[2014] 1 LNS 1164 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY, MALAYSIA
(CIVIL DIVISION)
[CIVIL SUIT NO: 22NCVC-215-02/2013]

ANTARA

AUGUSTINE FRANCIS
(NO. K/P: 740607-14-5235)
Sebagai Pemilik perniagaan
AF Innovation Consultants
(No. Syarikat: 001871311-K) … PLAINTIFF

DAN

E-PAY (M) SDN BHD

(No. Syarikat: 494207-U) … DEFENDANT

GROUNDS OF DECISION

THE PLAINTIFF’S CLAIM

1. [i] The Plaintiff and the Defendant entered into an Agreement known
as a Business Consultancy Agreement dated 1/12/2009 [“BCA
Agreement”]. Pursuant to the BCA, the Defendant had been paying
the Plaintiff, monthly consultancy fees from January 2010 until
September 2011.

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[ii] Dispute arose in October 2011 when the Plaintiff did not receive
the said monthly consultancy fees. Then the Defendant sent to the
Plaintiff, a termination letter dated 30 th day of November 2011,
terminating the BCA Agreement, resulting in the Defendant to lose
out on the said monthly consultancy fees.

[iii] The Plaintiff herein is contending that the Defendant breached the
BCA Agreement, for inter alia failing to make payment to the Plaintiff
from October 2011 onwards and for wrongful termination of the BCA
Agreement.

[iv] The Plaintiff contends that the Defendant maliciously terminated

the BCA agreement as the business between E-pay and Touch ‘n Go
is ongoing.

THE DEFENDANT’S DEFENCE AND COUNTER-CLAIM

2. [i] The Defendant’s Defence is that the Plaintiff had refused and failed
to carry out his contractual duties and obligations under the BCA
Agreement that is failing to ensure that the Defendant to be appointed
for the official provider for Touch ‘N Go reload services that includes
Petrol Marts. As a result of the repudiatory conduct of the Plaintiff, the
Defendant had no choice but to accept Plaintiff’s repudiation and
terminated the BCA agreement.

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[ii] Further, the Defendant is counter-claiming against the Plaintiff for

loss of estimated income for the month of May 2011 to November
2011 that arose from the Plaintiff’s repudiation of the BCA agreement.

THE PERTINENT ISSUES ARISING

3. [a] One of the issues to be determined is whether there was any

breach of the said BCA Agreement by the Defendant as contended
by the Plaintiff.

[b] In the light of the Defendant’s counterclaim, this Court must also
determine whether the Plaintiff had repudiated the said BCA
Agreement, by in failing inter alia to perform his duties and obligations
in ensuring that the Defendant to be appointed for the official provider
for Touch ‘N Go reload services including Petrol Marts.

CONSIDERATION OF THE PERTINENT ISSUES

WHETHER THERE WAS ANY BREACH OF THE SAID BCA

AGREEMENT BY THE DEFENDANT.

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4. The Defendant contends that the Plaintiff has repudiated the said
BCA Agreement in failing to ensure that the Defendant to be
appointed for the official provider for Touch ‘N Go reload services that
includes Petrol Marts and the repudiation is evident from his own
conduct and action, in that:

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[a] Failing to comply with Clauses 3.1 to 3.3 of the said BCA
Agreement which impose the duties and obligations on the
Plaintiff to secure the Touch ‘N Go reload services that includes
Petrol Marts which the Plaintiff has agreed upon on the signing
of the said BCA agreement;

[b] Failing to respond to numerous emails sent by the

Defendant in asking for meeting up to solve the Petrol Marts
issue nor despite request by the Defendant make any effort to
meet up with the Defendant to resolve issues with Touch N Go
that the Plaintiff is responsible for under the said BCA
Agreement.

5. The Defendant also contends that the said BCA agreement expired
by effluxion of time on 30/11/2012. For the renewal of the said BCA
Agreement, there are 2 conditions which have to be fulfilled namely:-
[a] further terms to be mutually agreed and [b] subject to the renewal
of Touch ‘N Go agreement [Exhibit P2]. These conditions were not
met.

