Goh Ah Thiam v Cimb Bank Berhad (No. Syarikat. 13491-P) (22-569-2009)

CIMB BANK BERHAD (NO. SYARIKAT. 13491-P) (DAHULU DIKENALI SEBAGAI SOUTHERN BANK BERHAD) …DEFENDAN

BOO CHOON KOOY …PIHAK KETIGA PERTAMA

MAGGIE CHAN GAN …PIHAK KETIGA KEDUA

TETUAN OOI WENG HOOI & COMPANY …PIHAK KETIGA KETIGA GROUNDS OF JUDGEMENT Introduction [1] The plaintiff filed a Notice for Assessment of Damages dated 22/08/2019 via enclosure 86 pursuant to the amended Judgment dated 06/01/2016 (“Judgment”) to have the damages suffered by the 2 plaintiff, caused by the breach of undertaking and negligence of the defendant as adjudged by this Court, assessed and quantified by the learned Deputy Registrar (“DR”). [2] After the hearing of enclosure 86, on 18/12/2020, the learned DR ordered and certified, as follows: - “(i) Defendan diperintahkan membayar kepada plaintif wang berjumlah RM5,583,000.00 berserta faedah 4% setahun dikira dari tarikh guaman difailkan, dan faedah 5% setahun dikira dari tarikh penghakiman (09/11/2015) sehingga penyelesaian penuh jumlah taksiran;

(ii) Defendan diperintahkan membayar kepada plaintif wang berjumlah RM28,500.00 sebagai gantirugi khas iaitu kos bagi penyediaan Laporan Penilaian; dan

(iii) Kos sejumlah RM5,000.00 sebagai tindakan ini.” [3] The defendant being dissatisfied with the learned DR’s decision, filed a Notice of Appeal to Judge In Chambers on 28/12/2020

failure to register the 1st Discharge of Charge;

(ii) failure to inform the defendant of the non-registration of the 1st Discharge of Charge;

(iii) failure to enter a caveat against and/or maintain a caveat on the Agri-Land; and

(iv) failure to register the transfer of the Agri-Land. [11] Thereafter, third party proceedings were filed by the defendant against PK 1, PK 2 and PK 3 for indemnity and contribution on the grounds that any loss and damage suffered by plaintiff were caused by the act of PK 3 and/or misrepresentation or fraud by PK 1 and the PK 2. The third parties then filed their respective Defences. [12] At the trial, the issues agreed for determination between the plaintiff and the defendant were as follows: -

whether the Defendant had acted in breach of the Undertaking by executing the 2nd Discharge of Charge for PK 1 and PK 2 which facilitated the transfer of the Agri-Land to the Company;

(ii) whether the defendant was negligent by executing the 2nd Discharge of Charge for PK 1 and PK 2 when the documents stated in the Undertaking had been delivered to PK 3 on 15/04/2003 after the payment of the redemption sum for the Agri-Land by the plaintiff; 5

(iii) whether the plaintiff had suffered loss and damage because of the execution of the 2nd Discharge of Charge for PK 1 and PK 2 by the defendant;

(iv) in the event the plaintiff had suffered loss and damage, whether the plaintiff was guilty of contributory negligence in respect of the loss and damage; and

