A plaintiff must substantiate claims for damages with sufficient evidence of actual loss, demonstrating that such losses are directly linked and reasonably foreseeable from the alleged wrongful act.

Introduction

[1] By an Order dated 4 December 2023, this Court had ordered the removal of the Defendant's private caveats on Hakmilik No PM6013, Lot 53404 and Hakmilik No PM6014 Lot No 53403, both at Seksyen 10, Tempat Hill Street Kajang, Bandar Kajang, Daerah Hulu Langat, Negeri Selangor ("Properties"). Pursuant to s 329(1) of the National Land Code 1965 the Defendant was further ordered to pay damages for losses caused by the wrongful entry of the private caveats.

[2] An inquiry was held on 28 October 2024 pursuant to the Plaintiff's Notice of Appointment of Assessment of Damages dated 19 March 2024. After hearing evidence and reviewing the documents and written submissions, this Court found that the Plaintiff failed to prove any actual loss. On 4 February 2024, this Court awarded the Plaintiff RM10,000.00 in nominal damages, with costs of the proceedings in the sum of RM5,000.00 to the Defendant.

Background Facts

[3] According to the Plaintiff, it is a dormant company. O&C Makok Isola Sdn Bhd and OCR Group Berhad are its related companies ("Related Companies"). The Plaintiff is wholly owned by one Serba Simfoni Sdn Bhd which is in turn wholly owned by one Grand Superland Sdn Bhd which is in turn wholly owned by OCR Group Berhad. O&C Makok Isola Sdn Bhd is a subsidiary of OCR Group Berhad which holds 50.01% of its shares.

[4] The Related Companies had received financing offers dated 17 May 2017, 11 June 2020 and 7 July 2020 from United Overseas Bank (Malaysia) Berhad ("UOB") for a total of RM9 million for business expansion purposes, subject to a Third Party Charge over the Properties ("Loan Offers").

[5] The private caveats in question were lodged on 21 September 2021 and the Order for their removal was obtained on 4 December 2023. In the meantime, the Loan Offers lapsed on 25 November 2022. Accordingly, the Plaintiff sought to recover the following categories of losses which it attributes to the presence of the Defendant's private caveats on the Properties:

Analysis And Findings

[6] After evidence taking concluded, I asked for submissions on two issues of law (a) recoverability of alleged losses by third parties; and (b) remoteness/reasonable foreseeability of alleged losses. For purposes of quantification, I also asked counsel to set out each item of loss in a table, with point form submissions on justification and grounds of objection, as it transpired during cross examination of the Plaintiff's witness that numerous items in the volumes of claim documents were unrelated expenses.

[7] Solicitors for the Plaintiff did not initiate the preparation of the quantification table as directed and no legal basis for the recovery of alleged losses suffered by the Related Companies was offered in submissions.

Cost Of Private Placement Exercises

[8] The Plaintiff contended that the Related Companies undertook several rounds of Private Placement Exercises in 2020, 2021 and 2023 to raise funds ("Private Placement Exercises") and incurred what appeared to be professional service fees and other fees and charges paid to lawyers, UOB Kay Hian Securities (M) Sdn Bhd, Mercury Securities Sdn Bhd, Kenanga Investment Bank Berhad and Bursa Malaysia Securities Berhad.

[9] It was alleged that the Private Placement Exercises were alternative fund raising exercises that the Related Companies had to undertake because the Loan Offers could not be taken up. The Plaintiff therefore took the position that the expenses are recoverable in full because the private caveats prevented the creation of a Third Part