Ding Siew Ching v Ling Peek Hoe (A-02(W)-237-02/2022)

GOLDEN STAR (No. Pendaftaran Perniagaan: 198003031692)

DING TOH BIEW (No. K/P: 710206-08-6281)

DING TOH GIEN (No. K/P: 680918-08-5573)

DING TOH LEI … PERAYU- (No. K/P: 631002-08-6225)

DAN LING PEEK HOE (No. K/P: 521220-08-5119)

LING BOON HUAT … RESPONDEN- (No. K/P: 831204-08-5403) RESPONDEN (Dalam Perkara Mengenai Mahkamah Tinggi Malaya Ipoh)

Ling Peek Hoe

Ling Boon Huat …Plaintif-Plaintif

Dan

Ding Siew Ching

Golden Star

Ding Toh Biew

Ding Toh Gien Ding Toh Lei …Defendan-Defendan Didengar Bersama dengan DALAM MAHKAMAH RAYUAN MALAYSIA DALAM WILAYAH PERSEKUTUAN PUTRAJAYA RAYUAN SIVIL NO. A-02(W)-237-02/2022 ANTARA DING SIEW CHING … PERAYU (No. K/P: 601223-08-6280)

LING PEEK HOE (No. K/P: 521220-08-5119)

LING BOON HUAT … RESPONDEN- (No. K/P: 831204-08-5403) RESPONDEN (Dalam Perkara Mengenai Mahkamah Tinggi Malaya Ipoh)

Ling Peek Hoe

Ling Boon Huat …Plaintif-Plaintif

Dan

Ding Siew Ching

Golden Star

Ding Toh Biew

Ding Toh Gien Ding Toh Lei …Defendan-Defendan Disatukan Melalui Perintah Mahkamah bertarikh 24.2.2010

