The obligation to pay National Airtime Costs arises only upon actual utilization, and res judicata does not apply if the merits of the claim were not previously determined.

JUDGMENT

Azizul Azmi Adnan JCA:

Introduction

[1] The appellant in this case, KPerak Implementation and Coordination Corporation ("KPerak") was sued at the High Court by the respondent, Simfoni Maya Sdn Bhd ("Simfoni Maya"). Simfoni Maya alleged that KPerak had breached the terms of a contract called the Indoor Digital Media Solution Agreement. After a full trial of the action, the High Court allowed Simfoni Maya's claims, and ordered (among others) KPerak to pay RM14.5 million as damages.

[2] After hearing submissions on 12 December 2023 and 28 May 2024, this Court unanimously allowed KPerak's appeal on 5 June 2024. The reasons for our 5 decision are recorded here. Since the date of the decision, our learned brother Kamaludin Md Said JCA has retired, and hence these grounds of judgment have been prepared pursuant to the provisions of s 42(1) of the Courts of Judicature Act 1964 .

Material Background Facts

[3] KPerak is a company owned by the state of Perak. It entered into the Indoor Digital Media Solution Agreement with Simfoni Maya on 28 September 2009. This agreement was intended to provide KPerak access to network infrastructure by which it could disseminate media content. The Indoor Digital Media Solution Agreement could be said to comprise two distinct elements: the 15 infrastructure to be located on premises identified by KPerak, and other media infrastructure to which KPerak would be provided access.

[4] Under the first, up to 300 liquid crystal display screens were to be installed at premises identified by KPerak, which screens would play media content viewable by members of the public in Perak. Certain other "value-added 20 services" were also to have been provided, such as broadband wireless internet. This media infrastructure, defined in the Indoor Digital Media Solution Agreement as the "Media Network", would belong to KPerak, and would be provided to KPerak at no cost to it.

[5] KPerak would be entitled to 35% of the total airtime on the Media Network at no cost to it. The remainder of the airtime on the KPerak's Media Network could be sold by Simfoni Maya to its advertising clients. The revenue obtained by Simfoni Maya from such sales would be shared with KPerak, with the latter being entitled to 20% of the revenue.

[6] The second aspect of the Indoor Digital Media Solution Agreement had to do with the other media infrastructure that Simfoni Maya has established with its other customers. These included media infrastructure located at Telekom Malaysia's TMPoint centres, trains operated by Keretapi Tanah Melayu Berhad, and the premises of Bank Islam and Bank Rakyat. Under the terms of the Indoor Digital Media Solution Agreement, Simfoni Maya would make available airtime 10 to KPerak on these other media infrastructure. This airtime is defined as "National Airtime" in the agreement.

Preliminary Points Raised By The Appellant

[7] Learned counsel for KPerak raised two preliminary points: res judicata and the locus standi of the Simfoni Maya to prosecute its case at the Court below and to defend the appeal here.

Res judicata

[8] It was argued the suit ought to be barred by the proper application of the principle of res judicata. The first question was whether this point can validly be raised before the Court of Appeal, as it was not raised in argument in the Court below, nor had it been set out in the memorandum of appeal.

[9] The legal position is settled. Put simply, this Court can permit a point of law to be raised for the first time in appeal if it is in the interests of justice to do so.

[10] Simfoni Maya had previously commenced an earlier suit against KPerak. This suit was struck out on an O 14A application on the basis that it was premature. In our considered view, the respondent was not barred by res judicata in commencing the second suit (which from which the present emanated). The merits of the claim had not been finally determined in the first suit, and hence res judicata would not apply.

Locus standi

[11]