1. ) AWA NEW PARTS SDN BHD 2. ) YIP WAI KEAN 1. ) WINSTON CHIN WENG FAI 2. ) FONG MIN YI 3. ) KHU WENG SHEN 4. ) NG CHUN KIT 5. ) CARSTO GARAGE SDN BHD

WA-12ANCC-77-08/2024 Kand. 26 19/03/2025 14:39:09 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL APPEAL NO: WA-12ANCC-77-08/2024 BETWEEN 1. AWA NEW PARTS SDN BHD (Company No. 202001015085/1371405-U) 2. YIP WAI KEAN (NRIC No. 801208-05-5247) ... APPELLANTS AND 1. WINSTON CHIN WENG FAI (NRIC No. 881008-08-5313) 2. FONG MIN YI (NRIC No. 980225-10-6874) 3. KHU WENG SHEN (NRIC No. 970722-10-6497) 4. NG CHUN KIT (NRIC No. 950120-14-6389) 5. CARSTO GARAGE SDN. BHD. (Company No.: 202201046511/1492208U) ... RESPONDENTS IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CIVIL SUIT NO.: WA-B52NCC-1314-05/2023 BETWEEN 1. AWA NEW PARTS SDN BHD (Company No. 202001015085/1371405-U) 1 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2. YIP WAI KEAN (NRIC No. 801208-05-5247) ... PLAINTIFFS AND 1. WINSTON CHIN WENG FAI (NRIC No. 881008-08-5313) 2. FONG MIN YI (NRIC No. 980225-10-6874) 3. KHU WENG SHEN (NRIC No. 970722-10-6497) 4. NG CHUN KIT (NRIC No. 950120-14-6389) 5. CARSTO GARAGE SDN. BHD. (Company No.: 202201046511/1492208U) ... DEFENDANTS JUDGMENT Introduction [1] Before the court is an appeal by the Appellants against the decision of the learned Sessions Court Judge (“SCJ”) dated 12.8.2024, allowing the Respondents' application for assessment of damages under Order 37, Rule 1 of the Rules of Court 2012 (“ROC”) in Enclosure 38. The total damages awarded were RM196,260.81, including costs of RM2,000. The Appellants submit that the learned SCJ erred in law and fact in allowing the Respondents' application for assessment of damages. 2 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Background Facts [2] The Appellants, AWA New Parts Sdn Bhd and Yip Wai Kean, commenced a suit against the Respondents for, among other things, breaches of fiduciary duties alleging that the Respondents (including former directors and employees) had conspired to establish a competing business, diverted customers, and caused financial losses. [3] On 23.6.2023, the Appellants applied for an interim ex-parte injunction under Enclosure 5 to restrain the Respondents from entering or using the Appellants' business premises located at Lot 37079, Jalan 10/118B, Desa Tun Razak, 56000 Kuala Lumpur (“the premises”) and from removing any equipment or inventory pending the resolution of the main action. [4] In the Affidavit in Support of the injunction application, the Appellants gave an undertaking as to damages at paragraph 28, stating: “Saya mengatakan bahawa Plaintif- Plaintif adalah sanggup mengakujanji terhadap gantirugi sekiranya diarahkan oleh Mahkamah Yang Mulia ini.” [5] On 5.7.2023, the court granted the Appellants' application for an interim ex-parte injunction. This injunction was in force until 26.10.2023, when following a change of solicitors by the Appellants, their new solicitors requested to withdraw the interim injunction order, which the court granted with liberty to refile afresh. 3 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal [6] Following the withdrawal of the injunction order, on 15.11.2023, the Respondents filed an application under Order 37 Rule 1 ROC in Enclosure 38 for directions for the assessment of damages against the Appellants. [7] On 12.8.2024, the Sessions Court awarded damages in favour of the Respondents as follows: a) Rental for premises: RM96,645.01 b) Employee salaries: RM74,615.80 c) Compensation for the loss of use of a vehicle (VDK9): RM25,000 d) Costs of RM2,000 The Application [8] The Appellants appealed against the learned SCJ's decision dated 12.8.2024 allowing the Respondents' application for assessment of damages. The Appellants contend that the learned SCJ erred both in law and fact by allowing the assessment of damages application without a judgment or final order against them, by bypassing the mandatory requirements under Order 37 Rule 1 ROC, by failing to properly evaluate the evidence on causation and quantum, and by allowing damages that duplicate those 4 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal claimed in the Respondents' counterclaim in the main action. Respective Parties' Submissions [9] The Appellants submit that the Respondents have no right to file Enclosure 38 without any prior judgment or order directing damages to be assessed; that the Respondents failed to comply with the mandatory requirements under Order 37 Rule 1 ROC; that there was insufficient evidence of causation and quantifiable loss; that the Respondents failed to mitigate their losses; and that the damages awarded duplicate those already claimed in the counterclaim, which should be conclusively disposed of only after a full trial on the merits. [10] The Respondents contend that there is no requirement in law for a specific judgment or order directing an assessment of damages before they could file Enclosure 38; that they did comply with Order 37 Rule 1 ROC by filing their application within the prescribed time; that they provided sufficient evidence to prove their losses through contemporaneous documents; that they did take reasonable steps to mitigate their losses; and that there is no prejudice to the Appellants as the Respondents have given an undertaking not to seek the same damages during trial if they are awarded in the interlocutory assessment. 