Kuala lumpur: The High Court here today allowed the 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 revolving restaurant ‘Atmosphere 360’ at Menara Kuala Lumpur.
According to BERNAMA News Agency, apart from the government, the four other defendants were Communications Minister Datuk Fahmi Fadzil, Hydroshoppe Sdn Bhd, Menara Kuala Lumpur Sdn Bhd, and its subsidiary MKL Cuisine Sdn Bhd. Judge Datuk 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).
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. Justice Raja Ahmad Mohzanuddin stated that the plaintiff was a stranger to the Concession Agreement between the fifth defendant (the government) and the second defendant (Menara Kuala Lumpur).
The judge emphasized that all operations, management, and maintenance of the KL Tower were handed over to the second defendant by the fifth defendant according to the Concession Agreement’s terms and conditions. Thus, the plaintiff could not bring litigation related to this agreement due to a lack of privity of contract with the fifth defendant.
Regarding the plaintiff’s allegations of nonfeasance in public office against the fourth and fifth defendants, Justice Raja Ahmad Mohzanuddin noted that even assuming a tortious failure to act, a direct nexus must exist between the plaintiff and these defendants to establish a duty to act. Without such a nexus, liability cannot be considered.
The judge further stated that for the plaintiff’s nonfeasance claim to be successful, malice must be proven. However, he questioned how malice could exist without legal proximity between the parties. The plaintiff was deemed to have no grounds to bring this action, and the court awarded costs of RM10,000 to the fourth and fifth defendants.
In allowing the first, second, and third defendants’ application to strike out the suit, the court noted the existence of an ongoing case in the commercial division that mirrored the current suit. This posed a risk of conflicting judgments by two concurrent courts, leading the court to award costs of RM10,000 to these defendants as well.
The initial lawsuit, filed last April, saw Asian Kitchen claiming wrongful termination of its management and food service contract at Menara KL. The termination followed a management change at Menara Kuala Lumpur, resulting in the plaintiff’s eviction and alleged losses from terminating employment contracts for about 82 staff members.
At today’s proceedings, legal representation included Arun Ganesh Boopalan and Andrew Navin for the plaintiff, David Wong Zhi Khang for the first to third defendants, and senior federal counsel Siti Syakimah Ibrahim for the fourth and fifth defendants.