1. Sigma Glove Industries Sdn Bhd v 1. Ong Chin Kok (WA-22IP-22-05/2017)

SIGMA GLOVE INDUSTRIES SDN BHD (Co. No.: 978489-V)

SMART GLOVE HOLDINGS SDN BHD (Co. No.: 430860-X)

SKINPROTECT CORPORATION SDN BHD (Co. No.: 572778-A) … PLAINTIFFS

ONG CHIN KOK (NRIC No.: 771003-14-5535)

HARTALEGA HOLDINGS BHD (Co. No.: 741883-X) … DEFENDANTS JUDGMENT (Court enclosure no. 223)

This judgment concerns the following questions:

whether the court has the discretionary power to amend a perfected order under -

O 20 r 11 of the Rules of Court 2012 (RC); and/or 2

O 92 r 4 RC and/or the court’s inherent jurisdiction or power when there has been a breach of the second rule of natural justice (a party has been deprived of the party’s right to be heard before the order is made); and

when an ex parte Anton Piller order (Ex Parte APO) obtained by the plaintiff is subsequently set aside by the court, whether the court may refuse to award non-compensatory damages (exemplary and/or aggravated damages) to a defendant who fails to claim specifically for non-compensatory damages in -

the defence to an action; and

the defendant’s application to set aside the Ex Parte APO and the defendant’s affidavit in support thereof.

The three plaintiff companies (Plaintiffs) have obtained an Ex Parte APO against the 2 defendants (Defendants).

Upon an application by the Defendants, this court has set aside the Ex Parte APO (Order). The grounds of judgment in respect of the Order have been reported in [2018] 1 MLRH 493, [2018] 3 CLJ 405 and [2018] 8 MLJ

3

The perfected Order states, among others, as follows:

the Plaintiffs shall pay to the second defendant company (2nd Defendant) damages to be assessed (Assessed Damages) by the learned Deputy Registrar (DR) regarding all loss suffered by the 2nd Defendant (Assessment) due to the execution of the Ex Parte APO (1st Paragraph); and

“faedah 5% diberi dari tarikh penaksiran sehingga tarikh penyelesaian penuh” (4th Paragraph). C. Court enclosure no. 223 (This Application)

This Application is filed by the 2nd Defendant for the court to amend the Order as follows:

the Assessment should be conducted by the learned Judicial Commissioner (JC) and not by the learned DR; and

the Plaintiffs and 2nd Defendant have the liberty to submit to the learned JC at the Assessment on whether the Plaintiffs should be ordered to pay non-compensatory damages to the 2nd Defendant.

The 2nd Defendant advances the following submission in support of This

when the Order was made, the court did not decide on the issue of non-compensatory damages to be paid by the Plaintiffs to the 2nd 4 Defendant. Such a question should be decided by the learned JC (not by the learned DR) at the Assessment;

This Application should be allowed to reflect accurately the court’s intention in making the Order; and

the Plaintiffs would not suffer any prejudice if the court allows This Application.

The Plaintiffs strenuously object to This Application on the following grounds:

pursuant to O 20 r 11 RC, the court can only amend a perfected order or judgment to correct clerical mistakes or errors arising from any accidental slip or omission. In this case, regarding the Order, there was no clerical error or error arising from any accidental slip or omission;

the 2nd Defendant did not plead for exemplary damages in its defence to this action. Nor did the 2nd Defendant expressly apply for exemplary damages in its application to set aside the Ex Parte APO (Court Enc. 15) or any of its affidavits in support of Court Enc. 15. Accordingly, the 2nd Defendant is not entitled to exemplary damages in the Order. The Plaintiffs rely on Jeffrey Tan FCJ’s decision in the Court of Appeal in Kuan Pek Seng @ Alan Kuan v Robert Doran & Ors and other appeals [2013] 2 MLJ 174; 5

when the court gave oral grounds for the Order (Oral Grounds), the court only ordered compensatory damages to be assessed and to be paid by the Plaintiffs to the 2nd Defendant. The Oral Grounds did not award any exemplary damages in favour of the Defendants;

as the Oral Grounds did not award any exemplary damages to the Defendants, the Plaintiffs would be prejudiced if the court allows This Application. This is because if This Application is allowed, the Plaintiffs could be liable for exemplary damages to the 2nd Defendant; and

the Order has been perfected. Hence, the court is functus officio and has no power to amend the sealed Order. D. Whether O 20 r 11 RC applies in This Application

O 20 r 11 RC reads as follows: “Amendment of judgment and orders Clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal.” (emphasis added).

