XXXX v 1. ) Group Components Automotive Sdn. Bhd. (BA-22NCVC-141-03/2016)

1.

KEJURUTERAAN EMAS SDN BHD … PLAINTIFF AND PERUSAHAAN OTOMOBIL NASIONAL SDN BHD … DEFENDANT JUDGMENT [1] The present appeal before me is in respect of an award of damages order dated 28.2.2020 by the learned Senior Assistant Registrar (SAR) at the end of an assessment of damages proceedings. [2] Under the above Order, the SAR had awarded a sum of RM3,489,402-15 together with interest at the rate of 5% per annum from 28.2.2020 to the date of full realization. This appeal concerns both the 1st and 2nd Defendants only (the Defendants). Brief Facts concerning the present appeal [3] The Plaintiff filed the Writ and the SOC on 08.03.2016 praying for inter alia, general damages as pleaded in paragraph 24 of the Statement of Claim. [4] On 25.01.2017, a Consent Judgment was recorded by parties before this Honourable Court for, inter alia, general damages to be assessed before the Senior Assistant Registrar (“SAR”) and paid by the Defendants to the Plaintiff. [5] On 28.02.2020, the SAR allowed the Plaintiff’s Assessment of Damages Application in the sum of RM 3,489,402.15 (“the said Judgment Sum”) against D1 and Defendan Kedua with costs of RM 2,000.00 and interest of 5% on the said Judgment Sum from 28.02.2020 until full settlement, under the following heads of damages: Heads of Damages Sum (RM) a) Toolings fabrication costs paid to Paragon 691,650.00 b) Toolings modification costs paid to HIL 52,576.00 c) Price difference for parts supplied by Paragon 119,467.47 d) Price difference for parts supplied by HIL 6,819.67 e) Claim by Grand Carpet Industries 53,889.01 f) Liquidated Ascertained Damages (LAD) Charges 2,565,000.00 TOTAL : 3,489.402.15 [6] Dissatisfied with the decision of the SAR, the 1st and 2nd Defendant appealed against the aforesaid decision to the Judge in Chambers. The Appellant’s Grounds of Appeal [7] In respect of the appeal, the Defendants took the position that the appeal against the decision of the Senior Assistant Registrar (SAR) was by way of a re-hearing of the Plaintiff’s application. In this regard, the Defendants’ grounds for disputing the award by the SAR are as follows:

The SAR had no power to grant LAD as the Consent Judgment dated 25.01.2017 only provides for general damages to be assessed and nothing else;

(ii) Even if the decision to award LAD was correct (which the Defendants denies), the Plaintiffs had failed to prove their losses as required under Section 75 of the Contracts Act 1950.

(iii) The LAD which was calculated based on the daily production report makes no reference to both Defendants. In this case the delay in production was not attributable to the Plaintiffs but by other suppliers such as HIL, Paragon & Grand carpet Industries. This makes the calculation of the LAD errorneous.

(iv) There is a waiver of the LAD charges by the Plaintiffs against both Defendants as the Plaintiffs had not imposed LAD on previous occasions. The Plaintiffs cannot approbate and reprobate as and when they deem fit.

There was also a delay by the Plaintiffs in ordering the toolings.

(vi) There was no necessity for the Plaintiffs to fabticate new toolings;

(vii) There was failure by the Plaintiffs to mitigate their losses. The Plaintiffs loss was also a result of their own wrongful conduct in failing to follow their own SOP.

