The court established that the interpretation of a Tenancy Agreement requires fulfillment of all stipulated conditions for rent commencement, leading to the striking out of a premature claim.

JUDGMENT

Khairil Azmi Mohamad Hasbie JC:

Introduction

[1] This is the Defendant's application to strike out the Plaintiff's Writ of Summons and the Statement of Claim to in pursuant to O 18 r 19(1)(a)(b) and/or (d) Rules of 2012 ('ROC').

Cause Papers

[2] The cause papers are as follows:-

(a) Plaintiff's Writ and Statement of Claim dated on the 13th of December 2019;

(b) The Defendant's Statement of Defence dated on 17th of January 2020;

(c) Plaintiff's Reply to Defence dated on 3rd of February 2020;

(d) The Defendant's Notice of Application dated 22nd of May 2020;

(e) Defendant's Affidavit in Support dated on 21st of May 2020;

(f) The Plaintiff's Affidavit in Reply dated on 15th of June 2020; and

(g) The Defendant's Affidavit in Reply dated on 2nd of July 2020.

The Plaintiff's Claim

[3] The Plaintiff is claiming against the Defendant amongst others, for an arrears of payment of rent for a total sum of RM 3,659,172.00 from 2nd of April 2018 until 2nd of December 2019 and continuously for a sum of RM 182,958.60 per month until the premise is handed over to the Plaintiff.

Brief Facts

[4] The facts are as gathered from the submissions of parties. I respectfully adopt them subject to some modifications.

[5] The Defendant is a tenant in the Plaintiff's premises in EVO Shopping Mall ('the said Complex') occupying Lot F.12, S.12 and T.12 at Level 1, Level 2 and Level 3 of the Complex ('Demised Premises') pursuant to a Tenancy Agreement entered by both parties on the 2nd of October 2017 ('Tenancy Agreement').

[6] Pursuant to the Tenancy Agreement, the Plaintiff shall carry out works agreed by both parties on the Demised Premises ('Landlord Works') before handing over the premise to the Defendant. As a result of the Plaintiff's delay in completing the Landlord Works, the Demised Premise was handed over to the Defendant on the 2nd of April 2018.

[7] One of the salient terms in the Tenancy Agreement states that the Defendant is only required to pay rent to the Plaintiff starting from the date when the Plaintiff is able to comply with all the three (3) conditions stated in cl 10(b) of Schedule 1 of the Tenancy Agreement.

[8] Clause 10(b)(ii) of Schedule 1 of the Tenancy Agreement states that one the terms to be complied with by the Plaintiff is that rent commencement is only triggered when the Complex is open to the public with at least 50% of its total lettable area, excluding the Defendant's store, having opened and trading at Level 1, Level 2 and Level 3.

[9] However, the occupancy of the Complex has never achieved the threshold of 50% as per cl 10(b)(ii) of Schedule 1 of the Tenancy Agreement.

[10] On the 23rd of October 2018, the Defendant received a letter dated 3rd of August 2018 from the Plaintiff asking the Defendant to renegotiate cl 10(b)(ii) of Schedule 1 of the Tenancy Agreement. However, it was rejected by the Defendant as parties agreed to such term when entering into the Tenancy Agreement.

[11] On the 10th of December 2018, the Plaintiff through its solicitors wrote to the Defendant to terminate the Tenancy Agreement if the Defendant refuses to renegotiate cl 10(b)(ii) of Schedule 1 of the Tenancy Agreement.

[12] On the 14th of December 2018, the Defendant replied the Plaintiff's letter through its solicitors by stating that the rent commencement is not triggered in accordance with the Tenancy Agreement as the occupancy rate has not reached 50% in compliance with cl 10(b)(ii) of Schedule 1 of the Tenancy Agreement.

[13] On the 7th of March 2019, the Plaintiff informed that the tenants in trading at the Demised Premises as at 25th of February 2019 is 26.4%, excluding the Defendant's store Premises.

[14] On the 19th of August 2019, the Plaintiff filed a suit against the Defendant vide Writ No BA-22NCVC-345-08/2019 ('First Suit') which was premised upon a subject matter and claims similar to the present suit and was withdrew on the 10th of October 2019 with costs ordered to be paid to the Defendant after the Defendant entered its Defence.

[15] After wi