposes of Public Utility Works,
construction works or other works or for any purposes required to be
undertaken by the Council or third party validly authorized to do the
same ("Third Party'), it is hereby agreed that:
2.5.1 Temporary Suspension
(a) It is hereby acknowledged and agreed that in the

event any works or activities carried out by third
parties with or without the approval of the Council or
any works or other activities carried out by the
Council other than the activities provided under 2.5.1
(b) herein render the Parking Bays or Parking Places
unusable by the customer, the Council hereby waives
the Monthly Rental for each of the Parking Bays or
Parking Places rendered unusable, proportionate to
the number of days of which such suspension occurs.
(b) The following activities namely:
i. "Pasar Malam" (Night Market), "Pasar

Tani" (Farmers Market), "Pasar
Lambak/Pasar Pagi" (Morning Street
Market);
ii. Stalls / Itinerant hawkers; and
iii. Chinese opera;
iv. All events, ceremonies, festivals or other

function as may be organized or approved by
the Council, State and Federal Government
including Rakan Muda; and
v. Other temporary activities whose usages

not exceeding a period of more than five (5)
hours;
Carried out by the Council or with the Council's permission

which may render any Parking Bays or Parking Places
unusable during such time the activities are being carried out
shall not render the Council liable to pay any compensation to
the Company nor shall it entitle the Company to seek waiver
or reduction of the Monthly Rental proportionate or otherwise
to the number of hours or days of which such suspension
occurs."
In the beginning, the learned counsel for the Plaintiff had submitted that it
disputed the amount of monthly rental payable under the Agreement because
it was entitled to have the monthly rental deducted in pursuant to cl 2.5.1(a) of
the Agreement in proportion to the number of days when the parking bays
were obstructed. Nevertheless, the Plaintiff did not deny that it did not make
any monthly payment at all from December 2016 until the termination of the
Agreement on 22 June 2017 due to the severe loss in revenue collection
purportedly caused by the Defendant's breaches of the Agreement.
[19] In deciding this issue, let me begin with the type of monthly rental that the
parties are submitting. Firstly, the disputed monthly rental, where the Plaintiff
claimed that it was entitled to have this portion deducted pursuant to cl
2.5.1(a) of the Agreement. Secondly, the undisputed monthly rental, namely
the monthly rental from December 2016 to 22 June 2017 amounting to
RM5,021,132.73. Having recorded in Bundle A at p 12, the monthly rental
payable under cl 2.4.1 of the Agreement was computed based on the number
of parking bays operated, managed and maintained by the Plaintiff during a
particular month. This is the amount that the Plaintiff must undisputedly pay
every month. I am fully agree with the Plaintiff's solicitor in that the Plaintiff
had a right to have a proportionate part of the monthly rental to be
waived/deducted pursuant to cl 2.5.1(a) of the Agreement for each of the
parking bays that had been obstructed proportionate to the number of days the
said parking bays were obstructed. But, in order for the Plaintiff to qualify for
the waiver/deduction that it seeks, it must be able to prove that there is such
obstruction as claimed. If the Plaintiff was not satisfied that its request for
waiver/deduction of the monthly rental was not allowed, it must refer its
dispute to mediation under cl 11 of the Agreement and subsequently to an
appropriate legal proceedings to resolve the dispute. Nevertheless, what
happen in this case is that the Plaintiff had unilaterally deducted the amount of
monthly rental payable under cl 2.4.1 of the Agreement, in which it should not
have done that. Furthermore, the Plaintiff neither had the matter mediated not
proceeded to a legal proceeding to resolve such dispute.
[20] In respect of the undisputed amount, in Bundle F p 2046 to 2048, as of the

date of the Notice of Default (24 May 2017), the amount of RM6,948,108- 94
remained outstanding under the Agreement. Even though the Plaintiff could
have disputed the outstanding amount, nevertheless from the cross-

examination of (SP1) and (SP2), the least amount of RM5,021,132-73 was not
disputed as the amount due and owing by the Plaintiff to the Defendant under
the Agreement as at the date of termination of the Agreement.
Cross-Examination (SP1)
S: Therefore do you agree the Plaintiff did not make any payment at
all for the months December 2016 until June 2017?
J: I'm not so sure let the 2nd witness to confirm.
S: In your Q&A28, do you agree that you have already admitted that
you did not make any money payment from December 2016 onwards
until the concession agreement was terminated by the Defendant?
J: It could not complete full money payment to the Defendant.
S: I put it to you based on the documents at p 264, the Plaintiff did not
make any payment at all for December 2016
J: Like I mention just now, yet to confirm with the 2nd witness.
S: Refer to p 28 of bundle A cl 10.1, because the Plaintiff failed to pay

the money rental from December 2016 to June 2017, I put it to you
that the Defendant can therefore issued a notice of default under cl
10.2?
J: Yes.
S: Refer to bundle F at p 2026, agree that the Defendant issued a

notice of default dated 22 February 2017 to the Plaintiff?
J: Yes.
S: Refer to p 2046, agree that the Defendant issued another notice of

default in 24 May 2017 to the Plaintiff?
J: Yes.
S: I put it to you, do you agree that the Plaintiff did not pay any
amount for the money rental for December 2016 to June 2017 despite
this notices of default?
J: Disagree.
S: I put it to you since the Plaintiff continues to fail the pay the money
rental despite this notices of default, the Defendant can then terminate
the agreement under cl 10.3.1 ?
J: Yes because they issued already.
S: And the notice of termination is found in p 2095 to 2096?
J: Yes
Witness Statement (SP1)
Q.28: The Defendant says that the Plaintiff owned rental under the
A: Yes and No. Yes we could not complete full monthly payment
from December 2016 onwards until the Concession Agreement was
unlawfully terminated by the Defendant vie a letter dated 22 June
2017 as revenue was so badly affected by the lack of enforcement. It is
stated in our letter dated 17 November 2016 to the Defendant for the
settlement of the accrued monthly fixed rental at p 1330 to 1334 of the
Common Agreed Bundle of Documents Vol 4
Cross-examination (SP2)
S: Agree that there is at least RM5021132.73 in rental that outstanding

from December 2016 to 21st June 2017?
J: Yes.
Witness Statement (SP2)
Q9: How do you get the total of RM5,143,841-73 in p 264 of the

