Crane One unit x RM120.00 (per lift) x 300 (minimum volume of lift per month) RM36,000.00 Contract Period 5 years Total RM2,160,000.00 RM1,260,000.00 + RM2,160,000.00 = RM3,420,000.00 [51] If one goes by what the Plaintiff had asserted than its loss is RM609,000.00 + RM3,420,000.00 = RM4,029,000.00. [52] The figure does not compute because there had already been a summary judgment entered for the 3 months invoice issued for October to December 2017 for RM143,877.90. [53] The Defendant disputed this method of assessing the so-called loss of the Plaintiff and highlighted the fact that the services for the balance of the Contract period of 5 years after subtracting the first 3 months already invoiced had not been rendered yet. 20 of 30 [54] The Defendant objection is also on the ground of a double claim and an overclaim for not taking the sum already invoiced for which summary judgment had been entered for RM143,877.90. [55] The approach taken here by the Plaintiff in asking the Court to award damages as written down, no doubt in a sworn affidavit, is tantamount to what had been disapproved as a way of claiming damages in Lay Hong Food Corp Sdn Bhd (previously known as Lay Hong Poultry Processing Sdn Bhd) v Tiong Nam Logistics Solutions Sdn Bhd (supra) where it was observed as follows: “[49] It is also to be observed that in making its claim for loss of profits, the plaintiff (TN Logistics) had produced a sheet of paper (see CB Vol 3 at p 503) known as ‘Lay Hong Billing Summary ’in the sum of RM1,555,675.14. This sheet of paper is unsigned. There were no primary documents or audited accounts produced by the plaintiff (TN Logistics) to prove the facts and the amount of the stated sum as loss of profits. Nevertheless, this was accepted by the learned JC as adequate proof of damages for the claim in loss of profits. Edgar Joseph J (as he then was) in his judgment in Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 which has since been adopted by the Court of Appeal and Federal Court observed that this is not the appropriate method in proving of damages when he said the following at pp 366-369: I now turn to consider the crucial question: have the plaintiffs proved their claim for damages as alleged or at all? With regard to this part of the case, I would preface what I have to say by referring to certain well-established principles. 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 21 of 30 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 (see Marzetti v William 109 ER 842). And, where damage is shown but its amount is not proved sufficiently or at all, the court will usually decree nominal damages.” [56] After all, if by compensating the Plaintiff by way of reference to the Contract not having been breached, then the Containers and the Machines should not have been repossessed but that they should still be available to the Defendant to use and that because of the breach, the Defendant would now have to, on the pain of execution, pay the whole of the 5-year rentals in advance. [57] However, here the Plaintiff wanted to have the best of both worlds: to take back possession of the Containers and the Machines and at the same time sue to recover what it could have obtained from the Defendant in terms of the rentals for the 5-year period of the Contract. [58] The Plaintiff must elect what is it that it wanted: to sue and recover now the damages based on the unexpired amount that it would have collected had the Contract run its course or sue for loss of profit and repossessed the items in the 10 Used Containers and the Machines. It cannot have the cake and eat it. It cannot have the best of both worlds. [59] One can analogise it with the same principle as enunciated in construction claims where the party suing for damages for breach has to elect between claiming for a loss of profit or for wasted expenditure. 22 of 30 [60] In Delpuri-Harl Corp JV Sdn Bhd v Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24, the Court of Appeal explained as follows: “[62] It is also trite that in the event of a breach of contract by a defaulting party, the claimant may either claim for his loss of profits or for his wasted expenditure. However, the claimant must elect either of them and cannot claim for both. In Anglia Television Ltd v Reed [1971] 3 All ER 690, Lord Denning MR in his judgment said: … It seems to me that a plaintiff in such a case as this had an election: he can either claim for his loss of profits; or for his wasted expenditure. But he must elect between them. He cannot claim both. If he has not suffered any loss of profits — or if he cannot prove what his profits would have been — he can claim in the alternative the expenditure which has been thrown away, that is, wasted by reason of the breach. That is shown by Cullinane v British 'Rema' Manufacturing Co Ltd [1953] 2 All ER 1261 1264; [1954] 1 QB 292 1265, at 303, 308. [63] The above passage was followed with approval in Ismail v Haji Taib [1972] 1 MLJ 259 (FC) (per Suffian FJ, as he then was) and recently in the Court of Appeal decision in National Land Finance Co-Operative Society Ltd v Westingmont Holdings Sdn Bhd [2014] 1 AMCR 485 at p 499 (see also the Court of Appeal decision in Ban Chuan Trading Co Sdn Bhd v Ng Bak Guan [2004] 1 MLJ 411; [2004] 1 AMR 81).” [61] In the absence of evidence as to what the Plaintiff had done with respect to the 10 Used Storage Containers and the Machines, it would not be for us to speculate on its losses. [62] What we can say with certainty, in the circumstances of this case and the evidence adduced, is that the Plaintiff had not proved its loss of 23 of 30 RM3.6 million calculated