My understanding of the functus officio doctrine, O 20 r 11 RC and the relevant cases is as follows:

according to the doctrine of functus officio, once a judgment or order has been perfected by the court, the court is functus officio and has no 6 power to set aside or vary the sealed judgment or order - please see the Supreme Court’s judgment delivered by Harun Hashim SCJ in MUI Bank Bhd v Cheah Kim Yu (Beh Sai Ming, Intervener) [1992] 2 MLJ 642, at 648-649;

O 20 r 11 RC is an exception to the functus officio doctrine. This is clear from the following appellate decisions -

the Federal Court case of Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 concerned the then applicable O 28 r 11 of the Rules of the Supreme Court 1957 (RSC). O 28 r 11 RSC is substantially similar to the present O 20 r 11 RC. Chang Min Tat FJ decided as follows in Hock Hua Bank, at p.144 - “Clearly the court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in Order 28 rule 11 Rules of the Supreme Court 1957 (Order 20 rule 11 Rules of the High Court 1980) so far as is necessary to correct errors in expressing the intention of the court: Re St Nazaire Co 12 Ch D 88, Kelsey v Doune [1912] 2 KB 482; Hession v Jones [1914] 2 KB 421, unless it is a judgment by default or made in the absence of a party at the trial or hearing.” (emphasis added);

Hock Hua Bank has been followed by the Federal Court in Sang Lee Co Sdn Bhd v Munusamy a/l Karuppiah (sole proprietor 7 of MNN Consultancy Services) [2010] 5 MLJ 285. Zulkefli Makenuddin FCJ (as he then was) held as follows in Sang Lee Co, at paragraphs 8-10 - “[8] A related issue which is raised in this appeal is the question of whether the court is functus officio when it purports to rectify and amend the sealed order to reflect what was actually pronounced. We are of the view in the light of a clear difference and discrepancy between the terms of the sealed order as compared with the actual order pronounced by the learned JC1 on 27 June 2006, it was only right and proper that the sealed order be amended accordingly pursuant to O 20 r 11 of the RHC 1980. … [9] The application to amend was filed as in encl 45 and the learned JC2 on 23 May 2007 after considering the entire matter and hearing both parties had correctly granted an order in terms of encl 45 to amend the terms of the sealed order. The Court of Appeal should not have set aside the order for amendment made by the High Court on 23 May 2007 as the purpose and intention for the amendment is merely to set the court records straight and to ensure that the actual terms pronounced by the High Court on 27 June 2006 have been properly authenticated and recorded. In law, the court can always amend an order which does not reflect what was actually pronounced. In such a situation the court is therefore not functus officio (see the case of Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143). 8 [10] We also find that the learned JC2 who amended the sealed order on 23 May 2007 had acted within the powers generally exercised by a judge of the High Court notwithstanding that she was not the trial judge who granted the ad interim order dated 27 June 2006. The learned JC2 had acted properly to put the court's records right. On this point we would like to refer to the case of R v Cripps, ex parte Muldoon and others [1984] 2 All ER 705 wherein the English Court of Appeal held as follows: The power to amend under the slip rule contained in RSC O 20 r 11 was not a power granted to the particular trial judge, but was one of the powers of the court generally, exercisable by a judge of the court, who may or may not have been the trial judge.” (emphasis added). It is to be noted that Sang Lee Co applied O 20 r 11 of the former Rules of the High Court 1980 (RHC) which is substantially similar to the present O 20 r 11 RC. I should point out that in opposing This Application, the Plaintiffs relied on the Court of Appeal’s decision in Munusamy Karuppiah v Sang Lee Co Sdn Bhd & Ors [2010] 3 CLJ 924 which has been reversed by the Federal

