SENSATION NETWORK SDN. BHD. v HONG LEONG BANK BERHAD

Case Significance

Illustrates the enforcement of an undertaking as to damages given for an interim injunction under Order 37 of the Rules of Court 2012, and the principle that a party need not prove its losses with complete certainty for damages to be recoverable.

This High Court decision concerns an appeal against an assessment of the damages payable on an undertaking given for an interim injunction, and the standard of proof for such losses. The appellant company had obtained an ex parte interim injunction against the respondent bank in 2021. When that injunction came to an end, the bank sought, under Order 37 rule 1 of the Rules of Court 2012, an assessment of the damages it had suffered by reason of the injunction during the period it was in force, pursuant to the appellant's undertaking as to damages. The Sessions Court assessed those damages at RM299,799.55 with costs, and the appellant appealed, contending that the Sessions Court judge had erred in finding that the bank had proved its actual losses during the injunction period. The underlying relationship arose from a master service agreement under which the appellant recruited merchants for the bank's outsourcing programme and supplied point-of-sale terminals. On appeal the court examined whether the bank had sufficiently proved its loss. It applied the settled principle that a claimant need not prove the exact amount of its loss with complete certainty, and that the difficulty of assessing damages precisely does not defeat recovery, since to require absolute certainty would deny damages in many cases. It held that the Sessions Court judge was not plainly wrong in finding that the bank had produced sufficient oral and documentary evidence to support its claim, and that the appellant had failed to adduce any counter-evidence effectively challenging the bank's calculations. Finding no appealable error, the court dismissed the appeal with costs. It observed that a party who obtains an interim injunction on an undertaking as to damages takes the risk that, if the injunction is later shown to have been wrongly obtained, it will be answerable for the loss the restrained party suffered while the order was in force, and that the assessment of that loss proceeds on the ordinary civil standard rather than a counsel of perfection. The judgment is a useful illustration of the enforcement of an undertaking as to damages given for an interim injunction, and of the principle that damages need not be proved with complete certainty.