5 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Analysis and Findings of the Court Whether a Judgment or Order is Required Before Assessment of Damages [11] The Appellants argue that assessment of damages can only take place when there is a prior judgment or order stating that damages need to be assessed, and they contend that the withdrawal of the injunction with liberty to refile does not constitute such a judgment or order. [12] The Respondents counter that case law has established that there is no requirement for a specific order for assessment of damages to be given before such assessment can be initiated, as the undertaking as to damages when applying for an injunction is sufficient basis for the subsequent assessment. [13] I have carefully considered both arguments and find that the learned SCJ was correct in her decision. The learned SCJ rightly referred to the case of Kenwood Electronics v Profile Spec (No 2) [2007] MLJU 923 (High Court), where it was held: “[9] The fact that the court made no specific order for assessment of damages after submissions were made does not absolve the plaintiffs from honouring the undertakings they have given for the injunctions. The trial of the action was not to determine whether the undertaking is to be honoured, but to determine the merits of the plaintiffs' action. The court, in this case, did not 6 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal order that the undertaking need not be honoured, but merely remained silent on the occasion of giving judgment upon the merits of the action.” [14] Similarly, in Jaks Island Circle Sdn Bhd v Star Media Group Bhd [2020] 1 CLJ 839 (High Court), the High Court rejected the argument that a defendant could not move for assessment of damages until after the conclusion of arbitration proceedings, holding that postponing such assessment would “set a dangerous precedent that there is no pain in providing an undertaking to make good losses suffered by the defendant until the final outcome is realised.” [15] The Appellants' reliance on Tan Kim Hai and Sons Enterprises Sdn Bhd v Tam Kim San and Sons Sdn Bhd [1996] 5 MLJ 593 (High Court) is misplaced. In that case, the plaintiff discontinued the action because it had become academic, which is materially different from the present case where the Appellants deliberately withdrew their injunction application. The discontinuance in Tan Kim Hai was not a defeat or an acknowledgment of likely defeat, whereas the withdrawal of the injunction in the present case effectively released the Respondents from the restraint imposed upon them, acknowledging that the injunction was no longer sustainable. 7 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal [16] The proper approach, as affirmed by the Federal Court in GS Gill Sdn Bhd v Descente, Ltd [2010] 5 CLJ 613, is that “whether an inquiry as to damages should be ordered lies with the discretion of the trial judge.” In exercising this discretion, the learned SCJ was entitled to find that the undertaking as to damages given by the Appellants when obtaining the ex-parte injunction was sufficient basis for the assessment of damages, particularly when the injunction was later withdrawn at the Appellants' own request. [17] Furthermore, it is noteworthy that during the withdrawal proceedings on 26.10.2023, the Respondents' counsel explicitly reserved their right to seek damages, stating: “Setuju tetapi tertakluk kepada kerugian yang dialami semasa permohonan exparte injunksi diberikan.” The court acknowledged this by recording: “Sila failkan permohonan lanjut berkaitan gantirugi jika perlu.” This clearly demonstrates that both the court and the parties contemplated the possibility of an assessment of damages following the withdrawal of the injunction. [18] I therefore find that the learned SCJ did not err in allowing the Respondents' application for assessment of damages without a prior judgment or order specifically directing such assessment, as the undertaking given by the Appellants when obtaining the injunction was sufficient basis for the assessment. 