Indra Nehru Savandiah J:

Introduction

[1] Both the 1st and the 2nd Defendants submitted their respective applications, encl 99 and encl 101, for the assessment of damages claimed to have been incurred due to the plaintiff's injunction, which the Court of Appeal subsequently overturned on 22 May 2023.

[2] Their application was dismissed with costs; consequently, the appeal was lodged.

Salient Facts Of The Case

[3] The 1st and 2nd Defendants entered into a joint venture agreement, whereby the 2nd defendant was to develop a parcel of land held under GRN 23940, Lot 613, Mukim Ulu Semenyih, Daerah Ulu Langat, Selangor Darul Ehsan. It was a mixed development comprising, among others, landed residential and commercial shop units, as well as high-rise strata developments.

[4] The plaintiff obtained ad interim injunction orders dated 11 September 2019, 30 September 2019, and 14 October 2019, prohibiting the 1st and 2nd Defendants from taking any actions related to the joint venture agreement or engaging in transactions involving the specified parcel of land. Ultimately, the plaintiff succeeded in its application for an injunction on 27 May 2022.

[5] On 22 May 2023, the Court of Appeal allowed the applications from the 1st and the 2nd Defendants to set aside the interlocutory injunction order. Additionally, the Court granted both defendants the liberty to apply for assessment of damages.

Issues To Be Tried

[6] Whether the 1st Defendant's claim for damages arising from the assertion by the 1st Defendant that the monies payable by the 2nd Defendant to the 1st Defendant were not paid due to the ad interim injunction order and the interlocutory injunction order obtained by the plaintiff between 11 September 2019 and 21 May 2023 is maintainable.

[7] Whether the 2nd Defendant is entitled to claim loss of development profit.

Decision Of This Court

[8] The 1st Defendant states that in accordance with cl 3a 1(a) of the joint venture agreement, the 2nd Defendant was required to make a definite amount of payments. Clause 3a 1 (a) reads as follows:

"The Landowner and the Developer hereby mutually covenant and agree with one another that the consideration for the Landowner entering into a Joint Venture with the Developer to develop and complete for sale the Development on the Project Land (pursuant to the terms and conditions of this Agreement) shall be twenty two percent (22%) of the GDV for all low rise landed development and Eighteen percent (18%) of the GDV for all high rise strata development (collectively, the Landowner's Entitlement) which shall be paid by the Developer to the Landowner in the following manner:

(a) total cash sum of Ringgit Malaysia Ten Million (RM10,000,000.00) only (Cash Consideration) of which a sum of Ringgit One Million (RM1,000,000.00) only shall be payable by the Developer to the Landowner upon execution of this Agreement (Earnest Deposit), and a further sum of Ringgit Malaysia Two Million (RM2,000,000.00) only (Balance Deposit and the Earnest Deposit and the Balance Deposit shall collectively be referred to as the Initial Deposit) to be paid within three (3) months from the date of this Agreement and the balance sum of Ringgit Malaysia Seven Million (RM7,000,000.00) only to be paid over seven (7) annual payments of Ringgit Malaysia One Million (RM1,000,000.00) only each on every anniversary date of this Agreement."

[9] It is the 1st Defendant's position that the Earnest Deposit and the Balance Deposit of RM3,000,000.00 have been duly paid, and there is no dispute regarding this matter between the 1st and 2nd Defendants.

[10] However, due to the ad interim orders and interlocutory injunction order, the 2nd Defendant did not make any payments to the 1st Defendant in accordance with cl 3a 1(a) of the joint venture agreement from 11 September 2019 to 22 May 2023.

[11] Clause 19.11 of the joint venture agreement entitles the 1st Defendant to interest at a rate of 10% per annum, calculated on a daily basis, from the 2nd Defe