whether the defendant was under a duty to execute the 2nd Discharge of Charge for PK 1 and PK 2 when the Agri-Land had been fully redeemed. [13] After trial, on 09/11/2015, this Court allowed the plaintiff’s claim against the defendant with costs and also held that the defendant’s claim against the PK 1 and PK 2 be allowed with costs, whereas the claim against PK 3 was dismissed with costs. [14] In the Grounds of Judgment, the Learned Judge found that the defendant had breached the Undertaking and ruled that the defendant was negligent in its failure to make the necessary inquiry as to the whereabouts of the documents stated in the Undertaking. The Learned Judge in conclusion held that the defendant was liable to plaintiff for the loss and damage and that the negligence of the defendant had caused the loss of the Agri-Land to the plaintiff. [15] The defendant’s appeal to the Court of Appeal and application for leave before the Federal Court were both dismissed. 6 Enclosure 86 [16] At the hearing of enclosure 86, the defendant took the position that the plaintiff was not entitled to claim for the loss of the Agri-Land because of the Judgment dated 19/05/2010 in Suit No. 22-631- 2003, had the effect of extinguishing the plaintiff’s rights and/or interest over the Agri-Land. [17] The defendant further contended that, if at all the plaintiff were entitled to any loss and damage, the plaintiff’s claim was confined to the return of the redemption sum of RM478,600.00 paid under the Undertaking. The defendant also contended that the valuation of the Agri-Land given by the plaintiff was too high. Suit No. 22-631-2003 [18] The defendant did not plead in their Defence, of any issues relating to Suit No. 22-631-2003 and the Judgment dated 19/05/2010, nor raise the alleged effect of the said Judgment in extinguishing the right and interest of plaintiff to the Agri-Land. [19] Nevertheless, the Writ and Statement of Claim for Suit No. 22-631- 2003 and the Judgment dated 19/05/2010 were both tendered by the defendant during trial and marked as exhibits. Findings [20] Having considered all the relevant cause papers and the submissions of the parties, both written and oral, together with the 7 authorities cited, I find that there is no merit in the defendant’s appeal, for the reasons explained hereinafter. Issue Estoppel and Res Judicata [21] I find the stand taken by the defendant during the hearing of enclosure 86 to be an afterthought and designed to avoid paying damages to the plaintiff, albeit liability has been conclusively established against the defendant after the trial. [22] The hearing of assessment of the damages is essentially an extension and/or the second part of the trial process. The issue of liability has already been established at trial and affirmed during the appeal. [23] No fresh pleadings are filed to either establish or deny liability for the hearing assessment of the damages. The affidavits filed and the cross examination of witnesses in respect of the hearing of enclosure 86 are strictly in respect assessment of damages. And, the parties are bound by the pleadings filed and used during the trial at the hearing assessment of the damages. [24] It is also pertinent to note that the defendants did not file any application to amend their defence before the hearing of enclosure

