Banggi Quary Sdn Bhd v Menteri Tenaga dan Sumber Asli (W-01(IM)-502-08/2024)

PESURUHJAYA TANAH PERSEKUTUAN ...RESPONDENTS CORAM: LIM CHONG FONG, JCA FAIZAH BINTI JAMALUDIN, JCA EVROL MARIETTE PETERS, JCA GROUNDS OF JUDGMENT 27/03/2026 16:38:50 Kand. 60 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 2 Introduction [1] This was an appeal against the decision of the learned High Court Judge delivered in July 2024, in which the Appellant’s application for monetary compensation was dismissed with costs, after its application for judicial review was allowed. The factual background [2] In July 2017, the Appellant, a commercial mining company, was issued a licence (“the Licence”) by the First Respondent to conduct offshore sand mining, one of the principal conditions being payment of royalties to the Government. The Appellant had failed to commence operations and made no royalty payments. [3] When questioned by the Second Respondent, in February 2018, the Appellant explained that the delay was due to lack of domestic demand and that it was, therefore, seeking an export permit to sell sand to Singapore. [4] Dissatisfied with this inactivity, the First Respondent amended the Licence in November 2019, imposing a new condition, namely, that the Appellant must begin operations at the concession site within six months. The Appellant, however, had failed to meet this deadline, leading to the termination of the Licence by the First Respondent in March 2021. [5] Aggrieved by the termination, the Appellant filed an application for judicial review in May 2021 (“the Judicial Review Application”). In October 2022, the learned High Court Judge allowed such application, and, as a result thereof, his Lordship quashed the First 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 3 Respondent’s decision in terminating the Licence (“the Judicial Review Decision”). [6] In November 2022, the Appellant filed a separate application under Order 53 of the Rules of Court 2012 (“Rules of Court”), seeking financial redress (“the Damages Application”). Its claims comprised a refund of the MYR100,000 deposit and, more substantially, damages for alleged losses, quantified either at the export market rate at MYR32.5 million or the domestic market rate at MYR28 million, or, in the alternative, MYR35 million for loss of revenue. [7] In July 2024, the High Court dismissed the Damages Application with costs. [8] Dissatisfied, the Appellant appealed to this Court (“this Appeal”). Issues [9] This Appeal raised the following issues: a) Whether the claim was properly characterised as one for constitutional monetary compensation, or in substance a claim for damages; b) Whether the claim for damages was barred for want of proper pleading; and c) Whether damages had been proved. [10] We unanimously dismissed this Appeal for the following reasons. 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 4 Contentions, evaluation, and findings [11] The starting point for an appellate court is the presumption that any decision appealed against is correct in every respect. Therefore, to succeed in this Appeal, the Appellant in the present case must convince this Court that the decision appealed against was wrong; and if this Court was not so convinced, this Appeal would fail. [12] This principle expounded in Watt or Thomas v. Thomas [1947] AC 487 has been assimilated into Malaysian jurisprudence through several cases including Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator of the estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1, UEM Group Bhd v. Genysis Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, and Ikris Bina Sdn Bhd v. Jianseng Construction Sdn Bhd [2019] 1 LNS 1662. [13] However, this does not mean that the hands of the appellate court are tied. The exception to the general rule mentioned above is when the findings are clearly wrong: China Airlines Ltd v Maltan Air Corp Sdn Bhd [1996] 3 CLJ 163; [1996] 2 MLJ 517; or where crucial evidence has been misconstrued, or disregarded: Multar Masngud v. Lim Kim Chet & Anor [1982] CLJ Rep 237; or if the trial judge is shown to have misdirected himself on the evidence, or to have rejected evidence for a wrong reason, or to have drawn an inference from evidence which was equally capable of supporting a different inference, it then may be the duty of an appellate court to interfere: Woon Ngee Yew and Others v. Ng Yoon Thai and Others [1940] 1 LNS 119; [1941] 10 MLJ (FMSR) 37. [14] In Woon Ngee Yew and Others v. Ng Yoon Thai and Others, it was stated by Mc Elwaine CJ in the following passage: 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 5 An Appellate Court should be very loath to differ on a finding of fact by a Court which has seen and heard the witnesses but if the learned Judge can be shown to have misdirected himself on the evidence, or to have rejected evidence for a wrong reason or to have drawn an inference from evidence which was equally capable of supporting a different inference it may be the duty of an Appellate Court to interfere. Whether the claim was properly characterised as one for constitutional monetary compensation, or in substance a claim for damages [15] The Appellant contended that its claim was one for constitutional monetary compensation pursuant to Order 53 rule 2(3) of the Rules of Court, which reads: Order 53 – Application for judicial review Rule 2 – Applications …

Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or make any orders, including an order of injunction or monetary compensation: Provided that the power to grant an injunction shall be exercised in accordance with the provisions of section 29 of the Government Proceedings Act 1956 and section 54 of the Specific Relief Act 1950. [Emphasis added.] [16] The Respondents, however, contended that the Appellant’s claim, quantified at between approximately MYR28 million and MYR32.5 million was, in substance, a claim for damages arising from the alleged wrongful termination of the Licence. [17] It is trite law that “constitutional monetary compensation” is exceptional and arises only where there has been a clear breach of 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 6 a fundamental right under the Federal Constitution, and where monetary compensation is the sole effective mode of redress, as acknowledged by the Federal Court in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 2 CLJ. 579. [18] On the contention that the Court possessed the power and discretion to award monetary compensation, we were of the considered view that the learned High Court Judge was correct in declining to exercise such discretion. There is no basis for appellate intervention, for the following reasons. [19] The gravamen of the Respondents’ unlawful conduct lay in an administrative failure, namely, the termination of the Licence without affording the Appellant a fair hearing. This constituted, in essence, a public law wrong, for which the appropriate remedy was in public law. Indeed, such relief was both sought and obtained in the form of an order of certiorari pursuant to the Judicial Review Decision. [20] The financial detriment now claimed by the Appellant, whether framed as loss of commercial value, loss of profits, or loss of sale opportunity, did not, however, stem from an infringement of a foundational constitutional guarantee. Rather, it arose from the alleged infringement of the Appellant's commercial and contractual interests under the Licence. [21] In our view, such monetary claim made by the Appellant belonged squarely to the realm of private law. The Licence to mine sand, issued by the First Respondent, constituted a statutory privilege subject to contractual terms; it was not an inalienable fundamental right under the paramount protection of the Federal Constitution. 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 7 While the right to property found in article 13 of the Federal Constitution may in certain contexts be engaged, its invocation in respect of a revocable commercial licence, as in the present case, was untenable. [22] Accordingly, we were of the view that, in substance, the Appellant’s claim was one for damages. Whether the claim for damages was barred for want of proper pleading [23] Although the Appellant’s claim was, in substance, a commercial claim for damages, we found that it was nonetheless procedurally defective for failure to comply with Order 53 rule 5(1)(a) of the Rules of Court. This provision, which sets out the prescribed procedure for claiming damages in judicial review proceedings, reads as follows: Order 53 – Application for judicial review Rule 5 – Damages

On an application for judicial review the Court may, subject to paragraph (2), award damages to the applicant if-

he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates; and … [Emphasis added.] [24] Pursuant to Order 53 rule 5(1)(a) of the Rules of Court, any claim for damages must be expressly set out in the statement filed in support of an application for leave for judicial review. In the present case, the Appellant failed to comply with this requirement. 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 8 [25] Accordingly, the issue of damages could, and indeed ought to, have been raised in the Judicial Review Application. The Appellant’s omission to do so is fatal, as it precludes the commencement of fresh proceedings on the same subject matter. To permit the present Damages Application would run contrary to the principle of finality in litigation, a doctrine firmly grounded in public policy. We drew guidance from the case of Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 MLJ 783, which holds that parties are prevented from asserting a cause of action that should have been brought forward in the earlier action. [26] In the present case, the Judicial Review Decision was delivered in October 2022, granting certiorari to quash the termination of the Licence by the First Respondent. No order for damages or compensation was made in that judgment, and the Appellant did not appeal it. The judgment did not contain a "liberty to apply" clause, and no consequential order was necessary to give effect to it. Therefore, the Court's authority over the matter was exhausted. The Appellant's current claim was, therefore, a new cause of action that was not pleaded in the Judicial Review Application, and could not be introduced after the judgment has been perfected. [27] Our view was fortified by the fact that judicial review is a public law remedy; it is not a substitute for private law claims for damages. The rules merely allow for convenience in joining a damages claim with a judicial review application, but they do not create a new substantive right to damages. [28] The Appellant's reliance on Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 9 CLJ 358 was, in our view, misconceived. That 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 9 case involved the Court's inherent power to make consequential orders in a private law suit for specific performance, where the original remedy had become unworkable. Judicial review, by contrast, is governed by the self-contained procedural code in Order 53 of the Rules of Court. [29] Accordingly, the Damages Application filed in the High Court was fundamentally flawed, as it sought to bifurcate a cause of action that ought properly to have been advanced in a single, consolidated proceeding. In the circumstances, the learned High Court Judge was correct in dismissing the Damages Application. Whether damages had been proved [30] Pursuant to Order 53 rule 5(1)(b) of the Rules of Court, the Court to be satisfied that damages could have been awarded in the first place. The provision reads: Order 53 – Application for judicial review

