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2021 MarsdenLR 4113
HIGH COURT MALAYA MELAKA
KAJ DEVELOPMENT SDN BHD – Appellant
Versus
KERAJAAN NEGERI MELAKA & ORS (ENCL 1) – Respondent
[Application For Judical Review No: MA-25-7-12/2020]
Judicial review requires a public law element; purely commercial agreements are governed by private law, and thus the court dismissed the leave application.
Headnote:(A) Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (Act 829) – Sections 7 and 9 – Applicant sought certiorari to quash a termination notice regarding a reclamation agreement; the notice was challenged as ultra vires the Act due to COVID-19 effects but found to be a private law issue. (Paras 4-36)
(B) Public Law vs. Private Law – A judicial review requires the decision to affect public law interests, which was not present here; the court dismissed the application based on the nature of the agreement. (Paras 11-26)
Facts of the case: The Applicant, KAJ Development, challenged the termination of a reclamation agreement due to alleged breach, claiming delays caused by the COVID-19 pandemic and administrative inefficiencies. (Paras 1-10)
Findings of Court: The relationship was contractual, with no public law element justifying judicial review; therefore, the decision of the 1st Respondent to terminate the agreement was proper. (Paras 26-32)
Issues: Whether the termination notice was validly issued and if the applicant's claims invoked a public law aspect. (Paras 12-19)
Ratio Decidendi: The court held that private contracts do not typically allow for judicial review absent a public law element and reiterated prior case law distinctions between public and private law. (Paras 20-35)
Result: Leave application dismissed.
JUDGMENT
Introduction.
[1] This is an application by KAJ Development (the Applicant) for leave to file an application for judicial review under O 53 r 3 Rules of 2012 (ROC) (See Encl 1). The Applicant seeks an order of certiorari to quash the decision made by the 1st Respondent in terminating an agreement dated 4 October 2017 between the 1st Respondent and the Applicant. The agreement is exhibited as "YYY-1" in the Applicant's affidavit in support.
[2] A termination notice dated 16 November 2020 was issued by the 3rd Respondent in respect of an alleged breach of the agreement by the Applicant. The termination notice is exhibited as "YYY-2" in the Applicant's affidavit in support.
[3] In their application the Applicant prayed for:
(a) Suatu perintah certiorari bahawa Notis Penamatan bertarikh 16 November 2020 terhadap Perjanjian Penambakan antara Responden Pertama dengan Pemohon bertarikh 4 October 2017 yang dikeluarkan oleh Responden Pertama yang bertindak melalui Responden Ketiga bagi pihak Responden Kedua ("Notis Penamatan") dialih ke Mahkamah yang Mulia ini dan dibatalkan serta-merta;
(b) Satu deklarasi bahawa Notis Penamatan tersebut adalah batal dan tidak sah dan tiada kesan kerana ia ultra viress 7 Akta Langkah-langkah Sementara bagi Mengurangkan Kesan Penyakit Koronavirus 2019 (COVID-19) 2020 (Akta 829);
(c) Satu deklarasi bahawa Notis Penamatan tersebut adalah batal dan tidak sah dan tiada kesan kerana ia ultra viress 9(1) Akta Langkah-langkah Sementara bagi Mengurangkan Kesan Penyakit Koronavirus 2019 (COVID) 2020 (Akta 829);
(d) Satu deklarasi bahawa Notis Penamatan Tersebut adalah menyalahi undang-undang dan tidak sah sebagai tindakan yang tidak munasabah dan tidak seimbang di bawah undang-undang;
(e) Kos bagi permohonan ini; dan
(f) Relif selanjutnya atau lain yang difikirkan wajar oleh Mahkamah yang Mulia ini.
Brief Facts
[4] The agreement was in respect of the reclamation of what was termed as the "concession area" which comprised of 609 acres of land. The concession area was divided into three parts namely Pulau Melaka 1(PME1), Pulau Melaka 2 (PME2), and Pulau Melaka 3 (PME3):
(a) PME 1 was earmarked as a tourism, entertainment, commercial and property development, which consists of:
i. The Melaka international cruise terminal;
ii. The Melaka ferry terminal catering to regional needs;
iii. The marina, which will be one of South East Asia's largest private marina;
iv. A Ferris wheel, shopping mall, entertainment precincts and a world class theme park;
v. A cultural heritage village, walkway boulevard catering for fashion and retails brands; and
vi. An education centre.
(b) PME 2 was earmarked as a free trade zone economic zone. This free trade economic zone at Melaka Gateway will serve as the premier international business and financial centre for Southeast Asia. PME 2 was envisioned to be:
i. The core of the city's economic and financial activities;
ii. An offshore financial hub;
iii. An international integrated logistics services provider; and
iv. An international zone foreign nationals and entities.
(c) PME 3 was earmarked as deep sea port, which will be capable of receiving the largest deep sea going vessels.
[5] The 1st Respondent was to receive 1/6 of the total land area. Documents of Title would be issued to the Applicant for the rest of the area. A qualified master title had already been issued to the Applicant in relation to PME1. This was later sub divided into 38 qualified titles.
[6] In the agreement the Applicant undertook to complete the reclamation work within 36 months from the date of the signing of the agreement. The Applicant was entitled to an extension of time from the first Respondent within 3 months prior from the expiry of the 36 months.
[7] The Applicant claims that they had made payments and or contributions totaling RM9,230,800.00 to the 1st Respondent. It was also contended that they had incurred cost of approximately RM280 million for the appointment of international contractors and fo