WHETHER THE PLAINTIFF HAD REPUDIATED THE SAID

BCA AGREEMENT BY FAILING TO PERFORM HIS DUTIES AND
OBLIGATIONS BY SECURING THE APPOINTMENT OF THE
DEFENDANT AS THE OFFICIAL PROVIDER FOR TOUCH ‘N GO
RELOAD SERVICES INCLUDING PETROL MARTS

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7. [i] The Defendant contends that the Plaintiff had repudiated the said
BCA Agreement by failing to perform his duties and obligations stated
therein, by failing to secure the appointment of the Defendant as the
official provider for Touch ‘n Go reload services including petrol marts

[ii] Clause 3.1 of the said BCA Agreement states as follows:

“The Parties agree with each other that the validity of this Agreement is
conditional upon AF Innovations securing the appointment of e-pay to
be an official provider for Touch ‘n Go reload services via e-pay’s
network of channel and various collection platform.”

[iii] Clause 3.2 of the said BCA Agreement further states as follows:

“The Parties further agree that the validity of this Agreement is further
conditional upon e-pay being retained and maintained as the official
provider for Touch ‘n Go reload services via e-pay’s network of
channel and various collection platform.”

[iv] Clause 3.3 of the said BCA Agreement further provides as

follows:

“The Parties mutually agreed to collaborate and jointly pursue to

secure the contract for Touch ‘n Go reload services.”

[v] Thus in essence, Clauses 3.1 to 3.3 of the said BCA Agreement
clearly stipulates the duties and obligations of the Plaintiff and the
Defendant, to secure the appointment of the Defendant as the official
provider for Touch ‘N Go reload services for Petrol Marts.

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[vi] A chronology of the relevant emails exchanged between the

Defendant and Plaintiff [which are collectively marked as Exhibit D8]
are as follows:

Defendant’s email to the Plaintiff’s response to

Plaintiff Defendant’s email

Email of 3/10/2011 Email of 4/10/2011

requesting for meet up to informing Defendant that
sort out the Petrol Marts he will be overseas and
issue. will back after 2 weeks

Email of 5/10/2011 No response from the

requesting for meet up on Plaintiff.
20 th or 21 st October 2011

Email of 20/10/2011 Email of 21/10/2011

requesting for meet up informing Defendant that
he is still overseas and
asking Defendant to send
him agenda for meeting
and to conclude via email

Email of 1/11/2011 Email of 1/11/2011

informing the Plaintiff that informing the Defendant
the agenda for discussion that he is still at overseas
is in the and

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email and requested the unable to meet up and

Plaintiff to respond. further requested for
agenda to conclude via
email.

Email of 24/11/2011 No response from the

requesting the Plaintiff Plaintiff.
when can meet up as the
matter has been delayed
for quite some time and
requesting the Plaintiff to
advise them by
25/11/2011.

[vii] Pursuant to the terms of the said BCA Agreement, the Defendant
requested the Plaintiff to assist the Defendant, to secure the
Defendant’s appointment as the official provider for Touch ‘N Go
reload services for Petrol Marts as provided by the said BCA
Agreement. This can be seen from the Defendant’s emails to the
Plaintiff [collectively marked as Exhibit D8] at pages 14 to 20 of
Bundle C wherein the Defendant have sent out numerous emails
from October 2011 onwards to the Plaintiff, seeking the Plaintiff to
perform his duty and obligations under the said BCA Agreement.

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[viii] This Court is in agreement with the Defendant’s contention that

the Plaintiff is avoiding meeting the Defendant and showed that the
Plaintiff is not willing to perform his part of the duties and obligations
stipulated under the said BCA Agreement. Thus this Court finds that
the Plaintiff has repudiated the said BCA Agreement, in breach of
Section 38 of the Contracts Act 1950 which states as follows:

“The parties to a contract must either perform, or offer to perform, their

respective promises, unless the performance is dispensed with or
excused under this Act, or of any other law.”

[ix] It is trite law that a party is entitled to put a contract to an end

following from the repudiation of contract by the other party. Section
40 of the Contracts Act 1950 states as follows:

“When a party to a contract has refused to perform, or disabled himself

from performing, his promise in its entirety, the promisee may put an
end to the contract, unless he has signified, by words or conduct, his
acquiescence in its continuance.”

[x] In LSSC Development Sdn Bhd v. Thomas Iruthayam & Anor

[2007] 2 CLJ 434, the Court inter alia held as follows:

“Where a promisor wrongfully repudiates a contract in its entirety,

the promisee has a choice. He or she may elect to accept the
repudiation, treat the contract as at an end and sue for damages.
The rationale is that the primary obligation to perform the promise
made is substituted with a secondary obligation to compensate the
promisee for the breach. See, Moschi v. Lep Air Services Ltd [1973]
AC 331.”
[Emphasis is mine]

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[xi] Thus, as a result of the Plaintiff’s repudiation of the said BCA

Agreement, this Court thus finds that the Defendant is entitled to
terminate the said BCA Agreement, which termination is provided for
under the said BCA Agreement pursuant to clause 6.3 of the said
BCA Agreement which states “Upon the expiry or termination of
this Agreement (irrespective of reason or cause)…”.