(viii) The Plaintiff should not be allowed to take advantage of the situation by claiming excessive damages and/or unrelated expenses. Legal Position [8] Firstly, it must be borne in mind that the purpose of awarding damages is to restore the plaintiff back to the position he would have been if not for the wrongful action of the defendant. In other words, the damages to be awarded must not be seen to enrich the plaintiff. [9] Secondly, it is trite law that appellate intervention in relation to the issue of assessment of damages is warranted when it is proven that the damages awarded is: a. made in error upon acting on the wrong principle of law; b. based on a misapprehension of facts that led to an erroneous estimate. [10] This was clearly expounded in the case of Milik Perusahaan Sdn Bhd v Kembang Masyur Sdn Bhd (2003) 1 MLJ 6 where the Court of Appeal laid down the approach to be taken by the High Court in an appeal from the decision of the Registrar after an assessment of damages in the following passage: “We are equally unable to detect any error in the approach adopted by the learned judge. He treated the matter as coming before him not for the first time, but as an appeal on findings of fact. He was entirely correct in doing so. That is the approach which commended itself to Cross J in DoCarmo v Ford Excavation (1981) 1 NSWLR 409, where at p 420 he said this: In my view a similar approach should indeed must be adopted where the Master’s decision is brought on appeal to a single judge. It follows that in such an appeal, if no fresh evidence is called to warrant a departure from a master’s primary findings of fact, those findings of fact are binding on the court hearing the appeal unless those findings, or the inferences drawn from them, are so flawed as to attract the approach taken in Warren v Coombers 1679 52ALJ 293. In my view this is the manner in which I must approach the findings of fact by the learned Master in the present case”. [11] In Keith Port Sdn Bhd v Pemunya Kapal ‘Shema’ [2010] 6 MLJ 88, Nallini Pathmanathan J (now FCJ) stated as follows: “[12] I am mindful that as this is an appeal, I am bound not to interfere lightly with the findings of fact of the learned registrar, who had the opportunity and advantage of seeing and reviewing firsthand the content and credibility of the witnesses (see Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1993] 1 MLJ 113; [1993] 2 CLJ 146 citing the judgment of Lord Guest in Tay Kheng Hong Heap Moh Steamship Co Ltd (1964) MLJ 87; (1964) 1 LNS 202; also Setapak Height Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ 131 ; [2006] 2 CLJ 337)”. [12] As an award of damages is an exercise of judicial discretion, it should not be disturbed by the court hearing the appeal unless where there is clear error on the principles of law or the amount is erroneous and without any basis or justification (see Pal Associates Sdn Bhd v The Syndicate of the Press [2014] 10 MLJ 728). Analysis [13] Having reviewed the 3 voluminous submission of the Defendant’s (see Enclosure 126, 131 and 163), I find that the issue raised by the Defendants unmeritorious. I conclude say as I found no errors by the SAR as she had acted on the correct principles of law relating to an assessment of damages exercise. Similarly, I find no misapprehension of facts by the SAR which had led to erroneous estimate of the damages suffered by the Plaintiffs. [14] In light of my above findings, no appellate intervention is warranted in so far as the Defendants appeal is concerned. In the upshot, I hereby dismiss the Defendants’ appeal against the award of damages by the learned SAR. Cost to be awarded [15] With reference to legal cost, having heard brief submissions by parties, I am only awarding a nominal sum of RM1,000-00. In ordering so, I took the view that this appeal is a re-hearing of the issues ventilated before the SAR. Hence, much of the getting up had already been done at the assessment stage and had been replicated for purposes of this appeal. I also took the view that the award of damages in the sum of approximately RM3.5 million ordered to be paid against the Defendants is no meagre amount. In light thereof, this Court find its unnecessary to impose further hardship on the Defendants by ordering a high amount of costs to be paid by them to the Plaintiffs. I order so accordingly. Dated 6th April 2022, ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) HAKIM MAHKAMAH TINGGI MAHKAMAH TINGGI MALAYA DI SHAH ALAM Solicitors for the Appellants : Shearn Delamore & Co, 7th Floor, Wisma Hamah Kwong Hing, No.1, Leboh Ampang, 50100 Kuala Lumpur. No.Tel : 03-20272921. (No.Ruj : SD (DR)4099131 (KSM)) Solicitors for the Respondents: Tetuan Tarmizi Marzuki & Sulaiman, No.2C, Tingkat 3, Blok 2, Worldwide Business Park, Jalan Tinju 13/50, Seksyen 13, 40675 Shah Alam, Selangor. No.Tel : 03-55111230 (No.Ruj:TMS-SA/LIT/446- 12/2021/GCA)