XXXX v 1. ) XXXX (21NCVC-15-04/2014)

The present proceedings before me is an exercise to assess damages suffered by the Plaintiff as a result of the Defendant’s termination of the agreement entered into by both parties 31/10/2022 09:07:57 21NCVC-15-04/2014 Kand. 258

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. Under common law is, where a party sustains loss by reason of a breach of contract, as far as damages is concerned, he is to be placed in the same situation, as if the contract had been performed in so far as money can do it, (see Robinson v Harman (1848) 1 Exch 850 at 855). The court’s primary duty, is to compare the claimant’s present position with the position he would have been in had the defendant performed as required, and to compensate the claimant accordingly.

Secondly, in claiming special damages, such claim must be pleaded, particularized and proved be it by oral or documentary evidence (see ABDA Airfreight Sdn Bhd v Sistem Penerbangan Malaysia Bhd [2001] 8 CLJ 1). The burden of prove based on the balance of probabilities lies on the Plaintiff as held in Sam Wun Hong v Kader Ibramshah [1981] 1 MLJ 295 (supra) and in Sathisvaran a/l Candrasegaran v Afilan a/l Vanmugelan [2012] 4 MLJ 548.

Thirdly, 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 or extremely inconsistent with discernible trend; (see Pal Associates Sdn Bhd v The Syndicate of the Press [2014] 10 MLJ 728).

Fourthly, a Plaintiff must mitigate his damages. Failure to do so will be to the Plaintiff’s detriment. the Plaintiffs’ have a duty to mitigate damages as held in Kassim Kasmani v The Official administrator & Anor [1991] 2 CLJ 800. This existence of this duty to mitigate can also be seen in the case of Gleneagles Hospital SB v Chung Yu Chin [supra].

Last but not least, a party claiming damages bears the burden of proving the actual loss suffered as well as the principle that failure to do so will render that party an award of nominal damages only (see Majlis Amanah Rakyat & Anor v Mat Nawi bin Awang and another appeal [2017] 1 MLJ 500).

The Plaintiffs were traders licensed by Majlis Perbandaran Petaling Jaya at Block A Kompleks Muhibbah which stood on Lot 54759, Pekan Baru, Sg.Buloh, Daerah Petaling (“the Land”) until vacant possession was handed over to the 1st Defendant for the construction of the Klang Valley Mass Rapid Transit project (“MRT Project”).

The 1st Defendant is a company duly incorporated in Malaysia and was appointed by the Government of Malaysia as the developer as well as the project and asset owner of the Sungai Buloh-Kajang Line (“the SBK Line”) of the MRT Project.

For the purposes of the SBK Line, a part of the Land had to be acquired for use as part of the SBK Line. However, since the Land 5 at the material time was state land, no compulsory acquisition of the Land was required for it to be used as part of the SBK Line.

As the traders operating in Block A and other stall owners in other parts of the Land affected by the Land affected by the SBK Line were trading on land owned by the state, the issue of obtaining vacant possession of the Land in order to commence work was handled by the Selangor State Government, in particular, the Petaling District Land Office (“PTD”).

After a series of meeting between the effected traders which include the Plaintiffs and the SBK Line stakeholders, the Selangor State Government and the Plaintiffs reached an amicable solution resulting in the execution of settlement agreements between the effected traders (which included the Plaintiffs) and the PTD.

It was decided by the Selangor state authorised that a total sum of RM 8,128,187.00 being administrative payment would be paid by / or on behalf of PTD as full and final compensation to the affected traders.

On or about April 2013, by way of execution of settlement agreements, each traders signed off for their allotted share of the administrative payment with an undertaking amongst others that they agree that the buildings and structures occupied by them namely Block A and the affected stalls in Kompleks Muhibbah on the Land will be demolished, and that they will not object and / or make any further claims on the Land (“Settlement Agreement”).

On 15.04.2013, the 1st Defendant was handed possession of the Land to commence work, including, inter alia, the demolition of the buildings and structures on the Land to facilitate the SBK Line construction.

