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Aeon Co. (M) Bhd v Asia Plywood Company Sdn Bhd (W-03(IM)(NCVC)-30-04/2019)

Court of Appeal of Malaysia17 Jun 2020W-03(IM)(NCVC)-30-04/2019

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1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: W-03(IM)(NCVC)-30-04/2019 … APPELLANT … RESPONDENT (Heard together with CIVIL APPEAL NO.: W-03(IM)(NCVC)-32-04/2019) … APPELLANT … RESPONDENT [In the Matter of the High Court of Malaya at Kuala Lumpur in the Federal Territory of Kuala Lumpur, Malaysia Originating Summons No.: 24NCVC-1425-09/2014] IN THE MATTER OF PRIVATE CAVEAT ON PROPERTY HELD UNDER GRANT 181086 LOT 2834 SECTION 47, BANDAR SUNGAI PETANI, KUALA MUDA DISTRICT, KEDAH PRESENTATION NO. 4229/2011 2 IN THE MATTER OF SALE AND PURCHASE AGREEMENT BETWEEN ASIA PLYWOOD COMPANY SDN. BHD. AND AEON CO. (M) BHD. DATED 3.6.2011 IN THE MATTER OF THE HIGH COURT ORDER IN THE ORIGINATING SUMMONS NO. 24NCC-375-10/2012 DATED 2.9.2013 AND 7.7.2014 IN THE MATTER OF SECTIONS 327 AND 329 OF THE NATIONAL LAND CODE 1965 … PLAINTIFF

PENDAFTAR HAKMILIK TANAH, KEDAH … DEFENDANTS] CORAM: KAMARDIN BIN HASHIM, JCA HAJAH AZIZAH BINTI HAJI NAWAWI, JCA MOHD SOFIAN BIN TAN SRI ABD RAZAK, JCA 3 JUDGMENT OF THE COURT Introduction [1] There are two separate appeals before this Court emanating from the decision of the High Court dated 22.03.2019, namely:

(a) in Civil Appeal No.: W-03(IM)(NCVC)-30-04/2019, the Appellant is the 1st Defendant in the High Court and the Respondent is the Plaintiff. The Appellant is appealing against the whole of the decision of the learned Judicial Commissioner setting aside the decision of the learned Deputy Registrar and awarding damages, interest and cost to the Respondent; and

(b) in Civil Appeal No.: W-03(IM)(NCVC)-32-04/2019, the Appellant is the Plaintiff and the Respondent is the 1st Defendant. The Appellant is appealing against part of the decision the learned Judicial Commissioner disallowing the Appellant’s claim for diminution of the value of the land in the amount of RM9,190,560.00. [2] For ease of reference, parties will be referred to as they were in the proceedings before the High Court. [3] Having considered the appeal records and the submissions of the parties in these appeals, it is our unanimous decision that both appeals be dismissed with cost to be borne by each party. 4 Background Facts [4] On 03.06.2011, both the Plaintiff and the 1st Defendant had entered into a sale and purchase agreement (“the SPA”) whereby the Plaintiff agreed to sell to the 1st Defendant a piece of freehold land held under GRN 181086 (“the said Land”) with the purchase price of RM36,019,241.28 for the purpose of operating the business of shopping centres and departmental stores but subjected to conditions precedent set out in paragraph (a) – (f) of Clause 2.1 of the SPA. [5] Clause 2.2 stated the consequences of such non-fulfilment whereby upon the expiry of the Conditional Period or such other mutually extended period, either party shall be entitled to terminate the agreement by serving a written notice. Upon receipt of such notice—

(a) the Plaintiff shall refund or cause to be refunded the 1st Defendant all monies paid with interest accrued; and

