JUDGMENT

Akhtar Tahir J:

Introduction

[1] One of the main issue in this case is whether the agreements between the Plaintiff and the Defendant lawful. In this case the Court deemed it necessary to apply O 33 of the Rules of 2012("the Rules") to determine this issue thereby saving the Court 's time in assessing the losses claimed by the Plaintiff in the event the agreements are found to be unlawful.

[2] By virtue of O 33 of the Rules the directed the Plaintiff and the Defendant to submit on the issue whether the Main Contract and the Additional Contract between the Plaintiff and the Defendant was lawful or otherwise. If the agreements were found to be lawful the Court would then proceed to assess the losses suffered by the Plaintiff as claimed.

[3] Order 33(2) of the Rules provides that:

2. Time of trial of questions or issues (O 33 r 2)

The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

Brief Facts

[4] The Defendant had contracted out the management of parking in Kuala Lumpur to Yayasan Wilayah Persekutuan (YWP) who had in turn sub contracted out the parking management to the Plaintiff.

[5] It is an undisputed fact that by way of Deed of Assignment, YWP had assigned all their right and obligation under the contract with the Defendant to the Plaintiff.

[6] The object of the contracting out the parking management was to assist the Defendant in the management of parking in Kuala Lumpur. The agreement empowered the contracting party, in this case the Plaintiff, in collecting parking charges, issuing compounds and undertaking enforcement operations within the jurisdiction of the Defendant.

[7] In consideration of the assistance rendered by the Plaintiff the proceeds of the work undertaken by the Plaintiff was to be shared with the Defendant in the portion agreed upon under the contract.

[8] The Plaintiff's claim against the Defendant in this case is failing to share the proceeds of the work undertaken by the Plaintiff as agreed under the contract resulting in losses suffered by the Plaintiff.

[9] The main defence of the Defendant against the Plainitff's claim is that the duties undertaken by the Plaintiff in issuing compounds and carrying out enforcement are in conflict with the public duty imposed upon the Defendant which a public body therefore rendering the contract to be unlawful.

The Issue

[10] The crux of the issue for determination in this case is whether the contract between the Plaintiff and Defendant is lawful under s 24 of the Contracts Act 1950 which provides that:

The consideration or object of an agreement is lawful, unless:

(a) it is forbidden by a law;

(b) it is of such a nature that, if permitted, it would defeat any law;

(c) it is fraudulent;

(d) it involves or implies injury to the person or property of another; or

(e) the Court regards it as immoral, or opposed to public policy.

In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

ILLUSTRATIONS

(a) A agrees to sell his house to B for RM10,000.00 Here, B's promise to pay the sum of RM10,000.00 is the consideration for A's promise to sell the house, and A's promise to sell the house is the consideration for B's promise to pay the RM10,000.00 These are lawful considerations.

(b) A promises to pay B RM1,000.00 at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here the promise of each party is the consideration for the promise of the other party, and they are lawful considerations.

(c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here A's prom