Low Hop Bing J:

Appeal

This is an appeal in encl. (35) filed by the defendant against the decision of the learned registrar who on 19 September 2003 awarded the following heads of damages in favour of the plaintiff:

1. Interest amounting to RM20,358.52 paid by the plaintiff to his bank ("bank interest");

2. Interest amounting to RM47,101.37 paid by the plaintiff to Pembinaan Purcon Sdn Bhd ("company interest"); and

3. Legal fees amounting to RM27,042.90 paid by the plaintiff to his solicitors ("legal fees").

Factual Background

On 10 December 1998, the private caveats lodged by the defendant were set aside by the learned judge who also ordered that damages be assessed and paid by the plaintiff to the defendant, inter alia, in the following terms:

(iii) bahawa Responden kena membayar gantirugi kepada Pemohon akibat salah kaveatnya ke atas hartanah tersebut yang akan ditaksirkan kelak;

(iv) bahawa segala kos bagi permohonan dan kos sampingan baginya boleh dibayar dan ditanggung oleh pihak Responden.

[My translation:

(iii) that the Respondent do pay damages to the applicant consequent upon the wrongful caveat on the said property, to be assessed;

(iv) that all costs of the application and ancilliary costs are payable and to be borne by the Respondent]

The applicant is the plaintiff while the respondent is the defendant.

Submission For Defendant

En. I.N. Jeganathan and En. K.F. Yoong, both learned counsel for the defendant, submitted that the plaintiff is only entitled to claim loss of his own money or loss of use of his own money resulting from the wrongful caveats. Reliance was placed on ss. 329(1) and 322(2) of the National Land Code 1965; Mawar Biru Sdn Bhd v. Lim Kai Chew ; [1992] 1 MLJ 336 HC; and Coke & Coal Products (M) Sdn Bhd v. Hon Swee Kong & Ors [2000] 1 CLJ 19 HC.

A reference hereinafter to a section shall, unless a contrary intention appears, be a reference to that section in the National Land Code 1965.

They added that damages resulting from the plaintiff's impecuniosity are not recoverable, citing Owners of Dredger Liesbosch v. Owners of Steamship Edison [1933] AC 449 HL, and that the onus is on the plaintiff to show the damage or loss.

In respect of the bank interest, it was contended for the defendant that the plaintiff has admitted that this interest was paid by Pembinaan Purcon Sdn Bhd ("Purcon") vide Purcon's cheque and not by the plaintiff and there was no evidence to show that the plaintiff has repaid the money to Purcon.

It was then stressed for the defendant that the plaintiff has not shown in the evidence relating to the company interest amounting to RM47,101.37 for the loan of RM700,000 from Purcon to pay the balance of the purchase price for the property.

Further, they canvassed that the interest for the loan is in breach of ss. 3 and 15 of the Moneylenders Act 1951 (Act 400) and so unenforceable by Purcon against the plaintiff and irrecoverable by the plaintiff against the defendant.

On the legal fees, it was submitted for the defendant that they were paid by Purcon, and that the order for assessment of damages did not provide for costs on a solicitor and client basis, seeking support in Minty Holdings Sdn Bhd v. JB Properties Sdn Bhd (SK Brothers Realty, Third Party) ; [1998] 7 MLJ HC.

Contention For Plaintiff

For the plaintiff, Cik Dheema Ariyapala and En. Adrin Adzuan Mohd Daud contended that the plaintiff has incurred the bank interest for extension of time as a foreseeable loss. They added that the payment of that interest by a third party, Purcon, does not mean that the plaintiff could not make a claim as the plaintiff has to bear the debt due to Purcon.

In respect of the company interest, it was submitted that the plaintiff had to obtain the loan of RM700,000 from Purcon towards the settlement of the purchase price, and that it was not a moneylending transaction, relying on Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd ; [1980] 2 MLJ 9 9.

It was argued for the plaintiff that the defen