Red Spot Question

Definitions:
Actionable per se - If a legal case is actionable per se, no proof of damage or loss is required
in order to take the case to court. The action alone is punishable. Or in another way to explain
it, such a tort is actionable simply because it happened. For example, libel is actionable per
se.
Case law: DATUK SERL ANWAR BIN IBRAHIM v UTUSAN MELAYU (M) BHD &
ANOR
Anwar filed the suit in January 2012, seeking RM50 million in damages and an injunction to
stop Utusan from repeating statements accusing him of being a gay rights proponent. Also
named as defendant was its group editor-in-chief Datuk Abdul Aziz Ishak. In January 2013,
then High Court judge Datuk VT Singham found Utusan Malaysia liable for defaming Anwar
in the two articles. The trial judge said the newspaper had “distorted” the opposition leader’s
words to suggest he backed the lesbian, gay, bisexual and transgender (LGBT)
movement.Singham said the daily did not practise responsible journalism, in addition to
disregarding a golden opportunity to correct itself after Anwar sent a legal notice asking for
clarification. The judge said it was “crystal clear” that Anwar did not say that LGBT
activities should be legalised in his BBC interview, and the Utusan articles had suggested that
Anwar was unfit to hold public office and be the opposition leader.During trial, Anwar told
the court that he agreed that homosexuals should be discriminated against to protect the
sanctity of marriage, but pointed out that archaic laws should be reviewed to prevent innocent
people from being punished. The Court of Appeal subsequently dismissed Utusan’s appeal
against Singham’s decision. The High Court awarded Datuk Seri Anwar Ibrahim RM200,000
in damages after the publisher of the Utusan Malaysia daily was found liable of defaming the
former opposition leader. Judge Hue Siew Kheng awarded Anwar RM100,000 in general
damages and another RM100,000 in aggravated damages. She also ordered Utusan Melayu
(Malaysia) Bhd to pay RM8,000 in costs.

Non actionable per se – Non actionable per se is basically the opposite of actionable per se.
It needs a proof of damage in order to claim the damages. Slander is an example of non
actionable per se.
Case law: HISHAM BIN TAN SRI HALIM V THE FARIDAH BT AHMAD NORIZAN &
ANOR
The Plaintiff's main claim against the first and second Defendants, the Plaintiff's aunt and ex-
wife's mother is for verbal defamation or known as 'slander'. Around June 2017, the Plaintiff
received a call from a PDRM officer informing him that his ex-wife had filed a police report,
alleging that her eldest son had been sexually assaulted by a driver who worked with the
Plaintiff's family. Around July 2017, the Plaintiff went to Sg Buloh Hospital with his younger
brother and his sharia lawyer. The plaintiff met with the hospital director, PDRM officers and
Welfare Department officers. After the meeting, the incident that took place in the pediatric
ward at the hospital was simultaneously captured on video. The Plaintiff claimed that the two
Defendants made defamatory statements against the Plaintiff in the presence of several
people in the hospital's pediatric ward room, where the Defendant claimed that the Plaintiff
had failed to protect her eldest daughter from being molested by the driver. The Court
allowed the Plaintiff's claim for defamation and ordered both Defendants to pay RM60,000 to
the Plaintiff as general damages. The Court also grants interest on the entire amount of
damages ordered by the Court at a rate of 5% starting from the date of judgment until the date
of payment.

