KUGEN & CO.

ADVOCATES & SOLICITORS

KUGEN A/L RAMA CHENDRA,LLB (HONS),MMU

HARRITRAAM,LLB (HONS),MMU

Office Address: No.37,Jalan KT 8, Dataran Parade,75240,Melaka Tengah,Melaka

Email: Kugenco@gmail.com TEL/FAX:06224578

Your Ref : PLEASE ADVISE
Our Ref : UPP4722/T14/2324/MT
Date : 30/4/2024

Umbrella Development Sdn Bhd PRIVATE & CONFIDENTIAL

Unit 2-04, Level 4, Tower C,
Menara Tengku Jaafar, BY HAND
Jalan Ayer Keroh Lama,
75450, Bukit Beruang
Melaka.

Attn: Vanya Hargreeves

RE : LEGAL OPINION REGARDING THE OUTSTANDING PAYMENT OF

RENTAL PURSUANT TO THE TENANCY AGREEMENT BETWEEN
KLAUS AND UMBRELLA DEVELOPMENT SDN BHD
CIVIL SUIT NO : 72/5678-2024
PLAINTIFF : KLAUS
DEFENDANT : UMBRELLA DEVELOPMENT SDN BHD

We refer to the above matter and to the email from Ms. Vanya Hargreeves dated 21.04.2024. We
also refer to the telephone conversation between yourself and us yesterday, requesting that we
furnish our opinion with respect to the breach of tenancy agreement (“Agreement”) dated
15.07.2022 between Klaus (“Plaintiff”) and Umbrella Development Sdn. Bhd. (“Defendant”).

2. In order to render our opinion, we have sighted the following documents which were
forwarded to us on 20.04.2024 :-

i. Tenancy Agreement dated 15.07.2022

ii. Writ dated 20.04.2024 (“Writ”); and

iii. Statement of Claim dated 20.04.2024 (“Statement of Claim”)

3. We have perused the said documents and we have identified two (2) issues that we shall
address in this opinion. These issues are:
 KUGEN & CO.
ADVOCATES & SOLICITORS

a) Whether Clause 12 of the Tenancy Agreement can be invoked to delay payment of rental
until June 2024? ;

b) Whether the said matter can be resolved amicable and what is the most suitable mode of
Alternative Dispute Resolution your company should explore

BACKGROUND FACTS
4. On 20.04.2023, Klaus, the owner of Bangsawan Service Suite No.8 in Mont Kiara
has initiated legal action against you for breaching their tenancy agreement by
serving a Writ and Statement of Claim to you. Klaus claims that you owe an
outstanding rental payment of RM40,000 for the period of September to December
2023 and demands the delivery of vacant possession of the unit within 30 days
from the court's order. The basis of the claim lies in the tenancy agreement signed
on July 15, 2022, between yourself and Klaus stipulating a monthly rental of
RM10,000.00.

5. Based on the above facts, our advice is set out hereinbelow:-

(A) Whether Clause 12 of the Tenancy Agreement can be invoked to delay payment of rental
until June 2024?

6. Pursuant to Clause 12 of the Tenancy Agreement, it is considered as the contractual

relief. Basically, if Clause 12 can be invoked, the delay payment of rental can be
allowed. However, the term “any other circumstances of whatsoever nature that is
beyond the control of the parties in the Agreement” is unable to effectively
discharge the Company due to the lack of specificity of the force majeure
circumstances.

7. We draw support from the case of Best Amity Sdn Bhd v Merah Jaya Sdn Bhd
[2017] MLJU 303, where Choo Kah Sing JC ruled that:

“The plaintiff had explained the reason for its delay in paying the rental for the
month of September 2014 and such delay was justifiable. The plaintiff was entitled
to refuse to pay the rental to DW1. The Court held that the delay in the payment of
the rental for the month of September 2014 was caused by the action of the
defendant’s representative. The plaintiff could not be faulted for the delay and did
not breach the tenancy agreement as alleged by the defendant”

8. Although Clause 12 of the Tenancy Agreement had included the phrase “any other
circumstances of whatsoever nature that is beyond the control of the parties” with
the intention of widening the scope of application to various force majeure events,
however, recent cases have been inclined to require the pandemic to be a specific
force majeure circumstance provided in the contract and not implied by law. The
reason for this high threshold ties back to the burden of proof elaborated in the case
 KUGEN & CO.
ADVOCATES & SOLICITORS

of Intan Payong Sdn. Bhd. V Goh Saw Chan Sdn. Bhd. [2005] 1 MLJ 311,
where Balia Yusoff JC held as follows: -

“It is trite that a party relying upon a force majeure clause must prove the facts
bringing the case within the clause. He must therefore prove the occurrence of one
of the events referred to in the clause and that he has been prevented, hindered or
delayed, as that case may be from performing the contract by reason of the event.”

