Su Tiang Joo JC:

JUDGMENTIntroduction

[1]The Plaintiff’s claim is principally for breach of contract in failing to effect payments due. After a trial, on 7 November 2022, this Court allowed the Plaintiff’s sole remaining claim for special damages of RM14.5 million with interest thereon at 5% p.a. from 1 January 2015 until full realisation and costs of RM40,000.00. Dissatisfied, the Defendant appealed, and these are the grounds for the judgment handed down.

Trial via Remote Communication Technology

[2]By reason of the COVID-19 pandemic, the nine-day trial was conducted through a remote communication technology, namely the Zoom platform. Although section 15A (1)Courts of Judicature Act 1964

[3]Evidence was taken online from the witnesses called by the parties, four (4) by the Plaintiff and three (3) by the Defendant.

Parties

[4]The Plaintiff is a company incorporated in Malaysia with its business address at C806, Centre Wing, Metropolitan Sq., No. 2, Jalan PJU 8/1, Bandar Damansara Perdana, 47820 Petaling Jaya, Selangor.

[5]The Defendant is a company incorporated in Malaysia with its registered office at No. 9A, Medan Gopeng 4, Jalan Raja Dr Nazrin Shah (Jalan Gopeng), 31350 Ipoh, Perak.

Agreed Facts (Bundle C)

[6]The Plaintiff and the Defendant have agreed to the following facts:

i)By way of a Letter of Intent dated 28 August 2009, the Defendant agreed to appoint the Plaintiff to provide indoor digital media (“IDM”) at premises to be identified by the Defendant.

ii)The Plaintiff and the Defendant signed an IDM Agreement dated 28 September 2009.

iii)The IDM Agreement was to be in force for 60 months commencing 28 September 2009 until 28 September 2014.

iv)The Perak State’s IDM network known as Perak TV was to be launched by the Chief Minister on 14 November 2009.

v)The costs for the provision of the Perak State’s IDM network, that is, the provision of the Liquid Crystal Display (“LCD”) screens, the computer equipment and software, infrastructure, management, operation, maintenance and procurement of sources for advertisements was to be borne wholly by the Plaintiff.

vi)The Plaintiff was to install 300 LCD screens within three (3) years i.e. from 28 September 2009 until 28 September 2012 and this period is known as the Mobilisation Period.

vii)As at 15 May 2011, a total of 105 LCD screens have been installed by the Plaintiff at locations that have been identified and approved by the Defendant.

viii)The income from the sale of advertisement slots in Perak TV is to be collected and held on trust by the Plaintiff as a trustee for the Defendant.

ix)The income from the sale of advertisement slots in Perak TV is to be shared between the Plaintiff and the Defendant at the ratio of 80% for the Plaintiff and 20% for the Defendant.

x)The Plaintiff had a Nationwide Media Network at Telekom Malaysia (“TM Point”), Keretapi Tanah Melayu (“KTM”), Bank Rakyat and Bank Islam.

xi)“National Airtime Cost” is the cost for “National Airtime Exposure” that was provided by the Plaintiff to promote the Defendant’s internal services on the Plaintiff’s Media Network.

xii)The maximum amount of National Airtime Cost that was to be paid (“yang perlu dibayar”) by the Defendant to the Plaintiff is RM3 million per annum.

xiii)The Defendant had received the Plaintiff’s letter of demand dated 4 February 2013.

xiv)No notice of termination was issued by the Defendant to terminate the IDM Agreement [made] with the Plaintiff.

xv)The Defendant has made payments to the Plaintiff on 24 November 2009, 3 December 2009 and 12 February 2010 totalling RM500,000.00.

Issues to be Tried

[7]Both the parties could not agree to a common set of issues to be tried which resulted in the parties each filing its own set of issues to be tried.

[8]The Plaintiff had postulated 17 issues to be tried (Enclosure 105) whereas the Defendant postulated five with two interrelated issues housed within its issue no. 5. (Enclosure 145).

[9]The numerous issues canvassed included the following in broad terms:

i)whether the Plainti