[1] The appellants/plaintiffs appealed to the judge in chambers in encl 36 against the decision of the learned Senior Assistant Registrar ("SAR") given on 13 September 2012 in respect of the assessment of damages ("the decision") wherein she ordered:

1.1 the 2nd plaintiff's claim for damages for loss of income was dismissed;

1.2 the 3rd plaintiff's claim for damages for loss of income was allowed for the sum of RM10,066.00; and

1.3 the sum of RM50,000.00 was allowed for damages for loss of good name and reputation of the plaintiffs.

[2] The plaintiffs prayed that the assessment of the loss of income of the 2nd and 3rd plaintiffs be reassessed and the plaintiffs' claim for damages for loss of good name and reputation at the sum of RM500,000.00 be allowed.

[3] For ease of reference I will refer the parties as the plaintiffs and defendant respectively.

B. Background Facts

[4] By a judgment and order dated 24 August 2011 ("the said judgment"), this court found amongst other things, the defendant liable to the plaintiffs for passing off through the use of the trade mark or service mark SOCIAL KL or SOCIAL @ KL over food and beverage services and/or restaurant services without the permission, consent or agreement from the plaintiffs and/ or the defendant's misuse of the said mark thereby gaining commercial benefit, goodwill and reputation which was earned by the plaintiffs over the said mark for the period 16 August 2010 to 31 August 2011. Of relevance to this appeal is para (viii) of the said judgment which stipulated that:

"(viii) segala ganti rugi yang dialami plaintif akibat perbuatan defendan mengelirupakan dan/atau salah guna kelebihan dagang, nama baik dan reputasi plaintif-plaintif ditaksirkan serta dibayar oleh defendan dan/atau atas pilihan plaintif, suatu akaun keuntungan daripada defendan;"

[5] Pursuant to that judgment/order, a notice of appointment for assessment of damages before the learned SAR was filed by the plaintiffs on 18 November 2011. A total of seven affidavits were exchanged and an oral hearing was conducted.

[6] On the 13 September 2012, the learned SAR delivered the decision orally and proceeded to give her written grounds of judgment.

[7] On 26 September 2012, the plaintiffs filed the notice of appeal to the judge in chambers against the decision.

The Plaintiffs' Position

[8] It was contended by the plaintiffs before the learned SAR that their pecuniary damages must be assessed as follows:

8.1 the sum of RM787,500.00 as damages from the defendant's account of profits as admitted by the defendant's director in full trial before this court; or

8.2 the sum of RM1,072,672.21 in loss of sales and/or decline in sales or revenue collections suffered by the 2nd and 3rd plaintiffs restaurant business for the duration of 16 August 2010 until 31 August 2011 caused by the defendant's act of passing off; and

8.3 the sum of RM100,000.00 in franchising fees suffered by the plaintiffs as loss of business opportunity, loss of royalty or licensing revenue at the sum of RM150,000.00 and loss of advertising and promotions fees of about RM90,000.00 for the duration of 16 August 2010 until 31 August 2011 caused by the defendant's act of passing off; whilst their:

8.4 damages for loss of goodwill be assessed in the sum of RM500,000.00 to compensate for the Plaintiffs' loss of goodwill and reputation over the plaintiffs' SOCIAL or THE SOCIAL @ marks and related restaurant businesses in Malaysia for the duration of 16 August 2010 until 31 August 2011 caused by the defendant's act of passing off.

[9] In view of the SAR's decision, the plaintiffs are