Abdul Malik Ishak JCA (delivering supporting judgment):

[1]This is my supporting judgment to that of the judgment of Dato' Mohamad Ariff bin Md Yusof JHC wherein this court dismissed the appeal of the appellant plaintiff with fixed costs of RM50,000 before this court as well as before the deputy registrar and before the High Court judge. The decision of the High Court was affirmed and the deposit should rightly go to the respondents/defendants.

[2]The measure of damages to be awarded to an aggrieved party has been restated in many ways by Viscount Sankey LC in Banco de Portugal v Waterlow And Sons Ltd Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker British Transport Commission v Gourley Koufos v C Czarnikow Ltd, The Heron II General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd Swingcastle Ltd v Alastair Gibson (a firm) Alfred McAlpine Construction Ltd v Panatown Ltd Livingstone v The Rawyards Coal Company (1880) 5 App Cas 25

that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.

[3]Asquith LJ in Victoria Laundry (Windsor) Ltd v Newman Industries Ltd

It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed.

[4]Lord Diplock in Albacruz (Cargo Owners) v Albazero (Owners), The Albazero

to put the person whose right has been invaded in the same position as if it had been respected so far as the award of a sum of money can do so.

[5]This appeal concerned the damages awarded against the appellant based on the appellant's undertaking to pay damages pursuant to the four interim injunctions. There were concurrent findings by the deputy registrar and the High Court judge and there were no exceptional circumstances shown to warrant any interference by this court.

[6]In this appeal, the appellant who was the plaintiff at the High Court, had obtained four ex parte injunction orders which effectively destroyed the companies belonging to the first respondent — Dato' Lim Ah Chap. The injunction orders were couched in extremely wide terms and circulated to the banks thereby cutting off the credit lines and banking facilities enjoyed by the companies.

[7]Earlier on, the companies had been sold to the first respondent by the appellant and that sale saw the appellant divesting his 50% stake in the companies under the settlement agreement entered between the appellant and the first respondent. The injunction orders effectively destroyed the companies which the appellant had earlier sold to the first respondent.

[8]It was an undisputed fact that the companies had a value of RM40m. This was admitted by the appellant at the inquiry before the deputy registrar.

[9]The injunction orders were eventually set aside by Dato' Ramly Ali JC (now JCA) as reflected in his judgment which has since been reported (see [2002] MLJU 79, [2002] 2 CLJ 250). In his judgment, His Lordship made critical observations pertaining to the appellant's conduct and he also directed an immediate enquiry into damages based on the undertaking as to damages given by the appellant.

[10]The deputy registrar conducted the enquiry where 17 witnesses were called and the notes of evidence spilled to over 185 pages. At the end of that enquiry, the deputy registrar awarded damages totalling RM17,887,038.70 to all the respondents. Aggrieved, the appellant appealed to the High Court judge pursuant to O 56 of the Rules of the High Court 1980. His Lordship Dato' Abdul Halim Aman, High Court judge, upheld the award of the deputy registrar but reduced it to a correct mathematical figure of RM17,847,041.60. Aggrieved, the appellant now appeals to this court.

[11]The undertaking as to damages given by the appellant must 'be worth powder and shot' (Commodity Ocean Transport Corporation v Basford Unico