Appeals Court dismisses AirAsia's appeal against summary judgement obtained by MASSB over PSC

The decision was delivered by a three-member bench comprising Justices Datuk Has Zanah Mehat, Datuk Azizah Nawawi and Datuk See Mee Chun in a court proceedings conducted online.

"We find no merit in AirAsia's appeals against the decision of the High Court in granting the summary judgment," said Justice Azizah who delivered the court's unanimous decision.

Following this decision, the Kuala Lumpur High Court's decision which ordered AirAsia and AirAsia X to pay RM40.73 million in PSC and RM792,381 in unpaid late payment charges (LPC) to MASSB, a wholly-owned subsidiary of Malaysia Airport Holdings Bhd (MAHB) is, therefore, upheld.

The court also dismissed three appeals by AirAsia against the High Court's refusal to allow the low cost carrier's application to strike out the lawsuit filed against them by MASSB.

Justice Azizah ordered AirAsia to pay costs of RM10,000 for each appeal, totalling RM60,000.

There are six appeals filed by AirAsia and AAX, three concerning the High Court's decision to grant summary judgment to MASSB and the other three appeals were against the High Court's dismissal of the companies' application to strike out the lawsuit filed against them by MASSB.

MASSB claims against AirAsia and AAX was for unpaid PSC at the rate set by the Malaysian Aviation Commission (Mavcom) under the Mavcom (Aviation Services Charges) Regulations 2016 which were amended in 2017 and 2018.

In her decision, Justice Azizah said the sole dispute raised by AirAsia was that the new PSC rate stated in the Regulations is a ceiling rate instead of a fixed rate.

She said the court agreed with the High Court findings that Airasia's actual dispute was not a dispute between two aviation service providers but instead a dispute between AirAsia and Mavcom as it was Mavcom who prescribed the applicable PSC rate.

Justice Azizah said MASSB merely collects the PSC, adding that AirAsia's actual dispute was against the decision of Mavcom to equalise the PSC rate between KLIA and KLIA2.

"Accordingly AirAsia ought to have addressed its PSC complaint by way of a judicial review against the commission's (Mavcom's) decision to increase the rate," she said.

Justice Azizah said it was crystal clear that the current PSC rate was set at RM67 adding that there was nothing to suggest that the rate was a ceiling rate as claimed by AirAsia.

MASSB was represented by lawyers Ivan Loo, Shannon Rajan, Eric Gabriel Gomez and Laarnia Rajandran while AirAsia was represented by lawyer Steven Thiru.