in the Court of Appeal case of Lai Cheng Ooi (executrix of the estate of Lee Tain Tshung @ Lee Thien Chiung, deceased) v Lim San Peen (liquidator for Naslei Enterprise Sdn Bhd) & 9 Anor and other appeals [2017] 6 MLJ 218, at paragraph 14, Harmindar Singh JCA decided as follows - “[14] On the next question of whether one High Court may set aside the order made by another High Court judge, we note that this question is intertwined with the issue of functus officio since the orders, in the present case, were made in the same action. The general rule is that once an order of court has been drawn up and perfected, it cannot be set aside in the same action as the court has become functus officio. However, the Federal Court in Hock Hua Bank Bhd, where this principle was affirmed, recognised that there may be exceptions to this general principle in that errors can be corrected under the slip rule to reflect the intention of the court and also in the case of judgments in default or made in the absence of a party at a trial or hearing.” (emphasis added);

as explained in Pacific Bunkers Pte Ltd v Owners of the ships, “Geniki Sarawak” and “Geniki Johor” (No 2) [2015] 11 MLJ 145, at paragraph 42, O 20 r 11 RC consists of the following two limbs -

clerical mistakes in judgments and orders (1st Limb); and

accidental slip or omission in judgments and orders (2nd Limb). According to Pacific Bunkers (No 2), at paragraph 44, the 2 limbs of O 20 r 11 RC should be interpreted based on - 10

O 1A RC (in the administration of RC, including O 20 r 11 RC, the court “shall have regard to the overriding interest of justice and not only to the technical non-compliance” with RC). It is to be noted that O 1A RHC (before the introduction of RC) has been introduced with effect from 16.5.2002; and

(ii) O 2 r 1(2) RC (RC are “subject to the overriding objective of enabling the Court to deal with cases justly” and all parties are required to assist the court to achieve this overriding objective). The appeal to the Court of Appeal in Pacific Bunkers (No 2) has been dismissed. In view of the application of O 1A and O 2 r 1(2) RC, cases which have decided on O 20 r 11 RHC before the introduction of O 1A RHC and O 2 r 1(2) RC, should be read with caution; and

according to Ong Hock Thye FJ’s (as he then was) judgment in the Federal Court in Ling Nam Rubber Works v Leong Bee & Co (No 2) [1968] 1 MLJ 265, at 266, the then applicable O 28 r 11 RSC applies to a “slip” or omission by learned counsel, learned solicitor or any party to the action. The two limbs of O 20 r 11 RC are also applicable to a slip or omission by the court.

Firstly, I acknowledge that I have made a mistake in the Oral Grounds by ordering the Assessment to be conducted by the learned DR (Error). The Assessment should be conducted by the learned JC or Judge (not by the learned DR) for reasons explained in Syarikat Faiza Sdn Bhd & Anor v 11 Faiz Rice Sdn Bhd & Anor [2017] 1 LNS 1648, at paragraphs 141-143, as follows: “141. When the court awards compensatory damages and Non-Compensatory Damages, there is a risk of injustice in the following manner:

there may be an unjustifiable windfall for 1st Plaintiff (overcompensation); and

Defendants may be financially ruined in an unjust manner (2 Considerations) - please see Motordata Research Consortium, at sub-paragraph 75(2).

In view of the 2 Considerations, in the interest of justice, I decide to assess myself the amount of compensatory damages and Non-Compensatory Damages to be paid by Defendants to 1st Plaintiff regarding the 4 Causes of Action (Assessment). This decision is supported by the following cases:

in Yapp Pow Khin & Anor v Hjh Jamilah bt Udin [2012] 2 MLJ 234, at 236-237, Davies JA decided in the Brunei Court of Appeal that assessment of damages should not be conducted by the Court Registrar as a “general practice”; and

