MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
9. Damages and Judgment 9.1 Awards Available to the Successful Litigant After full trial, litigants are able to obtain a variety of forms of relief including monetary damages, declarations, temporary and perpetual injunc- tions and specific performance. 9.2 Rules Regarding Damages The recognised types of damages are as follows. • Special damages, where the damage suffered is readily quantifiable in monetary terms. See Laksamana Realty Sdn Bhd v Goh Eng Hwa and Another Appeal [2006] 1 MLJ 675. • General damages, where the damage suf- fered is not readily quantifiable in monetary terms. See Laksamana Realty Sdn Bhd v Goh Eng Hwa and Another Appeal [2006] 1 MLJ 675. • Aggravated damages, where the defendant’s conduct has injured the feelings and dignity of the plaintiff. See Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd and Hong Hing Thai Enterprise Sdn Bhd (Third Party) [2011] 4 MLJ 354. • Exemplary damages, which are punitive damages to punish and deter, where there is oppressive, arbitrary or unconstitutional action by servants of the government, or where the defendant’s conduct has been calculated to make a profit for themselves which may exceed the compensation payable to the plaintiff. See Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 352. Whilst there are no rules limiting maximum damages, damages (other than aggravated and exemplary damages) are generally compensa-
Court approval to settle a suit is only required in certain circumstances, such as the settlement of a money claim on behalf of a disabled person. See Order 76 Rule 11 of the Rules of Court 2012. 8.2 Settlement of Lawsuits and Confidentiality The settlement of a suit can remain confidential if the parties enter into a settlement agreement with a confidentiality clause. However, in sub- sequent proceedings, the settlement agreement may be produced in court if the agreement is being challenged or relied on in evidence. If parties choose to record the settlement in a consent order or judgment, this will be filed in court and will form part of the court record and therefore generally be accessible by the public. 8.3 Enforcement of Settlement Agreements Settlement agreements are enforced in the same way as any other contract. Therefore, a party seeking to enforce a settlement agreement will seek the usual contractual remedies for breach of contract such as damages and specific per- formance. 8.4 Setting Aside Settlement Agreements A settlement agreement may be set aside by filing an action for that purpose, on the basis that the settlement agreement is void or void- able. Grounds that may be raised include a lack of capacity to contract, mistake, illegality, fraud, undue influence, misrepresentation and coer- cion. See Part III of the Contracts Act 1950.
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