The burden of proof for defamation lies with the Defendant, who must establish liability before damages can be assessed, even after the Mareva Injunction is set aside.

JUDGMENT

Azizan Md Arshad JC:

[1] This is an appeal against the Court 's decision which allowed the Defendant's counterclaim against the Plaintiff on 6 February 2024. The Plaintiff has appealed against the decision of this Court , which also allowed the assessment of damages to be conducted. Parties are referred to as they were in the High Court .

[2] Based on the record, this is the third appeal against the decision of this Court either in allowing or dismissing the Plaintiffs or Defendant's application. For the record, the assessment of damages for this case still cannot be carried out for those reasons.

[3] This Court cannot anticipate how many more appeals will be filed by the parties in the future, before the assessment of damages can be decided (two judgments were published in [2022] MLRHU 770 and [2022] MLRHU 71)

Background Facts (Undisputed)

[4] On 15 August 2019, the Plaintiff as the vendor entered into a Sale and Purchase Agreement with a purchaser to sell a property ("the said Property"). The Defendant is the solicitor for the Plaintiff in this Sale and Purchase transaction. The Purchaser's Solicitors informed the Defendant that the balance purchase price had been credited into the Defendant's client's account on 6 January 2020.

[5] After receiving the balance purchase price, the Defendant issued a post-dated cheque dated 31 January 2020 (from MBSB Bank Berhad) to the Plaintiff on 15 January 2020 for RM789,702.96, which included money previously held by the Defendant. The Plaintiff deposited the said MBSB cheque on 31 January 2020 but it was dishonoured because payment was stopped by the Defendant.

[6] The Plaintiff met the Defendant on 4 February 2020 and was informed by the Defendant that the MBSB cheque payment was stopped because the Defendant had no sufficient money in his firm's client's account to pay the sum of RM789,702.96.

[7] Thereafter, the Plaintiff filed a writ against the Defendant and obtained an ex-parte Mareva Injunction dated 13 February 2020. The Plaintiff's solicitors, via their letters dated 20 February 2020 sent the said Mareva Injunction to 14 banks.

[8] Subsequently, the Defendant applied and managed to set aside the ex-parte Mareva Injunction on 5 March 2020. When setting aside the said ex-parte Mareva Injunction, the Court also ordered for assessment of damages.

[9] On the same day, the Defendant issued to the Plaintiff another post-dated cheque dated 16 February 2020 (RHB Bank Berhad No 288052) for the sum of RM789.702.96 as balance purchase price. The Defendant also issued another cheque dated 3 February 2020 (RHB Bank Berhad No 288053) for RM2.632.34 being interest paid to the Plaintiff.

[10] However the Plaintiff rejected both the cheques and demanded that the sum of RM789.702.96 be paid to the plaintiff immediately, the Defendant refused to do so.

[11] The Plaintiff filed a Notice of Application dated 12 April 2021 for Summary Judgment. After hearing the parties' submissions, this Court allowed the Plaintiffs' application on 13 December 2021 and entered into Summary Judgment against the Defendant for RM789,702.96, Judgment interest and cost of RM4,000.00. The Defendant's appeal to the Court of Appeal was dismissed.

[12] The ex-parte Mareva Injunction was set aside solely on technical ground that Plaintiff failed to comply with the requirement under O 29 r 1(2BA) of the Rules of 2012 to serve the order on the Defendant within 7 days. It was not set aside on the reason that it was wrongly obtained by the Plaintiff or it had defamed the Defendant.

[13] The Defendant proceeded with the assessment of damages and his only alleged damage was defamation resulted from sending of the said ex-parte Mareva Injunction to the 14 banks.

[14] Therefore, this 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.

[15] The De