[xii] Since the Plaintiff has repudiated the said BCA Agreement, by
refusing to perform his duties and obligations pursuant to Clauses 3.1
to 3.3 of the said BCA Agreement, by failing to secure the
Defendant’s appointment as the official provider for Touch ‘N Go
reload services for Petrol Marts, the Plaintiff is thus not entitled to
payment for the month of October 2011 or any payments from
October 2011 thereafter. This is supported by Clause 4.1 of the said
BCA Agreement which states “The Parties agreed that AF
Innovations is entitled to a consultancy fees for securing the
appointment of E-pay to be an official provider for Touch ‘N Go
reload services.”. [Emphasis is mine]

[xiii] This Court is in agreement with the Defendant’s contention that

during the trial of this action, the Plaintiff has not adduced any
credible evidence to prove his efforts, apart from setting up the
meeting at coffee shop in securing the signing of Touch ‘N Go
agreement [Exhibit P2] after his appointment under the said BCA
Agreement.

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[xiv] The Plaintiff in cross-examination contends that the meeting with

one Sashie Kumar and one Ahmad Yusri from Touch ‘N Go Sdn
Bhd purportedly took place at coffee shop but there is no credible proof
adduced pertaining to such purported meeting and further both the
said Sashie Kumar and Ahmad Yusri were not called as witnesses in
Court to substantiate the Plaintiff’s story.

[xv] The Plaintiff also contends that there were purportedly follow up
via calls and meeting with Sashie Kumar from January 2010 to July
2010 on the Touch ‘N Go Agreement after the signing of the BCA
Agreement on 1/12/2009 but such purported follow up via calls and
meeting were not documented. Further no evidence was adduced to
show the exchanges of communications in the form of emails or text
messages between the Plaintiff and Sashie Kumar on such purported
follow up via calls and meeting.

CONSIDERATION OF THE DEFENDANT’S COUNTER-CLAIM

9. [i] The Defendant contends that the Plaintiff has repudiated the said
BCA Agreement in failing to ensure that the Defendant to be
appointed for the official provider for Touch ‘N Go reload services that
includes Petrol Marts and the repudiation is evident from his own
conduct and action, by failing to comply with Clauses 3.1 to 3.3 of the
said BCA agreement which impose the duties and obligations on the
Plaintiff to secure the Touch ‘N Go reload services that includes
Petrol Marts which the Plaintiff has agreed upon on the signing of the

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BCA Agreement and failure or omitting to respond to numerous

emails sent by the Defendant in asking for meeting up to solve the
Petrol Marts issue nor despite request by the Defendant make any
effort to meet up with the Defendant to resolve issues with Touch N
Go that the Plaintiff is responsible to act upon under the said BCA
Agreement.

[ii] The Defendant contends that as a result of the Plaintiff’s failure to

meet up with the Defendant to sort out the Petrol Marts matter and
failing to carry out his duties and obligations under the said BCA
Agreement, the Defendant suffers a loss of estimated income arising
from the Plaintiff’s repudiation of the said BCA Agreement.

[iii] Even though there is no evidence from Plaintiff to rebut the

Defendant’s loss of estimated income quantified by the Defendant in
Exhibit D9, for the sum of RM2,164,060.57, the Defendant bear the
burden of proving their loss and this Court finds that the Defendant
has failed to prove the Defendant’s loss of estimated income,
suffered by them due to the Plaintiff’s repudiation of said BCA
Agreement. Just producing the said Exhibit D9 without more is simply
insufficient to prove one’s loss of estimated income.

RENEWAL OF THE SAID BCA AGREEMENT [P1]

10. [i] Clause 2.1 of the said BCA Agreement states as follows:

“This Agreement shall become effective on the ___ day of ___ 2009
(hereinafter referred to as the “Commencement Date”) and, subject to

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Clause 6, shall remain in force for Three (3) years (hereinafter

referred to as the “Contract Period”) upon which, this Agreement shall
be automatically renewed on further term as shall be mutually agreed,
subject to the renewal of the agreement between e-pay and Touch ‘N
Go.