The defendant relied on the very same Defence that was canvassed during the trial. [25] Hence, at the hearing for the assessment of damages, the plaintiff is required to prove his losses based on his pleadings in the 8 Statement of Claim, and the defendant is entitled to challenge or dispute the losses in accordance with the pleaded defences. [26] In Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944, Ramly Ali FCJ, delivering the judgment of the Federal Court, held, “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). In Blay v. Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: "Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment." “[30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v. Yong Chan [1974] 1 LNS 178; [1974] 1 MLJ 157, had also pointed out that "as the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered" (see also: Haji Mohamed Dom v. Sakiman [1955] 1 LNS 26; [1956] MLJ 45; and Kiaw Aik Hang Co Ltd v. Tan Tien Choy [1963] 1 LNS 59; [1964] MLJ 99). 9 [32] Based on the above observation and principle, we are of the view that the "last minute" issue raised by Mr Gobind Singh Deo, co-counsel for the appellant, that at the time when the sale and purchase agreements with the earlier purchasers were executed, MPM was not the registered proprietor/owner of the land must be disregarded and not to be considered at all in determining the appeal before us. In doing so, we adopt the observation by HRH Raja Azlan Shah CJ (as HRH then was) in KEP Mohamed Ali v. KEP Mohamed Ismail [1980] 1 LNS 169; [1981] 2 MLJ 10: As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the Defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be a great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. [33] The issue raised, if accepted, would completely change the character of the appellant's defence to the respondent's claim and would be highly prejudicial to the respondent's case. [34] For the purpose of the present appeal, we will only consider the pleaded case of the parties before us. To borrow the words of Gopal Sri Ram JCA in Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v. Capital Insurance Bhd [2004] 1 CLJ 357, "... once a defendant takes that course, he must stand and fall on his pleaded case; we cannot simultaneously put forward an unpleaded case..."” [Emphasis added] [27] Therefore, at the hearing of assessment of damages, the defendant cannot put forward issues that are not pleaded in their Defence i.e., relating to Suit No. 22-631-2003, the Judgment dated 19/05/2010, 10 as well as the alleged effect of Judgment dated 19/05/2010 on the right of the plaintiff to the Agri-Land. Once the defendant has taken a particular stance in its Defence, it is not open for the defendant to change its position or put forward a new defence that was never pleaded. [28] Further, the defendant took the stand during trial that if any action on the part of the defendant had resulted loss and damage to the plaintiff, such action of the defendant was caused by the conduct of PK 3 and/or misrepresentation of PK 1 and PK 2. [29] In this regard, since the defendant’s claim against PK 1 and PK 2 by way of third party proceedings was allowed, the defendant is to proceed to execute against PK 1 and PK2. However, this does not in any way absolve the defendant’s liability to pay the plaintiff. [30] Additionally, as the issues pertaining to Judgment dated 19/05/2010 are not pleaded in its Defence, the defendant is estopped from raising the same during the hearing of Enclosure 86. [31] This is because, although the issues in relation to Suit No. 22-631- 2003 and Judgment dated 19/05/2010 are not pleaded in the Defence, and despite the Writ and Statement of Claim for Suit No. 22-631-2003 and Judgment dated 19/05/2010 were tendered in evidence during the trial, it was held that the defendant was negligent in the execution of the 2nd Discharge of Charge and that such act of the defendant effectively caused the loss of the Agri-Land to the plaintiff. 11 [32] In Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783, Peh Swee Chin SCJ, delivering the judgment of the Supreme Court, stated, “On the other hand, the issue estoppel literally means simply an issue which a party is estopped from raising in a subsequent proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in law a lot more ie. that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties. This sounds like explaining a truism, but it is the corollary from that statement that is all important and that could have given birth to the controversies alluded to above; the corollary being that neither of such parties will be allowed to adduce evidence or advance any argument to contradict such decision. In this respect, we respectfully agree with Peter Gibson J in Lawdor v. Gray [1984] 3 All ER 345, 350 who said: “Issue estoppel... prevents contradiction of a previous determination, whereas cause of action estoppel prevents reassertion of the cause of action”.” [Emphasis added] [33] The Supreme Court also referred to the case of Hoystead v. Commissioner of Income Tax [1962] AC 155, wherein the Privy Council, inter alia, held, “though in previous litigation, no express decision was given whether the daughters were such joint owners, it being assumed and admitted they were; the admission that they were joint owners having been fundamental to the previous decision, the Commissioner was estopped from asserting before the Judicial Committee that the daughters were not joint owners.” 