Low Hop Bing J:

[Assessment Of Damages]

I. Order For Assessment

The matter before me is for assessment of damages pursuant to my decision given on 9 October 2002 after a full trial, in which I gave judgment for the plaintiff against the defendant who was held liable for breach of contract.

II. Submission For Plaintiff

En C Leo Cameons, learned counsel for the plaintiff, submitted that the principle governing the assessment of damages for breach of contract is contained in s 74 of the Contracts Act 1950.

He added that as the defendant knew and had given the plaintiff permission to convert the premises in question from a residential bungalow into a restaurant and swimming centre for corporate and individual members, the plaintiff would be able to claim damages for the loss naturally arising therefrom, which he stressed would include renovation costs for such purposes, loss of profit from the subscriptions of corporate and individual membership and interest.

He said there was evidence on a balance of probabilities to establish these heads of damages, and urged the court to award RM2,610,000.00 for loss of profit from membership for five years and RM133,833.08 for wasted expenditure.

III. Contention For Defendant

En CC Chong, learned counsel for the defendant, also referred to s 74 for the principle governing assessment of damages. However, he contended that in order to recover damages, the plaintiff must prove that the damages arose from the breach, the actual damages suffered and the absence of mitigating factors.

He stressed that the plaintiff may only choose to recover loss of profit or expenses incurred but not both; and that the plaintiff could not recover expenditure wasted in a bad bargain.

He urged the court to exclude the documents whose makers were not called, and that special damages must be proved.

In terms of mitigation of damages, it was submitted for the defendant that the plaintiff has a duty to mitigate the loss by finding alternative premises as a restaurant and swimming centre.

It was also argued that the plaintiff's claim for loss of profit was remote and speculative.

IV. Decision Of The court

1. Assessment Of Damages

The ascertainment or assessment of damages has been described as an exercise to establish a question of fact, that is what loss and damage have been suffered by the plaintiff in the particular case before the court and to award him damages ascertained according to these principles. Decided cases are useful more for the principles they enunciate, than for the result of the application of the principles: Hong Fok Realty Pte Ltd v. Bima Investment Pte Ltd [1993] 1 SLR 73 Singapore CA, per Warren LH Khoo J; referring to Cheshire and Fifoot And Furmston's Law of Contract Singapore and Malaysia Ed. 1994 p 847; and followed by Vincent Ng J in Ban Chuan Trading Co Sdn Bhd & Ors v. Ng Bak Guan, [1995] 4 MLJ 115.

2. Governing Principles

It is common ground that the broad principle governing the assessment of damages caused by breach of contract herein is contained in s 74(1) and (2) in the following words:-

"(1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

(2) Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach."

The provisions under s 74(1) and (2) are the statutory enunciation of Hadley v. Baxendale [1854] 9 EX 341.

The broad principles have been further expended in numerous judicial pronouncements which have developed more specific principles which are not closed and are likely to grow through the passage of time to meet the particular facts and circumstances of each individual case. These principles which are by no means exhaustive may be