(b) in exchange thereof, the 1st Defendant shall withdraw any Private Caveat or other encumbrances at their own cost and expenses. [6] On 04.07.2011, the 1st Defendant entered a private caveat against the title to the Plaintiff’s land (“the Private Caveat”). [7] Unfortunately, the conditions precedent in the SPA could not be fulfilled in time. The Plaintiff then issued a letter to the 1st Defendant stating that the agreement has lapsed and refused for the extension. 5 [8] In reaction to that, the 1st Defendant took out an Originating Summons No.: 24NCC-375-10/2012 for a decree of a specific performance of the SPA (“SP Suit”), which had been allowed by the court on 02.09.2013, whereby the court allowed a conditional decree for specific performance by granting an extension of six (6) months for the 1st Defendant to fulfill the conditions precedent. Under the terms of the order in the SP Suit, the court further stated that if the 1st Defendant fails to fulfill the conditions precedent by 02.03.2014, the agreement would lapse and become void. [9] However, the 1st Defendant failed to fulfil the conditions precedent and applied to the court for further extension. On 07.07.2014, the 1st Defendant’s application for an extension of time was dismissed. The 1st Defendant appealed against this decision. [10] The 1st Defendant had also refused to have the Private Caveat withdrawn. [11] Therefore, in September 2014, the Plaintiff filed an Originating Summons No.: 24NCC-1425-09/2014 (“OS1425”) under Order 37 rule 1 of the Rule of Court 2012 (“ROC 2012”) to have the Private Caveat removed together with other ancillary reliefs. [12] On 08.12.2014, the 1st Defendant took out another application in the SP Suit for a further extension of time of the SPA. However, such application had been dismissed by the Court on 15.01.2015 with cost. The 1st Defendant appealed against this decision. 6 [13] On 29.03.2016, the Court of Appeal dismissed with costs both of the aforesaid appeals filed by the 1st Defendant. Despite of this decision, the 1st Defendant continued to maintain the Private Caveat. [14] It was only until the case management of OS1425 on 03.05.2016, that the 1st Defendant represented to the learned Judge that they will withdraw the Private Caveat. The Private Caveat was withdrawn by the 1st Defendant on 03.05.2016. [15] The learned Judge in OS1425 proceeded to hear the Plaintiff’s application pursuant to section 329 of the National Land Code [Act 56 of 1965] (“NLC”) for damages against the 1st Defendant. [16] On 05.08.2016, the Court allowed the Plaintiff’s prayer for damages and had made an order against the 1st Defendant upon a finding that the 1st Defendant had no reasonable cause of action to maintain its Private Caveat on the Plaintiff’s land and that the legal requirement under section 329 of the NLC have been fulfilled. Besides, the learned Judge found that there was prima facie evidence of loss or damage. [17] The order of the High Court on 05.08.2016 was as follows: “1. Bahawa satu perintah gantirugi terhadap defendant pertama diberikan dan gantirugi tersebut ditafsirkan di hadapan Timbalan Pendaftar; dan 2. Bahawa Defendan Pertama hendaklah membayar kos sebanyak RM7,500.00 kepada Plaintiff.

Fi alokatur adalah sebanyak 4% daripada jumlah kos.”. 7 [18] Thus, aggrieved by the decision of the High Court, the 1st Defendant appealed against such decision and on 30.03.2017, the Court of Appeal upheld the decision of the High Court but varied the order to the extent that the damages was to be assessed for the period between 08.08.2014 and 03.05.2016. [19] The assessment of damages was then heard by the learned Deputy Registrar through oral and documentary evidence of witnesses. [20] In the proceeding before the learned Deputy Registrar, three issues had been identified as follows:

(a) whether the Plaintiff had suffered loss;