Common Agreed Bundle of Documents Vol 1 and why the amount
deducted as subtotal to the Plaintiff's total gross loss for?
A: Sub-paraqraph (i) - This amount is derived from two components of

computation. The first component is the amount of RM5,021,132-73
being the rental amount payable to the Defendant for the month of
December 2016 to May 2017 and for the month of June 2017 but up to
21 June 2017 only which is the date of termination of the Concession
Agreement by the Defendant after deducting allowable deductions in
accordance with cl 2.5 of the Concession Agreement
Furthermore, in the Plaintiff's own Statement of Loss as reflected at p 264

Bundle A clearly mentioned about the same amount pertaining to the amount
of monthly rental as follows:
[21] In respect of the undisputed portion of RM5,021,132.73, to my mind the

Plaintiff's low revenue collection or otherwise is not a valid ground or excuse
to refuse to pay the undisputed portion of the monthly rental. The Plaintiff
cannot approbate and reprobate. Since the Plaintiff did not terminate the
Agreement despite its allegations that the Defendant had breached the
Agreement, the Plaintiff must fulfil its own obligations under the Agreement,
including its obligations to pay the monthly rentals under the Agreement,
irrespective of whether there were any prior breaches of the Agreement by the
Defendant. Based on the above, it is my considered view that the Plaintiff had
defaulted and failed to pay the monthly rentals to the Defendant in breach of cl
2.4.1 of the Agreement. In compliance with the pre-condition in cl 10.2.1 of
the Agreement, the Defendant had issue its Notice of Default dated 24 May
2017 to the Plaintiff to rectify the above defaults within 15 days from the date
of receipt of the Notice of Default dated 24 May 2017. Since the Plaintiff had
failed to comply with the Notice of Default dated 24 May 2017, the Defendant
had thus issued the Notice of Termination dated 22 June 2017 in pursuant to
cl 10.3.1 of the Agreement.
Sub Issue (1)
If The Defendant Had Breached The Terms Of The Concession Agreement

First And The Plaintiff Had Not Waived Any Breaches, Is The Plaintiff Being
Excused Of Paying The Undisputed Amount Of Monthly Rental?
[22] It is submitted by the learned counsel of the Defendant that because of the
prior breaches of the Agreement by the Defendant, the Plaintiff did not and
could not pay the monthly rentals under the Agreement to the Defendant. To
my mind, if the breaches occurred by the Defendant, the Plaintiff must either
elect to terminate the Agreement or to affirm the Agreement. If it chooses to
affirm the Agreement, the Agreement continues to exist and the rights and
obligations of both parties remain intact. Since the Plaintiff did not terminate
the Agreement, the Plaintiff must fulfill its obligation under the Agreement,
including its obligations to pay the monthly rentals under the Agreement,
irrespective of whether there were any prior breaches of the Agreement by the
Defendant. To my mind, there is nothing in the Agreement that excluded the
Plaintiff from paying the monthly rental. The Plaintiff's obligation to pay the
monthly rental is provided under cl 2.4.1 of the Agreement.
2.4 Council Consideration
2 April 1 In consideration of the grant of the Concession and the

covenants and obligations to be undertaken by the Council in respect
of the Project, the Company shall pay the Council the Council's
Consideration comprising the Monthly Rental, which shall be paid to
the Council on the expiry of thirty (30) days from the Take Over Date
but not later that the seventh (7th) day of the following month and the
next and subsequent Monthly Rentals shall be paid not later than the
fifteenth (15th) day of every succeeding month following the Take
Over Date until the Concession Expiry Date
Having read the above clause, it is clear that the amount of monthly rental is
based on the number of car parks lot operated by the Plaintiff and not
dependant on the amount of revenue collected by the Plaintiff.
S: Refer to Q&A 29, agree that the money rental is a fix sum based on
a number of car park lot operated by the Plaintiff and not based on
profit sharing?
J: Yes.
S: Therefore I put it to you whether the Plaintiff revenue collection is

high or low it still has the contractual obligation
[23] Having affirmed the evidence, to my mind an innocent party a breach of

contract has the option either to terminate the contract or to affirm the
contract. If it chooses to affirm the contract, the contract continues to exist and
the rights and obligation of both parties remain intact. In The Law of Contract
(4th Edn) (Vol 2) (2011) by Dato' Seri Visu Sinnadurai at p 939, the learned
author had quoted:
As stated above, the innocent party has an option either
(a) to terminate the contract; or (b) to affirm the contract As a general

rule, if the party chooses to affirm the contract, the contract continues
to exist and the rights and obligations of both parties remain intact,
each party having a right to sue the other for damages. In Ganam
Rajamany v. Somoo Sinniah, Seah FJ said:
A wrongful repudiation by one party cannot, except by the

election of the other party, so to treat it, put an end to an
obligation; if the other party still insists on performance of the

contract the repudiation is what is called brutumfulman that
is, the parties are left with their rights and liabilities as before.
The common law doctrine of election applies to the innocent party

whenever he has the option of either affirming or rescinding the
contract
A middle ground. An innocent party, faced by a repudiatory breach, is

therefore given a choice: he can either treat the contract end
("acceptance of the repudiation"). He must "elect" or choose between
these options. Further it is sometimes said that there is no other option
open to the innocent party; that is to say, there is no "middle way" or
"third choice". This Is true in the sense that there is no
"... third choice, as a sort of via media, to affirm the contract

and yet be absolved from tendering further performance unless
and until [the breaching party] gives reasonable notice that he
is once again able and willing to perform."
Affirmation must be total: the innocent party cannot approbate and

reprobate by affirming part of the contract and disaffirming the rest,
for that would be to make a new contract. Equally a party cannot
affirm the contract for a limited period of time and then abrogate it on
the expiry of that period of time
In Industrial & Agricultural Distribution Sdn Bhd v. Golden Sands Construction

