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FLOW TARIKHP Writ of summon + SOC : 27th October 2020 P Affidavit of service : 29th October 2020 D Memorandum of Appearance + SOD: 6th November 2020 D Notice of Application to strike out + Affidavit in Support : 18th November 2020 P Affidavit in Reply : 26th November 2020PLAINTIFFPlaintiff’s documen...

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FLOW TARIKH P Writ of summon + SOC : 27th October 2020 P Affidavit of service : 29th October 2020 D Memorandum of Appearance + SOD: 6th November 2020 D Notice of Application to strike out + Affidavit in Support : 18th November 2020 P Affidavit in Reply : 26th November 2020

PLAINTIFF Plaintiff’s document 1. Writ of Summon 27/10/2020 2. Statement of Claim 27/10/2020 3. Affidavit of Service 29/10/2020 4. Affidavit in Reply 26/11/2020 Judge masuk *tunduk hormat* Judge akan sebut no case: SUIT NO. 01(f)-10-04 OF 2020 Plaintiff’s Counsel 1

May it please the honorable court, my name is Nor Azlina Binti Azizul Azman, and my co counsel is Einy Adliana Binti Faizal Abbas. We’re from Messrs Azlina & Associates appearing on behalf of the Plaintiff, SPM Membrane Switch Sdn Bhd. Presence with us today, my learned counsels, Nur Izzati Binti Zakaria and Manal Hayati Binti Mohd. Ariff , the Legal Adviser of Selangor, appearing on behalf of the Defendant, Kerajaan Negeri Selangor. Today we would like to update to the court about our progress.Yang Arif, may I proceed to update briefly about our progress? Firstly, the Plaintiff has initiated the case by serving writ of summon together with the statement of claim on 27th October 2020. The Plaintiff also had served an affidavit of service on 29th October 2020. The Defendant within the 14 days has entered the appearance which is Memorandum of Appearance and also had served a statement of defence on 6th November 2020 to respond to the Plaintiff’s statement of claim.

Next, the Defendant had served a notice of application to strike out the Plaintiff’s claims together with the affidavit in support on 18th November 2020. And then lastly, the Plaintiff had served the affidavit in reply on 26th November 2020 to respond to the Defendant's affidavit in support.

Now, I would inform the court regarding the facts of the case. May I proceed Yang Arif? On 20th September 2015, the Defendant had entered into an agreement with the Plaintiff where the Defendant had appointed the Plaintiff to assist them in collecting outstanding quit rent in the area of Selangor particularly. There are several terms that had been agreed between the Plaintiff and the Defendant on the agreement, which are:1. collect quit rent arrears 2. acquisition of data relating to quit rent 3. preparation and service of notices of demand 4. set up a computer system & maintaining sufficient manpower 5. conducting a public information campaign with regard to the collection of quit rent

It was agreed between the parties that the Defendant may terminate the agreement if the performance of the services was unsatisfactory under one of the grounds in clause 8 in the agreement. The termination of the agreement needs to be made by giving thirty days notice to the Plaintiff. It was also agreed that the Defendant may review the Plaintiff’s performance of its services. If the Plaintiff’s performance on the obligation of the agreement was unsatisfactory, the Plaintiff needs to compensate the Defendant within 30 days. Failure to do so, at the end of the 30 days, the Defendant may terminate the agreement under clause 8. It was also the term of the contract that Plaintiff is entitled to claim for the loss of profits in the event that the Defendant wrongfully terminated the agreement.

From 29th December 2015 until 26th June 2020 the Plaintiff had conducted several information campaigns, had prepared the notice of demand of quit rent, update the acquisition of data collected, and provided sufficient manpowers for the purpose of collecting the data.

