Shahnaz Sulaiman JCA:

Introduction

[1] This appeal arises from the decision of the learned Judicial Commissioner delivered on 15 February 2024, which dismissed the Appellant's claims against all six Respondents. The dispute concerned an alleged breach of contract between the Appellant and the Respondents and for unequal treatment with other contractors, whose contracts with the City Hall of Kuala Lumpur ("DBKL"), had been novated to a new concessionaire, Alam Flora Sdn Bhd ("AFSB"). The Appellant also makes a claim of a tort of misfeasance in public office against the Fourth Respondent, as a senior public officer, for his failure to table the Appellant's price increase to the Cabinet for consideration and approval.

[2] Having heard comprehensive submissions from all parties and carefully considered the evidence and the High Court 's reasoning, we unanimously dismiss the appeal with costs. The analysis of the learned Judicial Commissioner was legally sound, factually well-grounded, and his conclusions were amply supported by the evidence before him.

Background Facts

[3] The Appellant was awarded a contract on 15 April 2005 by DBKL for cleaning footways in Kuala Lumpur. The terms stipulated specific cleaning frequencies and rates for various streets that were calculated on a per-square-metre basis. This agreement was later extended for a further five years following a decision by the Economic Planning Unit on 14 November 2007.

[4] On 1 September 2011, the enacted Solid Waste and Public Cleansing Management Act 2007 (Act 672) came into force, which led to the establishment of a centralized executive authority over solid waste management to the Federal Government (the First Respondent) which was previously held by local authorities. This responsibility was then delegated to the Ministry of Housing and Local Government (the Second Respondent), led at the time by the Fourth Respondent as its secretary general. Act 672 also led to the establishment of key entities, namely, the Third Respondent, Jabatan Pengurusan Sisa Pepejal Negara, led by a Director General, and the Sixth Respondent, Solid Waste and Public Cleansing Management Corporation, a corporate body overseen by the Second Respondent and led by a Chief Executive Officer (the Fifth Respondent).

[5] Pursuant to this privatization policy, the First Respondent, the Sixth Respondent, and AFSB entered into a concession agreement on 19 September 2011. This resulted in the novation of the Appellant's original contract with DBKL to AFSB.

[6] The detailed chronology of events is as follows. On 15 April 2005, the Appellant was awarded a contract by DBKL and began providing footway cleaning services in Kuala Lumpur at a fixed rate. On 14 November 2007, instructions by Economic Planning Unit were given to DBKL, resulting in the Appellant's contract being extended for a further five years.

[7] On 1 September 2011, the Act 672 came into force and the authority for waste management was centralized under the First Respondent.

[8] The Concession Agreement was signed on 19 September 2011 between the First Respondent, Sixth Respondent and AFSB. The Appellant's contract with DBKL was novated to AFSB as part of the national privatization initiative.

[9] Negotiations between Appellant and AFSB took place between September 2011 and October 2012. The Appellant initially disagreed with the novation, and DBKL continued payments during this period.

[10] Subsequently, on 10 October 2012, AFSB and the Appellant signed a Letter of Award where the Appellant accepted a new contract but crucially, the payment rate remained the same as the 2005 rate.

[11] For the period between 2013 to 2018, the Appellant made repeated appeals directly to the Prime Minister and ministers, bypassing AFSB. The then-Prime Minister minuted several letters with remarks like "For consideration" and later instructions to implement a new price.

[12] On 1 August 2014, Third Respondent issued an internal letter approving a price rate increas