Sdn Bhd [1993] 5 MLRH 610; [1993] 3 MLJ 433 Sinnadurai J (as his Lordship
then was) held:
it should further be pointed out that a refusal by a party to proceed

with the contract based upon a misconstruction of the contract or on
the erroneous belief that he was justified in terminating the contract,
may amount to a repudiation of the contract, especially so, if the party
evinces an intention to perform only in accordance with his
construction of the contract. Such was the situation in Federal
Commerce and Navigation Ltd v. Moiena Alpha Inc & Ors 16, where,
because of their erroneous construction was substantially inconsistent
with their obligations. The conduct of the ship owners in so acting was
held by the House of Lords to amount to a repudiation of the contract
[24] From the above, to my mind, even if the Plaintiff disputes part of the
quantum of the monthly rental, it must still pay those parts where it does not
dispute. However, the Plaintiff had completely failed to make any payment for
the monthly rental from December 2016 until June 2017. (SP1) and (SP2)
admitted that at least the amount of RM5,021,132.73 was undisputedly due
and owing by the Plaintiff to the Defendant under the Agreement as at the
date of termination of the Agreement.
Sub Issue (2)
Defendant Has The Intention To Terminate The Agreement As Early As June

2010 - Is It True?
[25] The learned counsel for the Plaintiff had submitted that the Defendant
had the intention to terminate the Agreement as early as June 2010. The
decision was made by the Defendant in item 20.0 as stated below:
"Keputusan
Mesyuarat bersetuju Majlis melantik peguam bagi memberi nasihat

konsesi antara Godell Parking Sdn Bhd.
The counsel is relying on the above minute of meeting on 28 June 2010 and
the testimony of (SD1) during cross-examination.
Cross-Examination (SD1)
S: Setuju seawal 28 Jun 2010 pihak Defendan telahpun mempunyai

niat untuk membatalkan perjanjian dengan Plaintiff lihat item 20.0?
J: Ya
Having read the above minutes of meeting, I noticed there was a second part
to the minutes read below:
Sebelum persediaan dapat dibuat, Majlis perlu mengetahui implikasi

yang akan timbul kesan dari penamatan perjanjian dalam tempoh
yang lebih awal serta bagaimana dengan status mesin-mesin PND
yang telah dipasang oleh Godell.
Oleh itu Majlis perlu melantik peguam yang berkebolehan yang boleh
memberi nasihat kepada Majlis akan langkah-langkah yang wajar
diambil oleh Majlis serta implikasi perundangan kesan daripada
penamatan awal perjanjian sebelum Majlis mengemukakan cadangan
kepada pihak Kerajaan Negeri
[26] From my reading of the above minutes of meeting, nothing reflected on

the intention of the Defendant to terminate the Agreement. It merely shows
the Defendant's intention to seek legal advice on the early termination before
any decision made. To my mind, if it is true, the testimonies of witnesses and
documentary evidences would not consistent with the Plaintiff's arguments.
This is because, at p 2046 to 2048 Bundle F, the Agreement was terminated on
22 June 2017 as the Plaintiff had failed to comply with the Notice of Default
dated 24 May 2017 which has nothing to do with the Defendant's intention, if
any. Furthermore, if it is true that the Defendant's intention to terminate the
Agreement, I found that the termination was done with reasons and action
and not merely on bad faith. More so, the Plaintiff took no legal action with
regards to those allegation of breaches but instead continued with to perform

the Agreement, including collecting monies from the PND machines until 5
July 2017. It would be absurd to suggest that the Plaintiff could avoid paying
the monthly rental under the Agreement merely because it is alleged that the
Defendant's had first breached the Agreement and did not set up committee
meeting.
Third Issue
Maintenance Issue Issue
(1) Whether The Plaintiff Had Failed To Maintain The Parking Equipment
And Facilities In The Parking Areas Under Its Management?
[27] This issue relates to cl 2.1, 3.2 (a) and 5.2(b) of the Agreement
Clause 2.1
Grant of Concession

provisions of the Act and the Company's compliance with those terms,
conditions and provisions, the Council hereby grants the Company the
sole and exclusive rights to take over the operation, management and
maintenance of the Parking Places, the Parking Bays thereof and
available parking facilities in accordance with this Agreement
Clause 3.2(a)
Company's Covenants
The Company expressly covenants with the Council that it shall at all
times, during the currency of this Agreement:
(a) perform all its obligations under this Agreement with full
responsibility and due diligence and efficiency;
(b)
Clause 5.2(b)
Maintenance of the Facilities
The Company shall at all times during the Concession Period,

maintain the Facilities at its own cost and expense as follows:
(a)
(b) Ensure that the P&D System are in a manageable,

operational, functional and in good condition, fair wear and
tear excepted; and
(c)
The learned counsel for the Plaintiff had constantly maintained that the Pay
and Display machines and other facilities in the Parking Bay within the
concession Areas. The Plaintiff will repair and replace any defective Pay and
Display machines immediately if the Defendant received any complaints from
the public in relation to the non-functioning of the facilities in the Concession
Areas. This is clearly explained by SD2 in his testimonies.
Cross-Examination (SD2):
S: Apa tujuan untuk buktikan ada kerosakan pada mesin?
J: Menunjukkan kegagalan pihak Godell memenuhi kontrak.
S: Jadi laporan ini disediakan secara khusus untuk dijadikan bukti

untuk menamatkan Godell, antara alasannya?
J: Tidak. lni bukti kerosakan mesin.
S: lni adalah aduan dari siapa?
J: Daripada orang awam.
S: Tiap-tiap aduan ini ada anggota Majlis keluar dan periksa? Tak ada
kan? Kamu dengar dia punya soalan dan kamu akan ambil tindakan?
J: Semakan ada.
S: Tiap-tiap aduan ini ada pergi periksa?
J: Setiap pengadu meninggalkan no telefon dan kita akan hubungi