Explain the meaning of liquidated damages in no more than 5 sentences. Illustrate your
answer with the backing of two recent cases, which are no less than 5 years old.
Liquidated damages are presented in certain legal contracts as an estimate of otherwise
intangible or hard-to-define losses to one of the parties. These damages are paid out in the
case of a breach of contract, and are pre-estimated and spelled out in advance when the
contract is signed. Liquidated damages are meant as a fair representation of losses in
situations where actual damages are difficult to ascertain. It may be referred to in a specific
contract clause to cover circumstances where a party faces a loss from assets that do not have
a direct monetary correlation. For instance, if a party in a contract were to leak supply chain
pricing information that is vital to a business, this could fall under liquidated damages.
Case examples:
Eco Green City Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & ors
The Second Respondent (“2nd Respondent”) purchased a double storey link house from the
Applicant whereby the Sale and Purchase Agreement (“SPA”) was dated and executed on
30.10.2015. The 2nd Respondent lodged a claim before the Tribunal for Homebuyer Claims
(“1st Respondent”) for a sum of RM37,827.51 as Liquidated Ascertained Damages (“LAD”).
The 1st Respondent held that there was a delay of 130 days and awarded the 2nd Respondent
a sum of RM23,642.19 for the LAD with following ground-
(1) The date of the SPA was on the booking date, 28.10.2015 instead of 30.10.2015; and
(2) With reference on Clause 23 & 31(e) of the SPA, the vacant possession was delivered not
only when Certificate of Completion and Compliance (“CCC”) was issued but also when
water and electricity were ready for connection therefore the date was on 06.03.2019 when
the electricity meter was installed.
Being dissatisfied with the 1st Respondent’s decision, the Applicant filed a judicial review at
High Court for an order of certiorari to quash the said award by 1st Respondent and a
declaration for the following:
(1) The Applicant and the 2nd Respondent shall be bound by the SPA dated 30.10.2015 for
the purposes of calculating the LAD;
(2) The Applicant had delivered vacant possession to the 2nd Respondent on 15.11.2018; and
(3) The date of the delivery of vacant possession not being the date of the installation of the
electricity meter and the 2nd Respondent should not be allowed to claim for the LAD until
the said date.
The High Court disagreed with the 1st Respondent that the date of delivery of vacant
possession was held to be date when the electricity was connected instead of the date of the
notice dated 15.11.2018 which accompanied by CCC and that the supply of electricity was
ready for connection.The High Court further held that the 1st Respondent had committed an
error of law in failing to give effect to the clear and unambiguous provisions of the SPA and
the 1st Respondent overstretched the meaning of the words “ready for connection” stated on
the SPA where it should mean that electricity is ready for connection and not is connected.
The High Court allowed the application for judicial review with costs whereby the order that
the LAD be calculated from 27.10.2018 until 06.03.2019 was duly quashed. Vacant
possession was held to be delivered on 15.11.2018 and the LAD is to be calculated from
27.10.2018. This update is intended to be informative & is not intended to be nor should be
relied upon as a substitute for legal or any other professional advice.

BERJAYA TIMES SQUARE SDN BHD (FORMERLY KNOWN AS BERJAYA DITAN

SDN BHD) v M CONCEPT SDN BHD
The appellant is the developer of a project now known as Berjaya Times Square. The
respondent entered into a sale and purchase agreement with the appellant to purchase a
commercial shop lot in the project. The agreement required the appellant to deliver vacant
possession of the shop lot to the respondent by a specified date, namely 23 November 1998,
failing which the appellant would pay liquidated damages to the respondent for each day of
the delay at the rate of 12% per annum of the purchase price. The agreement also stipulated
time to be of the essence. The appellant failed to deliver vacant possession within the
stipulated time. After a series of negotiations, the parties agreed to extend the date for
delivery of vacant possession on two occasions. During this time, the respondent continued to
pay the progress payments of the purchase price. The appellant however still failed to meet
each of two extended delivery dates. After the expiration of the second extended deadline, the
respondent commenced action against the appellant for various reliefs, including a
declaration that the agreement has been rescinded and for an order that the appellant refund
the purchase price. The High Court found in favour of the respondent. The learned Judge,
Hishamudin Yunus J, held that the appellant's failure to deliver vacant possession within the
stipulated time constituted a fundamental breach of the contract which entitled the respondent
to rescind the contract. The High Court also held that time was of the essence of the contract
and that the appellant's failure to deliver vacant possession within the stipulated time
rendered the agreement voidable at the option of the respondent under Section 56(1) of the
Act. The High Court also held that respondent's remedies were not therefore confined to a
claim for liquidated damages under the agreement. The decision of the High Court was
upheld by the Court of Appeal.
Three significant points arise from the Federal Court's decision in the Berjaya Times Square
Sdn Bhd v M-Concept Case:
that Section 56(1) is to be read together with Section 40 of the Act;
that the non-defaulting party is not entitled to put an end to the contract under Section 40 if
there is part-performance by the defaulting party; and
that the inclusion of a clause for payment of liquidated damages in the event of delay in
delivery negates the operation of the time of essence clause in relation to the failure to deliver
within the stipulated time.
It is submitted that the Federal Court may have overstated the requirements of Section 40 by
holding that an innocent party may not put an end to the contract if there has been part
performance of the contract by the defaulting party. The Court did not consider illustration
(a) to that provision, which provides that if A has entered into a contract with B to sing at B's
theatre two nights a week for two months, B is entitled to put an end to the contract if A
wilfully absents herself on the sixth night. Illustration (a) is inconsistent with the apex court's
interpretation of Section 40 and clearly shows that part-performance by a defaulting party
does not preclude the innocent party from putting an end to a contract.

It is further submitted that the requirements imposed by the Federal Court have made it
extremely difficult for an employer in a construction contract and a purchaser of immoveable
property under a sale and purchase agreement (including those in the forms prescribed under
the Housing Development (Control and Licensing) Regulations 1989) to terminate the
agreement on grounds of the failure by the contractor or the developer to deliver the subject
property within the stipulated time.