(b) whether the Plaintiff had calculated a proper sum/figure for the loss; and

(c) whether the Plaintiff is entitled to claim for diminution of value of the said Land. [21] On 16.08.2018, the learned Deputy Registrar found that the Plaintiff failed to prove the loss allegedly suffered and no award of damages was made. Each party was ordered to bears their own costs. [22] Being dissatisfied with the decision of the learned Deputy Registrar, the Plaintiff appealed to the learned Judge in Chambers vide a Notice of Appeal dated 24.8.2018. [23] On 22.3.2019, the learned Judge allowed the Plaintiff’s appeal and set aside the decision of the learned Deputy Registrar and awarded the 8 sum of RM2,410,074.53 as damages to the Plaintiff with costs of RM20,000.00 to the Plaintiff for the proceeding before the learned Deputy Registrar and also the appeal. The learned Judge also allowed the expenses awarded in obtaining the valuation report of the property being the professional fee and reimbursement as per the invoice of Henry Butcher Malaysia (Kedah) Sdn Bhd dated 11.05.2017 in the sum of RM99,269.00. The learned Judge also allowed the claim for interest at the rate of 3.1% per annum as at July 2014 in the sum of RM2,310,805.53 which could have been earned on the sale of the said Land to IPGB but for the private caveat. The Plaintiff’s claim for diminution of the value of the land was not allowed. In this regard, the Plaintiff’s claim for diminution of the value is premised on a statutory remedy under subsection 329(1) of the NLC. Thus, the purpose of damages in present context is to compensate the Plaintiff and not to cause an unjust enrichment to the Plaintiff. [24] Both the Plaintiff and the 1st Defendant appealed against the said order of the High Court. The Appeal [25] The 1st appeal is premised on the following grounds:

(a) that the Court had erred in law and in fact by failing to consider or give proper and due judicial consideration to the relevant facts, and considered irrelevant facts, in arriving at the decision; 9

(b) that the Court had erred in law and/or in fact in reversing the decision of the Deputy Registrar dated 16.8.2018. In this regard—

(i) that the Court had erred in law and/or in fact in failing to give proper and due judicial consideration that the Deputy Registrar has made the decision dated 16.8.2018 after a thorough trial involving 6 witnesses and viva voce evidence for the assessment of damages; and

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(ii) that the Court had erred in law and/or in fact in failing to consider that the Deputy Registrar has not committed any manifest error in arriving at the decision;

(c) that the Court had erred in law and/or in fact in failing to give proper and due judicial consideration that the Plaintiff has failed to prove real and actual loss. In this regard—

(i) that the Court had erred in law and/or in fact in failing to determine/consider and/or appreciate the fact that there was no evidence of any property value loss or any other loss being suffered by the Plaintiff which required a monetary award as compensation pursuant to section 329 of the NLC;

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(ii) that the Court had erred in law and/or in fact in failing to determine/hold that the Plaintiff’s own valuer has 10 established and proved that the price of the said land has appreciated in value;

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(iii) that the Court had erred in law and/or in fact in failing to recognize/appreciate that the subject land is an agricultural land at all material times and that the Plaintiff had in fact had no prospective buyer or prospective purchaser to purchase the said land at the price as alleged or claimed by the Plaintiff;

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(iv) that the Court had erred in law and/or in fact in failing to recognise/take cognisance of the fact that purported potential purchaser has clearly admitted that they would not pay RM60.00 per square foot for agricultural land;

(v) that the Court had erred in law and/or in fact in failing to consider that the Plaintiff has not adduced any evidence and/or failed to adduce any evidence to show that there is any potential purchaser who is willing to buy the agricultural land at the material time;

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(vi) that the Court had erred in law and/or in fact in failing to take into account the fact that in light of the price of the subject land having appreciated in value that no monetary sum ought to be awarded to the Plaintiff and/or in the circumstances of this case and taking into account the evidence adduced (at the hearing of the assessment of damages) any award of a monetary sum to the Plaintiff would amount to an unjust enrichment in that the Plaintiff would be making a profit which would run 11 contrary to the concept of “compensation” as envisaged by section 329 of the NLC;

(d) that the Court had erred in law and/or in fact in failing to consider that the Plaintiff had in fact not offered the said land for sale after the private caveat was removed which showed that the Plaintiff had not established any loss for which the compensation would be payable pursuant to section 329 of the NLC;

