A contractual obligation for non-refundable tickets is upheld when terms are accepted, especially when cancellations stem from extraordinary circumstances like a pandemic.

JUDGEMENT

Quay Chew Soon JC:

Introduction

[1] The Defendant ("D") is the national carrier of Malaysia and operates our national airline. The 1st Plaintiff ("P1") and 2nd Plaintiff (collectively "Plaintiffs") are purchasers of airline tickets issued by D.

[2] D filed an application vide encl 8 ("Encl 8") to strike out the Plaintiffs ("P") Writ of Summons and Statement of Claim ("SOC"). Encl 8 was made under O 18 r 19(1)(b), (c) and (d) ("O 18 r 19") of the Rules of 2012 ("ROC"). I allowed Encl 8. These are the grounds of my decision.

Background

[3] On 19 August 2019, Plaintiffs purchased flight tickets ("Flight Tickets") for a total price of RM2,812 ("Ticket Price") from D's website for a journey from Kuala Lumpur to Manila return ("Flight"). The Flight was scheduled for departure on 26 March 2020 ("Initial Date"), but was cancelled due to the implementation of the Movement Control Order ("MCO") on 18 March 2020. The MCO was put in place by the Government as a containment measure against the Covid-19 coronavirus outbreak ("Covid-19 pandemic") which affected not just Malaysia but countries worldwide.

[4] D offered Plaintiffs an option to reschedule the Flight and Plaintiffs agreed to reschedule the Flight to 8 July 2020 ("Rescheduled Date"). Due to an extension of the MCO, the Flight was rescheduled yet again to 17 July 2020. At this point, Plaintiffs no longer wished to embark on the Flight and requested for a full refund of the Ticket Price ("Refund"). The reason for them flying to Manila was no longer applicable. The meeting which P1 was to attend in Manila had been cancelled.

[5] D refused to Refund as the Flight Tickets were non-refundable. Instead D offered a change of travel date or a travel voucher, both of which were rejected by Plaintiffs. Plaintiffs then filed the instant suit on 24 July 2020.

[6] The SOC prayed for the following reliefs:

(a) a declaration that the Malaysian Aviation Consumer Protection Code 2016 ("Code") is a protective legislation and any contractual clause contrary to the provision thereof are null and void;

(b) a declaration that Plaintiffs are entitled to a full refund of the Ticket Price pursuant to para 12 of the Code;

(c) a declaration that there has been total failure of consideration of the contract of carriage between Plaintiffs and D;

(d) full refund of the Ticket Price as damages, plus interest and costs.

[7] After this suit was filed and the cause papers served on 10 August 2020, D on 4 September 2020 refunded the Ticket Price to Plaintiffs on a "without prejudice" and "without admission of liability" basis. The Refund was effected via a reversal of the charge for payment of the Ticket Price into PTs credit card account that was used to purchase the Flight Tickets. Plaintiffs however pressed on with their action.

[8] At the start of the hearing of Encl 8, I asked Plaintiffs why this action was not tried in the Subordinate Courts in light of the low amount of the Ticket Price. The Ticket Price was RM1,406 in respect of each Plaintiff (total RM2,812). It consist of RM1,294 base fare and RM112 taxes per ticket. Clearly the amount in dispute or the value of the subject-matter of the claim falls within the jurisdiction of the Subordinate Courts, which is up to RM1 million.

[9] In response, P1 (who appeared in person) said it was uncertain whether the Subordinate Courts have the power to grant the declarations sought in this action. This is notwithstanding s 65(5) of the Subordinate Courts Act 1948 which provides that a Sessions Court may grant a declaration. It states:

"A Sessions Court may, in respect of any action or suit within the jurisdiction of the Sessions Court, in any proceedings before it:

(a) grant an injunction; and

(b) make a declaration,

whether or not any other relief, redress or remedy is or could be claimed."

[10] More telling however is P1's next response that he intends to bring this matter on appeal all the way to the apex Court. So as not to delay the matter, I proceeded to deal with Enc