On 21.02.2014, the required construction works in respect of the SBK Line on the Land was completed and the 1st Defendant had by way of its letter dated 26.02.2014 to MBPJ handed back the Land (less the area of the land required to continue construction of the SBK Line) to MBPJ.

Notwithstanding the unequivocal terms of the Settlement Agreements, on 11.02.2014, the 1st Defendant received a letter of demand dated 07.02.2014 from the Plaintiffs’ solicitors demanding amongst others for the Plaintiffs’ original place of trade and further alleging that the 1st Defendant had given an undertaking that it will return the site as it originally was after 8 months for the traders to continue their business.

The 1st Defendant replied to the Plaintiffs by way of its letter dated 21.03.2014 stating amongst others that there were no such undertakings and / agreements between the Plaintiffs and the 1st Defendant and that the 1st Defendant is not the rightful party for the purposes of the Plaintiffs’ claim.

The Plaintiffs have now filed this suit amongst others, against the 1st Defendant praying amongst others for: - a) Exemplary damages for the sum of RM 10,000,000.00; b) Special damages if RM 2,005,741.20 as at 16.03.2014; c) General damages to be assessed; 8 d) An order compelling the Defendants to prepare and deliver an alternative trading site for the Plaintiffs’ consideration.

The Plaintiff’s claim went through the motion of a full-blown trial. Finally, on 18.05.2018, Justice Wan Ahmad Farid made the following orders:

the Plaintiff’s claim against the 4th Defendant is allowed;

(ii) the 4th Defendant’s counterclaim against the Plaintiff is dismissed; and

(iii) for damages to be assessed. [20] Proceedings for assessment of damages commenced by way of a Notice of Appointment for Assessment of Damages dated 01.02.2019 filed by the Plaintiff’s solicitors. [21] Thereafter, the 4th Defendant filed the following applications:

Enc. 188 - application for discovery wherein they requested for:

the Plaintiffs’ LHDN statement for the year 2010-12012 and 2014;

the Plaintiffs’ bank statements for 2012 and 2013; and

receipts for zakat payment (if any) for 2010 to 2013.

(ii) Enc. 190 - application to cross examine all deponents who will be affirming the Plaintiffs affidavits for purposes of the assessment proceedings. [22] Both Encs 188 and 190 was dismissed by the Deputy Registrar. This prompted an appeal by the 4th Defendant to the Judge in Chambers. On 27.08.2021, Judicial Commissioner Khairil Azmi Mohammed Hasbie allowed the appeal. [23] Thereafter, the assessment proceedings commenced before me wherein the Plaintiff called three (3) witnesses only. PLAINTIFF’S CLAIM FOR DAMAGES: [24] The Plaintiffs claim for damages are as follows: Plaintiff’s Witness No 54 a) An exemplary damages amounting to RM 10,000,000.00 is allowed to be distributed equally to the 82 Plaintiffs who have borne the hardships of life so far b) Plaintiff have lost an income of RM 211,874.00 for (8) months) for the stall numbered M6 and the average amount of loss: RM 211,874.00 / 8 months = RM 26,484.25 c) Plaintiff’s loss of income is calculated from 16.12.2013 until the filing date which is 25.04.2014. The counting period is approximately 4 months and as follows: RM 26, 484.25 x 4 months = RM 105,937.00 d) The Plaintiff is also entitled to the arrears amounting to RM 2,005,741.20. Aside, the Plaintiff is also entitled to receive interest at the rate of 5% per annum starting from 16.12.2013. e) The Plaintiff is also entitled to receive general damages for the hardship experienced by the Plaintiff as well as the difficulty of living safely for a period of 49 months. General damages can be claimed for an amount of business loss starting from the filing date of this action which is on 25.04.2014 until the date of the decision given by the Court which is on 14.05.2018. The Plaintiff has borne losses due to loss of business opportunities amounting to RM 1,905,181.20. Plaintiff’s Witness No 70 a) The Plaintiff lost an income of RM 143,600.00 for (8) months) for Stalls numbered 162 (J) and 202 and the average amount of loss: RM 143,600.00 / 8 months = RM 17,950.00 b) The loss of income is calculated from 16.12.2013 until the date of filing which is 25.04.2014. The counting period is approximately 4 months and as follows: RM 17,950.00 x 4 months = RM 71,800.00 c) The Plaintiff’s losses continued for 49 months and amounting to: RM 143,600.00 / 8 months = RM 17,950.00 x 49 months = RM 879, 550.00 Plaintiff’s Witness No 74 a) The Plaintiff have lost an income of RM 311,050.00 for (8) months for Plots numbered 203, 225 and 250 and the average amount of loss: RM 311,050.00 / 8 months = RM 38,881.25 b) The loss of income is calculated from 16.12.2013 until the date of filing which is 25.04.2014. The counting period is approximately 4 months and as follows: RM 38,881.25 x 4 months = RM 155,525.00 c) The Plaintiff’s losses continued for 49 months and amounting to: RM 311,050.00 / 8 months = RM 38,881.25 x 49 months = RM 1,905,181.20 Summary of the Plaintiffs submissions [25] The foundation of the Plaintiffs’ claim rest on the ‘Jadual Bayaran Pampasan’ (Compensation Schedule’ (exhibit P-2). [26] According to the Plaintiffs:

(i)

(ii) In this regard the Plaintiff must be placed in the correct and appropriate position in the event there was no breach of contract; and

(iii) In so far as the losses suffered by the Plaintiffs are concerned, the KPTG had already considered matters such as moving cost, temporary rental, lost of business and damage to assets during relocation suffered by the Plaintiffs. [27] Based on the above, the Plaintiffs are claiming:

Exemplary damages in the sum of RM10 million;

(ii) Special damages in the sum of RM2,005,741-20;

(iii) Interest at the rate of 5% calculated from 16.12.2013 to the date of full realization; and

(iv) General damages. [28] In so far as the special damages claimed, the Plaintiff contends as follows: a) For the loss of income calculated from the date of re-entry which should be on 16.03.2013 until 16.03.2014 which is for three (3) months inter alia; b) The total income of the Plaintiffs for one (1) month is RM 907,067.00 per month. Subsequently, the three (3) months in arrears before the filing of the suit is three (3) months thereby bringing a loss of RM 2,721,201.00 and further rounded up to the amount stated in the Statement of Claim with a total of RM 2,005,741.20; c) Based on the above formula, the Plaintiffs is seeking for a sum of RM 2,721,201.00 for loss of income (RM 907,067.00 X 3 months). [29] The Plaintiffs further contend that the 4th Defendant should have allowed re-entry to the business site after the eight (8) months as agreed and promised. [30] In its claim for general damages, the Plaintiff is claiming for losses based on the number of months the 4th Defendant denied the Plaintiffs rights to run their business i.e. 88 months. In view of this fact, the Plaintiffs contend that they have surpass the ‘remoteness of damages’ test and are therefore entitled to the sum claimed. [31] Under the heading of exemplary damages in the sum of RM10 million, the Plaintiff took the position that they fulfill the criteria as set out in Rookes v Barnard [1964] 1 All ER 367 (reliance also placed on the COA case of Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784). [32] According to the Plaintiffs, the Defendants had failed to challenge the evidence adduced vide its three (3) witnesses that the Defendant had with ‘a contumelious disregard’ of the Plaintiffs’ rights. Summary of the 4th Defendants submission [33] From my reading, the essence of the 4th Defendant’s submissions are as follows:

the document known as ‘Jadual Bayaran Pampasan’ prepared during the Land Acquisition process does not constitute actual proof of the losses suffered by Plaintiff No. 54 (Mohd Nor), Plaintiff No. 70 (Azizan Zahari) and Plaintiff No. 74 (Mohd Kamal).