(e) that the Court had erred in law and/or in fact in failing to give proper and due judicial consideration that the award of the damages of RM 2,410,074.53 to the Plaintiff is in fact enriching or conferring an additional benefit on the Plaintiff at the expense of the 1st Defendant looking at the fact that the said land has appreciated in value; and

(f) that the Court had erred in law and/or in fact in holding that the decision made by the High Court on the 5.8.2016 and based the grounds of the said decision stating that there was “prima facie” evidence of loss should or ought to be interpreted to mean that a monetary sum ought to be awarded to the Plaintiff even if the Plaintiff had not led any evidence and/or any credible evidence of loss. [26] In the 2nd Appeal, the Plaintiff’s claim for the diminution of the value of the land ought to be allowed as the Plaintiff has proved at the evidentiary hearing that as at 3 May 2016 there was no longer any prospective buyer for the said land. Besides, the claim for diminution did 12 not overlap with the Court’s award of damages on interest loss. The former relates to the decline of the property value whilst the latter relates to the loss of use of money had the land been sold at RM60.00 psf at the material time. Our Decision [27] Pursuant to the Order of the High Court dated 5.8.2016 and the Order of this Court dated 30.3.2017 which ordered that an assessment of damages against the 1st Defendant be held before the learned Deputy Registrar, on 16.8.2018 the Plaintiff’s application for assessment of damages was dismissed and each party was to bear its own cost. [28] The said Order for an assessment of damages against the 1st Defendant was made pursuant to section 329 of the NLC when the Court held that the 1st Defendant had no reasonable cause of action to maintain the private caveat on the Plaintiff’s Land. [29] Section 329 of the NLC states as follows: “329. Compensation for wrongful caveats, and limitation on repeated applications.

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(1) Any person or body who, or without reasonable cause , secures the entry of, or fails to withdraw , any private caveat shall be liable to pay compensation to any person or body who thereby suffers any damage or loss.” [30] The assessment of damages before the Deputy Registrar is pursuant to Order 37 rule 1 of the ROC 2012 which reads as follows: 13 “Assessment of damages by Registrar (O.37.r.1)

(1) Where judgment is given for damages to be assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by the Registrar, and the party entitled to the benefit of the judgment shall, shall within one month from the date of judgment, apply to the Registrar for directions and the provisions of Order 34 shall, with the necessary modification s, apply.” [31] It is pertinent to note that the Plaintiff’s application for assessment of damages was dismissed by the Deputy Registrar on the basis that the Plaintiff had failed to prove the loss allegedly suffered. [32] Aggrieved by the said decision, the Plaintiff appealed to the High Court. [33] In our view under Order 37 rule 1 of ROC 2012, the learned Deputy Registrar was to certify the amount of damages and it does not provide for the dismissal of a claim for damages after the completion of the evidentiary hearing. In Nirwana Construction Sdn Bhd v Pengarah Jabatan Kerja Raya Negeri Sembilan Darul Khusus & Anor (2008) 4 MLJ 157, Gopal Sri Ram JCA (as he then was) held that once it is held that the party is entitled to recover damages, what follows is an exercise of the assessment of those damages. If at that stage he or she is unable to evidentially establish the measure of damage suffered, nominal damages will be awarded. Hence we are of the view that the learned Judge was correct in reversing the finding of the Deputy Registrar that the Plaintiff had failed to prove the loss and damage suffered. [34] It is trite law that specific finding of facts by the Deputy Registrar as a trier of facts should not be disturbed by the High Court unless that finding 14 was plainly wrong in light of the facts in the assessment of damages, as the Deputy Registrar had the benefit of an audio-visual advantage which the High Court did not have (see Low Hop Bing JCA in Ting Sieh Chung v Hock Peng Realty Sdn Bhd (2013) 2 MLJ 90 at page 93-94.). [35] We find that the learned Judge had sieved through the evidence and assess the quantum after having decided to set aside the decision of the Deputy Registrar. [36] In Milk Perusahan Sdn Bhd & Anor v Kembang Masyur Sdn Bhd

