The repeal of a statute is an amendment to existing contractual rights, enabling the imposition of a surcharge on late payment irrespective of prior agreements under a repealed law.

[1] In this appeal, the appellant was the plaintiff. The parties will be referred to as they appear in the court below.

[2] In the High court, the plaintiff's claim was for RM9,734,247.87 being penalty or surcharge for late payment of electricity charges. Upon agreement of the parties, the judge ordered the case to be determined based on submissions of parties and dispensed with the requirement of calling witnesses.

[3] The sole question before the court was whether the plaintiff has the right to impose a surcharge for late payment under s 26A of the Electricity Supply Act 1990 ("the Act"), notwithstanding that the contract between the parties was executed prior to the commencement of the Act.

[4] The learned judge answered the question in the negative and dismissed the plaintiff 's claim.

[5] Thus the plaintiff 's (appellant) appeal before us.

Facts

[6] The plaintiff is a licensee and supplier of electricity in Malaysia under the Electricity Supply Act 1990 (the "1990 Act"). The plaintiff was previously a statutory body known as the National Electricity Board or Lembaga Letrik Negara ("LLN") set up under the Electricity Act 1949 (the "1949 Act').

[7] The defendant is a public listed company involved in the business of manufacturing and selling of steel.

[8] Pursuant to a Power Supply Agreement dated 21 July 1990, LLN agreed to supply electricity to the defendant's premises. Under cl 19 of the agreement, the defendant agreed to be bound by the 1949 Act and the rules and regulations made thereunder including any amendment thereto. Clause 19 reads as follows:

"Terikat kepada Akta Elektrik 1949 dan kaedah-kaedah dan peraturan-peraturan yang dibuat di bawah ini dan apa-apa pindaan kemudian ke atasnya".

[9] Subsequently, the 1990 Act came into force on 1 September 1990 replacing the 1949 Act. The plaintiff was incorporated to substitute LLN. Pursuant to s 3(1) and s 3(2)(b) of the Electricity Supply (Successor Company) Act 1990, all rights and liabilities of LLN were transferred to the plaintiff.

[10] As a matter of fact, a new contract was not signed by the parties for the supply of electricity to the defendant's premises subsequent to 1 September 1990.

[11] The plaintiff 's action against the defendant was for recovery of the electricity charges. Since 4 March 2011 the defendant had failed to make payment towards the monthly electricity charges issued by the plaintiff. As at 24 May 2011, there was an outstanding sum of RM30,971,693.30 due and payable by the defendant.

[12] The plaintiff also claimed a sum of RM9,734,247.87 being penalty for late payment. The claim for penalty or surcharge on late payments was made pursuant to s 26A of the 1990 Act read together with reg 4(5) Licensee Supply Regulation 1990, which entitled the plaintiff to impose a surcharge of 1% per month calculated on a daily basis on all outstanding sums due on bills issued upon the expiry of 30 days.

[13] The principal sum was not disputed. The defendant made full payment of the principal sum subsequent to the filing of the action. At the trial, the parties agreed that the only issue before the court was in respect of the surcharge payment and that the case shall be disposed by way of submissions of parties, without calling any witnesses.

[14] The issue before the court was framed as follows:

"Whether the plaintiff is entitled to impose a surcharge for