TNB's rights under s 38 of the ESA 1990 allow claims for loss due to meter tampering without needing prior conviction; limitation begins at discovery. Significant calculation errors may warrant alternative damages.

Azahar Mohamed CJM:

Introduction

[1] The following four appeals are heard together on common issues of law in claims by Tenaga Nasional Berhad ("TNB") for loss of revenue due to meter tampering pursuant to ss 38(3) to (5) of the Electricity Supply Act 1990 ("the ESA 1990"):

a. Civil Appeal No 02(f)-34-05-2018(W) (TNB v. Evergrowth Aquaculture Sdn Bhd);

b. Civil Appeal No 02(f)-23-03-2020(B) (Tetangga Bahagia Sdn Bhd v. TNB);

c. Civil Appeal No 02(f)-6-02-2021(J) (Megahock Pipes & Profile Manufacturing Sdn Bhd v. TNB); and

d. Civil Appeal No 02(f)-8-02-2021(J) (Megahock Pipes & Profile Manufacturing Sdn Bhd v. TNB).

[2] Parties will be referred to by their respective names. As it is, the common party to these four appeals is TNB who is the appellant in one of these appeals and respondent in the other three. Other parties, namely Evergrowth Aquaculture Sdn Bhd ("Evergrowth"), Tetangga Bahagia Sdn Bhd ("Tetangga Bahagia") and Megahock Pipes & Profile Manufacturing Sdn Bhd ("Megahock") will be referred to by their names where necessary, but their shared commonalities grouped them to be conveniently referred to as "the Consumers".

[3] There are several questions of law in these four appeals which give rise to common issues of law. It is important to reiterate at this point that in framing the common issues all the parties agreed to adopt the approach taken in Tenaga Nasional Berhad v. Ichi-Ban Plastic (M) Sdn Bhd & Other Cases , [2017] 9 CLJ 1 FC ("Ichi-Ban") and Terengganu Forest Products Sdn Bhd v. Cosco Container Lines Co Ltd & Anor And Other Applications; [2011] 1 MLJ 25; [2011] 1 CLJ 51 FC. That is to say, the common issues of law are to be determined first and the decision on these issues are then to be applied to the substantial merits of each appeal. Therefore, at this stage the facts underlying the respective appeals are not particularly important in determining the common issues of law. Reference is only made to facts where context necessitates.

Common Issues Of Law

[4] The questions of law in respect of which leave applications to appeal were allowed in the four appeals may be categorised and framed into the following six common issues of law:

i. Whether TNB can rely on reg 7 Licensee Supply Regulations 1990 ("LSR 1990") to enter consumer's premises in order to obtain a remedy under s 38(3) of the ESA 1990 without complying with the requirements under s 5 of the 1990? ("The Entry and Inspection point").

ii. Whether TNB's discovery of a metal clamp affixed to its meter at a consumer's premises is sufficient in law for the court to hold that there was a meter tampering for the purposes of ss 38 (1) and 38(3) of the ESA 1990? ("The Metal Clamp point").

iii. Whether limitation under s 6 of the Limitation Act 1953 (" LA 1953") starts to run from the date the meter was alleged to have been tampered with or from the date the meter tampering was alleged to have been discovered? ("The Limitation Point").

iv. Whether significant errors in TNB's calculation for loss of revenue will lead to a dismissal of TNB's claim or whether the court should substitute an alternative amount for the claim? ("The Alternative Remedy Point").

v. Whether aggravated or exemplary damages must be pleaded for the court to order it as a relief to the successful party? ("The Aggravated/Exemplary Damages Point").

vi. Whether in adjudicating the fairness and reasonableness of the loss of revenue claimed by the respondent, the Energy Commission's Guideline and the compliance thereof in computing the loss of revenue is an overriding consideration that excludes the consideration of other contrary evidence which may vitiate the operation thereof and the sum that may be lawfully claimed? ("The Energy Commission's Guideline Point")

[5] We will take each in turn.

The Entry And Inspection Point

[6] This point concerns Question 3 in Civil Appeal No 02(f)-34-05-2018(W) which reads:

"Whether the phrase "at all reasonable times" in reg 7 of the Licensee Supply Regulati