8 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Compliance with Order 37 Rule 1 ROC [19] The Appellants contend that the Respondents failed to comply with the mandatory requirements under Order 37 Rule 1 ROC, particularly by not filing an application for directions within 30 days from the date of judgment and by failing to obtain leave before filing the notice of appointment for assessment. [20] The Respondents argue that they did comply with Order 37 Rule 1 ROC by filing Enclosure 38 within one month of the withdrawal of the injunction on 26.10.2023, and that they sought the court's directions during the case management on 1.12.2023. [21] Upon careful consideration of the facts and the applicable law, I find that the learned SCJ was correct in dismissing the Appellants' objections on this ground. The learned SCJ properly considered that the Respondents had filed Enclosure 38 on 15.11.2023, which was within the one- month period from the withdrawal of the injunction on 26.10.2023. This compliance with the time requirement is the essence of Order 37 Rule 1(1). [22] While Order 37 Rule 1 requires an application for directions, the Respondents did effectively seek directions from the court during the case management on 1.12.2023, where both parties agreed to proceed by way of affidavit evidence and the court gave appropriate directions for the filing of 9 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal affidavits and written submissions. As correctly noted by the learned SCJ at paragraph 63 of her grounds: “Plaintif pada masa yang sama telah bersetuju dengan taksiran ganti rugi melalui memfailkan afidavit dan maklum tentang arahan Mahkamah. Pihak Plaintif semasa pengurusan kes tidak membangkitkan sebarang bantahan dan oleh sebab itu, tidak wajar membangkitkan bantahan lagi pada peringkat ini.” [23] The cases cited by the Appellants, such as JMB Silver Park Resort v Silverpark Sdn Bhd & Anor [2015] 1 LNS 980 (High Court), Mat Jim bin Wahab v Nagasteel Equipment Sdn Bhd & Anor [2018] 11 MLJ 324 (High Court), and Tetuan Sri Ling & Associates v Lian Meng Wah [2015] 3 CLJ 63 (Court of Appeal), are distinguishable from the present case. In those cases, there were significant delays in filing the applications for assessment of damages (ranging from several months to years), whereas in the present case, the Respondents filed their application within the prescribed one-month period. [24] Furthermore, in Azlindah Bakar v Effendy Abdul Hak [2022] 1 LNS 236 (High Court), the court held that there is no legal need for a “Notice Minta Arahan” to be filed before “Notis Temujanji bagi Taksiran Gantirugi” pursuant to Order 37 rule 1 of the ROC 2012. The court referred to Lucy Wong Nyuk King & Anor v Hwang Mee Hiong [2020] 3 CLJ 317 (Court of Appeal), holding that “kegagalan memohon arahan sebelum memfailkan notis temujanji bagi taksiran 10 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal gantirugi tidak mengakibatkan perbicaraan taksiran gantirugi oleh Hakim Mahkamah Tinggi terhalang.” [25] I therefore find that the learned SCJ correctly held that the Respondents had substantially complied with the requirements of Order 37 Rule 1 ROC, and that the Appellants' technical objections were properly dismissed. Estoppel from Raising Procedural Objections [26] The Appellants argue that they should not be estopped from raising procedural objections that are fundamental to the validity of the assessment process. [27] The Respondents contend that the Appellants are estopped from raising such objections at a late stage, especially when they had agreed to the procedure during case management and did not raise any objections at that time. [28] I agree with the learned SCJ's finding that the Appellants are estopped from raising these procedural objections at a late stage. As noted by the learned SCJ, during case management on 1.12.2023, the Appellants' then solicitors (Tetuan Mohd Ashraf, Nik Zarith & Co.) agreed to proceed with the assessment of damages by way of affidavit evidence and did not raise any objections to the procedure. The court minutes for that date record: 11 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal “Plaintif - NIK ZARITH BIN NIK MOUSTPHA [MOHD ASHRAF, NIK ZARITH & CO.]01/12/2023 14:19:19 pihak kami tiada bantahan bicara melalui afidavit.” [29] It is a well-established principle that a party cannot take inconsistent positions in legal proceedings. In A2i Co Ltd v MiTV Corporation Sdn Bhd [2016] CLJU 716 (High Court), the court held that a party can be estopped from raising objections based on Order 37 ROC when they have actively participated in case management without raising such objections: “Apart from the delay in taking the objections, the Defendant had actively participated in the case managements before the learned SAR, where the SAR gave directions for the purpose of the assessment... In view of the peculiar circumstances of this case... I am of the considered opinion that by their conduct, the Defendant should be estopped from raising the objections premised on Order 37 r. 1(1).” [30] Furthermore, the principle of estoppel by conduct applies here. As stated in Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 3 CLJ 305 (Federal Court): “In the context of litigation, it usually arises where a party to an action has at least two alternative and mutually exclusive courses open to him. If by words or conduct he elects to pursue one of them and thereby leads his opponent to believe that he has abandoned the other, he may, if the circumstances so warrant, be precluded from later changing course.” 