in K. Ratnasingam v Kow Ah Dek & Anor [1983] 2 MLJ 297, at 298, the Privy Council (in an opinion delivered by Lord Scarman) allowed an appeal against the Federal Court’s decision and assessed damages itself. The above decision has the following advantages - 12

unlike the trial judge, the Court Registrar has no first hand knowledge of the case in question. As such, any assessment conducted by the Court Registrar may not be expeditiously conducted (as compared to an assessment done by the trial judge who is conversant with the facts of the case). Furthermore, it may not be appropriate for the Court Registrar to conduct assessment of damages in complicated cases, such as this matter; and

if the Assessment is conducted by the Court Registrar, parties have the right to appeal to the learned Judge/JC against the Court Registrar’s assessment under O 56 r 1(1) RC. This will further delay the final disposal of the assessment and increase legal costs.

I have not overlooked Mr. Michael Soo’s submission that the Court Registrar should conduct the Assessment pursuant to O 37 r 1(1) RC. The opening words in O 37 r 1(1) RC are clear that the Court Registrar may conduct the Assessment if there is “no provision in the judgment” as to how damages are assessed. In this case, I have expressly ordered the Assessment to be conducted by myself.”

I am of the view that the 2nd Limb applies to correct the Error in the 1st Paragraph because -

the Error was due to an accidental slip on my part;

the court should exercise its discretion under the 2nd Limb to correct the Error and amend the 1st Paragraph so as express the intention of this court in making the 1st Paragraph; and

no prejudice will be caused to the Plaintiffs by the court’s exercise of discretion pursuant to the 2nd Limb to rectify the Error. On the contrary, 13 as explained in Syarikat Faiza, an Assessment before me (not before the learned DR) will be advantageous to all the parties in this case.

The Order has the following omission:

there is an omission in the Order regarding the right of the Plaintiffs and 2nd Defendant to submit at the Assessment regarding the issue of whether the Plaintiffs should pay non-compensatory damages to the 2nd Defendant (1st Omission); and

there was an omission of the words “setahun” (per annum) in the 4th Paragraph (2nd Omission).

As regards the 2nd Omission, I exercise my discretion under the 1st Limb and/or 2nd Limb to add the word “setahun” (per annum) in the 4th Paragraph. It is clear that the 2nd Omission is due to a clerical mistake (1st Limb) and/or accidental omission (2nd Limb) by both the solicitors of the Plaintiffs and 2nd Defendant. Such a correction of the 4th Paragraph does not prejudice the Plaintiffs and reflects the court’s intention in ordering the 4th Paragraph.

Regarding the 1st Omission -

the question of whether a party is entitled to non-compensatory damages should be decided at the Assessment and not at the time of the setting aside of the Ex Parte APO. In Redwin Industries Pty Ltd v Feetsafe Pty Ltd & Anor [2002] VSC 427, at paragraph 52, Habersberger J in the Supreme Court of Victoria set aside an ex parte 14 “asset preservation injunction order” and ordered an inquiry of damages in favour of the first defendant company. When Habersberger J set aside the ex parte injunction, he decided that he did not have to decide at that stage on whether the first defendant company was entitled to exemplary damages due to the plaintiff company’s wrongful conduct in obtaining the ex parte injunction. It is to be noted that the Supreme Court of Victoria is only a court of first instance in that State of Victoria; and

this court exercises its discretion under the 2nd Limb to state expressly that the Plaintiffs and 2nd Defendant have the liberty to submit at the Assessment regarding the issue of whether the Plaintiffs should pay non-compensatory damages to the 2nd Defendant (Question). This exercise of discretion is based on the following reasons -

the 1st Omission is due to an accidental omission by both the solicitors of the Plaintiffs and 2nd Defendant;

the insertion proposed by the 2nd Defendant to rectify the 1st Omission (Insertion), expresses the court’s intention that all types of damages, compensatory or otherwise (including the Question), should be addressed together at the Assessment; and

the Insertion does not prejudice the Plaintiffs because the Plaintiffs have a right to submit to the court at the Assessment regarding the Question. 15 E. Is there a breach of second rule of natural justice regarding Question?

