The landlord's failure to uphold maintenance obligations constitutes negligent misrepresentation, impacting tenancy agreements.

Introduction

[1] The Appellant/Defendant's appeal to the High Court is against the Sessions Court Judgment of 31 March 2017 delivered after full trial in allowing the claim of the Plaintiff for these prayers:

a) Special damages of RM 177,632.31

b) Loss of business of RM 50,600

c) General damages to be assessed by the Honourable Court

d) Stamp duty of RM 371 for stamping of Tenancy Agreement.

together with costs of RM 15,000 and interests. The counterclaim of the Defendant was dismissed.

[2] For purposes of this appeal the parties shall hereinafter be referred to as they were in the Sessions Court namely "the Plaintiff" and "the Defendant" respectively. The Rekod Rayuan, Rekod Rayuan Tambahan and Rekod Rayuan Tambahan 2 will be referred as RR, RRT and RRT2 respectively.

[3] In essence, the Plaintiff being the Tenant claims against the Defendant being the Landlord for losses and damages suffered by the Plaintiff arising from the fire and flooding of Unit 70-3-1, D'Piazza Mall (hereinafter referred to as "the Demised Premises") on 19 August 2013 due to the Defendant's failure to repair the existing water leakage/seepage problem as represented by the Defendant upon the Plaintiff agreeing to rent.

[4] The Defendant however, denies responsibility on the averment that the Plaintiff had rented the premises on an "as is where is" basis, and he counterclaims for accrued rental, as well as for costs of restoration of the Demised Premises to its original condition.

[5] This Honourable Court on 23 January 2018 after delving through the written submissions of the respective counsels and allowing for further oral clarifications decided to dismiss the appeal.

[6] Dissatisfied with the decision, the Defendant has now pursued an appeal to the Court of Appeal after obtaining the necessary Leave on 24 May 2018. The Grounds of Judgment is thus prepared for the appeal to be heard and deliberated by the Court of Appeal.

[7] The learned Sessions Court in deciding very much relied on findings of fact made in light of the contradictions found in the evidence of the Defendant and his witness in reference to the Amended Defence filed and this Honourable Court further finds that the contradictions are also apparent in the Memorandum of Appeal and Supplementary Memorandum of Appeal filed.

Facts Of The Case

[8] The Plaintiff at the material time was scouting out potential locations in the Bayan Lepas/Bayan Baru area to start its Human Capital Development & Training Centre, as its students are mainly from that area. One of the premises considered by the Plaintiff was the Demised Premises, of which the Defendant is the Landlord. Several viewings were arranged by a real estate agent for the Plaintiff to view the Demised Premises. The Defendant Nicholas Ng (DW2) was at all material times represented by his agent-uncle, Vincent Ng (DW1), who had full and complete authority to act for him in respect of the Demised Premises.

[9] During the 1st viewing, the Plaintiff found the Demised Premises to be messy and suffering from the water leakage/seepage problems. This issue was raised with the Defendant, who assured the Plaintiff that he would have the water leakage/seepage problem fixed if the Plaintiff was interested to rent. However, no agreement was reached from the 1st viewing as the rental set by the Defendant was too expensive.

[10] Several months later, the Defendant contacted the Plaintiff, saying that he had found a new tender for the Demised Premises and inquired whether the Plaintiff was still interested to rent. The parties thus arranged for a 2nd viewing of the Demised Premises.

[11] During this 2nd viewing, the water leakage/se