12 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal [31] The Appellants had the opportunity to raise procedural objections during the case management but chose not to do so. Instead, they agreed to proceed with the assessment by way of affidavit evidence. Having made this election, they cannot later change course and raise objections that they had effectively waived earlier. [32] I therefore find that the learned SCJ was correct in holding that the Appellants are estopped from raising procedural objections at a late stage. Evidence of Causation and Quantifiable Loss [33] The Appellants contend that the damages awarded by the learned SCJ were based on speculative claims without sufficient evidence of causation and quantifiable loss. They argue that the sums awarded for rental costs, employee salaries, and compensation for vehicle loss of use are excessive, unsupported, and lack sufficient evidentiary basis. [34] The Respondents maintain that they provided sufficient evidence to prove their losses, including contemporaneous documents such as the tenancy agreement, payment evidence, employee pay slips, and correspondence regarding the trapped vehicle. [35] The principles governing appellate intervention in the assessment of damages are well-established. In Goo Sing 13 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Kar v Dato' Lim Ah Chap [2013] 2 CLJ 936, the Court of Appeal held: “[9] ... the principle that the court will be disinclined to reverse the finding of the trial judge as to the amount of damages should apply. The findings of the trial judge should not be reversed merely because the appellate court might be of the opinion that if they had tried the case at first instance they would have given a lesser sum.” [36] In Asia File Products Sdn Bhd v Brilliant Achievement Sdn Bhd & Ors [2019] MLJU 1342, the court emphasised the principle of “liberal assessment” in the context of damages caused by an interim injunction: “50. The principle of “liberal assessment” was applied to an inquiry as to the damages caused by an interim injunction by Norris J in Les Laboratoires Servier v Apotex Inc [2008] EWHC 2347 (Ch);, [2009] FSR 3. This was endorsed by the Court of Appeal in AstroZeneca AB v KRKA dd Novo Mesto [2015] EWCA Civ 484 at [16]. The question arose in the context of a statement by Norris J, also endorsed by the Court of Appeal, that although it is for the party seeking damages to establish its loss, the court should not be over eager in its scrutiny of the evidence or too ready to subject its methodology to minute criticism, in part because the very nature of the exercise renders precision impossible. Kitchin LJ referred at [16] to the need for “a liberal but fair assessment of loss”.” [37] After careful consideration of the evidence, I find that the learned SCJ properly evaluated the evidence and correctly awarded damages based on the losses proven by the Respondents. The learned SCJ thoroughly examined the contemporaneous documentary evidence provided by the 14 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Respondents and gave reasoned judgments for each head of damage awarded. [38] For the rental of the premises, the learned SCJ noted at paragraphs 68-70 of her grounds that the Respondents had proven they were the legal tenants of the premises through a Tenancy Agreement dated 15.4.2023 and had provided evidence of rental payments made during the subsistence of the injunction. The learned SCJ correctly recognised that it would not have been reasonable for the Respondents to seek alternative premises during the temporary injunction period, as this would have required them to pay double rent, potentially losing their substantial security deposit of RM56,000.00 under clause 6.2 of their tenancy agreement. [39] Regarding employee salaries, the learned SCJ properly considered at paragraph 71 of her grounds that the Respondents had to continue paying their employees despite being unable to operate their business during the injunction period. The learned SCJ reasonably concluded that it would not have been practical for the employees to resign and seek new employment for a temporary period or for the employer to terminate them without just cause, which could have led to unlawful termination claims. [40] For the compensation for loss of use of the vehicle, the learned SCJ correctly found at paragraphs 72-78 of her grounds that the Appellants were aware that the premises operated as a mechanic garage and therefore should have 15 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal reasonably foreseen that customers' vehicles would be trapped inside when the injunction was granted. The learned SCJ carefully considered the demand letter from the vehicle owner and evidence of the market rental value of the vehicle (RM6,050.00 per day) before accepting the Respondents' compromise payment of RM5,000.00 per day as reasonable. [41] The Appellants' reliance on Jalani bin Mohamed & Anor v Shahrom bin Abdullah & Anor [2024] 3 MLJ 831 (Federal Court) is misplaced. While that case emphasises the importance of contemporaneous documents and independent evidence to substantiate substantial cash payments, the Respondents in this case did provide contemporaneous documentary evidence, including the tenancy agreement, payment receipts, employee pay slips, and