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- High Court judge Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan allowed Communications Minister Datuk Fahmi Fadzil and the government’s application to strike out the suit on the grounds that Asian Kitchen had no legal right to bring suits over concession agreements it was not party to.
KUALA LUMPUR (Sept 24): The High Court has struck out KL Tower food and beverage concessionaire Asian Kitchen (M) Sdn Bhd’s case against Communications Minister Datuk Fahmi Fadzil and the government over the debacle in relation to the operations of the iconic tower.
High Court judge Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan allowed Fahmi and the government’s application to strike out the suit on the grounds that Asian Kitchen had no legal right to bring suits over concession agreements it was not party to.
Furthermore, Raja Ahmad said that Asian Kitchen's claim to nonfeasance in public action is not sustainable, as there was no direct connection between the food and beverage company, Fahmi, and the government, which would have warranted a duty to act by the defendants.
"When it comes to actions for nonfeasance, it is trite law that the duty to act is a central concern. Based on [Asian Kitchen's] cause of action, [Fahmi and the government] have no duty to act to protect the plaintiff's interest, assuming that there is an interest at all," Raja Ahmad said.
The judge also added that the element of malice must also be proven in cases of nonfeasance. However, this cannot be done in this case as there is no "legal proximity" between Asian Kitchen, Fahmi, and the government.
The court awarded cost of RM10,000 to the minister and the government.
On Wednesday, the court also allowed an application by Hydroshoppe Sdn Bhd, Menara Kuala Lumpur Sdn Bhd, and MKL Cuisine Sdn Bhd to strike out the suit against them. They were the first three defendants in the suit, which had filed a separate application to strike out the legal action.
Raja Ahmad ruled that Asian Kitchen already has an ongoing case in the commercial division of the court and that the suits were "mirror images", and that there was a risk of conflicting judgements being made by two concurrent courts.
Similarly, the court awarded cost of RM10,000 to the first three defendants.
Asian Kitchen, which had operated the revolving 'Atmosphere 360' restaurant at the top of KL Tower, filed the suit in April this year against Hydroshoppe, Menara Kuala Lumpur, MKL Cuisine, the communications minister, and the government.
It claimed that it had suffered losses from investigations into KL Tower and the subsequent events. Some of the losses incurred were due to relocation purposes, termination of employee contracts, and needing to cancel clients’ advance dining reservations.
It claimed that the government ought to have ensured a lawful administration of KL Tower, especially in light of corruption allegations. It also claimed that the government had a duty to protect stakeholders like Asian Kitchen, which claimed that it was "instrumental in attracting" visitors to the tower's revolving restaurant.
KL Tower has been under the spotlight since 2022, when the Malaysian Anti-Corruption Commission launched an investigation into alleged irregularities surrounding the sale of Menara Kuala Lumpur, then a subsidiary of Telekom Malaysia Bhd (KL:TM), to Hydroshoppe in October 2022.
Menara Kuala Lumpur was managing the tower until TM, in October 2021, decided not to renew the concession, citing the tower’s shift from telecommunications services to a tourism and hospitality-focused operation.
Subsequently, in April 2023, Hydroshoppe and its director Abdul Hamid Shaikh Abdul Razak Shaikh were charged with offering RM500,000 a year for 15 years to then-communications and multimedia minister Tan Sri Annuar Musa to fast-track the takeover of the KL Tower concession by Hydroshoppe. They have claimed trial.
In March this year, Lim Seong Hai Capital Bhd (KL:LSH) announced that it had signed a concession agreement with the federal government, commencing on April 1.
The company stated that the concession was awarded to LSH Service Master Sdn Bhd, a joint venture between its wholly owned subsidiary LSH Best Builders Sdn Bhd and Service Master (M) Sdn Bhd.
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