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Interpretation of Statute
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Introduction The plaintiff’s claim against the defendant was for the damages suffered by the plaintiff due to the disconnection of electricity supply to its premises. The defendant conducted inspections on the meter installation at the plaintiff’s premises on 4.12.2013 and 6.05.2014. On 23.06. 2014 and 25.06.2014, the defendant issued two notices of disconnection of electricity supply as a result of the inspection. The said disconnection of supply notices stated that the supply of the electricity would be disconnected on 24.06.2014 and 26.06.2014 respectively. The disconnection of the supply of the electricity did not occur on the specified dates. On 1.07.2014, the defendant issued to the plaintiff a disconnection notice and disconnected the electricity supply to the plaintiff’s premises (‘the first disconnection of supply’). The defendant only resumed the supply of the electricity on 1.10.2014.
On 27.07.2014, the plaintiff received four letters of demand from the defendant claiming for the loss of revenue based on the allegations that the tampering and/or modifications have been made to the meters at the plaintiff’s premises. The defendant issued a disconnection notice dated 7.04.2015 based on subsequent inspections dated 15.10.2014 and 7.01.2015. On 8.04.2015 (‘the second disconnection of supply’), the defendant disconnected the electricity supply to the plaintiff’s premises. The defendant only resumed the supply of the electricity on 14.05.2015.
Decision
I. Whether any tempering had been done to the electricity meter installations on the plaintiff’s premises at any time in the period between the years 2013 and 2015.
The court found that the defendant adduced and led evidence on the alleged tampering for the first time when conducting its case for the defence. Nothing was specifically put forward the material facts of its case on the alleged tampering during the cross-examination of the plaintiff’s witnesses. There was no challenge concerning the testimony during the cross-examination of the plaintiff’s witnesses where they gave specific evidence as how the alleged tampering was done.
The court held that the veracity of the defendant’s evidence on the alleged tampering was not tested and there was nothing on record against which the evidence by the defendant could be weighed and evaluated. The above amounted to abandonment by the defendant of the part of its defence. The court was of the view that the defendant was taken to have accepted the said testimony of the plaintiff’s witnesses and should not be allowed to raise evidence on the alleged tampering subsequently when conducting its case.
II. Whether the disconnection of electricity supply at the plaintiff’s premises was illegal.
The court held that the defendant is liable for the two wrongful disconnections of the electricity at the plaintiff’s premises. The court found that since the defendant has rectified the tampered meter and/or installed a new meter, the purpose to halt and prevent further losses to the defendant had already been achieved. As there was no longer any urgency, the defendant had no authority under the ESA 1990 to disconnect the electricity supply to the plaintiff’s premises.
The court acknowledged that there were two conflicting decisions by the Court of Appeal concerning the law on disconnection of electricity supply i.e. the decision in Karun Klasik Sdn Bhd v Tenaga Nasional Berhad [2018] 3 MLJ 749; [2018] 9 CLJ 184 (‘Karun Klasik’) and Tenaga Nasional Bhd v Mayaria Sdn Bhd & Anor [2019] 2 MLJ 801 (‘Mayaria’).
In the case of Karun Klasik, the consumer argued that TNB was not justified in disconnecting the electricity supply under section 38(1) of the ESA 1990 as TNB had replaced the meter allegedly being tampered with. The Court of Appeal, in this case, held that TNB is entitled to disconnect the electricity supply even after the tampered meter had been replaced.
The Court of Appeal in the case of Mayaria had concluded otherwise. It was held by the Court of Appeal that the power to disconnect ceased to exist upon the tampered meter being rectified. The Court of Appeal was of the opinion that the purpose of the disconnection is to arrest future loss of revenue to TNB and when the meter has been replaced or rectified, there is no longer an issue of risk future loss of revenue to TNB.
The court was further appraised that Federal Court had delivered its decision in Mayaria which was pending appeal in the Federal Court at the material time. The Court was informed that the Federal Court had dismissed the appeal by TNB and affirmed the decision of the Court of Appeal in Mayaria whereby the Federal Court had agreed with the Court of Appeal’s interpretation of section 38(1) and (3) of the ESA 1990 that once the meter has been rectified, TNB is not empowered to disconnect the supply of electricity. The Court therefore proceeded to apply the Mayaria decision.
Conclusion There are no written grounds for the decision of the Federal Court in Mayaria publicly available. The approach taken in Karun Klasik however seems to be no longer be the interpretation favoured by the court in interpreting section 38(1) and (3) of the ESA 1990. As tampering ceases, is halted, extant or rectified, the supply of electricity must be resumed and/or cannot be disconnected.
In a claim under section 38(1) and (3) of the ESA for disconnection of electricity supply, what now becomes key is the cut-off point in which tampering ceases, is halted, extant or rectified. Determining when this occurs in practise however, may not be the easiest of exercises. It is therefore of paramount importance that relevant evidence regarding firstly, the tampering and secondly the point when tampering ceases, is halted, extant or rectified must be identified, preserved and collated for court.
The Mayaria case has since been adopted and followed in QL Endau Marine Products Sdn Bhd v Tenaga Nasional Berhad [2021] 7 MLJ 79.
Authors
Idza Hajar Ahmad Idzam
Nan Muhammad Ridhwan bin Rosnan
Muhammad Hibri Nazim
Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.
Zul Rafique & Partners
29 January 2021
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Please click HERE to download the full article in PDF and click HERE for the Mandarin version of the article.
