JUDGMENT

Mairin Idang @ Martin JC:

[1] The learned High Court Judge, Douglas Cristo Primus Sikayun ("the LHCJ") in his grounds of decision dated 11 September 2014, held as follows:

a) Due to the misrepresentation made by Fisys Consultancy, the effect would be that PI System's businesses would now be dealt with by Fisys Consultancy;

b) PI System had also proved that due to misrepresentation by the defendants, PI system had suffered losses in its business;

c) The LHCJ also in agreement with learned counsel for PI System that PI System had proved its cause of action for passing-off against the defendants;

d) It was proven that the false statement of misrepresentation was made by the defendants as trader in the cause of trade/business for the interest and benefit of business in favour of the Defendants. The false statement was also made to the PI System's customers, prospective customers or ultimate's customers of goods or services of PI System. PI System had also proved that the false statement had injured its goodwill or business and had caused damage to its business or goodwill;

e) It has to be highlighted that Mr Ching had clearly committed misconduct when he authorised Fisys Consultancy to write and/ or issue such letters to all PI System's customers.

[2] The LHCJ further ordered that the defendants to pay jointly and/or severally to the plaintiff:

a) General damages for loss of business and/or profit of PI System to be assessed by the Deputy Registrar; and

b) General damages for loss of goodwill to be assessed by Deputy Registrar.

[3] The assessment for damages was heard by Faelly Jeffrey Linjungan, the Learned Senior Assistant Registrar ("the LSAR") and after six days of trial with three witness for the plaintiff and one witness for the defendants, the LSAR then awarded general damages for five contracts but there were no damages for Felda Holding Bhd, IOI Edibile Oil Sdn Bhd and Ladang Permai on the grounds of no contract between those three companies and the defendants. I will touch on these three companies later on.

[4] First, let me list out on all the awards given by the LSAR for the five contracts namely:

i. Contract 1: Package M1: Fire Protection Service, the LSAR awarded RM1,178,772.70, amounting to 52.98% of the contract sum of RM2,224,876.09 given by Mewah Oils Sdn Bhd;

ii. Contract 2: the LSAR awarded RM78,500 for net profit of PI system gained through the purchase order 14236 of Mayvin Incorporation Sdn Bhd The amount reflect 50% of the total contract price of RM157,000.00 given by Mayvin Incorporation Sdn Bhd;

iii. Contract 3: the LSAR awarded RM79,400.10 amounting to 50% profits out of contract price RM158,800.20 given by Wee Tee Tong Palm Oil Mill;

iv. Contract 4: the LSAR awarded RM82,917.95 amounting to 50% profits out of contract price RM165,835.90 given by Permai Palm Oil Mill, Lahad Datu;

v. Contract 5: the LSAR awarded RM294,722.50 amounting to 50% profits out of contract price RM589,445.00 given by Jeroco Palm Oil Mill.

[5] In this appeal, the plaintiff is appealing on costs after trial of assessment of damages as the same was not awarded by the LSAR while the defendants are basically appealing on all the assessments of damages awarded by the LSAR.

Law On Assessment Of Damages For Passing Off

[6] Before I go into the award given by the LSAR for each contract, I will first refer to the Federal Court Case of ; [2011] 1 MLJ 798; [2011] 3 CLJ 837 delivered by Richard Malanjum CJSS which was also referred to by both parties. I refer to para 15 of the case which is as follows:

[15] The current potential civil remedy against an infringer of an intellectual property right is either an assessment of the profit made by the infringer or an award of damages representing the lost profit suffered by the originator. And in an action for infringement of a trade mark and passing off it is trite law that the same principle applies when considering the award of damages. (See: Dormeuil Freres SA v. Feraglow [1900] RPC 449). The usual principa