Antara

Ding Toh Lei

Ding Toh Biew Ding Toh Gien …Plaintif-Plaintif Dan Ling Peek Hoe …Defendan] CORAM HAS ZANAH BINTI MEHAT, JCA CHE MOHD RUZIMA BIN GHAZALI, JCA SEE MEE CHUN, JCA JUDGMENT OF THE COURT Introduction and background facts [1] Appeals 236 and 237 were consolidated and heard before this Court. The appeals relate to the damages awarded. Counsel for the Appellant in appeal 237 submitted for both appeals and there was one common submission filed. [2] In appeal 236, the Appellants are the 2nd to 5th Defendants in the High Court. In appeal 237, the Appellant is the 1st Defendant. The 2nd Defendant is a licensed money lender and its registered proprietors are the 3rd to 5th Defendants. They are the immediate family members of the 1st Defendant, an advocate and solicitor at the material time. [3] The Respondents in both appeals as the Plaintiffs are father and son who commenced legal action in 2006 against the Defendants for fraudulent transfer of properties in a money lending transaction. [4] References to enclosures are to those in appeal 237. Parties will be referred to as they were in the High Court. [5] The High Court on 28-11-2012 found that there was fraud and ordered the Defendants to pay the Plaintiffs special, general and punitive/exemplary damages to be assessed (2012 Judgment). On 13-3- 2015, the 2012 Judgment was set aside by the Court of Appeal and re-instated by the Federal Court on 20-6-2017 (FC Order). There were three unsuccessful reviews launched by the Defendants where the third review was struck out on 27-5-2019 without liberty to file afresh. Assessment of damages [6] The assessment of damages was duly carried out by the High Court Judge (HCJ) over a period of 6 days on 8-2-2021, 9-2-2021, 10-3-2021, 16-3-2012, 8-10-2021 and 24-11-2021. All were done via zoom other than the hearing on 8-10-2021 which was conducted in open court. There were 5 witnesses for the Plaintiffs, 1 for the 1st Defendant and 4 for the 2nd to 5th Defendants. [7] On 10-1-2022, the HCJ ordered as follows (encl. 3/35-36): “Adalah dihakimi bahawa Defendan-Defendan secara bersesama dan berasingan membayar Plaintif-Plaintif gantirugi khas sebanyak RM3,135,951.76, gantirugi am sebanyak RM1,000,000.00 dan gantirugi punitif dan teladan sebanyak RM1,000,000.00 Dan adalah dihakimi bahawa Defendan-Defendan secara bersesama dan berasingan membayar Plaintif-Plaintif faedah pada kadar 5% setahun ke atas jumlah penghakiman dari tarikh pemfailkan Writ pada 18 Ogos 2006 sehingga tarikh penyelesaian penuh.” [8] As can be seen from the HCJ Grounds of Judgment (GOJ, encl.3/41-180) and in particular at pages 176-177, the breakdown is as follows: “[159] The sum total of the award of damages is: i) Special damages: a) Legal fees i) Retainer - RM2,345,000.00 ii) Refresher - RM403,000.00 RM2,748,000.00 Less Costs paid RM144,000.00 RM2,604,000.00 b) Hong Leong Bank Bhd loan for the No. 59 Taman Ilmu property RM464,433.16 c) Traveling Expenses RM16,000.00 d) Search & Miscellaneous Expenses RM51,618.60 Sub-total RM3,135,951.76 General damages: RM1,000,000.00 ii) Punitive and exemplary damages RM1,000,000.00 Total RM5,135,951.76 Issues in the appeals [9] The appeals by the Defendants are in relation to the matters as follows: i. items (a), (c) and (d) of the special damages where these relate to legal fees of RM2.604 million, travelling fees of RM16,000.00 and search and miscellaneous expenses of RM51,618.60; ii. the amount of general damages of RM1 million; and iii. the amount of exemplary damages of RM1 million. Special damages (SD) [10] It was contended by the Defendants that SD was awarded despite there being no particulars pleaded (the pleadings point) and that legal fees are not claimable. Res judicata [11] At the outset, we agree with the HCJ and find that res judicata in the wider sense applies such that the Defendants are estopped from raising the issue of lack of particulars at the High Court (HC). This is because in the circumstances