untuk confirmation balik dan kita ada buat test ticket selepas
technician slap repair mesin tersebut.
S: Siapa repair?
J: Technician Godell.
tunjukkan mesin tak bekerja, bukti yang Godell tak buat kerja dia tapi
sekarang kamu cakap tiap aduan ini kakitangan Godell pergi dan
selesaikan?
J: Macam ini you tengok betul-betul sini dia ada maklum balas aduan.
S: Lets go through it, let's start from no. 1. So you told my client to do
it?
J: Ya.
S: 2nd one, mesin telah dibaiki so it's been fixed?
J: Ya.
S: No. 3 mesin telah berfungsi so it's been fixed?
J: Ya.
S: Setuju semua aduan ini tindakan telah diambil?
J: Ya. Tapi perlu lihat summary p 1.
S: I just want to confirm that this aduan but its not to mean that this
386 aduan ini semua mesin tak bekerja, mungkin pada masa aduan itu
tak bekerja tapi telah difix, correct?
J: Ya.
[28] In carrying out the duties as submitted by counsel, the Plaintiff has a
Maintenance and Mobile Services which is supported by the Resources and
Repair Department. The learned counsel for the Plaintiff further submitted
that the Plaintiff had immediately responded to the Defendant in relation to
the matter via a letter dated 4 October 2016. The Plaintiff clarified and
informed the Defendant that the Plaintiff has taken action in carrying out
massive refurbishment and replacement of the Pay & Display machines on a
stage by stage basis since 15 July 2016. Further, via letter dated 13 October
2016, the Plaintiff updated the Defendant with the progress of the maintenance
activities and by the end of October 2016, a total of 103 Pay & Display
machines were replaced and repaired in the maintenance activities.
[29] Having considered the Plaintiff's counsel submission, I have glance

through p 2031 to 2032 Bundle F. I noticed that the Defendant via its letter
dated 17 April 2017 had informed the Plaintiff that there are 432 numbers of
faulty PND machines and instructed to rectify it. At p 2033 to 2041 same
Bundle, the Plaintiff admitted in its letter dated 2 May 2017 that there are
numbers of faulty machines and the Plaintiff was to take action to repair those
machines. (SP1) had admitted in his evidence that there are substantial
number of faulty machines as at 27 April 2017. Even after the termination of
the Agreement, as at 7 July 2017, (SP1) admitted that there are 535 faulty
PND machines.
S: Refer to Q&A 41 until 46 and refer to bundle F p 2031, this is a

letter written by the Defendant to the Plaintiff on 17 April 2017 and in
this letter the Defendant informed the Plaintiff the numbers of faulty
Pay & Display machine and instructed the Plaintiff to repair those
machine, agree?
J: Yes.
there are a number of 432 faulty Pay & Display machine out of 768
machines, agree?
J: Yes.
S: This is actually more than 50% of the machines are faulty, do you
agree?
J: Yes.
S: And the Plaintiff replied to this letter at p 2033 dated 2 May 2017?
J: Yes.
S: In this letter at p 2033-2035, agree that the Plaintiff did not deny
that there are a numbers of faulty machine?
J: Yes.
S: In this same letter, the Plaintiff said that they are taking steps to
examine and repair the machine, is that right?
J: Yes.
S: Refer to p 2037, in this lampiran the Plaintiff itself admitted that

there are at least 139 machines that is sedang dibaiki?
J: Yes, as stated in the letter.
S: Can you refer to bundle H2 at p 1, do you agree that based on this

report as at 7 July 2017 there are 535 numbers of faulty Pay & Display
Machine?
J: Yes.
reply at p 2103, basically the Plaintiff rejected the joint inspection?
J: Yes.
S: Therefore I put it to you based on the Defendant's record, there are

at least 535 faulty machines as of 7 July 2017?
J: Yes.
[30] Having considered the above, to my mind, if it is true that the Plaintiff has
taken action, why is there such a big numbers of PND machines are still faulty
even after the termination of the Concession Agreement on 7 July 2017?? Is

the Plaintiff's blaming the Defendant despite its duty under cl 5.2 (b) of the
Agreement??. I have no hesitation to conclude that the Plaintiff had clearly
failed to ensure that the Pay and Display System were in a manageable,
operational, functional and in good condition, and thus in breach of cl 5.2(b)
of the Agreement.
Issue (2)
Whether The Plaintiff Had Failed To Maintain The Marking Lines Of The
Parking Bays And Parking Signages In The Parking Area Under Its
Management In A Good And Visible Condition?
[31] This issue relates to cl 5.2(a) (c) of the Agreement.
Clause 5.2
Maintenance of the Facilities
The Company shall at all times during the Concession Period,

maintain the Facilities at its own cost and expenses as follows:
(a) Ensure that the marking lines for the Parking Bays are
maintained in a good and visible condition Provided Always
that in the event that as a result of the re- surfacing undertaken
by the Council and/or any third party, the marking lines for
the Parking Bays have become invisible, the Company shall,
at its own cost and expense redraw the marking lines for the
Parking Bays affected;
(b)
(c) Ensure that all signages relating to parking are in good

condition, fair wear and tear expected
The learned counsel for the Plaintiff denied and submitted that the parking
bays were in fact in good and visible condition. With respect, at p 2046 to 2048
Bundle F, the Defendant via its letter dated 24 May 2017 had informed the
Plaintiff that the parking lines in 27 out of 58 streets and 22 out of 23 parking
signboards were not in good condition and requested to rectify it. (SP1) in his
testimony admitted that the Plaintiff merely denying that the parking lines and
signages are not in good conditions and did not take any action about it. As
such, the Plaintiff had breached cls 5.2 (a) and 5.2(c) of the Agreement.
S: Refer to bundle E p 1648, based on this report agree that parking's

line telah pudar?
J: Yes.
S: In the same table, look at status/jumlah papan tanda the number of

signboards there are in not in a good condition is 22 out of 23, agree?
J: Based on this record yes.
S: Refer to bundle F at p 2046 and refer to p 2047 at para 4, "Menurut