On 27th May 2020, the Defendant had given the notice of termination, giving 30 days notice starting from the said date. The letter however, did not specify any reason for the termination. Later on, the Defendant had issued a subsequent letter on 26th June 2020 stating that the termination was affected. The second letter also did not specify any reason for the said termination. Therefore, the Plaintiff failed to remedy any unsatisfactory situation as agreed in the agreement. Apart from that, the Defendant failed to pay the outstanding sum for the services rendered prior to termination from a period of 11 May 2019 until 26 June 2020 which amounted to RM2,561,000.00. The Plaintiff had issued several reminders to the Defendant through email dated 15 January 2020, 17 April 2020 and 14 May 2020 to settle the payment of the outstanding sum. However, the Defendant did not respond to all the emails sent by the Plaintiff. The cause of action in this case is that the Defendant was in breach of the contract for the wrongful termination of the Plaintiff’s services, therefore the Plaintiff is asking the court to declare the termination of service is invalid and defective in law, to compensate the general damages for profit loss and to pay the outstanding sum of services which amount to RM 2,561,000.00. Yang Arif, that’s all for the facts of the case. My co-counsel will explain on the grounds of application as well as the remedies.

Plaintiff’s counsel 2 (ground application and remedies

May it please this honourable court. Yang Arif, as has already been stated, My name is Einy Adliana and I am acting on behalf of the plaintiff together with Miss Nor Azlina. Now, I would like to inform the Court the grounds for the plaintiff’s Affidavit in Reply in responding to the Affidavit in Support served by the defendant. May i proceed Yang Arif? We have submitted the Affidavit in Reply sworn by Amin Akmal Bin Kamal [NRIC NO:861026-01-5913], the Managing Director of the SPM Membrane Switch Sdn Bhd before the Commissioner of Oaths. Yang Arif, to counter the first ground of Affidavit in Support, in which it was said that the Plaintiff has no cause of action in this case, the said ground is denied. The Plaintiff has a reasonable cause of action because the termination done by the defendant was contrary to the agreement. It has been agreed by both parties that the defendant is obliged to conduct a performance review before terminating the plaintiff’s service. The defendant also shall give thirty days notice to the plaintiff to remedy the unsatisfactory situation, but the letter served by the defendant did not specify any reason for the said termination. The defendant had failed to conduct any performance review as agreed in the agreement and the plaintiff also never had a chance to remedy the unsatisfactory services due to the absence of reason on the part of the defendant, therefore the termination was wrongfully done. Moreover, the defendant also failed to pay for the services prior to the termination from 11 May 2019 until 26 June 2020 which amounted to RM 2,561,000.00 as what have been agreed by both parties, therefore this constitutes a breach of agreement. Hence, the plaintiff has a strong cause of action to filed the case into the court.

In replying for the second ground, it was claimed by the defendant that the plaintiff is frivolous and vexatious due to the default in the plaintiff's performance. It is claimed that the plaintiff failed to conduct the public information campaign relating to quit rent as per requested in agreement. The said ground is denied as the plaintiff have done their part

in conducting the public information campaign but the mode of conduct of the campaign was changed from offline to online mode. Second, the df claimed on the part of delay by plaintiff in preparing and serving notice of demand. It was admitted, there was delay in preparing and serving the notice of demand from plaintiffs side. The delay was caused by the ancient system that was used by the land offices which caused difficulties to retrieve the information. Third, with regard to the incompetent manpower and inadequate to cover the work of collecting the data , the said ground is denied. During the recruitment, the plaintiff had conducted the interview and filtered the candidates according to the stages. The successful employee that passed the requirement will be sent to undergo two weeks of employment training with a certified trainer. Therefore, the contention that the staffs are incompetent is completely baseless.

Yang Arif, the plaintiff admitted that they received several reminders through letters and emails with regards to this matter. The plaintiff denied the fact of failure of the plaintiff to comply with demand as stated in the Agreement. At all material time, the plaintiff had exercised their obligation to select the best employee for the purpose of collecting the data in all 5 districts as mentioned. The plaintiff also has conducted the campaign of the collection of quit rent as contended by the Defendant by expanding the campaign through third party platforms such as paid content in social media.

