Appellate court dismisses Hydroshoppe and Menara KL’s appeal for temporary injunction to halt awarding of new concession

• The ad interim injunction was filed by Hydroshoppe Sdn Bhd and its subsidiary Menara Kuala Lumpur Sdn Bhd, but this was dismissed by the High Court on April 8.

PUTRAJAYA (May 30): A three-member Court of Appeal bench on Friday dismissed an appeal by the former operator of the Kuala Lumpur Tower for an ad interim injunction (temporary injunction) to halt the government’s award of the KL Tower concession to a subsidiary of Lim Seong Hai Capital Bhd (KL:LSH), LSH Service Master Sdn Bhd.

Judge Datuk Collin Lawrence Sequerah, who led the bench, said the ad interim injunction was to maintain the status quo of the matter until the inter partes (both parties’) injunction application is heard by the High Court.

The ad interim injunction was filed by Hydroshoppe Sdn Bhd and its subsidiary Menara Kuala Lumpur Sdn Bhd, but this was dismissed by the High Court on April 8.

Sequerah said the fifth supplementary agreement with regard to the concession agreement between Hydroshoppe and Menara KL had run from July 1, 2024 until March 31, 2025.

“There is no status quo in favour of the appellants. The Court of Appeal bench agrees that the threshold for an ad interim injunction is low.

“However, as the fifth supplementary agreement has lapsed, there is no status quo to be maintained. This court rules that the appellants failed to cross the threshold (for an ad interim injunction) to be given. In fact, the appellants had participated in the request for proposal (RFP) which was then awarded to another party (LSH Service Master).

“As a result, the bench is dismissing the ad interim injunction appeal,” Sequerah said.

Sitting with Sequerah in the unanimous decision were judges Datuk Dr Choo Kah Sing and Datuk Wan Ahmad Farid Wan Salleh.

The bench also ordered the two companies to pay a total of RM30,000 to the communications minister, the government and three companies named in the suit.

Hydroshoppe and Menara KL are appealing the High Court’s decision, which refused to grant an ad interim injunction for them to continue operating the tower, as they claimed there are matters which should go to trial with regards to the deal.

In her decision on April 8, High Court judge Roz Mawar Rozain said the balance of convenience did not favour granting the injunction to the former operator.

However, she said the two companies could continue to seek remedy from the trial for their lawsuit, which the court will hear and decide on.

LSH Service Master was supposed to take over the KL Tower on April 1 this year, but a stand-off occurred after Hydroshoppe and Menara KL initiated the lawsuit against the award of the KL Tower concession, alleging contractual breaches and misconduct that led to the award of the concession to LSH Service Master.

Application to adjourn also dismissed

Earlier, the bench also dismissed Hydroshoppe and Menara KL’s application to postpone the hearing of the appeal following the two companies having filed an ex parte contempt proceeding against eight individuals.

Their lead counsel Vinayak Sri Ram said they are asking for an adjournment as it was only proper for the ex parte proceeding scheduled for next Thursday, June 5, to be rightfully heard first, as the date had been fixed earlier, on Thursday, May 29.

Vinayak also pointed out that the inter partes hearing for the ad interim injunction is scheduled to be heard on June 9.

However, senior counsel Datuk Malik Imtiaz Sarwar for LSH Capital and its wholly owned LSH Best Builders Sdn Bhd as well as its 70%-owned LSH Service Master objected to the adjournment as the appellants had filed a certificate of urgency and wanted the proceedings for the hearing of the appeal to proceed.

Similarly, senior federal counsel Ahmad Hanir Hambaly @ Arwi, appearing for the government and Communications Minister Datuk Fahmi Fadzil, also objected to the adjournment request by Vinayak.

After a short discussion, Sequerah and the two judges ordered the hearing of the appeal to proceed.

Although the ex parte injunction had been filed against eight people and the documents were barred from public access, as reported by The Edge on Thursday following a file search, it is understood that Hydroshoppe and Menara KL have named Fahmi along with Federal Land Commissioner Datuk Muhammad Azmi Mohd Zain and others including Dang Wangi police chief ACP Sulizmie Affendy Sulaiman and Communications Ministry secretary general Datuk Mohamad Fauzi Md Isa as respondents.

Hydroshoppe and Menara KL had filed a RM1 billion suit against Fahmi, the government, along with LSH Service Master, LSH Best Builders and Service Master (M) Sdn Bhd, alleging breach of contract, and want the KL Tower concession returned to them.

In response, LSH Capital called the claims baseless and filed a countersuit. The government and Fahmi said Hydroshoppe must prove they suffered real losses and that there was no wrongdoing on their part. Fahmi also said the government has the right to decide who manages KL Tower.

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