HIGH COURT (KUALA LUMPUR)
LIZA CHAN SOW KENG JC
CIVIL SUIT NO WA-22NCC-623-11 OF 2019
14 August 2022
GROUNDS OF JUDGMENT (3)Introduction
[1] Pursuant to the Plaintiffs’ application in Enclosure (“Enc.”) 203, I had assessed damages at sum of RM225,477.73. These are the reasons for my decision.Background
[2] Owing to the non-compliance of the discovery order made on 25.8.2021, an “Unless Order’ in the terms as contained in Enc. 176 was made on 21.9.2021 against the 1st Defendant’s representative to be complied with by 30.9.2021. The disobedience of the “Unless Order “resulted in judgment being entered on 18.10.2021 against the 1st Defendant on terms as follows:
- (i)That the Order obtained on 21.5.2019 by the 1st Defendant in Kuala Lumpur High Court Originating Summons No. WA- 24NCC-134-03/2019 is declared to have been obtained by fraud and/or dishonesty by the 1st Defendant;
- (ii)That the Order obtained on 21.5. 2019 by the 1st Defendant in Kuala Lumpur High Court Originating Summons No. WA- 24NCC-131-03/2019 is impeached and set aside in totality and High Court Originating Summons No. WA-24NCC131-03/2019 is struck off and/or set aside in totality;
- (iii)The 1st Defendant’s action of filing the High Court Originating Summons No. WA24NCC-131-03/2019 amounts to an abuse of process and struck off and/or set aside;
- (iv)General damages to be assessed against the 1st Defendant;
- (v)Interest to accrue at the rate of 5% per annum on such damages as may be assessed and awarded by this Honourable Court from the date of Judgment till the date of full and final settlement of the same;
- (vi)1st Defendant to pay costs of RM75,000 to the Plaintiffs subject to allocator;
- (vii)1st Defendant to pay costs of RM30,000 to D2 subject to allocator; and
- (viii)1st Defendant to pay costs of RM40,000 to D3 subject to allocator.
[3] The reasons for allowing the discovery application, the background leading to the filing of this suit, the nature of the Plaintiffs’ suit have been set out in my first grounds of judgment – see Sitrac Corporation Sdn Bhd & Anor v Dato’ Syed Hamzah bin Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 8 MLJ 43; [2021] 1 LNS 1740. The reasons for making the ‘Unless Order’, its non-adherence leading to judgment being entered against the 1st Defendant were set out in Sitrac Corporation Sdn Bhd & Anor v Dato’ Syed Hamzah bin Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 10 MLJ 900; [2022] 2 CLJ 641.
[4] The 1st Defendant has since appealed against the decision of this Court in making the order for discovery, the ‘Unless Order’ and Judgment entered on 18.10.2021. These 3 appeals were pending hearing before the Court of Appeal when the Plaintiffs’ filed Enc. 203 on 11.11.2021 for assessment of damages pursuant to the judgment dated 18.10.2021.
[5] The parties agreed that assessment would proceed by way of affidavits.
[6] As the 1st Defendant’s solicitors have discharged themselves pending hearing of Enc. 203, the 1st Defendant was granted an extension of time during case management on 12.1.2022 to file his affidavit in reply to the assessment of damages by end February 2022, but did not do so. Instead on 29.3.2022, the 1st Defendant filed 2 applications respectively for extension of time to file an affidavit in reply and to stay the assessment of damages pending hearing of the above appeals. The assessment of damages was derailed pending the hearing of these 2 applications. Both applications were subsequently dismissed as this court found there were no material before the court that constituted cogent reasons warranting the exercise of discretion by the court in the 1st Defendant’s favour, whether for extension of time or for a stay of the assessment of damages.