12 [34] Hence, since the Writ and Statement of Claim for Suit No. 22-631- 2003 and Judgment dated 19/05/2010 were in evidence during trial, it can be safely assumed that these issues were considered and rejected not only at the trial, but also during the appeal in the Court of Appeal and at the hearing of the leave application at the Federal Court. [35] Accordingly, it would be res judicata for the defendant to raise issues in relation to Suit No. 22-631-2003 and Judgment dated 19/05/2010 at the hearing of enclosure 86. [36] Similarly, the defendant cannot now avail itself of the same issues during this Appeal in respect of enclosure 86. [37] In Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57, Gopal Sri Ram JCA (as his Lordship then was) delivering the judgment of the Court of Appeal, said, “If authority is needed for the proposition which has commended itself to us, it is to be found in Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 which was drawn to the attention of counsel during argument and in which there appears the following passage in the judgment of Sharma J (at p 76): In Satyadhyan Ghosel & Ors v Sint Deorajin Dobi and another AIR 1960 SC 941, the statement of the law on the subject is given thus: 'The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a resis judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter – whether on a question of 13 fact or a question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle ofres judicatais embodied in relation to suits in s 11 of the Code of Civil Procedure; but even where s 11 does not apply, the principle of res judicatahas been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.' A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Pearethv Marriott (1883) 22 Ch D 182, Hookv Administrator-General of Bengal & Ors LR 48 IA 187 and Re Trusts of the Will of Tan Tye (Deceased) Yap Liang Neov Tan Yew Ghee and Another [1936] MLJ 141 at pp 147—151) .Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. 14 (See Louis Dreyfusv Aruna Chalayya LR 58 IA 381).' (Emphasis added.) A failure to adhere to the principle expressed in the judgment of Sharma J just quoted may lead to chaos in the conduct of civil proceedings.” [Emphasis added] [38] Thus, I am unable to agree with the contention of the learned counsel for the defendant that the assessment of damages is a separate matter from the trial and as such the defendant could raise the issues relating to Suit No. 22-631-2003 and Judgment dated 19/05/2010 during the hearing of enclosure 86. [39] The principle of res judicata applies equally to the two stages of the case i.e., the trial and the consequential hearing of assessment of damages. Hence, the defendant cannot raise for a second time in the same suit an issue or matter that has already been considered and determined either expressly or by necessary implication. Assessment of Damages [40] In the Judgment, the order granted by the Learned Judge for damages to be assessed is as follows: - “Gantirugi untuk kemungkiran akujanji dan kecuaian oleh Defendan ditaksirkan oleh Penolong Kanan Pendaftar” 15 [41] In Voo Nyuk Fah & Anor v Lam Yat Kheong & Anor [2012] MLRA 164, the Court of Appeal, held, “[5] It is trite law that the task of taking of accounts and assessment of damages is 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. [6] 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 [1987] 2 MLRH 578; [1988] 2 MLJ 672 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. ". " [Emphasis added] [42] Therefore, in order to succeed in his claim for damages equivalent to the market value of Agri-Land, the burden of proof is on the 16 plaintiff to establish that he suffered loss as a result of the defendant’s caused by the breach of undertaking and negligence in executing the 2nd Discharge of Charge. [43] In the instant matter, the Learned Judge had, in respect of the Undertaking dated 14/03/2003, ruled that the defendant acted negligently and in breach of the duty towards the plaintiff. The Learned Judge also expressly held that by reason of the defendant’s breach of duty imposed by the Undertaking dated 14/03/2003 and its negligence, the plaintiff suffered the loss of the Agri-Land. [44] Additionally, the Court of Appeal agreed with the said finding of facts of the Learned Judge by attributing the loss of the Agri-Land by the plaintiff to the negligent act of the defendant. [45] In Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ (Rep) 635, Edgar Joseph Jr J (as his Lordship then was), stated, “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. Thus nominal damages may be awarded in all cases of breach of contract. (See Marzetti v. Williams [1830] 1 B & Ad 415. And, where damage is shown but its amount is not proved sufficiently or at all, the Court will usually decree nominal damages. See, for example, Dixon v. Deveridge [1825] 2 C & P 109 and Twyman v. Knowles [1853] 13 CB 222. 