Klausa 5.2A dan C Lampiran 1", and at para 5 the Defendant
instructed the Plaintiff to remedy this defect, agree?
J: Yes.
S: Refer to p 2061, do you agree that the Plaintiff merely denied that
the parking's line and signatures are not in a good condition?
J: Yes.
S: I put it to you that the Plaintiff did not takes any step to remedy the
default stated in the Defendant's letter dated 24 May 2017?
J: With some reason.
Fourth Issue
Enforcement Issue
Issue (1)
Whether There Was An Agreement Between The Plaintiff And The

Defendant That The Plaintiff Has The Obligation To Carry Out The
Enforcement Activities?
[32] This issue would involved cl 6 of the Concession Agreement as follows:
6. Enforcement of the Order
6.1 The Company hereby acknowledges and agrees that the Council
has full power and authority over the enforcement of the Order.
6.2 The Council hereby undertakes to provide reasonable parking

enforcement services, at all times during the Concession Period and
the Company shall provide all necessary assistance to the Council in
the discharge of its enforcement function.
6.3 For the above purposes the Council may allow the company to
provide information, advise and/or assistance to the Council for
consideration, to assist the Council in the enforcement of the Order,
including but not limited to, providing a computerized enforcement
management system which includes but not limited to the following:
(a) Computer hardware and software which shall be handed

over to the Council upon the Concession Expiry Date;
technology to the existing staff of the Council; and
(c) Any consumables related to the management system.
PROVIDED ALWAYS that in the event the Company elects to

provide the aforementioned system to the Council both parties shall
mutually agree on the terms and conditions of such provision of the
management system
[33] Having read the above clause, it is clear that the Defendant has the full
power and authority over the enforcement activities. The Plaintiff is only to
provide all necessary assistance to the Defendant for the implementation of the
enforcement activities. The learned counsel for the Plaintiff had submitted that
following a State EXCO Meeting on 1 April 1998, the State Government had
issued a letter dated 26 May 1998 stating that the enforcement was within the
responsibility of the company whereas the enforcement within the legal aspect
was still within the ambit of the Respondent. Both the Plaintiff and the
Defendant could have entered into the supplemental agreement for the
Plaintiff to assist in the enforcement but the Defendant did not agree to do so.
The Plaintiff argues that as a result, the Plaintiff had to absorb all the costs
involved in the enforcement activities. With respect, having scrutinized
documents in the Bundle, I hardly find any minutes of the EXCO meeting in
the bundles of documents. Moreso, (SP1) had confirmed that he was not
present at the EXCO meeting (if any). In the absence of any EXCO minutes
meeting, it would be difficult for me to decide on whether there could be some
arrangement between the Plaintiff and the Defendant on this issue. Even if it is
true that there was a meeting on this issue, it was only a mere understanding
between the Plaintiff and the State Government and the Defendant is not part
of the party to the understanding and would not bind the Defendant. Despite
that, in Bundle E p 1727 to 1730, the Plaintiff's letter dated 3 June 2002
proposing to assist in the enforcement activities, including to absorb all costs
involved, for its own commercial benefit. To this, Defendant had agreed in a
letter dated 1 August 2002 that the Plaintiff would assist the Defendant in
carrying out the enforcement activities.
S: Agree that the proposal to assist in the enforcement was made by

the Plaintiff and not by the Defendant?
J: Yes by the Plaintiff.
S: Agree that the proposal was motivated by the Plaintiff own

commercial interest because the Plaintiff believe that the increase in
enforcement will increase its revenue?
J: Yes.
[34] To this effect, the Plaintiff's personnel were also trained by the Defendant
to carry out enforcement activities. Nevertheless, the Plaintiff further
submitted that the revenue collected from the enforcement activities solely
went to the Defendant. From the fact of the case, it is clear to my mind that
the revenue collected from the enforcement activities went to the Defendant.
Having said this, there is no evidence on record to show that the Defendant
had failed to provide sufficient enforcement activities or that the Defendant
would required the assistance from the Plaintiff. Moreso, the proposal to assist
in enforcement activities was made by the Plaintiff as it was motivated by the
Plaintiff's own commercial interest as they thought it would increase its
revenue collection. It is best to note that, from the Plaintiff's letter dated 3 June
2002 in Bundle E at p 1728, it was the Plaintiff's own proposal and suggested
that the revenue collected from the enforcement activities went to the
Defendant.
This is evidence as follow:
semua bayaran kompaun yang dikeluarkan oleh pihak

penguatkuasaan syarikat merupakan pendapatan bagi pihak MPPJ"
[35] Having confirmed this, what is there now for the Plaintiff to complaint
that the revenue collected from the enforcement activities went to the
Defendant? In considering this issue, I hardly find any evidence that show the
Defendant was lacking in its enforcement activities. As such the Plaintiff's low
revenue collection was caused by the purported lack of enforcement activities
by the Defendant is without merit and justification. If the Defendant was
lacking in its enforcement activities, why did the Plaintiff not complaining it
much earlier? What is the probative value when the Plaintiff has raised it in a
letter dated 13 September 2016 in replying the Defendant's Notice of Default
dated 29 August 2016? Since the obligation to carry out enforcement activities
lies both the Plaintiff and the Defendant, the Plaintiff cannot now say that the
lack of enforcement activities was due to the Defendant. Even if there is lack
of enforcement activities as alleged, the Plaintiff is equally to be blamed. The
Plaintiff cannot take advantages of its own wrongs. To my mind, the Plaintiff's
submission on the lacking of enforcement activity purely unfounded and ought
to be dismissed.
Issue (2)
Whether It Is The Defendant's Obligation To Carry Out Its Enforcement

Functions Under The Concession Agreement?
[36] Despite agreeing that the Defendant has full power and authority over the
enforcement function and undertakes to provide reasonable enforcement
activities services in the Concession Areas during the Concession Period, the
learned counsel for the Plaintiff submitted that the Defendant had failed to
establish Committee pursuant to cl 4.5 of the Concession Agreement. Having
considered this, to my mind it is actually not an issue. There is nothing in the

