Compugates Development and Mining Sdn Bhd v Main Uptown Sdn Bhd (BA-24NCvC-1150-07/2022)

Enclosure 66 is a Notice of Assessment of Damages filed by the plaintiff in accordance with Order 37 of the Rules of Court 2012.

On 25 February 2025, I allowed part of the plaintiff’s claim. Consequently, both the plaintiff and the defendant appealed against the decision. This ground of judgment applies to both appeals.

The plaintiff’s claims for damages are as follows-

RM750,584.00, being the reduction of the lease period of the land for a total of 8 months, 22 days, i.e. 265 days.

(ii) RM50,000.00 being the rental for Studio Stage 1 E Village on the land

(iii) RM38,638.71 being payment for the security cost for the land.

(iv) RM100,000 as damages for the inconvenience, embarrassment and loss of goodwill caused by the plaintiff. [4] In this case, the assessment proceeded through the filing of an affidavit and then by trial, where the plaintiff called five witnesses, including one expert witness, and the defendant called one expert witness. C. MATERIAL FACTS [5] I will reiterate the background facts of this case as submitted by the learned counsel for the defendant in their written submission. [6] The plaintiff appointed the defendant under the joint venture agreement dated 18.8.2015 (JVA) to develop a piece of land identified as Hakmilik HSD 13828, Lot No. PT2800 (No. Lot Baru: 30729) Mukim Dengkil, Daerah Sepang, Selangor (the land). [7] The dispute arose between the parties under the JVA, which led to various legal proceedings commenced by the parties against each other. All disputes between parties have since been adjudicated and resolved through multiple court orders. [8] By an Order dated 14.12.2022, the Shah Alam High Court granted an injunction, and the terms are as follows –

Bahawa semua dan apa-apa pelaksanaan dan/atau penguatkuasaan perintah Mahkamah yang Mulia ini bertarikh 19 Oktober 2022 digantung sehingga pelupusan rayuan Defendan terhadap perintah tersebut;

Bahawa perintah injunksi diberikan untuk melarang Plaintif dari menjual, memindah atau melupuskan hartanah yang dipegang di bawah No. Hakmilik HSD 13828, Lot No. PT 26800, Lot No. PT 26800, (No. Lot Baru: 30729), Mukim Dengkil, Daerah Sepang, Selangor dan juga dari kemasukan sebarang sekatan atas hartanah tersebut sementara pelupusan rayuan oleh Mahkamah Rayuan susulan dari Saman Pemula bertarih 18 Julai 2022 (B- 02(NCvC)(A)-2029-10/2022); dan

Bahawa kos permohonan dijadikan kos dalam kausa rayuan Defendan. [9] Subsequently by an Order dated 4.9.2023, the Court of Appeal set aside the High Court Order and ordered the case to be remitted to the High Court for assessment of damages. [10] The terms of the assessment for this Suit are contained in the Order by the Court of Appeal dated 14.12.2022 as follows:

Penaksiran bagi ganti rugi yang mungkin dialami oleh Perayu akibat daripada injunksi bagi tempoh dari 14 Disember 2022 sehingga 4 September 2023 ditaksir oleh Mahkamah Tinggi pada masa yang sesuai. D. LEGAL PRINCIPLES [11] The law relating to assessment of damages is provided for in Order 37, Rules of Court 2012, which provides – 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, within one month from the date of the judgment, apply to the Registrar for directions and the provisions of Order 34 shall, with the necessary modifications, apply. Power to order assessment by Registrar or at trial (O. 37, r.4)

The Court may, in the case of any such judgment as is mentioned in rule 1, order either―

