The burden of proving damages lies with the claimant, and without formal pleading, special damages cannot be awarded; general damages reflect non-quantifiable losses like emotional distress.

JUDGMENT

(Assessment Of Damages)

Adlin Abdul Majid JC:

Introduction

[1] The Plaintiffs applied for assessment of damages following a judgment obtained against the Defendants on 28 August 2018 ("Judgment").

[2] The court awarded general damages of RM200,000 to the Plaintiffs. The reasons for this decision are as set out below.

Background Facts

[3] The Plaintiffs were directors of Technitium Sdn Bhd ("TSB"). TSB was awarded a project by University Malaya Medical Centre ("UMMC") to provide a system known as the "Total Hospital Information System" ("Project"). TSB sub-contracted the Project to the 1st Defendant. Payments to the 1st Defendant were to be made on a back-to-back basis pursuant to a back-to-back agreement.

[4] Issues relating to non-payment of fees arose, and the 1st Defendant sued TSB vide Kuala Lumpur High court Suit No D-22NCC-1017-2010 ("Suit No 1017") for breach of the back to-back-agreement. The 1st Defendant alleged that approximately RM32 million had been paid by UMMC to TSB, but was not paid to the 1st Defendant. The court granted judgment against TSB ("Suit No 1017 Judgment").

[5] The 1st Defendant also took out winding-up proceedings against TSB which resulted in the winding-up of TSB on 18 June 2012. The appointed liquidators prepared a report dated 20 March 2013, after an investigative review on the utilisation of funds received by TSB from the Project ("Liquidators' Report"). One of the findings of the Liquidators' Report is that the monies received from the Project were used to settle the old billings of the Defendants.

[6] In April 2014, the Defendants commenced a fresh action against the Plaintiffs personally, pursuant to s 304 of the Companies Act 1965 for fraudulent trading ("Fraudulent Trading Action"). Judgment was given against the Plaintiffs ("Fraudulent Trading Judgment").

[7] The Plaintiffs commenced an action in this court to impeach the Suit No 1017 Judgment and the Fraudulent Trading Judgment, on the ground that the Defendants had concealed relevant and material evidence, which led to the grant of the Suit No 1017 Judgment and the Fraudulent Trading Judgment.

[8] On 28 August 2020, this court granted judgment in favour of the Plaintiffs ("Judgment").

[9] These assessment proceedings were brought pursuant to the terms of the Judgment.

Principles On Assessment Of Damages

[10] Counsel for both the Plaintiffs and the Defendants began by setting out the following legal principles on assessment of damages:

a. A party claiming damages must discharge the burdens of (i) proving his losses; and (ii) proving that the losses were attributable to the party from whom damages are claimed (see Taiping Poly (M) Sdn Bhd v. Wong Fook Toh & Ors; [2018] supp MLJ 312 , [2011] 3 CLJ 837 and Lim Tze Sian v. Coverright Surface Malaysia Sdn Bhd; [2017] 1 MLJ 418; [2017] 5 CLJ 150).

b. Damages must be foreseeable and must be the natural and probable result of the breach (see Bank Bumiputra Malaysia Bhd Kuala Terengganu v. Mae Perkayuan Sdn Bhd & Anor, 1993 MarsdenLR 1221 ).

c. The object of damages is compensatory, namely to put the party who has been injured party in the same position as he would have been in, had he not sustained the wrong for which he is being compensated (see Wembley Gypsum Products Sdn Bhd v. MST Industrial Systems Sdn Bhd , 2007 MarsdenLR 1546 and Johandra Realty Sdn Bhd dan satu lagi lwn. Ketua Pengarah Jabatan Pengairan Dan Saliran Malaysia dan satu lagi; [2021] 2 CLJ 485).

d. When assessing damages, the court is entitled to take matters which are common knowledge into account (see Nikmat Masyhur Sdn Bhd v. Kerajaan Negeri Johor Darul Ta'zim, [2014] 1 MLJcon 213).

e. Where liability has already been established based on facts and/or evidence adduced in the course of proceedings, parties should not be permitted to re-open issues related to liability during the assessment of damages (see Shen & Sons Sdn Bhd v. Jutawarna Development Sdn Bhd & Ors, [2016] 7 MLJ 183 ).

[11] The distinction between general and spe