17 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 [1938] 2 All ER 788, 796 per Atkinson J). A case which affords an illustration of the requirement of reasonable certainty in this area is Ashcroft v. Curtin [1971] WLR 1731 (CA) in which the plaintiff claiming for diminution of profits of his one man business failed in his claim even though the evidence pointed to a decrease in the company’s profitability due to the injury, the records produced being too rudimentary and the accounts too unreliable to quantify the loss. So also when, as here, the claim is for the difference between the contract price and a clear and undoubted market price, absolute certainty in proving damages is possible and therefore the Court will expect precise evidence to be given. (See para. 345 McGregor on Damages, 15th Edn.).” [Emphasis added] [46] Thus, in light of the specific finding of facts by the Learned Judge that the negligence of the defendant had caused the loss of the Agri-Land by the plaintiff, I hold that the plaintiff has proven the fact of damages (liability) against the defendant. As such, the assessment of the damages pursuant to the Judgment would be in respect of the loss of the Agri-Land caused by the negligence of defendant. [47] Hence, I find the defendant’s contention at the hearing of enclosure 86, that the plaintiff was not entitled to claim the loss of the Agri-Land without basis and is contrary to the specific finding of facts made by the Learned Judge and affirmed by the Court of Appeal. 18 [48] As such, since the liability of the defendant has already been established, the other issue for determination is damages and quantum for the plaintiff’s loss of the Agri-Land. Quantum of Damages [49] The object of assessment of damages is, as far as possible, to put the plaintiff in the position, by means of monetary award, which he would have occupied if not for the wrong of the defendant, be that in tort or a breach of contract. [50] In general, damages and/or loss ought to be assessed at the date of the Judgment, i.e., 09/11/2015. [51] And, in light of the Judgment that the defendant is liable to the plaintiff for the loss of the Agri-Land, I hold that the open market value of the Agri-Land would be the appropriate quantum for the loss suffered by the plaintiff. [52] The plaintiff procured two valuation reports by AJC Property Surveyors Sdn Bhd dated 09/12/2019 (“AJC”) and VPC Alliance (Pg) Sdn Bhd dated 07/08/2020 (“VPC”), in respect of the market value of the Agri-Land. [53] AJC and VPC valued the Agri-Land as at 09/11/2015, at RM5,583,000.00 and RM5,700,000.00, respectively. [54] The defendant also produced a valuation report by C H William Talhar & Wong Sdn Bhd dated 17/07/2020 (“CHW”), which states the market value of the Agri-Land as at 09/11/2015, to be RM5,000,000.00 19 [55] Having perused all the 3 said valuation reports, albeit all the valuers have adopted the comparable methods in coming to their conclusion, I agree with the submissions of the learned counsel for the plaintiff that the Valuation report by CHW did not give reasons for their opinion. [56] CHW did not indicate how the value of the Agri-Land was determined, save by merely referring to a few comparables. CHW have not shown the necessary adjustments by taking into account pertinent factors such as time, size, location and ownership of the comparables vis a vis the Agri-Land. [57] On the other hand, the valuation reports of AJC and VPC, have made the necessary adjustments by considering relevant factors such time, size and location of the comparables, as compared to the Agri-Land to form the opinions in their respective reports. [58] In view of inadequate information in the valuation report by CHW, very little evidential value can be attached to the same. Hence, the valuation reports of AJC and VPC are to be preferred in assessing damages. [59] Thus, I find that the learned DR did not err in the assessment of damages as the sum of RM5,583,000.00 is based on the market value of the Agri-Land. In this aspect, the valuation report of AJC and VPC have shown the market value of the Agri-Land on 09/11/2015 to be RM5,583,000-00 and RM5,700,000-00 respectively and the learned DR had accepted the lower sum of RM5,583,000-00 as the market value of the Agri-Land. 20 [60] Further, I find that the learned DR was correct in assessing the market value of the Agri-Land as at the date of Judgment as the loss suffered by the plaintiff and also in awarding RM28,000.00 as special damages being the cost of the valuation reports. Conclusion [61] For the reasons stated above, I am satisfied that there is no error committed by the learned DR in his approach in assessing damages payable by the defendant to the plaintiff under enclosure 86. [62] As such the decision of the learned DR is affirmed and the defendant’s appeal is dismissed with costs of RM10,000.00, subject to the payment of allocatur. Dated: 5th October 2021 (GEORGE VARUGHESE) Judicial Commissioner High Court Penang 21 For the Plaintiff: M.Y. Tung [Messrs Tung Chan & Partners] For the Defendant: Ghazi Ishak (together with Jeyasingam and Nurul Ishtar) [Messrs Ghazi & Lim]