correspondence regarding the trapped vehicle. The learned SCJ correctly found this evidence sufficient to establish the Respondents' losses. [42] I therefore find that the learned SCJ properly evaluated the evidence and correctly awarded damages based on the proven losses suffered by the Respondents as a direct result of the injunction. Mitigation of Loss [43] The Appellants argue that the Respondents failed to mitigate their losses, particularly by not allowing third parties 16 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal to retrieve their vehicles from the premises despite being permitted to do so by the Appellants. [44] The Respondents contend that they took all reasonable steps to mitigate their losses, including compromising with the vehicle owner to pay a lower rate than the market rental value and continuing to pay rent rather than seeking new premises which would have resulted in double costs. [45] I find that the learned SCJ correctly held that the Respondents had taken reasonable steps to mitigate their losses. As noted by the learned SCJ at paragraphs 70-77 and then at of her grounds, the Respondents acted reasonably by: a. Continuing to pay rent for the premises rather than renting new premises, which would have resulted in double costs; b. Continuing to employ their staff rather than terminating them, which could have led to unlawful termination claims; and c. Negotiating with the vehicle owner to pay RM5,000.00 per day instead of the market rate of RM6,050.00 per day. [46] The law on mitigation, as stated in Teh Wan Sang & Sons Sdn Bhd v See Teow Chuan [1984] 1 MLJ 130 (Federal Court), requires only that the innocent party take reasonable steps to mitigate their loss: “The standard of conduct of plaintiffs in taking steps to mitigate their losses is one of whether the plaintiffs have acted reasonably, and it is a question of fact. Such standard was described by Lord Macmillan in Banco De Portugal v Waterlow and 17 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Sons, Limited [1932] AC 452 506 in these words: — ... Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment... It is often easy after an emergency has passed to criticize the steps which have been taken to meet it ..... The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably ... he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.” [47] The Appellants' allegation that the Respondents deliberately impeded third-party access to vehicles held on the premises is not supported by the evidence. The correspondence between the parties shows that the Respondents were bound by the injunction order and sought clarity from the Appellants' solicitors before allowing third parties to retrieve their vehicles. Once permission was granted, the vehicles were released. [48] Furthermore, as noted by the learned SCJ, the injunction was granted on the Appellants' application without full disclosure of material facts, including the existence of third- party vehicles in the premises. The Appellants cannot now seek to avoid liability for the consequences of their own actions by shifting blame to the Respondents. [49] I therefore find that the learned SCJ correctly held that the Respondents had taken reasonable steps to mitigate their losses, and that the Appellants' arguments on this ground are without merit. 18 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Duplication of Damages Claimed in the Counterclaim [50] The Appellants argue that the damages awarded in the assessment duplicate those already claimed by the Respondents in their counterclaim in the main action and should therefore only be determined after a full trial on the merits. [51] The Respondents contend that they have given an undertaking to the court that if the damages claimed in Enclosure 38 are awarded at the interlocutory stage, they will not seek the same damages during the trial. [52] I find the Appellants' objection on this ground to be without merit. As correctly noted by the learned SCJ at paragraphs 52-53 of her grounds, the assessment of damages for an injunction is distinct from the determination of the main action: “Dalam kes Panzana Enterprise Sdn. Bhd. v Turnpike Synergy Sdn. Bhd. [2022]1 LNS 1015 (High Court), ia telah diputuskan bahawa ganti rugi yang berbangkit daripada injunksi hanya boleh diputuskan atau ditentukan semasa penaksiran ganti rugi. Ia tidak boleh diputuskan semasa perbicaraan kerana ianya bukan merupakan suatu kausa tindakan.” (Paragraph 52) [53] The fact that the Respondents have included similar claims in their counterclaim does not preclude them from seeking an assessment of damages arising from the injunction. As explained in Panzana Enterprise Sdn. Bhd. v Turnpike 19 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Synergy Sdn. Bhd. [2022]1 LNS 1015 (High Court), an undertaking as to damages is not a cause of action, and the assessment of damages arising from an injunction is a separate proceeding from the trial of the main action. [54] Moreover, the Respondents have given an undertaking to the court that they will not seek double recovery. This undertaking adequately protects the Appellants from any risk of having to pay the same damages twice. [55] Furthermore, there is no prejudice to the Appellants in allowing the assessment of damages to proceed separately from the trial. As noted by the learned SCJ, the damages claimed relate specifically to the period during which the injunction was in force and are readily ascertainable. Delaying the assessment until after trial would only serve to prolong the proceedings unnecessarily and potentially increase costs. [56] I therefore find that the learned SCJ correctly allowed the assessment of damages to proceed separately from the trial of the main action, and that there is no risk of double recovery given the Respondents' undertaking to the court. 