Agreement that made it mandatory for the Defendant to set up committee
meetings with the Plaintiff. Clause 4.5 of the Agreement merely provides that
the Defendant may, if it deems necessary, set up the Committee, to supervise
the administration and operation of the PND System by the Plaintiff.
It is undisputed that the Committee pursuant to cl 4.5 of the Agreement had

been set up and it was known as the "Jawatankuasa Kecil Perlaksanaan
Penswastaan Sistem Letak Kereta". Clause 4.5 of the Agreement did not
impose any obligation on the Defendant or the Committee to set up any
committee meetings or state that the committee meeting is the only forum for
communication between the Plaintiff and Defendant.(SP1) admitted in cross-
examination that the Plaintiff could always request for meetings with the
Defendant on its own initiative and that the Defendant never rejected or
refused any of the Plaintiffs request for meetings:
S: Refer to Q&A14, agree that the Plaintiff can always request for
meetings on its own initiative?
J: Yes.
S: Agree that there is no evidence that the Defendant has ever rejected
or refused any of the Plaintiff request for meetings?
J: Based on this evidence yes but we normally communicate by letter.
S: So in other words the Plaintiff and the Defendant still

communicated with each other via letters and emails and other forms
of communication, agree?
J: Yes.
Having considered the above issue, I need to stress again that the issue on
failure to set up the committee meetings with the Plaintiff has nothing to do
with the enforcement activities or the payment of rental. It would be extremely
absurd to suggest that the Plaintiff could avoid paying the monthly rental or
issue on enforcement under the Agreement merely because it alleged that the
Defendant did not set up committee meetings.
Fifth Issue
Whether The Defendant Breached Clauses 2.1 And 3.3(d) Of The Concession
Agreement To Take Over The New Parking Areas?
[37] On the above issues, it relates to cls 2.1 and 3.3 (d) of the Concession
Agreement as quoted below:
2.1 Grant of Concession


provisions of the Act and the Company's compliance with those terms,
conditions and provisions, the Council hereby grants the Company the
sole and exclusive rights to take over the operation, management and
maintenance of the Parking Places, the Parking Bays thereof and the
available parking facilities therein in accordance with this Agreement
and to that end, the Company is entitled to:
a) Carry out the Installation Works;
b) Test and commission any New Facilities and the Existing

Facilities;
d) Make any recommendations to the Council on nay matters

which may benefit the Council, the Company and the
customers without any obligation on the Council to accept
such recommendations; and
e) Do all other matters or things as may be necessary or

incidental to the matters referred to in paras (a), (b), (c) and (d)
subject to the Council's approval which approval shall not be
unreasonably withheld;
for and within the Concession Area and during the

Concession Period and in return, the Company shall pay the
Council's Consideration at the time and in the manner referred
to in cl 2.4
3.3 Council's Covenants
The Council hereby undertakes:
(d) not to contract out to any other parties the

operation and management of any Parking
Bays or Parking Places or grant similar
concession rights to any other persons or
parties afterthe Effective Date until the
Concession Expiry Date; and
Based on the above Clause, the learned counsel for the Plaintiff submitted that
cl 2.1 clearly provides that the Concession Agreement was sole and exclusive
to the Plaintiff which the Defendant had no right to take over the new parking
area which was within the Concession Area in the Concession Agreement.
Furthermore, in (SD4) testimonies, the witness confirmed as follows:
Cross-Examination (SD4)
S: Saya katakan kepada kamu bahawa tindakan Majlis membuat

kutipan secara sendiri adalah bercanggah dengan perjanjian yang
termaktub antara Majlis dengan Plaintiff, setuju?
J: Ya
S: Rujuk ms 10, ikatan A fasal 2.1, saya katakan bahawa melalui frasa
2.1 Majlis telah bersetuju bahawa Plaintiff dan Plaintiff sahaja berhak
secara eksklusif untuk mengambil alih operasi tempat letak kereta,
setuju?
J: Setuju.
[38] Counsel further submitted that the Defendant had discussed the period of
time for the Plaintiff to take over the parking system in concession Area
including the current parking area and the new parking area within reasonable
time. The Defendant took over the new parking area without informing the
Plaintiff of the reason to reject the taking over of the parking area. The
Plaintiff's suggestion on the implementation of the parking system in the new
parking areas on July 2011 was defined to be not reasonable. The Defendant
had taken approximately nine months to fully implement the parking system
within the gazetted new parking areas which was no big difference from the
suggested time to implement the parking system by the Plaintiff. Obviously,
the Defendant had "double standard" towards the Plaintiff which could be one
of the reasons to "lawfully" terminate the Concession Agreement. Thus, the
Defendant breached cl 2.1 of the Concession Agreement by taking over the
new parking areas and rejected the Plaintiff's suggestion on the
implementation of the parking system without providing grounds and/or
reasons of rejection.
[39] With respect, according to (SD1) testimony, the Defendant could only
implement the parking system in the new areas in March 2011 because the
Defendant had to carry out a fresh tender to hire contractors to implement the
parking system at the new parking areas since the Plaintiff refused to accept
the new areas immediately.
Re-Examination (SD1)
S: Peguam mencadangkan bahawa kutipan bagi kawasan- kawasan

baru hanya bermula sekitar Mac 2011 dan kamu setuju tapi kamu juga
ingin menjelaskan ada satu proses. Boleh jelaskan?
J: Ya kutipan hanya bermula pada Mac 2011, walaubagaimanapun

kita dah ambil alih kawasan itu mulai bulan Julai 2010 sebab kita nak
menyemak kawasan itu, nak kira bilangan petak, berapa mesin
diperlukan, pasang papan tanda, nak panggil tender untuk membeli
mesin dan sebagainya so proses itu memakan masa sebelum kita boleh
laksanakan sebab itu kita ambil alih kawasan itu dan memberitahu
pihak Plaintiff nak laksanakan to bermula dari Julai 2010.
S: Rujuk bundle D ms 1238, adakah kamu ingat bila tender atau

award telah diberikan kepada kontraktor untuk menjalankan
implementasi?
J: Selepas tender dikeluarkan, saya tak ingat tarikh sebab prosesnya

makan masa.
S: Lebih kurang berapa lama?
J: Saya ingat dalam tempoh 2-3 bulan sebab proses tender buka 3
minggu lepas itu mesyuarat tender, dalam tempoh 2-3 bulan la.
S: Katakan ada 2 bulan, berapa lama sebelum kontraktor baru ini men
gimplimentasikan system bayar dan peraga dan kutipan bermula?
J: Kalau Majlis melaksanakan sendiri is tertakluk kepada prosedur

