Yusrin Faidz Yusoff JC:

Introduction

[1] This matter comes before the court on the application of the 2nd to 11th defendants ("the corporate defendants") for assessment of damages pursuant to the undertaking as to damages furnished by the plaintiff, Dato' Sri Andrew Kam Tai Yeow. The application arises from injunctions granted in 2017 and 2018 at the plaintiff's behest, which restrained the corporate defendants from disposing of their oil palm plantation and mill assets. The injunctions remained in place for several years until they were set aside by the court of Appeal in 2022, which held that the corporate defendants were improperly joined to the action as they were not privy to the Shareholders' Agreement that underpinned the plaintiff's claim.

Background Facts

[2] The factual backdrop may be shortly stated. The Plaintiff, a shareholder of the 2nd and 3rd defendants, initiated proceedings alleging breaches of a Shareholders' Agreement dated 16 January 2017. Although the corporate defendants were not parties to that agreement, the plaintiff nevertheless obtained interim injunctions against them in 2017 and 2018, restraining the disposal of their principal assets, namely an oil palm plantation and a palm oil mill.

[3] At the material time, the corporate defendants were negotiating with Matang Berhad, a listed company, for the disposal of those assets. A Letter of Intent ("LOI") was executed in which Matang Berhad expressed its intention to acquire the assets for RM180,000,000.00, subject to the execution of a formal agreement. Resolutions were passed by the Boards of the corporate defendants authorising the transaction, and Matang Berhad revised its offer upwards on more than one occasion, reflecting a sustained commercial interest in concluding the sale. The injunctions, however, had the effect of freezing the transaction.

[4] On 12 January 2022, the court of Appeal in Civil Appeals No W-02(IM)(NCC)-2007-10/2017, W-02(IM)(NCC)-2009-10/2017, W-02(IM)(NCC)-803-04/2018, and W-02(IM)(NCC)-795-04/2018 [Wahbunga Realty Sdn Bhd & Ors v. Dato' Sri Andrew Kam Tai Yeow & Other Appeals; [2023] 2 MLJ 799; [2023] 2 CLJ 731; [2023] 2 AMR 137] ordered, among others, that:

(i) the plaintiff's claims against the 2nd to 11th defendants be struck out;

(ii) the interim injunction dated 6 September 2017 be discharged;

(iii) the interim injunction dated 29 March 2018 be set aside; and

(iv) damages be assessed by the High court and paid by the plaintiff to the 2nd to 11th defendants for the losses and damages suffered as a result of the injunctions.

(See exh D3 of encl 991).

[5] The corporate defendants collectively contend that they were deprived of RM180,000,000.00 in sale proceeds for a period of five years, causing them substantial financial loss. It has, however, been agreed that any damages arising from this deprivation are payable only to the 2nd and 3rd defendants, as they were the contracting parties to the proposed sale with Matang Berhad. The claim is advanced on the basis that the loss of use of funds ought to be assessed at prevailing commercial interest rates, said to range between 3.5% and 8% per annum. In addition, aggravated and exemplary damages are sought on the footing that the plaintiff had acted strategically and with malice in obtaining and prolonging the injunctions.

[6] The plaintiff denies liability, contending that the injunctions were properly granted at the time, that the LOI was not binding as it was expressly "subject to contract," that Matang Berhad's withdrawal was due to the corporate defendants' own inaction, and that any losses are speculative in nature. He further asserts that the assets have appreciated in value in line with rising palm oil prices, thereby negating any alleged loss.

[7] Notice of Appointment for Taxation under O 37 r 1 of the Rules of 2012 ("the Rules") was filed on 23 November 2023 (encl 928). On 6 August 2025, upon the conclusion of the assessment hearing, this court ordered the plaintiff to pay t