Azizan Md Arshad JC:

GROUNDS OF JUDGMENT

Introduction

[1]The assessment of damages were carried out in pursuance of and in implementation of the Court of Appeal decision dated 27.07.2021. This Court heard the assessment of this assessment through the trial and the oral testimony of the witnesses and dismissed part of the Plaintiffs’ claim on 5.02.2024.

[2]The Plaintiff and the Defendant have filed an appeal against the decision of this Court to the Court of Appeal. This Court will give reasons simultaneously for both appeals. Parties are referred to as they were in the High Court.

Background facts

[3]The relevant part of the COA’s orders are as follows:

(a)Penghakiman Mahkamah Tinggi Pulau Pinang bertarikh 12.4.2018;

(b)Perintah Injunksi bahawa pihak Responden melalui pegawai, pekerja, kakitangan dan/atau ejen mereka mengemaskini rekod pinjaman Plaintif-Plaintif dengan Sistem Maklumat Rujuk Kredit Pusat (CCRIS) dengan Bank Negara Malaysia dan memadamkan nama-nama Perayu-Perayu dalam CCRIS untuk pinjaman tersebut;

(c)Gantirugi

(d)Faedah; dan

(e)Kos sebanyak RM30,000 di Mahkamah Rayuan dan di Mahkamah Tinggi tertakluk kepada alokatur.

[4]The assessment of damages was conducted through a trial and Mr. Shareef, the First Plaintiff was cross-examined on 26.10.2023. The Plaintiff claims that it is reasonable to foresee that due to the loss of the property, the Plaintiffs have further suffered losses and/or costs incurred as follows:

(i)Loss of enjoyment of the property and/or costs of renting alternative premises;

(ii)Repairs and/or renovations and/or purchase of new furniture; and

(iii)Legal fees

Submissions by both Parties (i) Loss of Property Value / Beneficial Use / Renovation Costs Plaintiff

[5]The Plaintiff’s submit that the said Order for Sale was compromised by the restructuring agreement between the Plaintiff’s and the Defendant. The fact that there was a restructuring between the Plaintiff’s and the Defendant for the repayment of loan towards the Property is not disputed.

[6]As the said Order for Sale was compromised, the issue of setting aside the said Order does not arise. The term ‘gantirugi’ in the Court of Appeal Order is a general order allowing a party to proceed with assessment of damages. It is not limited to a particular head of damage as submitted by the Defendant.

Furthermore, as losses in respect of the Property are reasonably foreseeable, the Plaintiff is entitled to pursue his claim for all damages relating to the said Property. The Plaintiff’s reiterate and submit that these are losses which are

reasonably foreseeable arising from the Defendant’s conduct in handling the Plaintiffs’ property and referred to the case of Ling Peek Hoe & Anor v Ding Siew Ching & Ors

“In my considered opinion, the affidavits filed and exchanged on the damages sought with the evidence marshalled to support the claim duly set out therein, are as good as pleadings.”

[7]In any event, the Plaintiff’s have pleaded that they suffered losses and damages. What the Plaintiff’s are doing now is leading evidence. Evidence is not pleaded. Therefore, the Defendant’s argument that the loss of property value / beneficial use / renovation costs not pleaded does not arise. Statement of Defence reads as follows:-

“Berikutan itu pihak Defendan terus memberi jaminan yang mereka akan menjelaskan kesilapan mereka ini tetapi mereka tidak sehingga ke hari ini membuat apa-apa yang wajar mengenai kehilangan dan kerugian Plaintif-plaintif.”

[8]Further, the Sale and Purchase Agreement and Valuation Report are not agreed documents and have been listed in Part C. Therefore, the Defendant ought to have applied to cross examine the Plaintiffs. The Defendant has waived its right to raise this argument as it has failed to exercise its option to apply to cross examine the Plaintiff’s.

Defendant’s Submissions

[9]The Plaintiff’s lacks of evidence to support damages. The Defendant has submitted that the Plaintiff produced a Sale and Purchase Agreement and a new Valuation Report without call