Majlis tapi kalau kita minta Plaintiff melaksanakan, is tak ada
prosedur seperti Majlis. Prosedur Majlis adalah prosedur Kerajaan so
saya nak menyediakan dokumen semua itu memakan masa. Selepas
itu TI kata buka tender minimum 3 minggu so itu saya kena comply,
selepas itu tunggu tarikh mesyuarat tender, dah mesyuarat pun tak
boleh lagi tunggu sampai diluluskan oleh mesyuarat penuh. Tapi
selepas tender award diluluskan itu kita boleh control pembekal
berapa lama dia boleh supply bergantung pada syarat dalam tender
tapi kalau Plaintiff laksanakan dia tidak tertakluk kepada syarat-syarat
ini dan kita harap dia boleh melaksanakan dalam tempoh yang lebih
cepat.
[40] Similarly, even if it is true that the Defendant had breached the
Agreement by managing new parking areas on its own, it would have arisen
on 8 July 2010 when the Defendant informed the Plaintiff through its letter
dated 6 July 2010 that the Defendant is managing the new parking areas on its
own. Nevertheless, I noticed that the Plaintiff did not even bother to file in any
legal action in respect of this allegation. What is there for the Plaintiff to raise
it now in which I personally believed that such action has already time barred
by virtue of s 6 of the Limitation Act 1953 as quoted below:
(1) Save as hereinafter provided the following actions shall not be

brought after the expiration of six years from the date on which the
cause of action accrued, that is to say -
(a) actions founded on a contract or on tort;
(b) actions to enforce a recognizance;
(c) actions to enforce an award;
(d) actions to recover any sum recoverable by virtue of any

written law other than a penalty or forfeiture or of a sum by
way of penalty or forfeiture.
(2) An action for an account shall not be brought in respect of any

matter which arose more than six years before the commencement of
the action.
[41] Having scrutinized Bundle E at p 1744 to 1753, I noticed that the Plaintiff
was instructed by the Defendant on 22 April 2010 to take over the
management of the said new areas. However, the Plaintiff through its letter
dated 3 May 2010 stated that it needed more time to carry out studies before
the collection of the car park charges can be commenced. According to the
Plaintiffs schedule, the Plaintiff can only commence collection for these new
areas in July 2011. To this, the Defendant through its letter dated 6 July 2010
rejected the Plaintiffs proposal to only commence collection for these new
areas in July 2011. The Defendant thus managed the said new areas by itself.
The Plaintiff in its letter dated 9 July 2010 replied to the Defendant stating that
the Plaintiff could not speed up the commencement of the said new areas
because most of these new areas had not been handed over to the Defendant
by the developers and had not been gazetted. It further stated that only 4 areas
had been gazetted. Having referred to the Government Gazette (D2), all of the
areas that the Defendant requested the Plaintiff to take over had already been
gazetted since 29 April 2010. As such the Plaintiff's excuses is without merit
and justification. It is my considered view that the Plaintiff' refusal to take over
the management of the new areas when instructed to do so was a breach of the
Plaintiffs obligations under the Agreement to implement the PND system.
Since the Plaintiff refused to take over the management of the new areas, the
Defendant had to carry out the management of the new areas by itself in
mitigation of the Plaintiff's breach of the Agreement.
[42] In reading to Concession Agreement, I hardly find anything in such cls as

to what would happen if the Plaintiff refuses to take over the operation and
management of the new area. The Agreement seems to be silent on the
scenario. In the case of Attorney General of Belize v. Belize Telecon Ltd [2009] 1
WLR 1988, Lord Hoffman held that:
[18] In some cases, however, the reasonable addressee would

understand the instrument to mean something else. He would consider
that the only meaning consistent with the other provisions of the
instrument, read against the relevant background, is that something is
to happen. The event in question is to affect the rights of the parties.
The instrument may not have expressly said so, but this is what it must
mean. In such a case, it is said that the court implies a term as to what
will happen if the event in question occurs. But the implication of the
terms is not an addition to the instrument. It only spells out what the
instrument means
Based on the above case, a term may be implied into a contract when a
reasonable person reading it feels that the parties to the contract must have
intended something should happen in a particular scenario but the contract is
silent on the point. If it is clear to the reasonable person what was intended to
happen in that scenario notwithstanding the silence of the contract, a term can
be implied into the contract to give effect to what was intended to happen in
that scenario. Having read the Agreement, it is my considered view that it is
not the intention of the parties that the Defendant had to abandon the plan to
open new parking areas if the Plaintiff refused to manage these new areas. The
parties to the Agreement must have intended that something should happen in
the event the Plaintiff failed to take over new parking areas designated by the
Defendant. To my mind, to conclude otherwise, would be inconsistent with
the Defendant's statutory obligations to act in the interest of the residents. As
such, I am of the view that the Defendant did not breached cls 2.1 and 3.3 (d)
of the Concession Agreement by taking over the new parking areas and
rejected the Plaintiff's suggestion on the implementation of the parking system
without providing grounds and/or reasons of rejection.
Conclusion
[43] In conclusion to the above, it is my finding as below:
(a) Clause 11 is not a pre-condition to the issuance of the Notice of

