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2022 MarsdenLR 1792
HIGH COURT MALAYA GEORGETOWN
LIM KOO TIEK – Appellant
Versus
TAN BAK LEE (ENCLS 27 & 46) – Respondent
[Suit No: PA-22NCvC-34-02/2020]
In defamation claims, the burden of proof rests on the claimant to establish the elements independently of injunction proceedings.
Headnote:(A) Civil Procedure – Mareva Injunctions – Defamation – The Plaintiff obtained an injunction which was later set aside due to procedural non-compliance, and the appeal concerned the Defendant's claims for damages due to alleged defamatory actions by the Plaintiff related to the injunction. The court found the Defendant was liable for defamation but emphasized that the burden of proof for defamation must be established distinctly from the injunction's procedural matters. (Paras 11, 12, 16(iv))
(B) Defamation – Elements of Tort – In order to claim damages for defamation, the Defendant must prove: (a) the statement bears defamatory imputations; (b) it refers to the Plaintiff; and (c) it was published to third parties. (Para 16(v))
Facts of the case: The Defendant failed to release funds post-sale, leading to the Plaintiff seeking an injunction to prevent their disposal which was later set aside due to failure to serve properly. (Paras 3-6)
Findings of Court: Damages can be assessed for the premature injunction but must prove defamation separately. (Paras 16-17)
Issues: Whether the injunction's setting aside equates to defamation liability and what the burden of proof for defamation is. (Paras 11-14)
Ratio Decidendi: The court clarified the distinction between procedural liability regarding injunctions and the different burden of proof required for defamation claims. (Paras 16(i)-(iv))
Result: Enclosures 27 and 46 dismissed with costs. (Para 19)
JUDGMENT
[Enclosure 27 & 46]
[1] This is an application of Assessment of Damages. This matter was heard on 21 March 2022 whereby this court has dismissed the Appellant / Defendant application [EnclS 27 & 46]. On 20 April 2022 this appeal is filed. Parties are referred to as they were in High court.
[2] The relevant cause papers for this appeal are as follows:
(a) The Notice of Appointment for Assessment of Damages dated 17 March 2020;
(b) The Defendant's Affidavit in Support affirmed on 26 August 2020;
(c) The Plaintiff's Affidavit in Reply affirmed on 4 September 2020;
(d) The Defendant's Corrective Affidavit and Affidavit in Reply affirmed on 15 December 2020;
(e) The Defendant's Additional Affidavit affirmed on 18 December 2020;
(f) The Plaintiff's Additional Affidavit affirmed on 11 January 2021;
(g) The Defendant's Notice of Intention to use affidavit dated 14 January 2022;
(h) The Plaintiff's Notice of Intention to use affidavit dated 28 January 2022;
(i) The & Plaintiff's Supplementary Affidavit affirmed on 26 January 2022;
and
(j) The Defendant's Additional in Reply (2) affirmed on 11 February 2022.
Background Facts
[3] The Plaintiff is the vendor in a sale and purchase transaction of a property and the Defendant is appointed by the Plaintiff to handle the sale. After the balance purchase price was paid into the Defendant's clients account on 6 January 2020, the Defendant failed to release the stakeholder sum of RM789,702.96 to the Plaintiff. Therefore, the Plaintiff commenced this suit against the Defendant on 6 February 2020.
[4] The Plaintiff obtained an Injunction against the Defendant on 13 February 2020 to stop the Defendant from disposing the sum of RM789,702.96 in any manner until the disposal of this suit.
[5] Upon the Defendant's application, the Injunction was set aside on 5 March 2020 on the ground that the Plaintiff failed to serve the order on the Defendant within 7 days.
[6] Therefore this Honourable court ordered damages to be assessed. The Deputy Registrar dismissed the assessment of damages but the learned High court Judge allowed the Defendant's appeal and ordered that the assessment of damages be conducted before the Judge.
[7] On the other hand, the learned High court Judge on 13 December 2021 entered Summary Judgment against the Defendant for a sum of RM789,702.96 together with judgment interest and cost. This matter is pending appeal in the court of Appeal.
Finding Of The court
[8] The Damages claimed by the Defendant against the Plaintiff arising out from the ex-parte Mareva Injunction consequent to the court to pay damages suffered by the Defendant upon ex-parte Mareva Injunction being set aside.
[9] In the case of Goo Sing Kar v. Dato' Lim Ah Chap & Ors, , held:
The purpose of the undertaking can be described in this way. In the event the interlocutory injunction is being discharged, the plaintiff has to compensate the defendant for all losses or damages which the court is of the opinion was caused as a result of the injunction. According to Halsbury's Laws of England, 4th edition, vol 24, at para 1072, it is the price which the person asking for an interlocutory injunction has to pay for it. Such an undertaking is an absolute undertaking. And that being the case, the appellant here will be liable for any damages which the first respondent may have sustained.
[10] The Defendant claim for damages suffered is specifically for defamatory liable arising for malicious conduct of the Plaintiff for publication of ex-parte Mareva Injunction wrongly and pre-maturely obtained and published to 14 Bank's Head Quarters.
Liability
[11] The Defendant submits that, as soon as the injunction was set aside on 5 March 2020, the defamation was proven and the Defendant was entitled to damages against the Plaintiff. No need for him to prove any liability for defamation.
[12] The Plaintiff submits that when the court gave an order for the assessment of damages, it was only on the setting aside of the ex-parte Mareva Injunct