On an application for judicial review the Court may, subject to paragraph (2), award damages to the applicant if- …

the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages. [Emphasis added.] [31] Hence, even if we were of the view that the Damages Application was not statute-barred, the subsequent issue was whether the Appellant had, in fact, established and proved those damages. 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 10 [32] In our view, the Appellant's claim had failed the threshold of proof. The burden lay squarely on the Appellant to establish, with credible and particularised evidence, both the fact that a quantifiable loss was incurred and the specific amount of that loss. In this instance, the Appellant had presented not proof, but speculation, in the following manner. [33] First, the claim for loss of profits, quantified in the tens of millions, was entirely hypothetical. It was an undisputed fact that the Appellant had never commenced mining operations under the Licence. There existed no historical data on production capacity, operating costs, sales contracts, or market demand specific to the Appellant's enterprise. [34] The projection of profit, in the absence of any operational foundation, was a mere exercise in conjecture. The law requires evidence of actual loss, not theoretical calculations plucked from the air. Case laws such as Bekalan Sains P & C Sdn Bhd v Bank Bumiputra Malaysia Bhd [2011] CLJU 232 and Medicon Plastic Industries Sdn Bhd v Syarikat Cosa Sdn Bhd [1995] 3 CLJ 171, emphasise that losses must be proved with precise evidence, not mere estimations or conjecture. We were of the view that the Appellant had failed to discharge this burden of proof. [35] Secondly, the alternative claim for loss of revenue, pegged to a MYR35 million share purchase offer, was equally infirm. While the offer indicated a third party's speculative valuation, it did not constitute evidence of the Appellant's actual loss. The offer was contingent and did not culminate in a completed transaction. It could not, without more, be translated into an established and proved 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 11 compensatory sum. The Appellant had not demonstrated that such valuation had reflected the true market value of the Licence, or that the termination had directly caused the loss of this specific opportunity. [36] Finally, the Appellant’s failure to adduce the standard forms of commercial evidence was fatal to its claim. No audited accounts were produced, nor were there any forward contracts with buyers, expert valuation reports grounded in comparable transactions, or detailed business plans demonstrating a credible and sustainable pathway to profitability. What was placed before the Court was, in essence, a compilation of financial figures unsupported by contemporaneous documents or independent verification. [37] In such circumstances, the Court was not entitled to speculate, to fill evidential gaps, or to construct a quantum of damages in the absence of proof. The Appellant’s claim, therefore, remained unproved and could not form the basis of any monetary claim. [38] The learned High Court Judge was, therefore, correct in observing that there was insufficient material before him to justify such an award, which, in effect, amounted to a finding against the Appellant. Conclusion [39] In the upshot, based on the aforesaid reasons, and after judicious consideration of all the evidence before this Court, submissions of Parties, and grounds of judgment of the learned High Court Judge, this Appeal was unanimously dismissed with costs. 5 March 2026 --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- 12 Dated: 5 March 2026 ………….…SIGNED…………… (EVROL MARIETTE PETERS) Judge of the Court of Appeal Malaysia Counsel: For the Appellant – Rajendra Navaratnam and Mak Hon Pan; Messrs Azman Davidson & Co For the Respondents – Zairani binti Tugiran: Senior Federal Counsel