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(2003) 1 MLJ 6 the Court of Appeal held that ‘…the principles governing an appeal from a registrar to a judge in chambers are now no different from those governing an appeal from a trial on merits from the High Court to this court. On such an appeal to this court, fresh evidence is not admissible unless the conditions set out in Ladd v Marshall are met (see Lau Foo Sun v Govt of Malaysia (1970) 2 MLJ 70.’). [37] The author of ‘Land Law in Malaysia: Cases and Commentary, Third Edition, Lexis Nexis ,2012 at page 732-733- Teo Keang Sood & Khaw Lake Tee states as follows: “A claimant relying on subsection 329 (1) NLC thus has to prove that (i) the private caveat entered by the defendant was entered wrongfully or without reasonable cause; and (ii) that claimant had suffered damages or losses as a result of the lodgment of the private caveat. In assessing damages for such wrongful entry of a caveat, real and actual loss must be prove as opposed to what might have been the loss or damage. Compensation under subsection 329(1) NLC can only be awarded for actual damages which were reasonably foreseeable.” 15 [38] The 1st issue to consider is whether the Plaintiff had succeeded in proving as a result of the wrongful entry of the private caveat by the 1st Defendant, had resulted in loss and damage to the Plaintiff. [39] The 2nd issue to consider is whether the computation of the loss incurred by the Plaintiff was correct. [40] The 3rd issue to consider is whether the Plaintiff is entitled to claim for diminution of value of the said Land. On the 1st issue: [41] It was the contention of the learned counsel for the Defendant that the learned Judge had erred in making the order dated 22.3.2019 awarding the sum of RM2, 410,074.53 with interest to the Plaintiff which is made up of RM2,310,805.53 based on fixed deposit interest rate. The court has also awarded the sum of RM99, 269.00 being the fees for the professional valuer engaged by the Plaintiff. [42] It is further contended that the sum of RM2, 310,805 .53 as interest was derived at by calculating 8% of the purchase price at RM60 per sq ft as submitted by the Plaintiff which is based on reliance on the offer made by Ivory Properties Group Bhd ‘s letter dated 21.7.2014. The contents of the said letter indicated that the said offer is ‘subject to terms and conditions and further negotiation.’. [43] For ease of reference the content of the said letter is reproduced herewith: 16 “Our Ref:IPGB/EDbid/CA/LOI/3763 21July 2014 EDBID Properties Sdn Bhd, No.152 Jalan Gurdwara, 10300 Penang, (Attention Ms. Ann Lee) Dear Ms. Ann Lee LETTER OF INTENT PURCHASE OF PREMISES KNOWN AS LOT 2834,SEKSYEN 47, DAERAH KUALA MUDA, MUKIM BANDAR PETANI,KEDAH (LAND ABOUT 8.162 HECTRES) (‘LAND’) We refer to the subject matter and the conversation earlier, we would like to extend our interest to make initial offer of RM60 psf subject always to the terms and conditions and further negotiation. We look forward to hearing the feedback from you sooner possible. Thank you in advance. Yours faithfully, Ivory Properties Group Berhad Lee Chin Aik, PA to Group CEO. [44] The learned counsel further argued that whether the offer of RM60 psf was a firm offer from prospective purchaser. It was the contention of learned counsel that the evidence showed that the price of RM60 psf was for land converted to commercial use. The witness for the Plaintiff namely PW2 had explained that he would not offer RM60 psf for the subject Land which is categorized for agriculture use. It was further argued that the price of RM60 psf was for land converted to commercial use. 17 [45] The learned Judge had in her grounds of judgment opined that the Plaintiff had suffered loss because no sale and purchase agreement could be signed between the Plaintiff