In fraud cases, victims can recover all actual losses, including legal fees, as special damages, and the court emphasized the principle of finality in litigation under res judicata.

Introduction And Background Facts

[1] Appeals 236 and 237 were consolidated and heard before this Court. The appeals relate to the damages awarded. Counsel for the Appellant in appeal 237 submitted for both appeals and there was one common submission filed.

[2] In appeal 236, the Appellants are the 2nd to 5th Defendants in the High Court. In appeal 237, the Appellant is the 1st Defendant. The 2nd Defendant is a licensed money lender and its registered proprietors are the 3rd to 5th Defendants. They are the immediate family members of the 1st Defendant, an advocate and solicitor at the material time.

[3] The Respondents in both appeals as the Plaintiffs are father and son who commenced legal action in 2006 against the Defendants for fraudulent transfer of properties in a money lending transaction.

[4] References to enclosures are to those in appeal 237. Parties will be referred to as they were in the High Court.

[5] The High Court on 28 November 2012 found that there was fraud and ordered the Defendants to pay the Plaintiffs special, general and punitive/exemplary damages to be assessed (2012 Judgment). On 133- 2015, the 2012 Judgment was set aside by the Court of Appeal and re- instated by the Federal Court on 20 June 2017 (FC Order). There were three unsuccessful reviews launched by the Defendants where the third review was struck out on 27 May 2019 without liberty to file afresh.

Assessment Of Damages

[6] The assessment of damages was duly carried out by the High Court Judge (HCJ) over a period of 6 days on 8 February 2021, 9 February 2021, 103-2021, 16 March 2012, 8 October 2021 and 24 November 2021. All were done via zoom other than the hearing on 8 October 2021 which was conducted in open Court. There were 5 witnesses for the Plaintiffs, 1 for the 1st Defendant and 4 for the 2nd to 5th Defendants.

[7] On 10 January 2022, the HCJ ordered as follows (encl 3/35-36):?

"Adalah dihakimi bahawa Defendan -Defendan secara bersesama dan berasingan membayar Plaintif-Plaintif gantirugi khas sebanyak RM3,135,951.76, gantirugi am sebanyak RM1,000,000.00 dan gantirugi punitif dan teladan sebanyak RM1,000,000.00

Dan adalah dihakimi bahawa Defendan-Defendan secara bersesama dan berasingan membayar Plaintif-Plaintif faedah pada kadar 5% setahun ke atas jumlah penghakiman dari tarikh pemfailkan Writ pada 18 Ogos 2006 sehingga tarikh penyelesaian penuh. "

[8] As can be seen from the HCJ Grounds of Judgment (GOJ, encl 3/41-180) and in particular at pp 176-177, the breakdown is as follows:

Issues In The Appeals

[9] The appeals by the Defendants are in relation to the matters as follows:

i. items (a), (c) and (d) of the special damages where these relate to legal fees of RM2.604 million, travelling fees of RM16,000.00 and search and miscellaneous expenses of RM51,618.60;

ii. the amount of general damages of RM1 million; and

iii. the amount of exemplary damages of RM1 million.

Special Damages (SD)

[10] It was contended by the Defendants that SD was awarded despite there being no particulars pleaded (the pleadings point) and that legal fees are not claimable.

Res Judicata

[11] At the outset, we agree with the HCJ and find that res judicata in the wider sense applies such that the Defendants are estopped