of the case, the Defendants should have raised the issue at the earliest opportunity which was at the liability stage, despite its contention the trial proceeded by way of a bifurcated trial. We also find there was no such order made to this effect. [12] We need only refer to Asia Commercial Finance (M) Bhd v Kawal Teliti Bhd [1995] 3 CLJ 783 where res judicata applies not only to points upon which the Court was actually required to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time. The following passages have been relied on in just about every case on res judicata and we will do well to heed them. At pages 197, 198 and 200 are the passages: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. … The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v Henderson (1843) 3 Hare 100 at p 115 which is: The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time. … There is one school of thought that issue estoppel applies only to issues actually decided by the court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the court, are still covered by the doctrine of res judicata, ie doctrine of estoppel per rem judicatum. We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the question of the public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the courts being found always one step behind the resulting increase in litigation.” Pleadings point (particulars of SD not pleaded) [13] With regard to the pleadings point, in paragraph 9 of the statement of claim, the Plaintiffs had pleaded in paragraph 9.5 (encl. 3/192) for “special damages to be assessed”. For ease of reference, we set out the entire reliefs sought by the Plaintiffs: “9. As a result of Defendants’ afore-stated actions, the Plaintiffs suffered loss and damages, wherefore the Plaintiffs claim: -

9.1 Declaration that the purported sale and purchase agreements for No. 2563 and 2564 Kg. Selamat and No. 31 Taman Ilmu are null and void;

9.2 Declaration that Mock Tenancy Agreement for No. 31 is null and void;

9.3 Declaration that the purported Memorandum of Transfer for the 3 Properties and No. 31 Taman Ilmu from P1 to D2 and/or its proprietors are null and void by reason of misrepresentation, fraud, forgery and/or insufficient or void instrument;

9.4 Consequential orders pursuant to the afore-said declarations;

9.5 Special damages to be assessed;

9.6 Punitive and exemplary damages to be assessed;

9.7 Interests;

9.8 Costs; and 9.9 Such other orders or relief this Honourable Court deems fit and suitable.” [14] We note that the HC had in the 2012 Judgment dated 28-11-2012 (encl 6/60-62) allowed the Plaintiffs’ claim and ordered the Defendants to pay “gantirugi khas, am, punitif dan teladan tertakluk kepada taksiran”. The entire order reads as follow: “Adalah dihakimi bahawa perjanjian-perjanjian jualbeli plaintif pertama dengan defendan ketiga, keempat dan/atau kelima untuk GM 3896 (dahulu EMR 2358) Lot 2563 dan GM 3895 (dahulu EMR2395) Lot 2564 kedua-dua Mukim Sitiawan adalah diisytiharkan batal dan tidak sah. Dan adalah dihakimi bahawa borang-borang pindahmilik untuk GM3896 (dahulu EMR 2358) Lot 2563 dan GM3895 (dahulu EMR 2359) Lot 2564 kedua-dua Mukim Sitiawan dan PN 104828 Lot 34911 (dahulu HS(D) Dgs 5664 PT 17562) Mukim Sitiawan daripada plaintif pertama kepada defendan ketiga, keempat dan kelima adalah diisytiharkan batal dan tidak sah. Dan adalah dihakimi bahawa defendan-defendan membayar plaintif-plaintif gantirugi khas, am, punitive dan teladan tertakluk kepada taksiran oleh Pendaftar. Dan adalah dihakimi bahawa tuntutanbalas defendan ketiga, keempat dan kelima terhadap plaintif pertama adalah ditolak dengan kos” [15] This order was set aside by the Court of Appeal but re-instated by the Federal Court by FC Order dated 20-6-2017 (encl 6/137-140) which allowed the Plaintiffs’ appeal, set aside the Court of Appeal order and re-instated the 2012 Judgment. This is evident as follows: “… Maka adalah dengan ini diperintahkan bahawa:

