KUALA LUMPUR: The High Court has allowed striking out applications by five defendants, including the government, in a lawsuit filed by restaurant operator Asian Kitchen (M) Sdn Bhd over a concession agreement to operate a rotating restaurant at KL Tower.
Justice Raja Ahmad Mohzanuddin Shah Raja Mohzan allowed the striking out application filed by Communications Minister Datuk Fahmi Fadzil and the government, who were the fourth and fifth defendants, respectively.
He also allowed a second striking out application filed separately by Hydroshoppe Sdn Bhd, Menara Kuala Lumpur Sdn Bhd and MKL Cuisine Sdn Bhd (who were the first, second and third defendants respectively in Asian Kitchen’s lawsuit), as they had met the strict threshold in proving the plaintiff’s action was “unsustainable”.
Asian Kitchen owned “Atmosphere 360”, also known as the rotating restaurant, until it was instructed to vacate the premises at KL Tower in 2023.
In his decision here on Wednesday (Sept 24), Justice Raja Ahmad said the plaintiff lacked locus standi to bring the legal action against Fahmi and the government.
The plaintiff had based its lawsuit against the two defendants on the tort of nonfeasance (the failure to act when there is duty to act).
On this claim, Justice Raja Ahmad said there must be a direct nexus between the plaintiff and the fourth and fifth defendants to create a duty to act on their part.
“In the absence of a direct nexus, it is impossible to even 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,” he added.
The judge said that for the claim of nonfeasance to succeed, malice must be proven.
“As a matter of law, the tort of nonfeasance cannot be established without malice or bad faith,” he said.
For the second striking out application, Justice Raja Ahmad said Asian Kitchen already has an existing lawsuit at the commercial division of the court, which the defendants claimed was a “duplicate action”.
Justice Raja Ahmad said he found the two lawsuits, one before him and the other in a separate court, to be “mirrors of one another”.
“In such a situation, there is certainly a risk that two different courts could issue contradictory judgments based on similar facts.
“To this end, the plaintiff’s decision to file an action against the fourth and fifth defendants (Fahmi and the government) doesn’t automatically give them carte blanche to drag the first, second and third defendants into this action again. More parties do not necessarily mean better,” he added.
The court allowed both striking out applications with costs of RM10,000 each.
Asian Kitchen filed the lawsuit against the defendants in April, claiming that the second defendant (KL Tower) had appointed the plaintiff to handle, manage and run a food and beverage service at KL Tower, including Atmosphere 360, beginning Aug 15, 2011.
On Nov 2, 2022, the plaintiff claimed to have received a notice informing them of a change in the management of KL Tower from Telekom Malaysia to the first defendant (Hydroshoppe) effective Nov 1, 2022.
The plaintiff claimed that following the change in management, a letter dated Nov 10, 2022, was issued to terminate the plaintiff’s role in operating food and beverage service at KL Tower. The letter also allegedly demanded that the plaintiff vacate the premises on or before Dec 31, 2022, without any reasons given.
The plaintiff claimed that the concession given to the first defendant by the second defendant was invalid and void. It claimed that after it was evicted from the premises on June 30, 2023, the company suffered damages and losses from having to terminate the contracts of 82 staff.