based on the full 5-year term of the Contract at the agreed rates of rentals for the 10 Used Storage Containers and the Machines. [63] Moreover, credit must be given to the fact that the rentals for the first 3 months of the Contract had already been granted in the Summary Judgment that was entered. [64] The Plaintiff had failed to prove its loss of RM3.6 million as damages that it obtained from the High Court on appeal from the Registrar’s decision. Whether the award of RM100,000.00 by the Registrar as nominal damages is reasonable and right in the circumstances of the case [65] The Plaintiff, in its two Affidavits filed in support of its application for assessment of damages and in reply to the Defendant’s opposition, had averred to its loss consisting of the whole amount of rentals it would have collected if the Contract had been performed to completion for the entire 5-year period. [66] To begin with that cannot be right because the Plaintiff had already claimed for the amount it had invoiced for October to December 2017 and for which Summary Judgment had been entered. [67] There is also the element of costs that the Plaintiff would have incurred had it been required at its end to fulfill its obligation had the Defendant not defaulted. 24 of 30 [68] With respect, the learned High Court Judge had overlooked the fact that the Plaintiff had taken possession of the Used Storage Containers and the Machines in the forklift and the crane soon after the Defendant defaulted in payment in January 2018. The Plaintiff had been silent when it had every opportunity to speak up and say what it did to the items repossessed. [69] These are items that appear to be in great demand where the Plaintiff’s business is concerned because in its two quotations we read the common refrain in Clause 2.2 that “Upon confirmation of this quotation and the availability of equipment; a minimum 3 weeks shall be allowed for preparation before delivering to destination.” (emphasis added) [70] As was perceptively pointed out by the learned Registrar in his brief Grounds of Judgment at paragraph 26, these Containers and Machines are not custom-made or designed specially for the Defendant only. From the photographs exhibited of these items, they appear to be generic and common enough, the Containers being 20 feet long. [71] The Plaintiff had not led any evidence on its costs in this Contract and this is not a case where the Plaintiff had stated that there is no costs involved. [72] Where there is loss or damage suffered but the party claiming has failed to prove the damages, then only nominal damages would be awarded. [73] The Federal Court in Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLS 99 at page 100 enunciated this principle as follows: 25 of 30 “The respondent, as plaintiff, of course had to discharge the burden of proving both the fact and the amount of damages before he could recover. Where he succeeded in proving neither fact nor amount of damage he must lose the action or, if a right was infringed, he would recover only nominal damages. Where he succeeded in proving the fact of damage, but not its amount, he would again be entitled to an award of nominal damages only. This statement of the law is concisely stated in Mayne & McGregor on Damages (12th Ed.) para 174……” (emphasis added) [74] The learned Registrar had awarded RM100,000.00 as nominal damages. We are rather uncomfortable in calling such a substantial amount as “nominal”. Generally, the term “nominal” means minuscule or small in terms of amount or just a token sum. [75] In Beaumont v Greathead (1846) 2 CB 494 at 449, Maule J described nominal damages as 'a sum of money that may be spoken of, but that has no existence in point of quantity'. Often nominal damages are referred to as a token sum awarded where the amount could be small or miniscule (see Sapwell v Bass [1910] 2 KB 486). [76] However a sum of RM100,000.00 as nominal damages for breach of contract is not without precedent as can be seen in the case of Delpuri-Harl Corp JV Sdn Bhd v Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24 where the Court of Appeal explained as follows: “[71] As the appellant had failed to elect to claim either for loss of profits or for wasted expenditure only, and the claim being bad for uncertainty in the circumstances, we decided to award the sum of RM100,000 which sum included the sum of RM70,575.45 assessed by DW1, as nominal damages to the appellant. This is on the basis that this court recognises the fact that the appellant did suffer some loss as a result of the wrongful termination. 26 of 30 [72] As for nominal damages they are said to be 'a sum of money that may be spoken of, but that has no existence in point of quantity' as held by Maule J in Beaumont v Greathead (1846) 2 CB 494 at 499. [73] A token sum is usually awarded for nominal damages and the amount could be small or miniscule. Just like sixpence in Feize v Thompson (1808) 1 Taunt 121; a farthing in Mostyn v Coles (1862) 7 H & N 872 and a shilling in Sapwell v Bass [1910] 2 KB 486. [74] Undoubtedly, the cases cited above were decided in England in yester years. However, today it is not uncommon for nominal damages to be awarded in Malaysia in the thousands of ringgit, depending of course on the circumstances of the case. And in the case of Tahan Steel Corp Sdn Bhd v Bank Islam Malaysia Bhd [2012] 2 MLJ 314 (CA), my learned brother Justice Mohd Hishamudin had occasion to say that the learned trial Judge was correct in awarding nominal damages of RM50,000 in the circumstances of that case. [75] Where it is clear that the appellant had failed to furnish credible evidence