Special damages must be specifically pleaded and proved for recovery, contrasting with general damages, which do not require such formalities.

[1] This appeal from the Registrar raises a point which concerns the right of a plaintiff to recover special damages which is not the subject of an express pleading in the statement of claim or the order of court but expressly allowed in the grounds of decision.

The Facts

[2] The factual matrix relevant to this appeal are as follows. The plaintiff's property, which he co-owned with his elder brother, was charged to the defendant bank as security for a loan facility of RM60,000 advanced to his brother. At the request of the plaintiff's brother, the defendant increased the facility to RM90,000 and the charge was increased and up-stamped to secure repayment of the revised facility. The plaintiff's brother consented to the up-stamping but the defendant was unable to procure the plaintiff's consent to the same.

[3] The said property was foreclosed by the defendant when the plaintiff's brother defaulted in the repayment. Pursuant to a court order, the property was sold by public auction in the year 2002, for RM210,000.

[4] The plaintiff then commenced this action against the defendant claiming damages for wrongful sale of the property in breach of the express terms of the charge annexure. His claim was allowed on 5 December 2008 by Hishammudin J after a full trial. The judgment granted by His Lordship in open court was to this effect:

(a) Special damages amounting to RM105,000;

(b) General damages to the plaintiff to be assessed before the Registrar; and

(c) Interest and costs.

[5] However, in his written judgment which followed later, Hishammudin J, stated, inter alia:

Accordingly, the plaintiff, being a co-owner is entitled to be compensated in the sum equivalent to half of the value of the house. By reason of the foreclosure proceeding, which had been unlawfully commenced against him by the defendant, he had been unlawfully deprived of his property. I take the value of the whole house as being RM210,000. I am taking this as the value of the whole house because although the defendant's valuer valued the property at RM205,000 for purpose of the foreclosure proceedings, however, the house was in fact sold at the public sale for RM210,000. To my mind, this later figure (RM210,000) should appropriately be taken as the value of the whole house (in any case the difference between the valuation figure (RM205,000) and the sale price (RM210,000) is only a mere RM5,000 and moreover, the plaintiff's counsel has conceded that the sale price of RM210,000 should be taken as being the appropriate market value for the whole house. This means that the plaintiff is entitled to be compensated in the sum of RM105,000.

In addition the plaintiff is also entitled to such other special damages and general damages incurred by him, but only if any, as a direct consequence of the foreclosure proceedings. The quantum, however, is to be assessed by the Registrar.

I am disallowing the items of damages prayed for in paragraphs 10.4 and 10.5 of the statement of claim (the plaintiff has abandoned his claim for damages under paragraph 10.3). (emphasis added)

[6] Items 10.3, 10.4 and 10.5 mentioned in the above judgment were the only items of special damages that were claimed by the plaintiff in his statement of claim. It is clear that these were disallowed by His Lordship.

[7] Based on the aforesaid judgment, the plaintiff proceeded to assess damages before the learned Registrar. The plaintiff claimed damages amounting to RM241,125.72 which was tabulated as follows:

(a) Legal fees pertaining to the foreclosure - RM28,181.50;

(b) Transport expenses incurred (airfare, taxi transfer in KL and Sydney) for the sum of RM52,785.62;

(c) Hotel accommodation for the sum of RM2,400;

(d) Telephone, fax, postages for the sum of RM1,000;

(e) Interpreter's services for the sum of RM900;

(f) Valuation report for the sum of RM1,000;

(g) Auct