Malaysian case law has recognized the court’s inherent jurisdiction or power (which is embodied in O 92 r 4 RC) to set aside a perfected judgment or order when there is a breach of the second rule of natural justice, namely when a party has been deprived of the party’s right to be heard before the judgment or order is pronounced. I rely on the following cases:

the judgment of Mohd. Azmi SCJ in the Supreme Court case of Toh Seow Ngan & Ors v Toh Seak Keng & Ors [1990] 2 MLJ 303, at 306;

Edgar Joseph Jr FCJ’s decision in the Federal Court in Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374, at 381-382 and 383;

Siti Norma Yaacob JCA’s (as she then was) judgment in the Court of Appeal case of Selvam Holdings (Malaysia) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd; BSN Commercial Bank Malaysia Bhd & Ors (Interveners) [2000] 3 CLJ 16, at 24 and 26; and

Chow Chuan Fat v Yeo Chai Seng & Ors [2017] 1 AMR 676, at paragraphs 20(5) and 21. 16

If the court has the inherent jurisdiction or power (as provided in O 92 r 4 RC) to set aside a sealed judgment or order when there is a breach of the second rule of natural justice, a fortiori the court has the same inherent jurisdiction or power to amend a perfected judgment or order on the same ground. I rely on the following cases:

Hock Hua Bank, at p. 144; and

Lai Cheng Ooi, at paragraph 14.

If this court is not able to invoke the 2nd Limb to correct the 1st Omission by way of the Insertion (please see the above paragraph 14), I have no hesitation to exercise my inherent jurisdiction or power (as stated in O 92 r 4 RC) to make the Insertion. This decision is based on the following reasons:

during the hearing of Court Enc. 15, both the Plaintiffs and 2nd Defendant have not been given a right to submit regarding the Question. It is thus clear that if the Insertion is not made, the second rule of natural justice has not been fulfilled with regard to the Question;

without the Insertion, the Plaintiffs may contend at the Assessment that the 2nd Defendant is barred by the Order from submitting that the Plaintiffs are liable to pay non-compensatory damages to the 2nd Defendant. This will cause an injustice to the 2nd Defendant because all the parties have not been given their right to submit regarding the Question at the time of hearing of Court Enc. 15; and 17

no prejudice will be caused to the Plaintiffs due to the Insertion because the Plaintiffs have a right to submit to the court at the Assessment regarding the Question. After hearing the parties’ submission on the Question, the court may refuse to award non-compensatory damages against the Plaintiffs.

All the cases cited by the Plaintiffs did not involve a breach of the audi alteram principle and can be easily distinguished as such. F. Is 2nd Defendant required to claim specifically for non-compensatory damages?

In Kuan Pek Seng -

the plaintiffs’ suit was based on, among others, the defendants’ breach of a shareholders’ agreement and breach of fiduciary duties; and

