JUDGMENT

(oral)

Gopal Sri Ram JCA (delivering the judgment of the court):

This is in totality a plain case. The facts are not in dispute. Neither is the law unsettled.

In brief, the respondent on 7 July 1994 obtained by way of an ex parteoriginating motion from Johor Bahru High Court, a trade description order ("TDO") under Trade Description Act 1972("the Act"). Later, the appellant who was obviously the primary target of the said TDO applied to set it aside. It failed. The proceedings to set aside a TDO are usually heard on affidavit evidence. Cross-examination is seldom, if ever, ordered. This is because the issue in such proceedings turns on the physical nature or impression of the mark in question. A merchandising mark either resembles another or it does not. Oral evidence does not and cannot help in the determination of that issue. It is a question of judicial impression. In other words, it is a question of law for the judge to determine whether the requirement of s. 16 of the Acthas been complied with in a particular case.

We make this aside en passent, because we notice that in the present case, unusually, an oral hearing was directed in the form of cross-examination of the deponents of the affidavits. Whether this is an advisable course, we are not prepared to say. But we do remind counsel engaged in the practice of trade mark law to bear in mind the purposes for which s. 16 of the Actexists and the nature and methodology of an application to set aside an order made under it.

Having said that, we return to the mainstream. Having failed, the appellant appealed. But it withdrew its appeal. Later still, the respondent took out the summons in chambers dated 6 August 1998 (encl. 38). In it, the respondent prayed for assessment of damages and for an account of profits. The learned judge who heard the application granted it and directed the assessment of damages before the senior assistant registrar. In the course of the judgment below in support of the order made, this is what the judge said:

Indeed it would be wrong not to award damages to Fazaruddin. It is now trite law that the governing purpose of awarding damages is simply to put the party whose rights have been violated in the same position, in so far as money can do so, as if his rights had been observed (Sally Wertheim v. Chicoutimi Pulp Co[1911] AC 301). Then there is the rule which says that if the aggrieved party were to relentlessly pursue the matter with diligence, it would ultimately provide him with a complete indemnity for all the loss de facto which results from a particular breach notwithstanding that it is improbable or unpredictable. Some may say that it is a harsh and draconian rule.

The appellant has now appealed to us complaining that the learned judge ought not to have directed an assessment of damages. We heard arguments from both sides on 2 April and adjourned it for continued hearing to this morning because a point arose in the course of argument upon which we required further assistance from the counsel on both sides. The point is this: can an award of damages be made in proceedings under s. 16 of the Act? The other point, which is before us for decision, was argued by the appellant, namely, whether an assessment could be ordered when there is no award for damages. We will deal with each of these points in turn.

In a carefully developed argument, Mr. Shaari Nor for the respondent with his usual ability formulated three submissions in support of the learned judge's conclusion. According to counsel, there is power in a court making a TDO under s. 16 of the Actto make an award for damages. This is because: (i) there is nothing in the Act which says that such an award cannot be made; (ii) the preamble to the Act makes it clear that the Act is directed not only at misleading marks and false or misleading indications as to the price of goods, or prohibiting the making of false or misleading statements in the course of a trade or business, but it is also