The requirement to apply for directions for damage assessment within 30 days is not mandatory and may be remedied under certain circumstances.

(Extension Of Time To Apply For Directions To Assess Damages)

Azlan Sulaiman JC:

Overview

[1] O 37 the Rules of 2012 ("the Rules") is for assessment of damages. Under r 1, where judgment is given for damages with no provision in the judgment as to how the damages are to be assessed, the party entitled to damages is to apply to the Court within 30 days of the judgment for directions for that assessment. This Judgment involves a situation where Plaintiffs did not do so within that time-period and apply for an extension of that time, and two contrary Court of Appeal decisions in dealing with it. A further issue thrown into the mix is that, in between the hearing of the Plaintiff's Application, and this decision, the 2nd Defendant was wound up.

Salient Background

[2] The Plaintiffs' Application is for all intents and purposes an application for an extension of time to apply for directions to assess damages, with the other relief sought being ancillary to and dependent upon the extension is allowed.

[3] The factual matrix for the Plaintiffs' Application is as set out in the following five Affidavits set out in Table A (collectively, "the Relevant Affidavits"), as they were the only ones relevant to the Plaintiffs' Application. Despite the several other proceedings in this suit both prior to and after the Plaintiff's Application was filed, none of the parties filed any notice in Form 58 under O 32 r 13(1)(b) of the Rules of intention to use any of the other affidavits filed in them. The relevant Affidavits are:

Table A

[4] On 5 September 2018, this Court allowed the Plaintiffs' claim under the Copyright Act 1976 ("the Act") for copyright infringement and dismissed the Defendants' Counterclaim, with costs of RM112,045.80 accruing interest at 5% per annum. In paras 7a, 7b, 8,9, 10, 11, 12, and 13 of the Judgment, the Court ordered damages with interest at 5% per annum. For convenience I set out those damages in Table B below:

Table B

[5] As the Judgment did not contain any provision as to how the damages were to be assessed, O 37 r 1 would have to be invoked for the Plaintiffs to do so.

[6] On 1 November 2018, the Plaintiffs filed an application for post-judgment discovery of documents in relation to the account of profits in para 7a of the Judgment ("the PJDA"), to ascertain which of the alternatives (a or b) would be more advantageous and possibly derive a higher yield.

[7] On 12 December 2018, just over three months after the Judgment, the Plaintiffs filed this application ("Plaintiffs' Application"):

(i) for an extension of time to file an application for directions for assessment of damages;

(ii) for directions for the assessment of damages;

(iii) for directions for the filing of the notice of appointment for assessment of damages; and

(iv) that the costs of the application be borne by the Defendants

By applying for an extension of time, the Plaintiff obviously knew of the one-month prescribed by O 37 r 1.

[8] However, after that until October 2022, the parties occupied themselves with and the Court's time was taken up by matters related to the PJDA and other matters between the parties.

[9] Then, between early October 2022 to the middle of November 2022, after a three-year hiatus, the Plaintiffs Application again became the focus, with the filing of the second to fifth of the Relevant Affidavits.

[10] The Defendants (now without solicitors and acting in person) cited three grounds for opposing the Plaintiffs' Application and asking for it to be dismissed. They may be summarized as follows:

(i) The Plaintiffs' Application was filed beyond the one-month time-line prescribed by O 37 r 1 of the Rules;

(ii) The Plaintiffs' Application is misconceived as it is filed for all three