(ii) the non-production of income documents pursuant to the Encs. 188 and 190 is fatal to the damages claim;

(iii) the Plaintiffs’ failure to pay income tax disqualifies them from pursuing the claim for damages;

(iv) the Plaintiffs’ agreement to accept the compensation given out under Enc. 64 which states that the payment from the State Government as full and final settlement of all compensation claims means that they are estopped from pursuing the claim for damages herein;

the Plaintiffs have failed to prove their losses;

(vi) the failure of the rest of the Plaintiffs to present evidence of their losses is fatal to them;

(vii) the Plaintiffs claim for exemplary damages is misconceived as the facts of the present case does not fall under any of the categories which could attract an award for exemplary damages; and

(viii) at best, the Plaintiffs are only entitled to nominal damages at RM500-00 per person. Court’s analysis on the Plaintiff’s heads of claim [34] Firstly, despite successfully obtaining judgment against the 4th Defendant in so far as liability is concerned, only three (3) out of the eighty-nine (89) Plaintiffs testified at the assessment proceedings. The Plaintiffs took the position that the testimony of the three (3) Plaintiffs was sufficient to represent the remaining Plaintiffs. I must state that this contention is wrong and misconceived. Without the testimony of the rest of the Plaintiffs, it would not be possible for this Court to make an assessment of the damages suffered by the rest of the 78 Plaintiffs. In concluding so, I am bound by the Court of Appeal decision in Bounty Dynamics Sdn Bhd (formerly known as Media Development Sdn Bhd) v Chow Tat Ming & 175 Ors [2016] 1 MLJ 507, which stated as follows: “[57] On the issue whether there was an agreement at case management stage to limit the number of witnesses for the respondents to two principal witnesses, we had studied the records and it would appear that there was such an agreement. Counsel for the respondents had reinforced this argument by highlighting to us that on the same basis, it was agreed that the decision in Suit No 145 was to bind Suit No 308. This agreement, to our minds, would only make some sense on the assumption that the alleged misrepresentations in the brochures, SPAs, and the newsletters acted uniformly on the minds of the purchasers. It would therefore appear that this assumption must have been implicit in the common understanding to limit the number of witnesses. Nevertheless, given our decision on the other legal issues, particularly on the issue of limitation, it no longer became important to decide whether by limiting the number of witnesses for the plaintiffs/respondents to two principal witnesses, the respondents had in fact adduced sufficient necessary and relevant evidence to establish misrepresentation and breach of contract, since misrepresentation would act differently on the minds of each of the 175 purchasers.” [35] Secondly, having considered the evidence adduced by Plaintiff nos. 50, 70 and 74, I am constraint to hold that the Compensation Schedule relied upon by each of the three (3) Plaintiff is insufficient to prove losses and the amount of damages sought. This is more so in light of their admissions that the compensation given to them was calculated without the need for them to prove their losses. [36] Thirdly, I agree with the 4th Defendant’s submission that the fact that there were no bank statements furnished by the Plaintiffs to show prove of their monthly income during the material period of time operates against them. [37] Fourthly, I agree with the 4th Defendant that the Plaintiff’s admission that they do not pay income tax in many ways operates against them from claiming damages in the amount of RM312,000-00 (for Plaintiff no. 54), RM216,000-00 (for Plaintiff no. 70) and RM465,000 (for Plaintiff no. 74) as held in KTL Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 and Palaniappa Chettiar v Arunasalam Chettiar [1962] MLJ 143. [38] Fifthly, I am constraint to hold that Settlement Agreement wherein each of the Plaintiffs herein received a lump sum administrative payment from the Government by a large extent prevents them from receiving any additional compensation. Even if they are entitled to such compensation as claimed, the sum received must be paid back to the Government. [39] My finding on this issue finds support within the four (4) corners of the offer for settlement itself. It is therefore imperative for me to re-produce the contents of the letter at this stage (see exhibit P-64 as an example): “Adalah saya selaku Penolong Pentadbir Tanah dengan ini menawarkan pembayaran secara pentadbiran…(selepas ini disebut sebagai “Bayaran Secara Pentadbiran”) atas syarikat pihak tuan yang menduduki Tanah Tersebut bersetuju menerima tawaran tersebut sebagai penyelesaian keseluruhan dan muktamad… Bayaran Secara Pentadbiran ini adalah bayaran keseluruhan dan muktamad bagi apa-apa dan semua bantahan atau tuntutan yang dibuat atau bakal dibuat berhubung pengosongan Tanah tersebut, termasuklah tetapi tidak terhad kepada apa-apa bantahan atau tuntutan yang tuan/puan timbulkan atau bakal timbulkan di bawah sebarang undang-undang pun. … Jika bagi apa-apa sebab yang mengakibatkan pampasan (award) adalah diberikan kepada tuan/puan di dalam proses pengambilan Tanah tersebut atau tuan/puan adalah dibayar apa-apa amaun (termasuklah apa-apa kos atau perbelanjaan terangkum)…tuan/puan hendaklah membayar pampasan atau amaun tersebut kepada kami di dalam tempoh 7 hari dari tarikh tuan/ puan menerima bayaran pampasan atau amaun tersebut.” [40] As all three (3) Plaintiffs appearing before me had admitted to accepting the offer for settlement, I find that they are estopped from receiving further compensation. [41] Based on my findings as stated in paragraphs [34] to [40] above, I can only conclude that the Plaintiffs have failed to prove the amount of losses suffered by them. Under these circumstances, all that they are entitled to is nominal damages. Despite the 4th Defendant’s submission that the Plaintiffs that appeared in the assessment proceedings are only entitled to RM500-00 as nominal damages (reliance placed on the Court of Appeal decision in Sony Electronics