to prove the amount of damages it claimed to have suffered but where it is equally clear that the appellant did suffer some loss and damage, then it will be an appropriate case for the court to award nominal general damages (see Lee Sau Kong v Leow Cheng Chiang [1961] 1 MLJ 17 per Thompson CJ). CONCLUSION [76] In the result, the court held that while the unilateral termination of the contract by the respondent was unlawful, the quantum of damages awarded to the appellant would only be in the sum of RM100,000 as nominal damages as the appellant had failed to prove its loss of profits or the wasted expenditure. We also award interest at the rate of 5%pa on the said sum, the interest to run from 24 September 2008 (ie the date the cause of action arose) until date of realisation.” (emphasis added) 27 of 30 [77] In Tahan Steel Corp Sdn Bhd v Bank Islam Malaysia Bhd [2012] 2 MLJ 314 the Court of Appeal did not disturb the award of nominal damages granted by the learned trial Judge though it observed that the sum was rather generous as follows: “[49] The appellant/plaintiff is appealing against the award of nominal general damages in its favour amounting to RM50,000. Although this award is in favour of the appellant/plaintiff, nevertheless, the appellant/plaintiff is aggrieved by this award on the ground that this sum is manifestly inadequate. It is the contention of the appellant/plaintiff that the award of damages should not have been nominal; it ought to have been substantial. [50] In the statement of claim, although there is a prayer for general damages (see para 33(10)), there is, however, no prayer that the damages be assessed at a later stage by a separate inquiry (be it by the trial judge or by a registrar); nor did the appellant/plaintiff ask either at the trial or in submission before the High Court that the general damages be assessed at a later stage. [51] Needless to say that the burden of proof on the issue of quantum lies on the appellant/plaintiff. [52] In my judgment, the learned trial judge was correct in awarding only nominal general damages of RM50,000 (which, I think, is a generous sum, considering that it is meant to be only nominal). This is because having examined the evidence it is clear to me that the appellant/plaintiff had failed to furnish clear evidence as to the amount of damages that it suffered. It is true that the learned trial judge, in her grounds of judgment, after having quoted what Thomson CJ (as he then was) in Lee Sau Kong v Leow Cheng Chiang [1961] MLJ 17 at p 20, said: Guided by the same case, though I know that the plaintiff would suffer damages resulting from the defendant's breach, the assessment of damages is virtually impossible.” (emphasis added) 28 of 30 [78] We too, would not disturb this generous sum of RM100,000.00 as nominal damages though we would not be comfortable to call it “nominal” but just “damages”. [79] When one looks at the amount of gross revenue that could have been derived from the completion of the 5-year Contract of RM4,029,000.00 before factoring in the costs element and further when one looks at the rental to be collected, say for 1 year for the 10 Used Containers which seem to be items with little maintenance costs, the rental would come up to about RM121,800.00 (RM4,900 X 12 + RM5,250 X 12 = RM121,800.00). [80] Assuming that it would take about 1 year to let out the 10 Used Storage Containers the amount of RM100,000.00 after taking into consideration some costs element does not appear to be unreasonable or excessive bearing in mind to the hassle of removing the 10 Used Storage Containers and the Machines and the time, costs and expense in finding a new customer who may need the same items. [81] We are constrained to set aside the award of RM3.6 million as awarded by the learned High Court Judge. With the greatest of respect to the learned High Court Judge, we are of the view that there was a lack or an absence of judicial evaluation of the facts and evidence before her. As such, the learned High Court Judge had erred in awarding the damages as claimed by the Plaintiff. The Federal Court in the case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 explained the principle governing appellate intervention as follows: 29 of 30 “14. In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase 'insufficient judicial appreciation of evidence' merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, ie that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test.” (emphasis added) [82] It was held by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at p 617 as follows: “In effect the court, before it interferes with an award of damages, should be satisfied that the judge had acted on the wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.” (emphasis added) [83] After having carefully considered the appeal before us, we were satisfied that the above tests for an appellate intervention have been met and that the learned High Court Judge had erred in applying the law to the facts of the case, which warranted an appellate intervention. [84] We had therefore allowed the appeal of the Defendant/Appellant and we set aside the order of the High Court in awarding damages of 30 of 30 RM3.6 million together with interest and costs. The order of the Registrar was affirmed. [85] We also ordered costs of RM10,000.00 to the Appellant subject to allocator. Dated: 30 August 2021. Sgd. LEE SWEE SENG Judge Court of Appeal Malaysia For the Appellant: Jastina binti Mohd Junus Chambers of Jastina Mohd Junus (Butterworth) For the Respondent: Ng Kok Chong Messrs Wong & Loh (Pulau Pinang) Date of Decision: 22 February 2021.