The reasonable endeavours clause in a contract does not impose an absolute obligation, and the burden of proof lies with the party asserting a breach.

JUDGMENT

Ahmad Terrirudin Mohd Salleh FCJ:

A. Introduction

[1] This matter came up before us on 15 January 2025. We heard oral submissions from learned counsel representing the respective parties. At the conclusion of those submissions, we were unable to render a decision on that day. Therefore, we informed learned counsel that additional time was needed to consider the respective submissions and that they would be notified once a decision had been reached regarding this appeal. We have made our decision and here are the reasons for our judgment. In this judgment, parties will be referred to as they were in the High Court .

[2] The present appeal arose from the Court of Appeal's decision allowing the Plaintiff's appeal against the Kuala Lumpur High Court 's decision which dismissed the Plaintiff's claim for declaratory orders and allowed the Defendant's counterclaim.

[3] The Plaintiff is a company founded and managed by a veteran motoring journalist, Mr Ahmad Yamin Vong Abdullah. The Plaintiff produces motor-related editorial content.

[4] The Defendant is the owner and publisher of various newspapers such as New Straits Times, New Sunday Times, Berita Harian and BH Ahad.

[5] At the heart of this appeal, the dispute forming the main subject of contention between the parties for our determination concerns the true construction of cls 4.1, 4.2 and 4.3 of the Agreement for Production of an Editorial Publication Called "Car, Bikes and Trucks and Berita Harian AUTO" ("2013 Agreement") entered into between them. The leave questions framed by the Defendant primarily relate to these important clauses.

[6] Upon hearing their learned counsel and after anxious consideration, we were constrained to dismiss this appeal.

B. Salient Facts

[7] We respectfully adopt the facts of the appeal as painstakingly set out by the parties in their written submissions and the documents in the appeal records with some modifications.

[8] The Plaintiff and the Defendant entered into a series of Revenue Sharing Agreements between 2003 and 2013 for the Plaintiff's provision of editorial content and the securing of advertisements in the Defendant's New Straits Times and New Sunday Times newspapers entitled "Cars, Bikes and Trucks" ("CBT").

[9] In 2007, the transaction expanded whereby the Plaintiff was contracted to provide similar services for the Defendant's Berita Harian and Berita Mingguan newspapers entitled "Berita Harian Auto" ("AUTO").

[10] In total, the parties executed the following Agreements:

[11] Under the revenue sharing formula of these Agreements, the Plaintiff was entitled to be paid 40% of the net advertising revenue generated by CBT and AUTOwhile the Defendant was entitled to 60%.

[12] The 2003, 2007 and 2010 Agreements generally contain similar terms The salient feature of these Agreements required the Plaintiff to secure annual minimum revenue based on the Net Advertising Revenue to be earned by the Defendant in respect of the Plaintiff's publication for CBT and AUTO in the Defendant's newspapers termed as the Minimum Guaranteed Sum ("MGS"). However, whether the 2013 Agreement contains terms of the same effect remains contentious.

[13] Throughout these Agreements, the Plaintiff successfully met the required targets set therein except for the years 2005 and 2015. No action was taken against the Plaintiff for the 2005 shortfall due to the insignificance of the amount.

[14] Upon expiration of the 2013 Agreement on 31 December 2015, the Plaintiff continued providing editorial content and secured advertisements for the Defendant pursuant to a Month-to-Month Agreement until the parties executed and entered a new 2016 Agreement, effective from 1 January 2016 to 15 September 2016, on 10 May 2016 and this agreement superseded the 2016 Month-to-Month Agreement

[15] On 13 January 2016, the Defendant demanded payment of RM1,589,947.74 from the Plaintiff for the alleged 2015 MGS shortfall under the 2013 Agreement by issuing two (2) Contract Surcharge Invoices namely,