Rayuan Perayu-Perayu adalah dibenarkan;

Perintah Mahkamah Rayuan bertarikh 13 Mac 2015 diketepikan;

Penghakiman Mahkamah Tinggi bertarikah 28 November 2012 dan Perintah Mahkamah Tinggi bertarikh 17 April 2013 dikuatkuasa-semula (reinstated);” [16] It is not disputed that despite three reviews mounted by the Defendants, all were not successful with the third review being struck out on 27-5-2019 without liberty (encl. 6/194-197). [17] The end effect of all these only leaves the issue of assessment of damages, in particular that of SD, and the quantum to be awarded. That is indeed the purpose of assessment and not whether there can even be SD. The Federal Court had re-instated the 2012 Judgment for SD to be assessed despite there being no particulars of SD. This would mean the lack of particulars was not fatal where the Plaintiffs had pleaded for special damages, only leaving the amount to be assessed, which was precisely what was allowed. To now allow the Defendants’ pleading point would render the orders of the HC and the highest Court of this land, without any legal effect and meaningless. [18] As we have noted earlier, the Plaintiffs did plead in their paragraph 9.5 for “special damages to be assessed”. This is where the directions for affidavits came in and the HC expressly stated in paragraph 34 of the GOJ (encl. 3/58) that it “made no express order for affidavits to stand as pleadings” but that it had “given case management directions for affidavits to be filed and exchanged for the assessment exercise”. [19] This accords with O.34 r.1 and r.2 of the Rules of Court 2012 for the just, expeditious and economical disposal of proceedings. [20] Towards this end, the Plaintiffs filed their affidavits in encl 4/39-72, the 1st Defendant in appeal 237 filed an affidavit in encl 4/77-82 and the 2nd to 5th Defendants in appeal 236 filed their affidavits in encl 4/84-103. It was only at the point of assessment, that this could be done. The affidavits were in fact the evidence to prove losses. [21] This is a fraud case unlike medical negligence and personal accident claims where SD has crystallised. [22] The main point to be emphasized is the order for assessment for SD was made by the HC and the Federal Court. Legal fees [23] With regard to legal fees not being claimable, reliance was placed on Cockburn v Edwards [1881] Ch 449 for the proposition that the differential sum between costs awarded and legal fees is not recoverable in law as damages. There were also a series of other cases cited to this effect. [24] On the other hand, the Plaintiffs were also able to marshall several cases for the opposing principle that legal fees are claimable as SD. [25] We have given anxious consideration to the principle of law which ought to apply. We are more inclined towards the principle that such legal fees are claimable for the reasons as follows. [26] This is a case involving fraud where the measure of damages can be on an indemnity basis. This has been well expressed in Doyle v Olby (Ironmongers) Ltd v Ors [1969] 2 All ER 119 where in fraud, the defendant who has been defrauded can recover for all damages in the form of extra expenses suffered and is entitled to damages for all his losses suffered. At page 122 this was said: “On principle the distinction seems to be this: in contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position, as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of a deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damage directly flowing from the fraudulent inducement. The person who has been defrauded is entitled to say: “I would not have entered into this bargain at all but for your representation. Owing to your fraud, I have not only lost all the money I paid you, but, what is more, I have been put to a large amount of extra expenses as well and suffered this or that extra damages”. All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen. For instance, in this very case the plaintiff has not only lost money which he paid for the business, which he would never have done if there had been no fraud: he put all that money in and lost it; but also he has been put to expense and loss in trying to run a business which has turned out to be a disaster for him. He is entitled to damages for all his loss, subject, of course, to giving credit for any benefit that he has received. There is nothing to be taken off in mitigation: for there is nothing more that he could have done to reduce his loss. He did all that he could reasonably be expected to do.” [27] This principle was followed by this Court in Yap Boon Hwa v Kee Wah Soong [2020] 1 MLJ 37 where in paragraph 79, damages in the form of the claim for legal fees incurred in defending the action of fraudulent misrepresentation, was allowed. [28] Yap Boon Hwa had also made references to Doyle and a House of Lords decision in Smith New Court Securities v Scrimgeour Vickers [1996] 3 WLR 1051 that the primary rule was that a victim of fraud was entitled to compensation for all the actual loss, including consequential loss, directly flowing from the transaction induced by the deceit of the wrongdoer. At pages 56 and 57, this Court said as follows: “[59] The issue to be determined at the hearing of the assessment of damages is what is the amount of damages to award to the defendant due to the fraudulent misrepresentation committed by the 2nd plaintiff on the defendant. Lord Denning in the English Court of Appeal case of Doyle v. Olby (Ironmongers) limited & Ors [1969] EWCA Viv 2; [1969] 2 WLR