The assessment of damages must reflect the original position of the injured party, with plaintiffs bearing the burden of proof, and judicial discretion should not be disturbed without clear legal error.

[1] This is an appeal by the plaintiffs/appellants against the decision of Judge In Chambers over the sole issue of assessment of damages. Prior to that, it was the defendants/respondents who appealed to the Judge In Chambers against the decision of the Senior Assistant Registrar ("SAR"). The whole matter on the assessment of damages, emanated from the decision in the substantive civil suit between the parties, given on 4 April 2002.

The chronology of events leading to this appeal are as follows:

1. The Writ of Summons was filed by the plaintiffs on 22 April 1999.

2. After a full trial, the High Court gave judgment in favour of the plaintiffs on 4 April 2002.

3. The SAR gave her decision on the quantum of damages, after holding on enquiry and assessment hearing, on 23 November 2005.

4. Not satisfied with the said SAR's decision, the defendants filed an appeal to Judge In Chambers on 2 December 2005.

5. The Judge In Chambers, allowed in part, the appeal by the defendants on 10 October 2008.

6. Now, the plaintiffs, not satisfied with the learned High Court's decision, appealed to this Court, vide Notice of Appeal dated 3 November 2008.

[2] To fully appraise and appreciate the issue at hand, it is pertinent to look at the Judgment of the High Court given on 4 April 2002. The sealed order of that judgment reads as follows:

This action had been tried before the Honourable Mr Justice Datuk Richard Malanjum on the 30th & 31st October 2000; 1st, 2nd & 3rd November 2000 and 30th November 2000.

It is this day adjudged that judgment be entered for the plaintiffs against the defendants as follows:

1. The 1st and 2nd defendants do pay the liquidated sum of RM290,425. 31 to the 2nd plaintiff;

2. It is ordered that an account of all money and receipts earned from the use by the 1st and 2nd defendants whether by themselves, their servants or agents of the 2nd plaintiff 's tractors be taken;

3. The 1st and 2nd defendants are hereby ordered to pay to the 2nd plaintiff all sums found to be due on the taking of the account under (2) above;

4. The 1st and 2nd defendants are hereby ordered to deliver up whether by themselves, their servants agents or the business City Motors the 4 units of tractors, namely registrations Nos. WAU8311, ST790B, SA6270J & SA6271J in good condition or payment of their value thereof assessed in the year 1993 less all the installments paid to the finance companies for the hire purchase facilities but excluding the RM38,562. 00 withdrawn by the defendants from the refinancing sum of RM200,000. 00 in respect of the two used tractors;

5. Damages to be assessed;

6. Interest at 4% per annum from the date of the commencement of the action [22 April 1999] to the date of judgment pursuant to s 11 Civil Law Act 1956 ;

7. Statutory interest at 8% per annum from the date of judgment until date of full payment; and

8. That the 1st and 2nd defendants do pay the plaintiffs the costs of this action to be taxed, if not agreed.

Dated the 4th day of April 2002

Seal.

Sgd.

.....

Deputy Registrar

High Court Registry

Tawau

This judgment is taken out by C Robertson, Advocate & Solicitor for the plaintiffs whose address for service is 1025 (1st Floor) Jalan Dunlop Tawau PO Box 688, 91008 Tawau Sabah Malaysia Tel: 60-(089)-763560 Fax: 60- (089)-7625585 E-mail: dtkmyh@tm. net. my"

[3] It must be noted that the action by the plaintiffs in this case was for breach of fiduciary duties and tort of fraud by the defendants. The learned trial judge gave judgment for the plaintiffs as prayed in their Statements of Claim.

Decisions Of The Sar And The Judge In Chambers

[4] It is obvious that the decisions of the learned SAR and that of the learned Judge In Chambers on the taking of accounts and assessment of damages are not the s