An Electrifying (Dis)Connection: The Interpretation of Section 38(1) & (3) of the Electricity Supply Act 1990…The High Court in Big Man Management Sdn Bhd v Tenaga Nasional Bhd [2020] 11 MLJ 472 engaged with the issue of inter alia whether Tenaga Nasional Berhad (TNB) as the licence holder for electricity supply in Malaysia can disconnect electricity supply from a premise upon allegations of meter tampering and upon the powers granted to it under section 38 of the Electricity Supply Act 1990 (ESA) once the tampering was no longer extant or has been halted or rectified.
This article discusses the facts, issues and judgment of the case.
This article discusses the facts, issues and judgment of the case.
Introduction The plaintiff’s claim against the defendant was for the damages suffered by the plaintiff due to the disconnection of electricity supply to its premises. The defendant conducted inspections on the meter installation at the plaintiff’s premises on 4.12.2013 and 6.05.2014. On 23.06. 2014 and 25.06.2014, the defendant issued two notices of disconnection of electricity supply as a result of the inspection. The said disconnection of supply notices stated that the supply of the electricity would be disconnected on 24.06.2014 and 26.06.2014 respectively. The disconnection of the supply of the electricity did not occur on the specified dates. On 1.07.2014, the defendant issued to the plaintiff a disconnection notice and disconnected the electricity supply to the plaintiff’s premises (‘the first disconnection of supply’). The defendant only resumed the supply of the electricity on 1.10.2014.
On 27.07.2014, the plaintiff received four letters of demand from the defendant claiming for the loss of revenue based on the allegations that the tampering and/or modifications have been made to the meters at the plaintiff’s premises. The defendant issued a disconnection notice dated 7.04.2015 based on subsequent inspections dated 15.10.2014 and 7.01.2015. On 8.04.2015 (‘the second disconnection of supply’), the defendant disconnected the electricity supply to the plaintiff’s premises. The defendant only resumed the supply of the electricity on 14.05.2015.
Decision
I. Whether any tempering had been done to the electricity meter installations on the plaintiff’s premises at any time in the period between the years 2013 and 2015.
The court found that the defendant adduced and led evidence on the alleged tampering for the first time when conducting its case for the defence. Nothing was specifically put forward the material facts of its case on the alleged tampering during the cross-examination of the plaintiff’s witnesses. There was no challenge concerning the testimony during the cross-examination of the plaintiff’s witnesses where they gave specific evidence as how the alleged tampering was done.
The court held that the veracity of the defendant’s evidence on the alleged tampering was not tested and there was nothing on record against which the evidence by the defendant could be weighed and evaluated. The above amounted to abandonment by the defendant of the part of its defence. The court was of the view that the defendant was taken to have accepted the said testimony of the plaintiff’s witnesses and should not be allowed to raise evidence on the alleged tampering subsequently when conducting its case.
The court held that the defendant is liable for the two wrongful disconnections of the electricity at the plaintiff’s premises. The court found that since the defendant has rectified the tampered meter and/or installed a new meter, the purpose to halt and prevent further losses to the defendant had already been achieved. As there was no longer any urgency, the defendant had no authority under the ESA 1990 to disconnect the electricity supply to the plaintiff’s premises.
The court acknowledged that there were two conflicting decisions by the Court of Appeal concerning the law on disconnection of electricity supply i.e. the decision in Karun Klasik Sdn Bhd v Tenaga Nasional Berhad [2018] 3 MLJ 749; [2018] 9 CLJ 184 (‘Karun Klasik’) and Tenaga Nasional Bhd v Mayaria Sdn Bhd & Anor [2019] 2 MLJ 801 (‘Mayaria’).
In the case of Karun Klasik, the consumer argued that TNB was not justified in disconnecting the electricity supply under section 38(1) of the ESA 1990 as TNB had replaced the meter allegedly being tampered with. The Court of Appeal, in this case, held that TNB is entitled to disconnect the electricity supply even after the tampered meter had been replaced.
The Court of Appeal in the case of Mayaria had concluded otherwise. It was held by the Court of Appeal that the power to disconnect ceased to exist upon the tampered meter being rectified. The Court of Appeal was of the opinion that the purpose of the disconnection is to arrest future loss of revenue to TNB and when the meter has been replaced or rectified, there is no longer an issue of risk future loss of revenue to TNB.
The court was further appraised that Federal Court had delivered its decision in Mayaria which was pending appeal in the Federal Court at the material time. The Court was informed that the Federal Court had dismissed the appeal by TNB and affirmed the decision of the Court of Appeal in Mayaria whereby the Federal Court had agreed with the Court of Appeal’s interpretation of section 38(1) and (3) of the ESA 1990 that once the meter has been rectified, TNB is not empowered to disconnect the supply of electricity. The Court therefore proceeded to apply the Mayaria decision.
Conclusion There are no written grounds for the decision of the Federal Court in Mayaria publicly available. The approach taken in Karun Klasik however seems to be no longer be the interpretation favoured by the court in interpreting section 38(1) and (3) of the ESA 1990. As tampering ceases, is halted, extant or rectified, the supply of electricity must be resumed and/or cannot be disconnected.
In a claim under section 38(1) and (3) of the ESA for disconnection of electricity supply, what now becomes key is the cut-off point in which tampering ceases, is halted, extant or rectified. Determining when this occurs in practise however, may not be the easiest of exercises. It is therefore of paramount importance that relevant evidence regarding firstly, the tampering and secondly the point when tampering ceases, is halted, extant or rectified must be identified, preserved and collated for court.
The Mayaria case has since been adopted and followed in QL Endau Marine Products Sdn Bhd v Tenaga Nasional Berhad [2021] 7 MLJ 79.
Authors
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Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.
Zul Rafique & Partners
29 January 2021
Please email your details to [email protected] if you would like to subscribe to our Knowledge Centre.
Let's Connect!
➭ LINKEDIN: Zul Rafique & Partners
➭ INSTAGRAM: @zrplaw