Yang Arif, replying for the third ground in the application, the plaintiff has the cause of action to proceed with the claims. The defendant needs to fulfil its obligations as what has been stated in the agreement. The plaintiff has the grounds to proceed with the case and entitled to a trial in the court.

We humbly request from the Honourable Court to dismiss the defendant’s application for striking out with cost. If there is no further assistance from the court, we would like to humbly request for the next court direction. Much obliged.

The damages that the plaintiff wanted to claims are: a) A declaration that the termination of service is invalid and defective in law; b) The Defendant is to compensate the general damages for profit loss with an amount to be assessed by this honourable court to the Plaintiff; c) The Defendant to pay the outstanding sum of the services amount to RM2,561,000.00;

DEFENDANT Defendant’s document 1. Memorandum of Appearance 6/11 2. Statement of Defence 6/11 3. Notice of Application to strike out 18/11 4. Affidavit in Support 18/11

Defendant’s Counsel 1 May it please this honorable court. Yang Arif, as has been introduced, I am Nur Izzati, representing the Defendant, the State Government of Selangor. Appearing with me today is Ms. Manal Hayati. Yang Arif, now I would like to inform the court regarding the progress of this case and reply to the statement made by the Plaintiff’s counsel just now. As has been mentioned by the Plaintiff’s counsel, the case was initiated by the Plaintiff by serving the writ of summon together with the statement of claim to the Defendant on 27th October 2020. On 6th November 2020, the Defendant had entered the appearance by filing and serving the Memorandum of Appearance. The Statement of Defence also has been served on the same date in replying to the Plaintiff’s Statement of Claim. There is no any Reply to the Defence filed by the Plaintiff. On 18th November 2020, the Defendant had served Notice of Application to Strike out the Plaintiff’s claims together with the Affidavit in Support. Then, the Plaintiff served the Affidavit in Reply to respond to the Defendant’s application to strike out on 26th November 2020.

Yang Arif, on behalf of the Defendant, I would like to summarize the material facts omitted by the Plaintiff in order to deny the Plaintiff’s allegation stated in the Statement of Claim. Starting from 22nd December 2018, the Plaintiff failed to conduct the public information campaign. Starting from March 2019, there were delays in preparing and serving the notice of demand for the quit rent by the Plaintiff. Furthermore, starting from

1st May 2019, the Plaintiff has stopped preparing and serving the notice of demand. Apart from that, the 30 manpowers provided by the Plaintiff was mostly incompetent and inadequate to cover the work of collecting the data in the area of Selangor. As a result, the date in those areas was not completed by the Plaintiff. All of these facts amounted to unsatisfactory performance of services. In fact, the Defendant continuously paid for the services until 10th May 2019. The facts relating to service the notice and letter of termination is affirmed. However, it was omitted by the Plaintiff that an acknowledgement of the termination has been sent by the Plaintiff via an official letter dated 10th June 2020.

Regarding the Plaintiff’s right to remedy the unsatisfactory performance of services, the Defendant never failed to inform the Plaintiff regarding the unsatisfactory services that needed to be improved through several letters and emails. Therefore, the Plaintiff’s constant failure to remedy the unsatisfactory services triggered the termination clause. Hence, we submit that the termination done by the Defendant is valid and cannot be assumed as a wrongful termination alleged by the Plaintiff. With regard to the outstanding sum of payment claimed by the Plaintiff, the Defendant avers that the Defendant refused to pay with justification that the Plaintiff has irresponsibly failed to fulfil their obligations in accordance to the agreement as summarized before. Yang Arif, therefore, we submit that the termination done by the Defendant is valid and the Plaintiff has no right to claim any payment sum. The defendant humbly prays for this Honourable Court to dismiss the plaintiff’s claim with costs. Yang Arif, if there is no further question from the court, my co-counsel will proceed to the facts relating to the Application to strike out.

