The termination of a contract is unjustified if the alleged breach does not constitute a material breach of its terms.

JUDGMENT

Mohd Arief Emran Arifin J:

A. Introduction

[1] The Plaintiff claims the Defendant had unlawfully terminated the Contract dated 3 September 2019 which was referred to as the Concert Performance Agreement.

[2] Material terms of the Contract are as follows:-

2. PAYMENT TO THE MANAGER

2.1 In consideration for procuring the services of the Artiste and the Tour Members, the Promoter shall pay to the Manager a fee of Ringgit Malaysia Seven Hundred Thousand (RM700,000.00 nett) only (the "Performance Fee) and such amount is to be paid in the following manner:

(a) 50% (RM350,000.00) to be paid within 14 days upon signing of this agreement;

(b) 50% (RM350,000.00) to be paid on or before 15 December 2019.

4.5 The Manager shall ensure that the Artiste will not appear in any public live performance in Malaysia during the period comprising three (03) months before the Date of Performance unless with a written consent from the Promoter. Any performances set after the Date of Performance can only be announced after 31 December 2019, unless otherwise agreed in writing by the Promoter. The Promoter would be notified and there would not be any performances that will affect the inducement of audiences into the show.

5. PROMOTION

5.1 The Promoter shall be entitled to carry out such promotions and publicity for the Performance in whatever form and by whatever manner including, without limitation to radio, television, newspaper, brochures and pamphlets etc.

5.2 The Manager shall render its assistance by providing information literature and other promotional material relating to the Artiste and/or the Performance as may he reasonably requested by the Promoter at the latter's cost for the purpose of advertisement or promotion in connection with the Performance.

5.3 All promotional materials and activities in connection with the Performance shall require the prior approval of the Manager before any commitment or promotional activities are announced, planned or carried out by the Promoter. All promotional materials shall be approved by the Manager in writing prior to any production use, distribution or broadcast. The Promoter shall provide all the advertising and promotional materials to the Manager at least seven (7) days in advance and get the prior written approval from the Manager before proceeding for such advertising and promotion activities and for printing or production of the advertising and promotional materials. The Manager shall reserve a right to reject and take down any promotional materials related to the Artiste in the event the Promoter fails to submit materials for approval.

9.4 In the event that the Performance is cancelled due to fault, negligence or act of the Manager or the Artiste, the Manager shall refund all Performance Fee already paid by the Promoter and the Promoter stall reserve the rights to claim from the Manager any such costs, expenses or damages suffered resulting from the cancellation of the Performance.

9.5 In the event the Performance Is cancelled due to disapproval of application of performance license by relevant Governmental authority ie DBKL, both parties agree that it shall not be construed a default and/or breach of Agreement try the Promoter and all Performance Fee already paid shall be refunded by the Manager to the Promoter,

9.6 Any refund or payment to be made In pursuant to cl 9 shall be within fourteen (14) days from date of written notification of the cancellation of Concert and upon full payment, this Agreement shall terminate and be of no further effect.

12. TERMINATION

12.1 Either party shall have the OM to terminate this Agreement upon the happening of any of the following events:-

(a) if any representation, warranty or undertaking made by the other part in this agreement is incorrect or untrue;

(b) if the other party has committed a material breach of any term of this Agreement;

(c) if the other party ceases to conduct business in the normal course; becomes insolvent, makes a general assignment for the benefit