JUDGMENT

Abdul Hamid Omar FJ:

Perbadanan Kemajuan Negeri Selangor is dissatisfied with the decision of Harun J who ordered them to pay the respondents Teo Kai Huat Building Contractor a sum of RM63,771.62 being general damages and a sum of RM71,280 as special damages.

On 21 December 1977, the respondents applied by way of summons-in-chambers for the appellants' defence to be struck out and liberty to enter judgment against the appellants. On 10 August 1978, Harun J made an order striking out the defence and a further order that a date for assessment of damages be fixed by the Senior Assistant Registrar. On 24 January 1979, the learned Judge awarded damages as aforesaid. Hence the appeal.

The facts, not seriously in dispute, are that the respondents are the owners of:

i) 3 units - 12 HP Air-cooled Diesel Driven Concrete Hoist

(Model IMMACO TA-2)

Serial Nos: 3809 SL217

7409161

7508171

ii) 2 units - Liner 1250 KG Dumper

Engine Nos: 2000-STI-A24

72-STI-A24

iii) 1 unit - 77 Winget PH 1 Concrete Mixer

Engine No: 55916

iv) 1 unit - 14 T Winget PH 2 Concrete Mixer Engine No: 37410

v) 1 unit - 7 TH/L Winget Concrete Mixer

c/w 6.6 Lister

Engine Nos: 1321 - LD2 - Z18.

Under the agreement dated 1 June 1975, the respondents were sub-contractors of Messrs. Pribumi Sdn. Bhd. (the main contractors) who had a contract with the appellants for the construction of 234 units of link houses at Sungai Way Subang. On 6 October 1976, the appellants terminated the contract with Messrs. Pribumi as a result of which the sub-contract between the respondents and Pribumi was also terminated.

The respondents alleged that the appellants wrongfully refused to permit them to remove the machinery and wrongfully deprived them of the same. They also alleged that the appellants wrongfully detained the machinery in consequence of which they suffered loss and damage. Accordingly they claimed for loss of use of the machinery; for an order for the delivery up by the appellants of the machinery and damages for detention and/or conversion.

At the hearing of the appeal, Mr. Fernando Counsel for the appellants argued that this was essentially a claim in detinue and the correct measure of damages should therefore be in detinue. On the other hand, Mr. Matthias Chang for the respondents argued that the claim was for conversion and the correct measure of damages should be for conversion.

To begin with, we shall determine (a) whether this was a claim founded upon an action in detinue or for wrongful conversion and (b) in either case what is the correct measure of damages.

The evidence reveals that upon the termination of the contract between the appellants and the main contractors and consequently the respondents and the main contractors, the appellants refused to allow the respondents to remove the machinery and thereafter wrongfully detained them. This is not denied by the appellants. An examination of the respondents' claim discloses that the action was founded, in the main, upon an allegation that there was wrongful detention of the machinery by the appellants and this arose as a result of the appellants' refusal to allow the respondents to remove the machinery. We have said "in the main" because the respondents have made an alternative claim for damages for conversion in the prayer to the statement of claim. No specific allegation is however made in the body of the statement of claim. In our view the respondents' claim was substantially founded not on conversion but in detinue.

It is in evidence that the respondents were deprived of the use of the machinery. It is also in evidence that the appellants made use of the machinery during the period of wrongful detention. Our determination would therefore revolve on the question of the correct measure of damages to be applied.

The appellants have contended that the respondents' claim was a claim of detinue. We have dealt with that question in so far as it seems to us to emerge from the pleadings. The appellants have also contend