The Kuala Lumpur High Court today allowed an application by the government and four other parties to strike out a lawsuit filed by Asian Kitchen (M) Sdn Bhd over the alleged termination of the management agreement for the Atmosphere 360 revolving restaurant at KL Tower.
The four other defendants were communications minister Fahmi Fadzil, Hydroshoppe Sdn Bhd, Menara Kuala Lumpur Sdn Bhd, and its subsidiary, MKL Cuisine Sdn Bhd.
Justice Raja Ahmad Mohzanuddin Shah Raja Mohzan ruled that the plaintiff, Asian Kitchen, had no locus standi to initiate this action against the fourth and fifth defendants (Fahmi and the government), Bernama reported.
He also found that the first, second and third defendants (Hydroshoppe, Menara Kuala Lumpur, and MKL Cuisine) had met the strict threshold to demonstrate that the plaintiff’s action was clearly unsustainable.
Raja Ahmad said the plaintiff was a stranger to the concession agreement between the government and Menara Kuala Lumpur.
“To this end, it is extremely worthwhile to take into account the fact that the fifth defendant at all material times has handed over all operations, management and maintenance of KL Tower to the second defendant in accordance with the terms and conditions specified in the said concession agreement.
“Accordingly, the plaintiff cannot bring any litigation related to the concession agreement due to the lack of a privity of contract between the plaintiff and the fifth defendant,” he said.
Regarding Asian Kitchen’s alleged nonfeasance in public office against the fourth and fifth defendants, Raja Ahmad said even assuming that there was a tortious failure to act by the fifth or even fourth defendants, there must still be a direct nexus between the plaintiff and fourth and fifth defendants to create a duty to act on their part.
“In the absence of a direct nexus between the parties, it is impossible even to consider holding the fourth and fifth defendants liable. When it comes to actions for nonfeasance, it is trite law that the duty to act is the central concern.
“Based on the plaintiff’s cause of action, the fourth and fifth defendants have no duty to act to protect the plaintiff’s interest, assuming that there is an interest at all,” he said.
He said for the plaintiff’s claim of nonfeasance against the fourth and fifth defendants to succeed, malice must be proven, and that as a matter of law, tort of nonfeasance cannot be established without malice or bad faith.
“However, how can the fourth and fifth defendants have malice against the plaintiff if there is insufficient legal proximity between them?
“To my mind, the plaintiff in this situation cannot construct an imaginary bridge by using the first, second and third defendants to create a nexus or sufficient legal proximity between the plaintiff and the fourth and fifth defendants.
“The plaintiff has no grounds for bringing this action against the fourth and fifth defendants. Therefore, the fourth and fifth defendants’ application is allowed with costs of RM10,000,” he said.
In allowing the first, second and third defendants’ application to strike out the suit, Raja Ahmad ruled that the plaintiff already had an ongoing case in the commercial division of the court, and that the suits were “mirror images” and there was a risk of conflicting judgments by two concurrent courts.
The court also awarded costs of RM10,000 to the first, second and third defendants.
In the writ of summons and statement of claim filed last April, Asian Kitchen said Menara Kuala Lumpur had appointed it to operate, manage and provide food and beverage services at KL Tower, including at the revolving restaurant Atmosphere 360, beginning Aug 15, 2011.
However, it said that on Nov 2, 2022, it received a notice informing it of the change of management of KL Tower.
Following the share acquisition of the second defendant and the Menara KL concession by the first defendant on Oct 31, 2022, a letter dated Nov 10, 2022 was issued terminating Asian Kitchen as the tower’s food and beverage operator and demanding that the plaintiff vacate and hand over vacant possession of the premises on or before Dec 31, 2022, without providing any reason or prior discussion.
Asian Kitchen alleged that the concession awarded by the second defendant to the first defendant was invalid and void.
The plaintiff further claimed that since being evicted from the premises after June 30, 2023, the company had suffered losses and damages, adding that the losses stemmed from the termination of the employment contracts of 82 staff members.
At today’s proceedings, Asian Kitchen was represented by lawyers Arun Ganesh Boopalan and Andrew Navin: Hydroshoppe, Menara Kuala Lumpur, and MKL Cuisine by lawyer David Wong; and Fahmi and the government by senior federal counsel Siti Syakimah Ibrahim.