20 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal Timing of Assessment: Immediate Assessment vs. Assessment During Trial [57] The Appellants argue that the assessment of damages should be conducted during the trial of the main action rather than as a separate proceeding. [58] The Respondents contend that there is no legal requirement to defer the assessment of damages until trial, and that doing so would unnecessarily prolong the proceedings and complicate the issues. [59] I find that the learned SCJ correctly exercised her discretion in allowing the assessment of damages to proceed immediately rather than deferring it until trial. As noted by the learned SCJ at paragraph 53 of her grounds: “Oleh yang demikian, Mahkamah berpuas hati bahawa taksiran ganti rugi boleh dijalankan berdasarkan aku janji yang telah diberikan semasa permohonan injunksi interim dibuat dan taksiran ganti rugi boleh dijalankan sebelum perbicaraan berakhir memandangkan ganti rugi yang dituntut melibatkan injunksi yang dipohon dan bukannya melibatkan keseluruhan kes utama yang masih belum diputuskan.” [60] The learned SCJ's decision is supported by the case of Syarikat Wei Fong Industries v K.L. Trading & Agency House [2007] MLJU 21 (High Court), where the High Court held: 21 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal “On the above considerations and authorities, the Court finds that in the circumstances of the present, case, there is nothing wrong (in law) for the 2nd Defendant to initiate application for enquiry as to damages suffered (vide Enclosure 27) at this stage for the proceeding before trial. The damages suffered confines only to the time after the Ex-Parte Injunction was made until it's dissolution. Any enquiry as to damages should only confines to the damages suffered during this period. The period is already ascertained when Enclosure 27 was made. Therefore, there should not be any obstacle for the enquiry to proceed now.” [61] Similarly, in Jaks Island Circle, the court rejected the argument that the assessment of damages should be postponed until after arbitration proceedings. [62] Furthermore, the Appellants had agreed during case management on 1.12.2023 that the assessment would proceed by way of affidavit evidence rather than by cross- examination during trial. Having made this election, they cannot now seek to change the procedure. [63] I therefore find that the learned SCJ correctly exercised her discretion in allowing the assessment of damages to proceed immediately rather than deferring it until trial. Conclusion and Order [64] In conclusion, I find that the learned SCJ did not err in law or fact in allowing the Respondents' application for assessment of damages under Order 37 Rule 1 ROC. The learned SCJ correctly held that: 22 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal a) No specific judgment or order directing an assessment of damages was required before the Respondents could file their application, as the undertaking given by the Appellants when obtaining the injunction was sufficient basis for the assessment; b) The Respondents had substantially complied with the requirements of Order 37 Rule 1 ROC by filing their application within the prescribed time and seeking directions from the court during case management; c) The Appellants were estopped from raising procedural objections at a late stage, having previously agreed to the procedure during case management; d) The Respondents had provided sufficient evidence to prove their losses through contemporaneous documentary evidence; e) The Respondents had taken reasonable steps to mitigate their losses; and f) There was no risk of double recovery given the Respondents' undertaking not to seek the same damages during trial. 23 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal [65] For these reasons, the appeal is dismissed with costs of RM10,000 to be paid by the Appellants to the Respondents. The order of the learned SCJ dated 12.8.2024 is hereby affirmed. 10 March 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Appellants: Nurul Hafidzah and Zeti Zulkifli (Messrs Chambers of Aminahtul Mardiah) For the Damien Kiethan with Chan Yeut Liang Respondents: (Messrs. Sivagurunathan) 24 S/N 91koURvC80iKAoofurcjEw **Note : Serial number will be used to verify the originality of this document via eFILING portal