that the assessment of the damages shall be made by the Registrar; or

that the action shall proceed to trial before a Judge in respect of the damages, and where the Court orders that the action shall proceed to trial, Order 34 shall apply with the necessary modifications. [12] This Court is exercising its judicial discretion in the assessment of damages proceeding. [13] The Court of Appeal in Voo Nyuk Fah @ Peter & Anor v Lam Yat Kheong & Anor [2012] 5 CLJ 229 held that – [6] It is trite law that the task of taking of accounts and assessment of damages in an exercise of judicial discretion. Such discretion is a judicial one, as it is not to be exercised based on whims and fancies, but by reference, guidance and application of established judicial principles and of course having regard to all the facts and evidence adduced before the officer or the judge who undertakes the assessment. [7] In our view the basic governing principles may be stated as follows: The burden of proving damages is always on the parties claiming the damages. See Tan Geok Khoon & Gerard Francis Robless v Paya Terubong Estate Sdn Bhd [1988] 2 MLJ 672; [1987] 2 MLRH 578 where Justice Edgar Joseph Jr (as he was then) said: This brings to my mind the famous words of Lord Goddard in Bonham-Carter v Hyde Park Hotel [1948] 64 TLR 177; Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages’. They have to prove it.” [14] It is a well-established principle that the burden of proving the alleged damages rests with the plaintiff. In Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360, Edgar Joseph Jr J (as His Lordship then was) held as follows – “It is axiomatic that a plaintiff seeking substantial damages has the burden of proving both the fact and the amount of damages before he can recover. If he proves neither, the action will fail or he may be awarded only nominal damages upon proof of the contravention of a right. … On the question of the quality of evidence expected of a plaintiff it is well to remember what Devlin J said in Biggin v Permanite [1951] 1 KB 422, 438 namely, ‘where precise evidence is obtainable, the court naturally expects to have it, where it is not, the court must do the best it can’. Nevertheless, it remains true to say that generally ‘difficulty of proof does not dispense with the necessity of proof’ (see Aerial Advertising Co v Batchelors Peas [1939] 2 All ER 788, 796 per Atkinson J).” E. ISSUE TO BE DECIDED [15] Based on the Order of the Court of Appeal, the parameters of this assessment are as follows – i. Whether there are damages suffered by the plaintiff resulting from the injunction order granted for the period between 14.12.2022 to 4.9.2023 (injunction period); and ii. If so, what damages were suffered during the said injunction period? F. ANALYSIS AND DECISION [16] This Court is guided by the established judicial principles and considers all facts and evidence adduced by the parties before the Court. [17] After evaluating the affidavits submitted by the parties, the testimony of the witnesses presented during the trial, and the submissions from both parties, this Court grants damages claimed for item 1 only. The rationale is elucidated below. Issue 1 : The alleged damages of RM750,584.00 for the reduction of the lease period [18] Both parties agree that, based on the injunction order, the plaintiff was prevented from transferring or selling the land or creating any restrictions on it, as the defendant wanted to preserve its right to continue with the JVA. [19] The plaintiff contended that, as a result of the injunction order, they were precluded from selling or engaging in transactions concerning the land, since any such transactions would impose a restriction during the duration of the injunction. The land in question is held under leasehold tenure for 99 years, as opposed to freehold, which entails perpetual ownership. [20] Therefore, during the injunction period, the plaintiff could not deal with the land for 265 days as a registered proprietor. [21] The plaintiff relied on the evidence by SP5 Lau Wei Seng, the Land Surveyor, and submitted that compensation must be the premium to be paid to obtain a 265-day lease on the land. [22] The relevant part of SP5’s testimony is as follows – Q: Ok, can you explain to the Court what is your basis of saying this is a loss suffered by the Plaintiff because of the injunction? SP5: Because this land is leasehold land. The value of the leasehold land it will increase from year to year. For example, now is the balance of the lease is that still got 79 years from to date. So, if let’s say the developer as the Plaintiff they want to develop the land they need to extend back to 99 years. Because no purchaser going to buy if the lease is 79 years. So, anyhow if they want to develop the land, they have to extend to 99 years to fulfil the contract requirement. [23] The plaintiff also contends that the injunction stopped them from entering the new JVA with Marvellous Havana Sdn Bhd. Based on the reasons above, the plaintiff is claiming the sum of RM750,584.00 for the alleged reduction in the lease period. In challenging the plaintiff’s claim for the purported loss of the lease period, the defendant argues that the sum lacks a basis. [24] According to the defendant, the