Defendant’s Counsel 2 Grounds of application. Yang Arif, My name is Manal Hayati, the second counsel representing the defendant, the Kerajaan Negeri Selangor in the current proceedings. Yang Arif, On 18th November, the Defendant has filed for application to strike out the Plaintiff’s claim from this honourable court relying on three grounds under subparagraph 1(a), 1(b) and 1(d) under Order 18 Rules 19 Rules of Court 2012. Together with the application, we have submitted the affidavit in support sworn by Nik Suhaimi bin Nik Sulaiman [NRIC NO: 680723-10-5663], the state secretary of Govt of Selangor before the oath commissioner. The first ground of Defendant’s application is the Plaintiff has no cause of action relying on grounds under Order 18 Rules 19 subparagraph 1(a). The Plaintiff has no cause of action because the Defendant has reasonably terminated the agreement by sending a 30 days notice to the Plaintiff on 27 May 2020 and the termination has taken effect after 30 days in which the Defendant has also notified the Plaintiff on the said effective termination by way of a termination letter on 26 June 2020. The Plaintiff has also on 10 June 2020 issued a letter to acknowledge the termination made by the Defendant. Hence, there is no legal relationship between the Plaintiff and the Defendant that allows the Plaintiff to bring an action against the Defendant under the contract. A copy of notice of termination is shown there and marked here as Exhibit ‘NSNS-3’ Yang Arif, The Second ground of application is the claims made by the Plaintiff are scandalous, frivolous or vexatious having reliance onto grounds under Order 18 Rules 19 subparagraph 1(b) . The Plaintiff’s claim is frivolous and vexatious because the default is on part of the Plaintiff who failed to perform in accordance to the material terms of agreement. The Defendant had given ample time and multiple chances for the Plaintiff to remedy and improve their performance but they failed to do so. For this court’s information, the Plaintiff has defaulted in performance since 22 December 2018 when they failed to conduct the public information campaign relating to quit rent. The defendant has sent 3 notifications for the Plaintiff to mend their performance via letters dated 14.01.2019, 14.02.2019 and 14.03.2019. The performance has worsened in 2019 when the Plaintiff has stopped preparing and serving the notice of demand of the quit rent to the clients and the Defendant has

sent several letters dated 16.03.2019 and 16.4.2019 asking Plaintiff to remedy their performances. Apart from that, the manpower provided by the Plaintiff in few districts, specifically in Kuala Langat, Hulu Langat and Sepang during the period of agreement from 1 October 2015 until the date of termination on 26 December 2020 were insufficient and mostly incompetent to cover the works in the area agreed and the Defendant has informed this through several letters dated 24.06.2017, 30.06.2018 and 24.02.2019. ‘A copy of letters and emails is shown there and marked here as Exhibit ‘NSNS-2’. (in the affidavit in support) Yang Arif, The Plaintiff’s claims implies that the Plaintiff purposely uses the Court’s discretion to claim for damages that they do not deserve from us. Yang Arif, the default after default made by the Plaintiff leads to the third grounds of application. The third ground of application is abuse of the court’s process based on the grounds under Order 18 Rules 19 subparagraph 1(d). Since there is no likelihood of success for the Plaintiff’s case, it will be an abuse of the court’s process if the court were to allow this case to proceed to a trial since the court will have to entertain groundless claims that will unnecessarily consume time and costs of this honourable court. Yang Arif, after being advised. The Defendant believes that the Plaintiff has no reasonable cause of action to proceed with their claims. The act of Defendant for not paying the Plaintiff since 11 May 2019 is also justified by the defaults on part of the Plaintiff themselves. The Defendant also reiterates that it has a meritorious grounds to strike out the Plaintiff’s claim. Hence, the Defendant humbly requested this honourable court to strike out the whole of Plaintiff’s statement of claims. Yang Arif, that’s all my updates on behalf of the Defendant in this proceedings Therefore, If i am no further assistance to the court. We humbly ask the court for the next direction for our case....