Introduction

A recent decision of the Court of Appeal, Bukit Melita Sdn Bhd v Revolusi Rancak Sdn Bhd [2020] 2 CLJ 199 dated 06.12.2019 was delivered by the Abang Iskandar JCA where the Court of Appeal addressed the following issue amongst others:

“Whether High Court had power to award damages even though prayer for damages abandoned”.

Brief Facts

Bukit Melita Sdn Bhd (“the 1^st Defendant”) sold 3 pieces of Land to the Revolusi Rancak Sdn Bhd (“the Plaintiff”). The 1st Defendant, without the consent of the Plaintiff, unilaterally amended the Sale and Purchase Agreement (“SPA”) and at the same time, accepted and encashed the cheques issued by the Plaintiff as earnest deposit to confirm that the SPA had been agreed upon by both parties.

When the SPA was returned to the Plaintiff, the Plaintiff protested and disagreed with the amendments. The Plaintiff filed an action amongst others, for specific performance in the High Court, wherein the High Court decided that the parties were bound by the original contract and the 1^st Defendant ordered to transfer the properties to the Plaintiff.

However, despite exercising all its rights of appeal, the 1^st Defendant failed to execute the S&P and transfer the properties to the Plaintiff.

The Plaintiff then filed an application amongst others, for vacant possession and the original title of the properties for the failure of the 1^st Defendant to comply with the judgment as well as an order for an assessment of damages. The High Court granted the order in terms as prayed. As a result, the Plaintiff filed a notice of appointment for assessment of damages which was accordingly granted by the High Court.

Naturally, the 1^st Defendant appealed the decision to the Court of Appeal.

Decision of the Court of Appeal

The Court of Appeal allowed the 1st Defendant’s appeal in respect to the order of the High Court for the assessment of damages. The Court of Appeal found that it was not disputed that the Plaintiff had in fact abandoned the prayer on damages when it had the statement of claim amended in the course of pleadings.

The Court of Appeal held that pursuant to Section 18(3) Specific Relief Act 1950, there must be a specific prayer asking for damages in addition to the prayer for specific performance. The Court of Appeal went further to state that the deficiency in the pleading in that regard as to damages, could not be saved by the catch-all clause that states, “Any order as the court deems fit” or any clause differently worded but having the same intended effect.

In essence, the High Court judge did not possess the necessary jurisdiction to make any order in respect of assessment of damages, when in fact and in law, the plaintiff did not pray for such a relief. The effect of such an act by the court is that such order on assessment of damages is null and void.

Conclusion

The decision of the Court of Appeal is an eye opener that Parties cannot simply assume that where they have prayed for Specific Performance, automatically there will be the rightful claim for Damages in lieu of Specific Performance if the prayer for Damages has been abandoned. If there has been an abandonment, then there is no turning back and revisiting the claim for damages again.

This decision serves as a reminder for Lawyers to be cautious when amending the pleadings so as to not put the Plaintiff in a position worse off than what it would have been but for the amendment.

There is no recourse to rely on the catch-all clause that states, “Any order as the court deems fit” or any clause differently worded but having the same intended effect. The Court will not sympathise with a party that has knowingly abandoned the claim for damages.

The crucial message is therefore: “Parties are bound by their pleadings” as enunciated in State Government of Perak v Muniandy [1985] 1 LNS 117 and Samuel Naik Siang Ting v Public Bank Berhad [2015] 8 CLJ 944.