and IPGB in the period from 8.8.2014 to 3.5.2016 because of the existence of the private caveat. [46] On being informed that the private caveat was still lodged on the said Land, IPGB would still be prepared to purchase the said Land if the private caveat could be removed in 3 months’ time. However, when PW1 told PW2 that it was uncertain when the private caveat could be removed, IPGB decided to discontinue its attempt to purchase the said Land. [47] In the witness statement of PW2 which stated as follows: “I discussed with Dato’ Low. He then decided that there was no point waiting because we wanted to tap on the property market while it was still strong. This is because the economy would be bad in the near future. So I went ahead and told Ann Lee that Ivory would no longer continue with negotiation.” [48] It was further stated by PW2 whether IPGB is still willing to purchase the said Land at RM60 psf to which PW2 replied “Of course not the property market has showed down substantially. It would be risky to pay that price now.” [49] Based on the above evidence, we are of the considered view that the learned Judge was correct to state that IPGB as the prospective purchaser was willing to purchase the said Land at RM60 psf. The evidence clearly showed that there was no other prospective purchaser as at 3.5.2016 because of the poor market sentiments. Further, PW4 opined that as at 3.5.2016, the said Land could only fetch a price of either 18 RM33,600,000.00 if the said Land remains as agriculture land or RM43,500,000.00 if it is converted for commercial use. [50] During re-examination of PW2, she clarified that in 2014, the offer of RM60 psf was on the basis that the said Land would be commercialised and the feasibility study showed that it was profitable and feasible for that price of RM60 psf and could still make a reasonable profit. [51] We are in agreement with the learned Judge that PW2’s evidence in totality show that the offer of RM60 psf made by IPGB following a feasibility study the company could still make a reasonable profit from the purchase and development of the said Land. As part of the agreement IPGB would have asked the Plaintiff to convert the category of use of the said Land from agriculture to commercial. [52] The price which the prospective purchaser (IPGB) had offered ought to be accepted as the best reflection of the true commercial or market value of the said Land. [53] In Malayan Banking Bhd v Lim Poh Ho & Anor (1997) 1 MLJ 662, this Court held that: “The true commercial value of a property is not what any valuer thinks it should be, but the actual price that property will fetch when it is put up for sale in the open market.” [54] In Abric Project Management & Anor v Palmshine Plaza Sdn Bhd & Anor (2007) 5 MLJ 685 the High Court referred to Malayan Banking Bhd v Lim Poh Ho (supra) and held as follows: 19 “[31] Further and/or in any event, the true market value of the said land could be better observed from the value attached to them by prospective purchasers as opposed to valuers. In this respect, reference is made to the decision of the Court of Appeal in Malayan Banking Bhd v Lim Poh Ho & Anor (1997) 1 MLJ 662 wherein it was held that: …the true commercial value of a property is not what a valuer thought it should be, but the actual price that the property would fetch on the open market” On the 2nd issue: [55] The learned Judge in her GOJ had stated that the sum of RM2,410,074.53 was with interest of which the sum of RM2,310,805.53 is on account of fixed deposit interest rate of 3.1 % per annum as at July 2014. [56] Her Ladyship further held that there was no rebuttal evidence from the 1st Defendant as to what would otherwise be the appropriate Bank interest rate at the material time and accepted the calculation of the Plaintiff stipulated as follows:

