For a misrepresentation claim to succeed, it must be clearly pleaded and proven, meeting specific elements for negligent or fraudulent misrepresentation under the Contracts Act 1950.

JUDGMENT

Calestina Stuel Galid J:

Introduction

[1] By this action, the Plaintiff sought to rescind the sub-lease agreement dated 5 December 2019 entered between him and the Defendant ("the Sub-Lease Agreement") on the ground of misrepresentation, mistake of fact and/ or inequality of bargaining power. The Plaintiff also alleged that the SubLease Agreement has been frustrated. The Defendant counterclaimed for specific performance of the Sub-Lease Agreement.

[2] After a full trial, this Court dismissed the Plaintiff's claim and allowed the Defendant's counterclaim. I now provide the grounds thereto.

The Plaintiff's Contentions

[3] The Plaintiff testified that prior to signing the Sub-Lease Agreement, he was given a draft copy of the agreement by the Defendant. He said that he had signed the Sub-Lease Agreement in the honest belief that the terms were as per the draft. However, about a week later, he found out that the terms in the Sub-Lease Agreement differed from those stated in the draft, specifically on the rental amount payable by the Defendant to the Plaintiff.

[4] According to the Plaintiff, the rental was stated in the draft as RM150,000.00 for the whole of the 30 year lease term. However, in the Sub-Lease Agreement, it was only RM74,300.00. He said he would not have signed the Sub-Lease Agreement had he known about this.

[5] The Plaintiff said he went to see a Mr Tan who was the Defendant's manager at the material time to complain and request that the rental amount be amended but that the Defendant did nothing at all resulting in him commencing the present action.

The Defendant's Contentions

[6] The Defendant on the other hand contended that apart from the Sub-Lease Agreement, the Plaintiff and the Defendant had also executed a Deed of Variation on the same date to vary the rental amount of RM74,300.00 stated in the Sub-Lease Agreement to RM118,880.00 and also as to the manner of payment of the rental amount. This was following the Plaintiff's dissatisfaction of the rental amount of RM74,300,00. The parties had also simultaneously executed a Memorandum of Sub-Lease in escrow.

[7] The Defendant through its director, DW2, testified that the Memorandum of Sub-Lease could not be registered as it was subject to the permission by the Director of Lands and Surveys Department and that the Plaintiff who bore the obligation to obtain the said permission under the Sub-Lease Agreement refused to do so. Hence, the counterclaim for specific performance of the Sub-Lease Agreement.

This Court's Decision

Deficiencies In The Pleading

[8] A good starting point on a discussion pertaining to a claim for misrepresentation is the decision by the Court of Appeal in the case of Sim Thong Realty Sdn Bhd v. The Kim Dar @ Tee Kim , 2003 MarsdenLR 1612 where the Court referred to Professor McKendrick's Contract Law (3rd Ed) on the elements of an actionable misrepresentation:

"A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to entry into the contract."

[9] The Court of Appeal also discussed on the nature of remedy available which was held as being dependent 'entirely on the kind of misrepresentation alleged against the plaintiff'. The Court opined that:

"...the mere expression 'misrepresentation' does not reflect the state of mind of the representor at the time he made the alleged representation to the representee and that it is the particular state of mind of the representor that determines the nature of the remedy available to the representee. In the case of fraudulent misrepresentation, the representee is entitled to rescission and damages flowing from the fraudulent inducement. If the representati