plaintiff did not seek an extension of the lease period for the land. Therefore, the plaintiff cannot rely on the formula stipulated in Rule 7 of the Selangor Land Rules 2003 and the Selangor Quarry Rules 2003, which states as follows – 3/4 x 1/100 x value of the land x term of lease [25] The defendant also justified their reasoning by stating that even if the plaintiff submits any extension application in the future, it remains uncertain whether the authority would approve such an application. The defendant further averred that the plaintiff did not suffer the alleged premium of RM750,584.00 due to the injunction and the lease period would naturally reduce against time regardless of the injunction. [26] This Court agrees with the plaintiff that, due to the Injunction Order, the plaintiff was precluded from selling the land, as any transactions would impose a restriction upon the said land during the injunction period extending from December 14, 2022, to September 4, 2023. [27] Therefore, the formula used by the plaintiff to determine the value for 265 days of the lease in calculating the loss is 3/4 x 1/100 x RM137,843,100.00 (value of the land) x 265/365 (number of days lost) = RM750,584.00 represents the direct loss in lease terms, which the defendant must compensate. I find the amount to be reasonable, and it should be permitted. Additionally, this amount is significantly lower than the RM8 million reduction that Marvelloues Havana offered to the plaintiff due to the lease reduction. [28] The plaintiff has discharged its burden and provided proof that the land's value is RM950 per square meter based on Borang H and Borang K during the acquisition. The plaintiff contended that the claim is based on the loss of the lease period. This Court accepts the evidence given by the plaintiff’s expert witness. [29] I agree with the plaintiff that the relevant question is whether, if not for this injunction, the plaintiff would be deprived of using the land for 265 days, which has resulted in a total loss of 265 days for the plaintiff. [30] The plaintiff has established the causal link between the injunction and the damages suffered, as required in Sunseekers Pte Ltd v Joshua [1990] 2 MLJ 350. The direct impact on the plaintiff is that, since the land is leasehold, they have lost 265 days of the lease term forever, which prevents them from generating income. Alleged damages of RM50,000.00 for rental for Studio Stage 1 E Village [31] There is the Entertainment Village (E-Village) on the land modelled after Universal Studios, built for film production to boost the Asian Film Industry. The plaintiff received an offer from Skop Production Sdn Bhd to shoot the film titled "SYERIF" for a period from 25.3.2023 until 3.5.2023 for a sum of RM50,000.00. However, according to the plaintiff, they had to refuse the offer as a result of the injunction order. [32] The evidence unequivocally demonstrates that the plaintiff declined the rental proposal due to its demand for RM50,000.00 as opposed to the RM15,000.00 offered by Skop Production. Based on the explanation by SP2, the reason why the rental offer by Skop Productions was rejected was due to the rental period and the fact that the work would start after Raya. [33] In light of the aforementioned considerations, I concur with the submissions presented by the learned defendant’s counsel, specifically that the injunction does not prohibit the plaintiff from leasing out the Studio. It is pertinent to note that the injunction order was never communicated to the prospective tenant. Alleged Security Cost of RM38,638.71 [34] Regarding the security cost of RM38,638.71, I believe it will be incurred regardless of the existence of the injunction, as long as the plaintiff wishes to maintain security over the land. Alleged Damages of RM100,000 as damages for the inconvenience, embarrassment and loss of goodwill [35] Finally, regarding the plaintiff's claims for RM100,000.00 in damages from the inconvenience, embarrassment, and loss of goodwill suffered, this Court sides with the defendant. The plaintiff failed to demonstrate that special circumstances exist, as compared to the case of Goo Sing Kar v Dato’ Lim Ah Chap & Ors [2013] 3 MLJ 374. [36] I refer to Goh Kheng Pow's evidence on page 34 of the Notes of Proceedings, which is as follows-With this announcement that the injunction has been put on our land, it has caused, let’s say, the public confidence in Compugates to be lost. [37] In my view, this evidence is mere speculation, and no evidence has been presented by the plaintiff to demonstrate that the shares of the plaintiff’s holding company are impacted by the injunction order. G. CONCLUSION [38] Based on the reasons above, this Court ordered that the damages to be paid by the defendant to the plaintiff are RM750,584.00 with costs of RM5000.00, subject to allocator. Dated : 19th May 2025. Signed ........................................................... HAZIZAH KASSIM Judicial Commisioner High Court of Malaya At Shah Alam (NCvC 10)

For the Plaintiff : Dhyana Shila Vasanthan & Syamala A/P Jeyaraman Messrs Dhyan & Co. (Federal Territory of Kuala Lumpur)

For the Defendant : Hor Shirley & Muhammad Asyraf bin Mustafha Kamaruddin Messrs Raja, Darryl & Loh (Federal Territory of Kuala Lumpur)