the High Court awarded, among others, exemplary damages to the plaintiffs. The Court of Appeal, among others, set aside the award of exemplary damages on the following grounds (at paragraphs 106-111) - “[106] There were no pleaded facts to justify the claim for exemplary damages, or to show that Alan's conduct was calculated to make a profit which exceeded the compensation payable to the plaintiffs. In Broome v Cassell & Co Ltd and another [1971] 2 QB 354; [1971] 1 All ER 262, it was contended that it was not open to the plaintiff on the pleading to claim exemplary damages as the amended statement of claim in the consolidated actions contained no averments 18 which would justify a claim for exemplary damages and without such averments there was no issue of exemplary damages before the court. Counsel for the first defendant submitted that a claim for exemplary damages must be founded on fact which brings the claim within one or other of the exception categories specified in Rookes v Barnard [1964] AC 1129, and that when no such facts are pleaded a claim for libel should proceed on the basis that the plaintiff is claiming no more than compensation for the damage to his reputation and for the grief and annoyance he has himself suffered. Lawton J held: The object of pleadings is to enable: first, the parties to know what case is being made by the other side; and, secondly, for the court to know what are the issues to be tried. The days when pleadings were a form of catch-as-catch-can are over. If there was any doubt about this amongst practitioners, which there ought not to have been, these doubts were allayed by the Court of Appeal in Perestrello e Companhia Limitada v United Paint Co Ltd. The judgment of the court in that case was delivered by Lord Donovan. The question arose as to the way in which damage had been pleaded and in the course of his judgment Lord Donovan said ([1969] 3 All ER at pp 485–486, [1969] 1 WLR at p 579): Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in 19 computing a payment into court. The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. … Applying those principles to this case, the defendants, and each of them, would seem to be entitled to fair warning of what was going to be claimed and to have the relevant facts pleaded. Counsel for the plaintiff replied that in his wide experience of this class of litigation this was the first time that anyone had suggested that the facts on which a claim for exemplary damages was based should be pleaded. Further, he called my attention to Manson v Associated Newspapers Ltd, in which the trial judge left the issue of exemplary damages to the jury without, so it seems, from the report, any specific facts having been pleaded. It seems probable that in that case no one invited the judge's attention to the point which is being argued before me. I adjudge that evidence on this issue cannot be led in the absence of facts relevant to it being pleaded. The House of Lords in Rookes v Barnard has clarified the law and has decreed that exemplary damages are an exceptional form of award. In these circumstances anyone who wishes to say that he is making an exceptional kind of claim for damages and not a normal one should say so in his pleading. 20 [107] That ruling of Lawton J was reversed by the Court of Appeal (Broome v Cassell & Co Ltd and another [1971] 1 All ER 262; [1971] 2 QB 354) who held, per Denning MR, that a claim of exemplary damages need not be expressly pleaded since such damages could be awarded in respect of any conduct of the defendant until the end of the proceedings. [108] That contrary ruling of the Court of Appeal in Broome v Cassell & Co Ltd and another was undone in 1972, by O 18 r 8(3) of the Rules of the Supreme Court which read that 'a claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies' to give a defendant 'fair warning of what is going to be claimed with the relevant facts, and thus to prevent surprise at the trial, to avoid the need for any adjournment of the trial on the ground, and at the same time, to extend the ambit of the discovery before trial' (Supreme Court Practice 1976 Vol 1 para 18/8/3). [109] Hence, Halsbury's Laws of England (4th Ed), Reissue, Vol 12(1) para 1147 states: Exemplary damages. The claimant must specifically plead any claim for exemplary damages, together with the facts on which he relies. The assertion of such a claim needs to be made in the body of the claim and not just in the prayer, because all of the facts giving rise to the claim must be set out. 21 [110] At present in England, in any case where exemplary damages are sought, it will be necessary to plead, and to plead with specificity, facts and matters alleging that the competition law infringement in question was executed either intentionally in breach of the law or recklessly so as to be regarded as sufficiently outrageous as to fall within Lord Devlin's second category in Rookes v Barnard; 2 Travel Group plc (in liquidation) v Cardiff City Transport Services Ltd [2012] All ER (D) 84 (Jul); see also Coflexip SA Coflexip Stena Offshore Limited v Stolt Offshore MS Limited and others [2003] EWCA Civ 296. [111] In the absence of the pleadings to justify the prayer, we could also not support the award for exemplary damages (see also Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd (Hong Hing Thai Enterprise Sdn Bhd, third party) [2011] 4 MLJ 354, where it was held by Chew Soo Hoo JC, and we agree with him, that a mere prayer without the facts relied in the body of the claim was wholly insufficient for the court to consider exemplary damages).” (emphasis added).