(M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 2 MLJ 229), I take the view that an amount of RM1,000-00 would be reasonable and appropriate to reflect the current economic climate (bearing in mind that the decision in Sony Electronics (supra) was delivered more than 15 years. [42] On the issue of general damages claimed by the Plaintiffs, I again hold the view that such claim is contrary to the terms of the offer of settlement received by the Plaintiffs from the Government. [43] On the Plaintiff’s claim for exemplary damages, I agree with the 4th Defendant’s submission that the Plaintiffs cannot rely on the “kepayahan, kesengsaraan, kesusahan dan kesulitan” suffered by them (see paragraph 38 of Enc. 242) as a basis to seek exemplary damages. [44] As propounded in the celebrated case of Rookes v Barnard (supra), there are only two (2) categories of cases that would attract an award of exemplary damages namely:

Where there are oppressive, arbitrary or unconstitutional actions by servants of the government (to my mind, the 4th Defendant clearly does not fall within this category);

(ii) Where the Defendant’s conduct was calculated to make a profit for himself in excess of any compensation payable (I find no evidence adduced by the Plaintiffs to show that the 4th Defendant had acted with vindictiveness or malice or with a contumelious disregard for the rights of the Plaintiffs). Cost to be awarded [45] With reference to legal cost, despite the Plaintiffs failing to prove the amount of damages claimed, this Court in exercise of its discretionary powers is incline to award cost in the Plaintiffs’ favour. I do so take into account the long-protracted proceedings that the Plaintiffs had to go through before the present case concluded by way of the assessment exercise before me. Compared to the 4th Defendant which is a money-making corporation, almost all of the Plaintiffs are self-employed. I take the view that they should not be penalize for their failure to prove damages due to their failure to produce income tax documents and bank documents in support of their claim. Under these circumstances, I take the view that a sum of RM10,000-00 to the Plaintiffs (subject to allocator) is reasonable towards costs of proceedings and order so accordingly. Dated 26th October 2022, ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) HAKIM MAHKAMAH TINGGI MAHKAMAH TINGGI MALAYA DI SHAH ALAM Solicitors for the Plaintiffs: Tetuan A.M.Zaharil & Co, No.2, Villa Damansara, Jalan Camar 4/21, Seksyen 4 Kota Damansara, 47810 Petaling Jaya, Selangor. No.Tel : 03-61561002/ 03-74973552. (No.Ruj: AMZ/LIT/ZBZ&81ORS/10/2015) Solicitors for the Defendants: Tetuan Chong & Kheng Hoe, A-3-3-6, Block A3, Solaris Dutamas 1, Jalan Dutamas 1, 50480 Kuala Lumpur.