9. Therefore, we believe that Clause 12 of the Tenancy Agreement does effectively

excuse the Company from its obligation to pay the monthly rental and delay
payment until January 2024 due to the occurrence of specifically including flood
within the scope of force majeure events outlined in the Clause. As a result, relying
on Clause 12 to not be liable to the landlord to fulfil any terms of this Agreement is
not in violation of the tenancy agreement and is a reasonable reason to fail to pay
rent.

10. Read togather with Section 101 of the Evidence Act, where in a civil case, as the
burden of prood shall be vested on you since you’ve asserted Clause 12 of the
Tenancy Agreement to claim force majuere. Where they bears a major risk in
proving the unexpected decline in tourism within the scope of force majuere which
is a high degree of burden of proof for you to be discharged from their obligation to
pay the rent of RM40,000.00.

(B) Whether the said matter can be resolved amicable and what is the most suitable mode
of Alternative Dispute Resolution your company should explore.

11. Having established that your company could not rely on Clause 12 of the Tenancy
Agreement for the delay of the rental payments, your company can resolve this
matter amicably without the need to going for a trial. We refer to Section 9 of the
Mediation Act 2012, which states that the appropriate method of Alternative
Dispute Resolution is by way of mediation for any parties who are unable to fulfill
contractual obligations outlined in the specified contract types listed in the
Schedule.

12. Mediation is a process whereby a neutral third party, known as a mediator, helps
parties in a dispute to communicate, negotiate and reach a mutually acceptable
agreement. The mediator facilitates discussions between the parties, guiding them
towards finding common ground and resolving their differences.

13. In a mediation session, each party has the opportunity to express their concerns,
interests and desired outcomes. The mediator helps to clarify misunderstandings,
identify underlying issues, and explore possible solutions. Unlike a judge, a
mediator does not make decisions or impose solutions but instead assists the paties
in finding their own resolution.
KUGEN & CO.
ADVOCATES & SOLICITORS

14. Moreover, we refer to the case of Gogung Fusion Restaurant (KLCC) Sdn Bhd
& Ors v Suria KLCC Sdn Bhd [2021] MLJU 2345 , where Mohd Arief Emran
Arifin JC ruled that:

“Mediation must be agreed upon between parties. In this case, the parties did
not enter into anyagreement to have the dispute mediated.”

15. Therefore, in the event you have decided to pursue mediation instead of litigation,
you have to discuss your intention with Klaus. Once it is agreed by him, then you
shall enter into agreement to have this matter mediated.

16. Moreover, in accordance with Section 10(1) of the Mediation Act 2012, a
mediator has the authority to request each party to provide a statement outlining the
essential facts of the dispute, along with any relevant documents. In addition,
section 12 of this act also states that any successful mediation outcome must be
documented in a Settlement Agreement, which must be signed by all parties
involved.

17. Therefore, we are of the opinion that this matter can be resolved peacefully and
quickly through mediation.

Legal Recourse

18. If, mediation is not agreeable by the Plaintiff, your company must file a
Memorandum of Appearance and Defence to avoid further Court orders favouring
the Plaintiff.

Conclusion

20. Clause 12 in the Tenancy Agreement between Klaus and yourself defines force
majeure, covering unforeseen events such as natural disasters, acts of God, civil
unrest, or war. It excuses parties from fulfilling obligations during these events but
requires proof and adherence to procedures.

21. Since you’ve invoked Clause 12 due to a tourism decline but faces a high burden of
proof per Section 101 of the Evidence Act. This burden complicates their claim to
delay paying rent until January 2024, highlighting the importance of specific force
majeure language and careful legal consideration in contractual agreements.

22. If yourself and Klaus could agree on having this matter solved by way of
mediation, then there is no need to pursue legal action anymore as mediation offers
numerous benefits including cost effectiveness, time-saving, confidentiality and it
can lead to a more equitable resolution by preserving the contractual relationship.

23. Please be informed that this legal opinion is provided based on the information and
KUGEN & CO.
ADVOCATES & SOLICITORS

documents forwarded to us. We hope the above is helpful. Should you need any
further clarification on this matter, please feel free to reach out to us.

Thank You.
Yours faithfully,
______KUGEN___________
KUGEN & CO.