1. ) LING PEEK HOE 2. ) LING BOON HUAT 3. ) DING TOH BIEW (M3) 22-45-2008 4. ) DING TOH GIEN (M3) 22-45-2008 1. ) DING SIEW CHING 2. ) GOLDEN STAR 3. ) DING TOH BIEW 4. ) DING TOH GIEN 5. ) DING TOH LEI 6. ) LING PEEK HOE (M3) 22-45-2008

1. ) LING PEEK HOE 2. ) LING BOON HUAT 3. ) DING TOH BIEW (M3) 22-45-2008 4. ) DING TOH GIEN (M3) 22-45-2008 1. ) DING SIEW CHING 2. ) GOLDEN STAR 3. ) DING TOH BIEW 4. ) DING TOH GIEN 5. ) DING TOH LEI 6. ) LING PEEK HOE (M3) 22-45-2008

The court held the pleading objection was barred by res judicata because the trial judgment expressly awarded special, general and exemplary damages to be assessed and the defendants had not raised the pleading point during trial or appeals; legal fees set out in signed retainers and refresher agreements were actual costs 'incurred' even if unpaid and are recoverable as special damages on an indemnity basis in a fraud action; affidavits exchanged for assessment could stand effectively as pleadings for the assessment; accordingly the plaintiffs were awarded special damages (legal fees and disbursements), general damages and punitive damages and interest at 5% p.a. from the writ date;...

Citation
(M1) 22-203-2006, (M3) 22-45-2008 (Mahkamah Tinggi)
Parties
Plaintiff: Ling Peek Hoe; Plaintiff: Ling Boon Huat; Defendant: Ding Siew Ching; Defendant: Golden Star; Defendant: Ding Toh Biew; Defendant: Ding Toh Gien; Defendant: Ding Toh Lei
Court
M1
Jurisdiction
Malaysia
Judgment Date
10 January 2022
Case Number
(M1) 22-203-2006, (M3) 22-45-2008 (Mahkamah Tinggi)
Procedural Posture
Civil Suit (fraud) / Assessment of Damages (post‑trial)
Outcome
Judgment for plaintiffs. Damages awarded in favour of the plaintiffs against the defendants in the total sum of RM5,135,951.76; interest at 5% per annum from date of filing of writ until full realisation; costs to plaintiffs. Liability not apportioned between defendants.
Legal Topics
Special Damages, General Damages, Exemplary/punitive Damages, Indemnity Costs, Pleading Requirements, Res Judicata, Third Party Proceedings, Assessment of Damages, Interest on Judgment
Source Language
Malay/English
Fraud Civil Procedure Damages Contempt of Court Property Law Legal Profession Special Damages General Damages +7 more

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Parties

Ling Peek Hoe

Plaintiff

Ling Boon Huat

Plaintiff

Ding Siew Ching

Defendant

Golden Star

Defendant

Ding Toh Biew

Defendant

Ding Toh Gien

Defendant

Ding Toh Lei

Defendant

Procedural Posture

Civil Suit (fraud) / Assessment of Damages (post‑trial)

Legal Issues

  1. 1 Whether legal fees incurred in litigation are recoverable as special damages on an indemnity basis
  2. 2 Whether special damages not particularised in the statement of claim may be recovered at assessment (pleading point)
  3. 3 Whether agreed but unpaid legal fees constitute 'incurred' costs recoverable as special damages

Ratio Decidendi

The court held the pleading objection was barred by res judicata because the trial judgment expressly awarded special, general and exemplary damages to be assessed and the defendants had not raised the pleading point during trial or appeals; legal fees set out in signed retainers and refresher agreements were actual costs 'incurred' even if unpaid and are recoverable as special damages on an indemnity basis in a fraud action; affidavits exchanged for assessment could stand effectively as pleadings for the assessment; accordingly the plaintiffs were awarded special damages (legal fees and disbursements), general damages and punitive damages and interest at 5% p.a. from the writ date;...

Court Disposition

Judgment for plaintiffs. Damages awarded in favour of the plaintiffs against the defendants in the total sum of RM5,135,951.76; interest at 5% per annum from date of filing of writ until full realisation; costs to plaintiffs. Liability not apportioned between defendants.

Orders

  • Defendants to pay plaintiffs special damages RM3,135,951.76 (comprising legal fees and disbursements adjusted for deduction)
  • Defendants to pay plaintiffs general damages RM1,000,000.00