AIDEAH COMMUNICATION SDN BHD THE NEW STRAITS TIMES PRESS (MALAYSIA) BERHAD

AIDEAH COMMUNICATION SDN BHD THE NEW STRAITS TIMES PRESS (MALAYSIA) BERHAD

The Court held clause 4.3 of the 2013 Agreement imposed only a duty to use reasonable endeavour to achieve the MGS and not an absolute unconditional warranty; the High Court failed to appreciate clause 4.3 and thus erred in finding appellant liable for shortfall and allowing the respondent's set-off and damages; respondent was estopped from denying approval/acquiescence to the reduced advertising rates; appeal allowed and judgment entered for appellant for RM1,178,369.97 plus 5% p.a. interest and costs RM80,000 subject to allocator.

Citation
W-02(NCvC)(W)-1274-07/2021 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: Aideah Communication Sdn Bhd; Respondent / Defendant: The New Straits Times Press (Malaysia) Berhad
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
5 March 2024
Case Number
W-02(NCvC)(W)-1274-07/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (contract Dispute) / Appeal to Court of Appeal From High Court Judgment
Outcome
Appeal allowed; High Court judgment of 18 June 2021 set aside; judgment entered for Appellant
Legal Topics
Minimum Guaranteed Sum (mgs), Set Off, Reasonable Endeavours, Penalty Clause, Advertising Rates, Estoppel, Contract Interpretation, Damages
Source Language
Malay/English
Contract Law Commercial Law Civil Procedure Evidence Law Minimum Guaranteed Sum (mgs) Set Off Reasonable Endeavours Penalty Clause +4 more

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Parties

Aideah Communication Sdn Bhd

Appellant / Plaintiff

The New Straits Times Press (Malaysia) Berhad

Respondent / Defendant

Procedural Posture

Civil Appeal (contract Dispute) / Appeal to Court of Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the Minimum Guaranteed Sum (MGS) in the 2013 Agreement was an absolute unconditional warranty or only required the appellant to use reasonable endeavours to achieve it
  2. 2 Whether the shortfall/contract surcharge constituted an unenforceable penalty
  3. 3 Whether the appellant was liable for unilaterally reducing advertising rates absent the respondent's approval and whether the respondent had acquiesced or consented

Ratio Decidendi

The Court held clause 4.3 of the 2013 Agreement imposed only a duty to use reasonable endeavour to achieve the MGS and not an absolute unconditional warranty; the High Court failed to appreciate clause 4.3 and thus erred in finding appellant liable for shortfall and allowing the respondent's set-off and damages; respondent was estopped from denying approval/acquiescence to the reduced advertising rates; appeal allowed and judgment entered for appellant for RM1,178,369.97 plus 5% p.a. interest and costs RM80,000 subject to allocator.

Court Disposition

Appeal allowed; High Court judgment of 18 June 2021 set aside; judgment entered for Appellant

Orders

  • High Court judgment dated 18 June 2021 set aside
  • Judgment for Appellant in the sum of RM1,178,369.97