Legal fees cannot be recovered as special damages in the same proceedings between the same parties, emphasizing the distinction between costs and damages.

JUDGMENT

Mary Lim Thiam Suan FCJ:

[1] The parties in these appeals unfortunately have quite a long chequered litigation history between them spanning over 17 years - see decision of the Federal Court in Ling Peek Hoe & Anor v. Ding Siew Ching & Another Appeal, [2017] 5 MLJ 385 (Federal Court). Ultimately, after succeeding in proving that the appellants had defrauded them into parting with their properties, the properties were returned to the respondents. Because the High Court had also ordered that damages be assessed by the Registrar, the parties were back before the High Court on that assessment of damages. These appeals arise from the damages that were assessed.

[2] A substantial part of the damages awarded comprised legal charges (RM2,918,000.00) that the respondents claimed they had incurred in the course of litigation between the parties. It is these legal charges that the appellants were discontent with and which form the substratum of these appeals; whether such charges may be recovered as special damages in the same proceedings between the same parties.

Order Of The High Court Dated 28 November 2012

[3] In order to fully appreciate the issue on the legal charges, we must go back to what the respondents' claim was about and the original order made on 28 November 2012. In a nutshell, the respondents claimed that the appellants had wrongfully conspired and combined amongst themselves to defraud and injure them in relation to two of their properties. After a full trial, the High Court allowed the respondents' claim and on 28 November 2012, declared the transfer of the two properties to the appellants invalid, null and void. That same order also ordered damages to be paid to the respondents. The relevant parts of the order read as follows:

ADALAH DIHAKIMI bahawa perjanjian-perjanjian jualbeli antara plaintif pertama dengan defendan ketiga, keempat dan/atau kelima untuk GM 3896 (dahulu EMR 2358) Lot 2563 dan GM 3895 (dahulu EMR 2359) Lot 2564 kedua-dua Mukim Sitiawan adalah diisytiharkan batal dan tidak sah.

DAN ADALAH DIHAKIMI bahawa borang-borang pindahmilik untuk GM 3896 (dahulu EMR 2358) Lot 2563 dan GM 3895 (dahulu EMR 2359)

Lot 2564 kedua-dua Mukim Sitiawan dan PN 104828 Lot 34911 (dahulu HS (D) Dgs 5664 PT 17562) Mukim Sitiawan daripada plaintif pertama kepada defendan ketiga, keempat dan kelima adalah diisytiharkan batal dan tidak sah.

DAN ADALAH DIHAKIMI bahawa defendan-defendan membayar plaintifplaintif gantirugi khas, am, punitive dan teladan tertakluk kepada taksiran oleh Pendaftar.

DAN ADALAH DIHAKIMI bahawa tuntutan balas defendan ketiga, keempat dan kelima terhadap plaintif pertama adalah ditolak dengan kos.

DAN AKHIRNYA DIHAKIMI bahawa defendan-defendan membayar plaintif-plaintif faedah dan kos tindakan-tindakan ini untuk ditaksir oleh Pendaftar sekiranya tidak dipersetujui oleh plaintif-plaintif dan defendandefendan.

[4] This decision of the High Court was set aside by the Court of Appeal on 13 March 2015 but it was reinstated by the Federal Court on 20 June 2017. The appellants filed three separate applications to review the Federal Court's decision of 20 June 2017. All three failed. The last application was struck out with no liberty to file afresh on 27 May 2019.

Order Of the High Court dated 10 January 2022

[5] After the two properties were returned to the respondents, what was outstanding was the assessment of damages and the matter of costs. The respondents took steps towards completion of that assessment. Their claims for special damages, general damages, punitive and exemplary damages are summarised as follows:

[6] Both sides called witnesses, a total of 10 in fact were called. On 10 January 2022, the assessment was finally completed and a total sum of RM5,135,951.76 was awarded together with interest. A separate sum of RM50,000.00 was also allowed as costs for the assessment of damages.

[7] The appellants appealed. On 18 April 2023, the Court of Appeal unanimously allowed the appeals in part. The awards on gener