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2023 MarsdenLR 636
COURT OF APPEAL PUTRAJAYA
SEBUMI MAGNETIK SDN BHD – Appellant
Versus
TWINSKY SEAFOOD RESTAURANT & ORS AND OTHER APPEAL – Respondent
[Civil Appeal No: S-02(IM)(NCvC)-1973-12/2020 & S-02(IM)(NCvC)-1984-12/2020]
The claim for double rental or double value under the Civil Law Act 1956 must be specifically pleaded, as parties are bound by their pleadings, and the court cannot decide unpleaded issues.
Headnote:(A) Civil Law Act 1956 - Paragraph 28(4)(a) - Appeals regarding assessment of damages - The Federal Court granted leave to appeal on whether a claim for double rental or double value must be specifically pleaded - The court emphasized that parties are bound by their pleadings, and the court cannot decide on issues not raised in pleadings. (Paras 4, 14, 15, 25, 30)
(B) Pleadings - Importance - The court reiterated that it is not the duty of the court to create a cause of action for a party, and claims must be clearly stated in the pleadings to avoid surprises. (Paras 15, 25, 28)
Facts of the case:
The plaintiff leased an area for a food court and later entered into a tenancy agreement with the defendants for a seafood restaurant. The defendants ceased payment and continued occupying the premises despite termination of the agreement. The plaintiff sought damages including double rent. (Paras 6-13)
Findings of Court:
The court found that the plaintiff did not specifically plead a claim for double rent or double value, and thus, the appeal was dismissed as the claim was not properly raised. (Paras 25, 30)
Issues: Whether a claim for double rental or double value needs to be specifically pleaded and/or prayed for separately from a claim for damages for trespass. (Paras 14)
Ratio Decidendi: The court held that the claim for double rental or double value must be specifically pleaded as it is not a matter of right under the law, and failing to do so deprives the defendants of clarity on the issues in dispute. (Paras 25, 26)
Result: Appeal dismissed with no order as to costs.
| Table of Content |
|---|
| 1. overview of the appeals and federal court's question. (Para 1 , 2 , 3 , 4 , 5) |
| 2. facts regarding tenancy and disputes. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. issue regarding double rental claim pleading. (Para 14) |
| 4. pleading requirements in civil litigation. (Para 15 , 16 , 18 , 20) |
| 5. necessity of pleading double rental claims. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28) |
Introduction
[1] There are two appeals heard together before us in respect of the assessment of damages decided by the Kota Kinabalu High Court on 20 November 2020. Civil Appeal No S-02(IM)(NCvC)-1973-12/2020 (CA 1973) was brought by the appellant/plaintiff and Civil Appeal No S- 02(IM)(NCvC)-1984-12/2020(CA 1984) was brought by the appellant/ defendants.
[2] On 26 May 2022, we dismissed both appeals with no order as to costs.
[3] Aggrieved by our decision in CA 1973, the appellant/plaintiff applied to the Federal Court for leave to appeal part of the decision in respect of the non-granting of double rent or double value claimed under para 28(4)(a) of the Civil Law Act 1956 ( CLA 1956) in the assessment of damages before the High Court.
[4] On 14 February 2023, The Federal Court unanimously ordered that the appellant/plaintiff be granted leave to appeal against part of our decision. The question admitted for determination by the Federal Court is as follows:
Whether a claim for double rental and/or double value under s 28(4)(a) of the Civil Law Act 1956 needs to be specifically pleaded and/or prayed for separately from a claim for damages and/or compensation for trespass?
[5] For ease of reference, parties will be referred to as in the High Court, the plaintiff and defendants.
Brief Background Facts
[6] The plaintiff had leased an area from DBKK Holdings Sdn Bhd under a Concession Agreement and had expanded monies to develop the said area as a food Court known as Food Square.
[7] The 1st defendant entered into a tenancy agreement dated 1 March 2010 with the plaintiff to rent an area of 5,167.03 square feet at the Food Square for the operations of the defendants' seafood restaurant (the Demised Premises). The term under the tenancy agreement of the Demised Premises was from 1 December 209 to 30.11. 2016.
[8] Sometime in September 2013, the 1st defendant ceased and refused to pay the rental and other amounts due under the tenancy agreement despite demands for payment from the plaintiff. The defendants had disputed the rights of the plaintiff to rent out the Demised Premises but at the same time continued to use the Demised Premises for their business. For the plaintiff, the defendants' actions amounted to a repudiation of the tenancy agreement and the plaintiff accepted the repudiation by terminating the Tenancy Agreement via a letter dated 4 November 2013 (the Termination Letter) issued by the plaintiff's solicitors.
[9] Prior to the termination of the Tenancy Agreement, the defendants had intermittently used the Reserved Area, comprising of an area around 191.33 square feet, at the Food Square. They had occupied and taken possession of the Reserved Area for their business.
[10] Despite the termination of the tenancy agreement, the defendants continued to occupy the Demised Premises and the Reserved Area. They refused to deliver up vacant possession of the Demised Premises and the Reserved Area, and continued using them for their business.
[11] The plaintiff's solicitors served the Writ and Amended Statement of Claim on the defendants on 5 December 2016 and 7 December 2016. Despite the service of the legal process, the defendants continued to occupy the Demised Premises and Reserved Area for their business. The defendants belatedly entered appearance on 3 March 2017 and 8 March 2017. Subsequently, the plaintiff applied for judgment against the defendants on 13 March 2017.
[12] On 5 June 2017, after the High Court heard arguments from the solicitors for the plaintiff and the defendants, judgment was entered in favour of the plain