agreed with the House of Lords when he said that: “In fraud, the defendant has been guilty of a deliberate wrong By inducing the Plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement.” (emphasis ours) Further, the House of Lords in Smith New Court Securities v.Scrimgeour Vickers [1996] 3 WLR 1051 stated that: “Doyle v. Olby (Ironmongers) Ltd establishes four points. First the measure of damages where a contract has been induced by fraudulent misrepresentation is reparation for all actual damage directly flowing from (i.e. caused by) entering into the transaction’ (emphasis ours) [60] In Smith New Court Securities Ltd v. Scrimgeour Vickers (Asset management) Ltd (supra) the House of Lords held that: “… primary rule was that a victim of fraud was entitled to compensation for all the actual loss, including consequential loss, directly flowing from the transaction induced by the deceit of the wrongdoer. The normal method of calculating the loss caused by the deceit was prima facie the price paid less the real value of the subject matter of the sale as at the date of the transaction or acquisition by the plaintiff.”(emphasis ours) In cases of inducement to purchase property as a result of fraudulent misrepresentation, the measure of damages is prima facie the difference between the price paid and the fair value of the property at the time of purchase. The New Zealand Court of Appeal case of Newark Engineering (N.Z.) Ltd v. Jenkin [1980] NZLR 50 explained this principle of ascertaining the measure of damages when it held that the measure of damages in fraudulent misrepresentation is the difference between the price paid and the fair value at the time of the purchase. To arrive at the fair value of the shares at the time of purchase there must be a valuation of the shares.” [29] Another Court of Appeal in MD Biomedical Engineering (M) S/B v Goh Yong Khai [2021] 6 CLJ 30 in a non-fraud case had also allowed a claim for legal fees incurred to remove and protect the plaintiff’s interests in the land. It was said at page 37: “[28] In Lo Foi v. Lee Ah Hong & Ors (supra) the court there also held “damages under s. 329(1) of the National Land Code must be assessed in accordance with the principles of the laws of torts and that would be the reasonable foreseeability test” and “damages sought for would only be recoverable if they come within the range of damages recoverable in law and secondly, if they are not too remote”. [29] We are in full agreement with the above principles laid down in Lo Foi v. Lee Ah Hong & Ors and applying such principles to the instant appeal, we find that the plaintiff’s sole claim for “total legal fees and disbursements of RM70,000” comes within the meaning of “the tortious damage” and the “foreseeability test” as defined by Lo Foi v. Lee Ah Hong & Ors supra and that the claim for the legal fees is not too remote.” [30] At page 38, paragraph 35, it was found that the payment of legal fees is actual damages suffered by the plaintiff there in that the plaintiff had to incur this sum to remove and protect his interests in the land. [31] Earlier, it was said in page 36: “[26] We are of the considered opinion that the costs of RM5,000 awarded by the High Court when the plaintiff’s application for removal of caveat was allowed by the court on 12 March 2018, is only in respect of the legal costs of that application and does not include the plaintiff’s claim for legal fees and disbursements under this originating summons for assessment of damages.” [32] From the above cases, we find that the principle extrapolated is consistent with the principle on the assessment of damages that compensatory damages should as nearly as possible put the victim in the same position as the victim would have been in, if the tort had not been committed. This is all the more so in cases involving fraud and even in non-fraud cases. This allows the Court to allow legal fees in addition to the costs awarded. Yap Boon Hwa and MD Biomedical Engineering were specific in allowing legal fees. [33] The Plaintiffs here being the victims of fraud are thus entitled to compensation for all the actual loss including consequential loss, which flowed from the fraudulent transactions carried out by the Defendants. This would necessarily legal fees incurred. [34] Here, the legal fees were incurred to defend and protect the Plaintiffs’ interests in their properties. Analysis of the Defendants’ authorities [35] We turn now to the principal authorities relied on by the Defendants. The first case was that of Cockburn where it was said at page 459 and 462: “…The most important point is as to the costs as between solicitor and client. I am of opinion that it is not according to law to give to a party by way of damages the costs as between solicitor and client of the litigation in which the damages are recovered. The law gives a successful litigant his costs as between party and party, and he cannot be said to sustain damage by not getting them as between solicitor and client. I have conferred with my colleagues as to the damages, and we agree to fix them at £10. … As to the extra costs, the damages in an action of tort must have been incurred when the action is brought, except in some cases where they include everything up to the time of trial, and they cannot include any expenses incurred in the action itself. The law considers the extra costs which are disallowed on taxation between party and party as a luxury for which the other party ought in no case to be liable, and they cannot be allowed by