Firstly, Kuan Pek Seng concerns a plaintiff’s claim for exemplary damages based on a cause of action. Kuan Pek Seng can be distinguished from this case wherein the court has enforced the Plaintiffs’ undertaking to pay damages when the Plaintiffs obtained the Ex Parte APO (Enforcement of Undertaking as to Damages). In the English High Court case of Digital Equipment Corp & Anor v Darkcrest Ltd & Anor [1984] Ch 512, Falconer J (as he then was) upheld the learned Master’s (equivalent to our 22 learned DR) decision to strike out the defendant companies’ counterclaim based on the Enforcement of Undertaking as to Damages. According to Digital Equipment Corp, at p. 525 - “One of the consequences of the Anton Piller order having been made and executed is that there should be entries by the appropriate persons, and it is not suggested that any inappropriate persons entered, such as in the Fletcher Sutcliffe Wild Ltd Case [1982] FSR 64. If any damage does arise because of the entry under the order, that is damage which will be sustained by the defendants by reason of the making of the order, and the court in an appropriate case will order the plaintiff to pay under the cross-undertaking. In the result, in my judgment paragraphs 26 to 33 of the counterclaim are not pleadings which should be allowed to stand; they disclose no sustainable cause of action.” (emphasis added).

After Kuan Pek Seng, Abang Iskandar JCA delivered the following judgment of the Court of Appeal in Hassnar bin MP Ebrahim @ Asainar v Sulaiman bin Pong & Ors [2018] 1 MLJ 346, at paragraph 28: “[28] This issue had centered on the contention that aggravated damages were not pleaded by the 3rd and 4th Respondents. The learned trial Judge had awarded aggravated damages for the trespass committed by Hassnar having taken into account the fact that Hassnar had occupied the said land despite knowing as a fact that he did not own the land. … The learned trial Judge took into account Hassnar’s impugned conduct which he found to be unjustifiable. He then awarded 23 aggravated damages and had justified his decision based on the case of Bohjaraj a/l Rasinathan v Nagarajan a/l Verappan [2001] 4 CLJ 433; [2001] 6 MLJ 497 where it was said as follows: "Aggravated damages' are part of general damages, they need not be specifically pleaded and it is sufficient for the Plaintiffs to plead general damages in his statement of claim to enable him to claim aggravated damages." [29] There was no authority cited in rebuttal of this statement of law. We were not inclined to disagree with the learned trial Judge on his award for aggravated damages against Hassnar, which he had ordered to be assessed.” (emphasis added).

With respect, I am in favour of Hassnar because our O 18 rr 8 (matters which shall be specifically pleaded) and 12 (particulars of pleading) RC do not require a plaintiff to plead specifically regarding non-compensatory damages. Our RC do not have O 18 r 8(3) of United Kingdom’s (UK) Rules of the Supreme Court 1965 [RSC (UK)] which reads as follows: “A claim for exemplary damages or for provisional damages must be specifically pleaded together with the facts on which the party pleading relies.” (emphasis added). 24 Presently in UK, according to r 16.4(1)(c) of the Civil Procedure Rules 1998 [CPR (UK)], if a claimant seeks aggravated damages or exemplary damages, the claimant is required to include in the particulars of the claim a statement to that effect and the grounds to claim for such damages. Our RC have no provision equivalent to r 16.4(1)(c) CPR (UK). Nor does our RC require a notice of application and the affidavit in support thereof, to claim specifically for non-compensatory damages.

Based on the reasons elaborated in the above paragraphs 20 to 22, for the 2nd Defendant to be entitled to non-compensatory damages at the Assessment, the 2nd Defendant is not required to -

plead specifically in the defence; and/or

claim specifically in Court Enc. 15 or the 2nd Defendant’s affidavit in support thereof for non-compensatory damages. G. Court’s decision

Premised on the above reasons, This Application is allowed with no order as to costs. The Order is amended as follows:

the Assessment shall be conducted by the learned Judge or JC; 25

the Plaintiffs and 2nd Defendant have the liberty to submit on the Question at the Assessment; and

interest at the rate of 5% per annum on the Assessed Damages from the date of Assessment until the date of full payment of the Assessed Damages by the Plaintiffs to the 2nd Defendant. WONG KIAN KHEONG Judge High Court (Commercial Division) Kuala Lumpur DATE: 23 MAY 2018 Counsel for Plaintiffs: Ms. Khon Chee Peng (Messrs Zaid Ibrahim & Co.) Counsel for 2nd Defendant: Mr. S. Sivaneindiren & Mr. Jeff Ong Sze Ren (Messrs Cheah Teh & Su)