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2024 MarsdenLR 3227
HIGH COURT MALAYA KUALA LUMPUR
IOANNIS KOROMILAS – Appellant
Versus
METRO HOMES SDN BHD & ANOR – Respondent
[Suit No: WA-22NCVC-474-07/2016]
The burden of proof for damages lies with the claimant, requiring reliable evidence to substantiate claims for both special and general damages.
Headnote:(A) Civil Procedure – Assessment of Damages – The plaintiff's claims for damages were assessed following a reversal of the High Court's decision by the Court of Appeal. The claims included costs paid to the developer, conveyancing solicitors, and legal costs from previous suits. (Paras 1-8)
(B) Burden of Proof – The burden rests on the party claiming damages to prove both the fact and amount of damages claimed. Failure to do so results in the claim failing. (Paras 9-10)
(C) Special Damages – The court outlined the principles governing special damages, emphasizing the need for reliable evidence to substantiate claims. (Paras 10-12)
(D) General Damages – The court awarded nominal damages for mental distress due to insufficient evidence of grave mental distress. (Paras 14-15)
Facts of the case: The plaintiff engaged the defendants for property purchase assistance but later claimed damages due to alleged misrepresentations and negligence. (Paras 4-6)
Findings of Court: The court allowed certain claims for damages while dismissing others due to lack of evidence or remoteness. (Paras 12-17)
Issues: The main issues included the burden of proof for damages and the validity of claims made by the plaintiff. (Paras 9-10)
Ratio Decidendi: The court reaffirmed that the burden of proof lies with the claimant, and damages must be substantiated with reliable evidence. (Paras 9-10)
Result: The plaintiff's claims were partially allowed, with specific amounts awarded for proven damages.
JUDGMENT
Introduction
[1] This is an assessment of damages arising out of a judgment in favour of the plaintiff in respect of liability. The plaintiffs claim was initially dismissed by the High Court. On appeal to the Court of Appeal, the appeal was allowed. The Court of Appeal reversed the decision of the High Court. The Court of Appeal further ordered that assessment be made for special and general damages in respect of the plaintiff's claims The plaintiff's claims may be briefly stated as falling under the following headings:
(a) cost paid to the developer,
(b) cost paid to the conveyancing solicitors,
(c) legal cost paid to the previous solicitors,
(d) fee for private caveat,
(e) rental for alternative accommodation from 11 January 2013 to 31 October 2015, and
(f) loss and expenses for Appeal No 375.
[2] The plaintiff has abandoned his claim in respect of the following headings as confirmed by the Court of Appeal on 12 August 2021:
(a) RM3,000.00 as professional fee for the preparation of the valuation report for the property (para 14(f) of the Statement of Claim), and
(b) RM6,813.26 as the transcription fees to transcribe notes of proceedings (para 14(h) of the Statement of Claim).
[3] The 1st defendant has been wound-up and the Insolvency Department acting for the 1st defendant did not object to the assessment of damages.
Brief Matrix Of Facts
[4] The plaintiff engaged the services of the defendants to look for a property in Kuala Lumpur with a view to a purchase. The 1st defendant was the property agency and the 2nd defendant was the property agent employed by the 1st defendant.
[5] The 2nd defendant later identified a property which matched the instructions of the 1st defendant and the plaintiff. The 2nd defendant brought the plaintiff to view the property and introduced the plaintiff to a representative of the developer. The property is known as Unit C-13A-01, Type C, The Pearl KL City Centre.
[6] Subsequently, the plaintiff entered into a sale and purchase agreement with the developer. In the sale and purchase transaction, the plaintiff chose not to be represented by a lawyer and he signed a statutory declaration to that effect. After the sale and purchase agreement was executed, the plaintiff found out that there was a difference of RM208,546.00 between the purchase price he had to pay and the purchase price he thought was payable when a certain discount was allowed. The plaintiff took the stance that the 2nd defendant had concealed from him the fact that the property was in fact put up for sale at a higher price.
[7] The plaintiff sued the developer and its solicitors. The plaintiff claimed that the developer had made misrepresentations and induced him into signing the sale and purchase agreement and that the developer's solicitors was negligent. The plaintiffs claim was dismissed by the High Court. The plaintiff appealed to the Court of Appeal against the decision but later on withdrew the appeal ("Appeal No. 375").
[8] Subsequently, the plaintiff commenced the present action against the defendants. The present action was substantially premised on the same issues as the previous action. At the conclusion of trial, the plaintiffs action was dismissed. The plaintiff was not satisfied with the decision and appealed to the Court of Appeal. On appeal, the Court of Appeal reversed the decision of the High Court and allowed the plaintiffs claim. The plaintiffs claim for liquidated damages was allowed. The Court of Appeal further ordered for damages to be assessed for the following claims:
(a) cost paid to the developer (para 14(c) SOC),
(b) cost paid to the conveyancing solicitors (para 14(d) SOC),
(c) legal cost paid to the plaintiffs solicitors in the previous suit (para 14(e) SOC),
(d) cost of rental paid between 11 January 2013 to 31 October 2015 for alternative accommodation pending disposal of the previous suit before acquiring another property to mitigate his losses (paragraph 15 SOC),
(e) fees and disburseme