way of damages.” [36] The second case was Ross v Caunters (a firm) [1979] 3 All ER 580 at page 601: “It also seems to me that there is ample authority for saying that a successful plaintiff cannot obtain, in the guise of damages, any costs which, on a party and party taxation of costs, are disallowed by the taxing master. It is not enough for the plaintiff to claim that such costs were incurred by him as result of the defendant’s negligence. I think that this is sufficiently established by Cockburn v Edwards. I am saying nothing about damages which fall outside the particular form in which they are claimed in this case, of the writ. It seems to me that both on authority and on principle those legal expenses can be recovered by the plaintiff only as costs, and not in the form of damages. In so far as the plaintiff can persuade the taxing master that the items incurred should be allowed as costs on a party and party taxation, then the plaintiff can recover them; but so far as they are not allowed by the taxing master, then I think that they cannot be recovered in the shape of damages.” [37] It must be noted that both cases involved the negligence of solicitors whereas our case entails that of fraudulent transactions. [38] We are of the considered opinion that Cockburn and Ross which followed it, did not establish any legal principle that limits the Court’s discretion to award legal fees as damages in addition to the costs already awarded. What it did was to state that a party cannot claim for extra costs on a party and party basis. Here, based on the authorities referred to by us, we have earlier found the measure of damages to be on an indemnity basis for a fraud case. [39] Sitti Rajumah & Anor v Mohd. Rafiuddin Elmin [1996] 4 CLJ 274 in fact supports the Plaintiffs’ claim. At page 282, this was what was said: “…It must also be borne in mind that a litigant, unless cost was awarded to him on an indemnity basis, cannot recoup in full what he has to pay his own lawyers but only the costs taxed on a party to party basis. For the respondent to claim from the appellants whatever legal fees he had paid to his lawyer would mean claiming for costs on an indemnity basis which matter should properly come under the claim for costs of the action which the respondent had asked for. In fact he had asked for costs on an indemnity basis which the learned Sessions Court Judge appeared not to have granted since no such order was made and there is no appeal against that order. …” [40] Another case referred to was that of the Singapore Court of Appeal case of Singapore Shooting Association and Ors v Singapore Rifle Association [2020] 1 SLR 395. It was held that legal fees that can be recovered as costs cannot constitute actionable loss or damage in the tort of unlawful means conspiracy. Three reasons were advanced for such a rule, at pages 426 and they were namely: “93 There are three reasons for such a rule. The first is that if legal fees that can be recovered as costs were held to be sufficient to constitute actionable loss or damage in the tort of conspiracy, then, as we pointed out to Mr Wong at the hearing, the result would be that this element of the tort would be satisfied in virtually every case where the litigant pleading conspiracy engages a lawyer. A litigant who mounts a claim in conspiracy and who engages lawyers to assist him in doing so, as will almost invariably be the case, could simply assert that his legal fees were incurred in investigating and/or mitigating the conspiracy so as to establish the loss/damage element of the tort. Costs would simply be characterised as damages. We consider that this too readily dilutes the requirement that a claimant who brings an action in the tort of conspiracy must prove that he has suffered loss or damage as a result of the conspiracy. 94 Our second reason is that allowing solicitors’ fees that are recoverable as costs to be recovered as damages instead would subvert the costs regime put in place to regulate the recoverability of such fees. … … 96 The third reason for the general rule is that there is simply no authority in support of SRA’s contention that the legal fees incurred for the purposes of investigating a conspiracy can constitute actionable loss or damage in the tort of conspiracy. …” [41] We observe in passing, that in that case, the English authorities of Cockburn and Ross, which were relied on by the Defendants, were not referred. The legal fees envisaged there were “the legal fees incurred in investigating, detecting, unravelling and/or mitigating a conspiracy” (paragraph 92, page 425). This appears to be different from the legal fees in our instant appeal. Further, and at the risk of repetition, our case concerns damages on an indemnity basis for a fraud case. Conclusion on legal fees [42] We are thus of the considered opinion that the cases relied on by the Defendants do not assist them. We have relied on high authority in Smith New Court Securities (House of Lords), Doyle (Court of Appeal) and 2 local Court of Appeal decisions in Yap Boon Hwa (fraud) and MD Biomedical Engineering (non-fraud) for the proposition that legal fees are claimable. [43] We add too that this accords with the leading text book Clerk & Lindsell on Torts Twenty-Second Edition at page 54: “General principle. In the majority of torts the claimant must show that the defendant’s wrongdoing caused him actual damage. In these torts, and indeed in torts actionable per se if substantial damages are sought, the claimant must establish that:

the defendant’s conduct did in fact result in the damage of which he complains; and

the damage is not in law too remote a consequence of the defendant’s wrongdoing.” The amounts claimed [44] The amount of SD has been proved where the HCJ had tabulated in the GOJ the items involved. [45] The big ticket item consisted of retainers as tabulated in paragraph 57 of the GOJ, items no 1 to 45 amounting to RM2,345,000.00 (encl. 3/69- 79) and refreshers as tabulated in paragraph 60 of the GOJ, items 1 to to 131 amounting to RM403,000.00 (encl.3/81-127). There was no rebuttal evidence. [46] The HCJ noted in paragraph 65 of the GOJ (encl. 3/128) that: “[65] The legal charges were premised on agreements entered on various dates with the main one on 21.2.2006 (R41 pp 1 to 3) where the fee structure was premised upon a fixed retainer for the recovery of each of the five pieces of properties and refreshers for court attendances with a different rate to apply for a junior and a senior counsel.” [47] It will be noted that in the tables referred to, there was always a cross reference to the aforesaid Letter of Agreement. The Letter of Agreement can be found in encl. 6/9-10. Pursuant to that Letter, the fee structure on retainer and refresher had been set out. [48] With the Plaintiffs’ concession that a sum of RM140,000,00 ought to be deducted, the amount as allowed under this item is RM2,604,000.00. [49] We note that the Defendants have conceded to the HLLB loan item where the SD is RM464,433.16. [50] The claim for travelling expenses tabulated in paragraph 126 of the GOJ, items 1-96 (encl. 3/150-155), are reasonable and not excessive even though there were no receipts produced. It is reasonable to expect the Plaintiffs to travel from Sitiawan to the Ipoh HC and the CA in FC in Putrajaya. [51] The claim for search and miscellaneous expenses have also been tabulated in paragraph 135 of the GOJ, items 1-54 (encl. 3/158-169). [52] We find there was no serious challenge on the amounts. The challenge was towards the pleadings point and the legal point as to whether the legal fees are claimable. [53] On legal fees that were agreed to be paid but have yet to be paid, there was an admission from the Plaintiffs that a sum of RM60,000.00 had been paid. We agree with the HC it suffices the fees had been incurred and agreed to be paid as held in paragraph 88 of the GOJ and in accordance with the Letter of Agreement referred to earlier. Refer further to paragraphs 89-100 of the GOJ. All are to be found in encl. 3/138-141. [54] The appeals on SD are dismissed. We affirm the amount of RM3,135,951.76 as awarded. General damages (GD) [55] We acknowledge that 15 years of litigation, from the HC to the CA to the FC and just when the Plaintiffs thought it was over, 3 review applications and contempt proceedings, would certainly cause mental distress and hardship. [56] Although the claim was filed on 18-8-2006, the saga in fact started when the 1st Plaintiff walked into the 2nd Defendant’s office in 1996 to borrow RM5,000.00 (paragraph 6 of the statement of claim, encl. 3/186). [57] We add that the absence of a medical report is not fatal to the claim. In Sambaga Valli v DBKL [2018] 1 MLJ 784, although the Court did say that “the plaintiff did not produce sufficient evidence such as a medical report” (page 793) nevertheless, the Court went on to award RM500,000.00 as GD. [58] At page 793, this was said: “[16] There is, however, some evidence to establish that the plaintiff had endured hardship when the defendants had wrongly seized her goods in their raid and she had lost her capital and could not pay off her business creditors as the monies loaned were invested in the seized goods. Consequently, the plaintiff was forced to sell her assets, including her car, house and jewellery.” [59] The HC had erred though in finding that the 2nd Plaintiff’s marriage had broken down by reason of the case as the evidence from the former wife showed it was attributed to the assault inflicted on her. [60] Much was made of the fact that in personal injury cases where the sum of GD is generally between RM250,000.00 to RM300,000.00 for a case of quadriplegic and yet here the Plaintiffs were awarded 4 times the amount over someone who is affected by life-long paralysis. We will only say GD is awarded on the merits of the case. [61] Reliance too was placed on Lim Guan Eng v Ruslan bin Kassim and anor appeal [2021] 2 MLJ 541 at page 573: “[182] …Even so, in the most serious cases of defamation in respect of integrity and honour, I cannot imagine general damages to exceed the quantum that is usually awarded in personal injury claims to a claimant who is fully disabled. These injuries are in most cases permanent and irreversible whilst a man’s reputation may be restored and the damage can in some cases be transient in character. [183] Axiomatically, a man who has been defamed cannot be said to be in a worse position than one who has lost the use of vital parts of his or her anatomy. In McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at p 109, Diplock LJ said: ‘I do not believe that the law today is more jealous of a man’s reputation than of his life and limb’. Thirty years later, in John v MGN Ltd [1996] 2 All ER 35 (‘John v MGN’), the UK Court of Appeal, in similar vein, said: It is in our view offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons.” We note this was a defamation case where the considerations may differ. [62] We note too the GD here is in respect of mental distress and hardship. However, we find the amount of RM1 million as GD to be excessive. [63] Relying on the range of RM500,000.00 in Sambaga Valli to RM1 million in Kris Angsana Sdn Bhd v Eu Sim Chuan [2007] 4 CLJ 293, we award RM500,000.00 as being fair and reasonable and considering there are two Plaintiffs here. [64] The appeals are allowed where the amount of RM1 million as GD is varied to RM500,000.00. Exemplary damages (ED) [65] The contention here is that ED was not specifically pleaded. We note in paragraph 9.6 of the statement of claim which we have set out much earlier, it was pleaded that “punitive and exemplary damages to be assessed”. [66] In Sambaga Valli, it was said at page 797 that exemplary damages are awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant’s tortious act; and