[ii] It is not disputed that the commencement date of the said BCA
Agreement is 1/12/2009. Thus in essence, the said BCA agreement
will be in force for 3 years from 1/12/2009 and shall expire on
30/11/2012. The said BCA Agreement shall be automatically renewed
subject to 2 conditions, ie, [a] further terms to be mutually agreed
and [b] subject to the renewal of Touch ‘N Go agreement [Exhibit P2].
In essence, this means that both the above conditions [a] in terms of
period and terms and [b] renewal of the Touch ‘N Go agreement
[Exhibit P2] must be fulfilled before the said BCA Agreement can be
renewed automatically.

[iii] This Court notes that during the cross-examination of the Plaintiff,
he confirmed that the renewal of the said BCA Agreement is
subjected to these 2 above conditions and the BCA Agreement will
comes to an end on 30-11-2012 by effluxion of time if the above 2
conditions are not fulfilled.

[iv] As regards the Plaintiff’s contention and pleaded case in Q&A 40

in the Plaintiff’s witness statement (WSPW1), contending that the
said BCA Agreement will be automatically renewed as long as Touch
‘N Go Agreement [Exhibit P2] is still valid, this Court finds that this
particular contention is without basis and has no merits as there is no
credible evidence adduced by the Plaintiff that there were further

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terms mutually agreed upon between the Plaintiff and the Defendant
nor was the Touch ‘N Go Agreement renewed.

THE PLAINTIFF’S OTHER CONTENTIONS

11. [i] The Plaintiff contends that the said BCA Agreement can only be
terminated if Defendant is terminated by Touch ‘N Go on the Touch
‘N Go Agreement [Exhibit P2]. From the Plaintiff’s pleaded case and
evidence adduced by the Plaintiff, this Court finds that such a
contention is again without basis and merits as Clause 6.1 of the said
BCA Agreement clearly provides that “this Agreement will only be
terminated in the event E-pay is terminated by Touch ‘n Go as official
provider for Touch ‘n Go reload services”. This clause clearly
provides 1 of the situations whereby the said BCA Agreement can be
terminated if the Touch ‘N Go Agreement is terminated.

[ii] The Plaintiff in Q&A 3 of his witness statement (WSPW1) further

contends that the Defendant did not pay him in full from January 2010
to September 2011. In the Plaintiff’s cross-examination relating to
whether he lodged any complaint to the Defendant on this matter, the
Plaintiff replied that “no complaint was raised to the Defendant”. Thus
this Court finds that the Q&A 3 of WSPW1 is an afterthought and is
without basis. Further the monthly reports and the payments by the
Defendant are inter-related under the said BCA Agreement and
Clause 4.4 of the said BCA Agreement clearly provides that any
dispute in relation to reports must be brought to the Defendant’s

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attention within 3 days, upon receiving the same failing which the
Defendant shall not entertained any dispute thereafter.

[iii] Related to Clause 4.4, is clause 4.5 of the said BCA Agreement
which stipulates that the Defendant shall issue payment to the
Plaintiff if no disputes were raised by the Plaintiff. Since the Plaintiff
did not lodge any complaint with the Defendant pertaining to the
monthly report forwarded to him, this meant that he was satisfied with
the monthly reports as well as the payment received by him
thereafter. Thus the Plaintiff is estopped from contending that the
payments made by the Defendant to him, were not made in full.

[v] The Plaintiff in Q&A 57 of his witness statement [WSPW1] further

contended that the Defendant promised him, a minimum of 500
terminals from the Defendant’s 10,000,000 point of sales which
included petrol marts and convenience stores. The Plaintiff in cross-
examination stated that he obtained this figure from one, Sashie
Kumar and he believed in the said Sashie Kumar. However the
Plaintiff did not adduced any evidence on the figures contended by
him other than what was told by Sashie Kumar. It is pertinent to note
that the said Sashie Kumar was not called as witness in this suit thus
this Court shall attach minimal weight to this contention of the
Plaintiff.

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ORDER

12. In the light of this Court’s above findings, this Court finds that the
Plaintiff has failed to prove his case against the Defendant on a
balance of probabilities. In the premises this Court dismisses the
Plaintiff’s case against the Defendant. This Court also finds that the
Defendant has failed to prove their Counter-Claim on the balance of
probabilities against the Plaintiff. No order as to costs

Dated: 27 MAY 2014

(LEE HENG CHEONG)

Judge
Civil Division
Kuala Lumpur High Court

Counsel:

For the plaintiff ’s - Mathew Thomas Philips (Joanne Chua Tsu Fae with
him); M/s Thomas Philip

For the defendant’s - Ekbal Singh Sandhu Gorumak Singh (S C Chan & F
K Lim with him); M/s Azian & Co

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