FLYGLOBAL CHARTER SDN BHD ALFAJR TRAVELS & TOURS SDN BHD

FLYGLOBAL CHARTER SDN BHD ALFAJR TRAVELS & TOURS SDN BHD

The Court allowed the Plaintiff's appeal because the High Court erred by deciding the dispute solely on the LOU without considering the interconnected Agreements and NESMA's role; the Defendant breached the LOU by failing to instruct NESMA and not chartering the flights, Plaintiff proved loss of revenue of USD5,946,000 for the period 10/02/2018–9/05/2018 on the balance of probabilities, and the Defendant's counterclaim failed for lack of proof.

Citation
B-02(NCvC)(W)-1135-06/2021 (Mahkamah Rayuan)
Parties
Appellant/plaintiff: Flyglobal Charter Sdn Bhd; Respondent/defendant: Alfajr Travel & Tours Sdn Bhd
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
14 June 2022
Case Number
B-02(NCvC)(W)-1135-06/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Decision (grounds of Judgment)
Outcome
Plaintiff's appeal allowed; Defendant's appeal dismissed; High Court order dismissing Plaintiff varied; judgment entered for Plaintiff; Defendant's counterclaim dismissed.
Legal Topics
Breach of Contract, LOU Enforcement, Tripartite Contractual Obligations, Damages for Loss of Profits, Mitigation of Loss, Evidential Sufficiency, Regulatory Complaints (dca/mavcom)
Source Language
Malay/English
Contract Aviation Commercial Law Civil Procedure Evidence Breach of Contract LOU Enforcement Tripartite Contractual Obligations +4 more

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Parties

Flyglobal Charter Sdn Bhd

Appellant/plaintiff

Alfajr Travel & Tours Sdn Bhd

Respondent/defendant

Procedural Posture

Civil Appeal / Court of Appeal Decision (grounds of Judgment)

Legal Issues

  1. 1 Whether the High Court erred by confining its decision to the Letter of Undertaking (LOU) rather than the full suite of Agreements
  2. 2 Whether the Defendant breached the LOU by failing to charter flights and/or failing to instruct NESMA
  3. 3 Whether the Plaintiff was ready and able to perform under the LOU

Ratio Decidendi

The Court allowed the Plaintiff's appeal because the High Court erred by deciding the dispute solely on the LOU without considering the interconnected Agreements and NESMA's role; the Defendant breached the LOU by failing to instruct NESMA and not chartering the flights, Plaintiff proved loss of revenue of USD5,946,000 for the period 10/02/2018–9/05/2018 on the balance of probabilities, and the Defendant's counterclaim failed for lack of proof.

Court Disposition

Plaintiff's appeal allowed; Defendant's appeal dismissed; High Court order dismissing Plaintiff varied; judgment entered for Plaintiff; Defendant's counterclaim dismissed.

Orders

  • Judgment entered for Plaintiff against Defendant in the sum of 5946000.00 (USD) together with interest at 5% per annum from date of judgment until full payment
  • Respondent ordered to withdraw complaints made to the Department of Civil Aviation (DCA) and Malaysian Aviation Commission (MAVCOM)