Termination, it is merely a pre-condition to the commencement of
action in court. There are two pre-conditions to the issuance of the
Notice of Termination under cl 10.3.1 of the Agreement namely the
occurrence of the defaults by the Plaintiff stated in cl 10.1 (a) of the
Agreement and also the issuance of a Notice of Default under cl 10.2.1
of the Agreement to require the Plaintiff to rectify those defaults;
(b) The Plaintiff had defaulted and failed to pay the monthly rentals to
the Defendant in breach of cl 2.4.1 of the Agreement. Since the
Plaintiff had failed to comply with the Notice of Default dated 24 May
2017, the Defendant had thus issued the Notice of Termination dated
22 June 2017 in pursuant to cl 10.3.1 of the Agreement;
(c) The Plaintiff had clearly failed to ensure that the Pay and Display
System were in a manageable, operational, functional and in good
condition, and thus in breach of cl 5.2(b) of the Agreement;
(d) The Plaintiff had breached cls 5.2(a) and 5.2(c) of the Agreement in
maintaining the parking lines and signages in good condition;
(e) There is no evidence that show the Defendant was lacking in its
enforcement activities. The Plaintiff's low revenue collection was
caused by the purported lack of enforcement activities by the
Defendant is without merit and justification. Since the obligation to
carry out enforcement activities lies both the Plaintiff and the
Defendant, the Plaintiff cannot now say that the lack of enforcement
activities was due to the Defendant. Even if there is lack of
enforcement activities as alleged, the Plaintiff is equally to be blamed.
The Plaintiff cannot take advantages of its own wrongs;
(f) Failure to set up the committee meetings with the Plaintiff has
nothing to do with the enforcement activities or the payment of rental.
It would be extremely absurd to suggest that the Plaintiff could avoid
paying the monthly rental or issue on enforcement under the
Agreement merely because it alleged that the Defendant did not set up
committee meetings;
(g) The Defendant did not breached cls 2.1 and 3.3 (d) of the
Concession Agreement by taking over the new parking areas and
rejected the Plaintiff's suggestion on the implementation of the parking
system without providing grounds and/or reasons of rejection.
Based on the above grounds, since the Plaintiff had failed to comply with the
Notice of Default dated 24 May 2017, the Defendant had thus validly issued
the Notice of Termination dated 22 June 2017 in pursuant to cl 10.3.1 of the
Concession Agreement. To this extent, the Defendant's termination of the
Agreement is valid in law.
[44] After hearing the submission by both parties, on the balance of

probabilities, I hardly find any merit and justification in the Plaintiffs' claims.
It must therefore follow that there is no basis for the Plaintiffs to make any
claims as per the relief sought in their Statement of Claim. In the premise, I
dismiss the Plaintiff's claim in its entirety with cost RM40,000.00. In the
alternative, the Defendants' counterclaim is hereby allowed.

Godell Parking V Majlis Bandaraya Petaling

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Godell Parking Sdn Bhd

[2018] MLRHU 1410 v. Majlis Bandaraya Petaling Jaya pg 1

GODELL PARKING SDN BHD

High Court Malaya, Shah Alam

Case(s) referred to:

Legislation referred to:

Other(s) referred to:

[Dismissed the plaintiff's claim with cost.]

Mohamad Shariff Abu Samah JC:

(i) A declaration that the termination for the Concession Agreement

(ii) Special damages of RM21,190,530-76;

(iii) General damages;

(iv) Exemplary damages;

(v) An interest at a rate of 5% on the damages awarded by this

(vi) Cost for this action; and

(vii) Other reliefs

(d) that the Defendant has no obligation to set up a Committee under

The Defendant made a counterclaim which are as follows:-

(a) Loss of unpaid monthly rental (excluding late payment

(b) Late payment interest on monthly rental pursuant to cl 2

(c) Loss of income under the Concession Agreement from the

(d) Costs incurred by the Defendant to manage, maintain and

(e) Late interest charges of 8% per annum pursuant to cl 2

(f) that the Defendant encashed an amount of RM 874,277.51

(a) Common Agreed Bundle of Documents Vol 1 (Bundle A);

(b) Common Agreed Bundle of Documents Vol 2 (Bundle B);

(c) Common Agreed Bundle of Documents Vol 3 (Bundle C);

(d) Common Agreed Bundle of Documents Vol 4 (Bundle D);

(e) Common Agreed Bundle of Documents Vol 5 (Bundle E),

(f) Common Agreed Bundle of Documents Vol 6 (Bundle F);

(g) Common Agreed Bundle of Documents Vol 7 (Bundle G);

(h) Defendant's Bundle of Documents Vol 5 (Bundle H1);

(i) Defendant's Bundle of Documents Vol 6 (Bundle H2);

(j) Bundle of Pleadings (Bundle I);

(k) Md Zaki Omar's Witness Statement (SP-1);

(I) Mohd Sufian Sahran's Witness Statement (SP-2);

(m) Hajah Sa'diyah Khasimah's Witness Statement (SD-1);

(n) Khairulanwar Mohammad Bon's Witness Statement (SD-2);

(o) Mohd Fauzi Maarop's Witness Statement (SD-3);

(p) Mohd Yusof Che Aziz's Witness Statement (SD-4);

(q) "Minit Mesyuarat Jawatankuasa Kecil Pelaksanaan Penswastaan

(r) Government of Selangor Gazette published by authority dated 29

(s) Notes of Proceeding.

(a) Md Zaki Omar (SP-1);

(b) Mohd Sufian Sahran (SP-2);

The Defendant had called 4 witnesses as follows:

(a) Hajah Sa'diyah Khasimah(SD-1);

(b) Khairulanwar Mohammad Bon (SD-2);

(c) Mohd Fauzi Maarop (SD-3);

(d) Mohd Yusof Che Aziz (SD-4);

The Essential Facts

[6] The Plaintiff's case:

(a) Plaintiff is a company incorporated under Companies Act 1956

(b) Defendant is a local government which is established under the

(c) Plaintiff was offered by the State Government of Selangor Darul

(d) Subsequently, the Plaintiff perfected a Memorandum of

(e) Finally, the Plaintiff entered into a Concession Agreement dated 05

(f) The parties agreed in cl 2.6 of the Concession Agreement that:-

2.6 Initial Concession Period

Unless otherwise extended or terminated in accordance

2.1 Grant of Concession

Subject to the terms and conditions of this Agreement and the

(i) The Plaintiff was awarded an exclusive right to the operation,