that ED may be awarded where the defendant has acted with vindictiveness or malice or where he has acted with a contumelious disregard for the right to the plaintiff. Here the conduct of the Defendants prior to and post the 2012 Judgment, would warrant an award of ED. Their conduct falls within those circumstance under which ED could properly be granted. Refer to paragraphs 155-158 of the GOJ (encl. 3/175-176). [67] We however find the amount of RM1 million to be excessive and goes against the established authorities cited. We award RM500,000.00 as a fair and reasonable amount. [68] The appeals are allowed where the amount of RM1 million as ED is varied to RM500,000.00. Pre-judgment interest on GD and ED [69] It was contended that the interest payable on GD and ED should run from the date of judgement and not from the date of filing the writ. This is because the interest is only payable where the principal money had been wrongfully withheld. Reference was made to Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan a/l Kaliannan [2013] 6 MLJ 149. [70] In this regard, we agree with the Plaintiffs that this ground of appeal was not raised in the Memorandum of Appeal dated 6-4-2022 (encl 14) and Supplementary Memorandum of Appeal dated 8-4-2022 (encl 15) and therefore will not be considered. [71] We refer to Joo Seng Trading Co v Commercial Importers and Distributors Sdn Bhd [2007] 4 MLJ 128 where in paragraph 4 it was stated “it would be grossly unfair to counsel for the respondent to have to defend the judgment of the High Court on an unpleaded ground of appeal”. We note the Memorandum of Appeal runs into 14 paragraphs and the Supplementary, a further 11; and both with sub and sub-sub paragraphs. [72] In any event, we find that section 11(1) of the Civil Law Act 1956 (CLA) confers upon the Court the power and discretion to order interest to run from the date when the cause of action arose in an action for damages. This was duly considered by the HC and indeed was ordered as such. The aforesaid provision states: “In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.” [73] In Ritz Garden the majority judgment stated at pages 159 and 160 as follows: “[26] It is trite law that interest is not a punishment but a compensation for the party entitled to the money for being deprived of its use. Salleh Abas FJ (as he then was) sitting as a puisne judge in Trengganu State Economi Development Corporation v Nadefinco Ltd at p 368 opined: Interest is a sum of money representing the return for the use of the compensation for the retention by one person of a sum of money belonging to or owed to another. In essence it is regarded as representing a profit which the other person might have made if he had the use of the money or conversely the loss which he had suffered because he had not that use. In other words interest is a compensation for the deprivation of the use of money, which he is lawfully entitled to (per Lord Wright in Riches v Westminister Bank Ltd). As a result of almost two centuries of development by the common law courts and the courts of equity and also by Acts of Parliament it has now become a settled principle that interest is only payable, where there is an agreement express or implied or where the principal money has been wrongfully withheld or where there is a statute authorising the charging of interest, (per Collin MR in Borthwick v Elderslie SS 27 Halsbury’s Laws of England (3rd Ed), p 8 and per Lord Herschell LC in LCD Rly v SE Rly quoting with approval the judgment of Lord Tenterden in Page v Newman). [27] Based on the order of the learned trial judge the plaintiff was only lawfully entitled to the money after the caveats on the land were removed and not earlier than that. In other words prior to the removal of the caveat he could not say that he had been deprived of the use of the money. As such, with respect, I am of the view that the Court of Appeal has erred when it ordered the interest on the judgment sum to be paid from the date of the writ.” [74] Referring to that aforesaid paragraph 27, this meant there was an express order that the plaintiff there was only entitled to the money after the caveat had been removed. In our case, there was no such specific order as to when the Plaintiffs are entitled to the damages. Absent such a specific order, the HC has the discretion to award interest from the date of filing the writ as per section 11(1) CLA. Conclusion [75] The appeals in relation to SD are dismissed and in relation to GD and ED are allowed to the extent stated above. As the substantial part of the appeals have been dismissed, we award costs of RM10,000.00 for each appeal, to be paid to the Plaintiffs, subject to allocatur. (SEE MEE CHUN) Judge Court of Appeal Malaysia Dated: 21-7-2023 Appeal 236 Counsel for the Appellants: Saw Wei Siang (Michelle Teoh with him) Messrs Nethi & Saw Kuala Lumpur Counsel for the Respondents: Edmund Lim Yun (Hong Chong Hang and Koay Jing Qian with him) Messrs Hong Chew King & Co Sitiawan, Perak Appeal 237 Counsel for the Appellant: Yeoh Cho Keong (Su Keong Siew with him) Messrs KS Su & Mah Ipoh, Perak Counsel for the Respondents: Edmund Lim Yun (Hong Chong Hang and Koay Jing Qian with him) Messrs Hong Chew King & Co Sitiawan, Perak Cases referred to: Asia Commercial Finance (M) Bhd v Kawal Teliti Bhd [1995] 3 CLJ 783 Cockburn v Edwards [1881] Ch 449 Doyle v Olby (Ironmongers) Ltd v Ors [1969] 2 All ER 119 Yap Boon Hwa v Kee Wah Soong [2020] 1 MLJ 37 Smith New Court Securities v Scrimgeour Vickers [1996] 3 WLR 1051 MD Biomedical Engineering (M) S/B v Goh Yong Khai [2021] 6 CLJ 30 Ross v Caunters (a firm) [1979] 3 All ER 580 Sitti Rajumah & Anor v Mohd. Rafiuddin Elmin [1996] 4 CLJ 274 Singapore Shooting Association and Ors v Singapore Rifle Association [2020] 1 SLR 395 Sambaga Valli v DBKL [2018] 1 MLJ 784 Lim Guan Eng v Ruslan bin Kassim and anor appeal [2021] 2 MLJ 541 Kris Angsana Sdn Bhd v Eu Sim Chuan [2007] 4 CLJ 293 Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan a/l Kaliannan [2013] 6 MLJ 149 Joo Seng Trading Co v Commercial Importers and Distributors Sdn Bhd [2007] 4 MLJ 128 Legislation referred to: Civil Law Act 1956, section 11(1) Rules of Court 2012, O.34 r.1 and r.2 Text book referred to: Clerk & Lindsell on Torts Twenty-Second Edition, page 54