Mentari Business Park JMB v mentari properties sdn bhd

Case Significance

Confirms that damages assessed on a remitter must reflect actual loss proved by the best available evidence rather than a theoretical calculation, and that a limitation defence under section 6(1) of the Limitation Act 1953 must be pleaded at the liability stage, not raised at assessment.

This High Court decision concerns the assessment of damages remitted after an earlier determination that certain car-park lots in a mixed development were not common property. The plaintiff, the Joint Management Body of a business park, had sued the defendant developer, which owned and operated some 400 car-park lots, over the ownership of those car parks. The Court of Appeal had affirmed the High Court's decision that the car parks were not part of the common property, and had remitted for assessment the question of how much of the car-park electricity charges the Joint Management Body had paid on the developer's behalf and was entitled to recover. The relevant period ran from the formation of the Joint Management Body until a separate meter was installed for the car parks. The court examined the competing tabulations. It declined to accept the Joint Management Body's expert report, which calculated a theoretical load-consumption figure without reference to the actual electricity bills paid and was expressly qualified as based on very limited information, holding that damages must reflect actual loss. Instead it took the best available evidence, the actual electricity bills issued for the combined car parks and common property over the period, and apportioned to the car parks the share attributable to them, arriving at RM350,384.18 as a credible estimate of the loss. The court rejected the defendant's argument that the six-year limitation period under section 6(1) of the Limitation Act 1953 applied at the assessment stage, holding that limitation was a matter that ought to have been pleaded in the defence on liability and had not been raised. It assessed damages at RM350,384.18 with interest, and, because the claim had been substantially reduced, made no order as to costs. The judgment is a useful illustration of the requirement that assessed damages reflect actual loss proved by the best available evidence, and of the rule that a limitation defence must be pleaded at the liability stage.