(a) If the 1st Defendant had removed the private caveat, the Plaintiff could have entered into a SPA with IPGB by 8.8.2014 for the price of RM52, 690,560.00 (which is RM60 psf). 10% of the said sum would have been received by the Plaintiff upon signing of the Agreement and 2% thereof would be paid to PW1 as commission whilst the balance 8% would be placed in a fixed deposit account with an interest rate of 3.1 % per annum. 20

(b) The balance 90% of the purchase price of RM47,421,504.00 would have been received by 8.12.2014 and this amount too would be deposited in a fixed deposit account to earn interest at the rate of 3.1 % per annum.

(i) Interest from 8% of the purchase price viz – RM4,215,244.80 x 3.1% (from 8.8.2014 to 7.8.2015) = RM130,672.60 (RM4,215,244.80 + RM130,672.60 = RM4,345,917.40) x 3.1% / 365 x 270 days (from 8.8.2015 to 3.5.2016) = RM99,658.40 Total: RM130,672.60 + RM99,658.40 = RM230,331.00

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(ii) Interest from 90% of the purchase price viz – RM47,421,504.00 x 3.1% (from 8.12.2014 to 7.12.2015) = RM1,470,066.62 (RM47,421,504.00 + RM1,470,066.62 = RM48,891,570.62) x 3.1% / 365 x 147 days (from 8.8.2015 to 3.5.2016) = RM610,407.91 Total: RM1,470,066.62 + RM610,407.91 = RM2,080,474.53 Thus, the total interest amounts to RM230,331.00 + RM2,080,474.53 = RM2,310,805.53. 21 [57] We are of the view that there is no manifest error in the above findings of the learned Judge and affirmed with the said findings. On the 3rd issue: [58] The learned Judge disallowed the claim for diminution of value of the said Land in the sum of RM9,190,000.00 being the difference between price offered by IPGB of RM52,690,000.00 and the Sum of RM43,500,000.00 as valued by PW4. Learned counsel for the Plaintiff submitted that after the withdrawal of the private caveat on 3.5.2016 there were no offers to purchase the said Land. [59] In disallowing the Plaintiff’s claim for diminution of value of the said Land, the learned Judge distinguished the facts in the case referred to by the learned counsel in Hollebone v Midhurst and Fernhurst Builders

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(1968) 1 Llyod’s Rep 38 with the facts in the instant case. In Hollebone (supra), the plaintiff’s house caught fire due to the admitted negligence of a workman employed by the 2nd Defendant i.e. it was an action in tort. The 2nd Defendant admitted liability but contended that with regard to damage to the house, it should be based on the difference between the value before the fire and after the fire. After reviewing a number of English cases referred to him, the Official Referee held as follows: “[1] that, on the facts of this case the plaintiffs’ house was unique and plaintiffs acted reasonably in having damage made good; that those authorities relied on for the statement that measure of damage was not cost of reinstatement could be distinguished on their facts or conflicted with other authorities which were to be preferred where cost of repair or replacement was held to be the proper measure of damage; and that, therefore , in this case, correct measure of damages was cost of repair’. 22 [60] Hence, in contrast, the damages claimed by the Plaintiff herein is not a cause of action in tort but is premised on a statutory remedy provided under subsection 329(1) NLC. Its purpose is to compensate the Plaintiff and not to cause an unjust enrichment to the Plaintiff. Since the Court has allowed the Plaintiff’s claim on interest which it could have been earned but for the private caveat, it is only fair that the claim for diminution of the value of the said Land is disallowed. [61] We are of the view that there is no manifest error in the above findings of the learned Judge and affirmed the said findings. [62] Last but not least, we agree that the cost incurred in obtaining a report and valuation of the property in the sum of RM99, 269.00 being the professional fees and reimbursement as per the invoice by Henry Butcher Malaysia (Kedah) Sdn Bhd dated 11.5.2017 be allowed. Conclusion [63] Based on the reasons as adumbrated above and in all the circumstances, it is our unanimous decision that there is no merit in both the appeals. We dismiss both appeals and each party bears its own cost. Dated: 9 December 2020 Signed (MOHD SOFIAN BIN TAN SRI ABD RAZAK) Judge Court of Appeal Malaysia Putrajaya 23 For Appellants : Doshi Jyotsana (R. Jayasingam & Ng Keng Yang with him) [B H Lawrence & Co. (Petaling Jaya)] For Respondents : Dato’ Lim Choon Khim (Chin Yan Leng & David Yii with him) [CHOOI, SAW & LIM] Notice: This copy of the court’s reasons for judgment is subject to editorial revision.

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Aeon Co. (M) Bhd v Asia Plywood Company Sdn Bhd (W-03(IM)(NCVC)-30-04/2019)

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Aeon Co. (M) Bhd v Asia Plywood Company Sdn Bhd (W-03(IM)(NCVC)-30-04/2019)

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