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2022 MarsdenLR 1845
HIGH COURT MALAYA KUALA LUMPUR
WONG KOK LEONG – Appellant
Versus
FOO CHU JONG & ANOR – Respondent
[Originating Summons No: WA-24NCVC-2242-11-2021]
Assessment of damages from ex parte injunction requires proof of causation and does not allow claims for personal distress by office-bearers of unincorporated associations.
Headnote:(A) Societies Act 1966 – Sections 9(c) – Assessment of damages pursuant to an ex parte injunction – The defendant's claims for special damages based on association expenses were allowed to the extent of RM56,409.39; General and exemplary damages were denied due to lack of personal capacity claims and insufficient proof of mental distress. (Paras 54, 42, 41, 31, 18, 21)
(B) Legal principles on assessment of damages – Causation must be established as a direct consequence of the injunction; General damages require evidence of non-pecuniary loss; Exemplary damages must comply with existing legal thresholds set by precedent. (Paras 6, 8, 46, 52)
Facts of the case: This suit arose from an injunction stopping the Malaysian Kochow Association's AGM, resulting in claims for damages for costs incurred by the association in preparation for the meeting (Paras 1, 2, 4).
Findings of Court: The court allowed specific claims for damages directly tied to the injunction but rejected claims for general and exemplary damages, determined not to arise from wrongful acts. (Paras 55, 46, 41)
Issues: Whether the defendants were entitled to damages in personal capacity and the validity of the claims based on the association's structure and legal identity. (Paras 18, 21)
Ratio Decidendi: The court ruled that liabilities claimable from the injunction relied on the association's expenses, negating personal claims by the defendants. (Para 18, 22)
Result: Claims for special damages allowed partially; claims for general and exemplary damages rejected.
Introduction
[1] This judgment concerns the assessment of damages that was directed pursuant to an undertaking given by the plaintiff when applying for an ex parte injunction. The injunction stopped the annual general meeting of the Malaysian Kochow Association for the year 2021 from taking place on 14 November 2021. The association is a national association with branches in almost all the States of Malaysia.
[2] The plaintiff filed this originating summons in the capacity of a committee member of the association. He claimed that there was a breach of the association's constitution and the subject matter of the breach, concerning an article of the association's constitution, was at the material time being investigated by the Registrar of Societies. The impugned article was on the agenda of the annual general meeting for the purpose of ratification by the members.
[3] To stop the annual general meeting, the plaintiff on 11 November 2021 applied for an ex parte hearing of the originating summons, on a certificate of urgency, to restrain the chairman and secretary of the association ("the defendants") from convening the same. The ex parte injunction was granted by Dr John Lee JC, on 12 November 2021, two days before the annual general meeting was scheduled to take place (encl 12).
[4] On 24 November 2021, the defendants filed an application to set aside the ex parte injunction (encl 15). The application was, on 13 December 2021, allowed by Dr John Lee JC wherein the following orders were made (encl 49):
(i) the ex parte injunction dated 12 November 2021 is set aside;
(ii) an assessment of special damages, general damages and exemplary damages is to be carried out by this Court; and
(iii) interest at 5% per annum on the damages from the date of the order until final settlement.
[5] The plaintiff did not appeal against encl 49. The assessment of damages eventually came up for hearing before me on 7 June 2022. After considering the totality of the material placed before me including the written and oral submissions of the parties, I allowed certain items under the description of "special damages". These items were in fact expenses that had been incurred by the association in preparation of holding the annual general meeting. I, however, refused the claim for "general damages" and "exemplary damages".
[6] This judgment contains the reasons for my decision.
Principles Of Assessing Damages Pursuant To Undertaking
[7] The undertaking of damages is given by a claimant when seeking an ex parte injunction. It is the price for obtaining an injunction for otherwise the Court would not grant the same except in very rare cases. At this stage the party against whom the ex parte injunction is made or known as the party enjoined is not before the Court. Thus, the undertaking is not between the parties but between the party seeking the injunction and the Court. The undertaking when given would vest the Court with the necessary jurisdiction to make an order that the defendant be compensated pursuant to an assessment of damages in the event the Court is of the opinion that the ex parte order ought not have been made. The order for assessment of damages is usually made on a successful application to set aside an ex parte injunction given earlier or when an interim injunction is refused at the conclusion of the inter partes hearing of the said application.
[8] This brings me to the principles governing assessment of damages. The law is trite. The leading case on the subject is Jeffery Law Siew Su & Ors v. Yu Gui, where the following principles were reiterated by the Federal Court:
(i) The assessment of damages that has been directed pursuant to such an undertaking does not raise a presumption that damage has in fact been suffered and the inquiry carried out is to establish: (a) the existence; and (b) the extent of any damage (Fraser & Neave Ltd v. Yeo Hiap Seng Lts, ).
(ii) The assessment is made on the same basis as that on
