Loss of Profit 盈利损失

案情：

1. P从D获得贷款。P未能如期支付贷款。
2. D开始对P采取法律行动，并于08.1999将P宣布破产。
3. 由于没有收到任何文件，P不知道被D将他申请破产。
4. 29.07.2003，当破产管理部门要求他出席会议时，P才意识到他已经破产。
5. 10.07.2004，P报警，以调查破产程序，声称D欺骗，串谋和恶意起诉他。
6. 当警察开始调查时，D自愿申请并获得法院的庭令免于P破产。
7. 2007年，P起诉D因P导致他破产而遭受损失。
8. P制作了一份自己公司的财务计划书（P2），一份跟D申请贷款的报告，作为证明他可以从他的业务中获利的证据。
9. 根据P，在他破产的6个月内，P2展示的估计净利润为RM302,280.00。
10. 高庭判决如下：

(a) 利润损失的一般损害赔偿 – RM3,627,360.00;

(b) 声誉和业务受损 – RM50,000.00;

(c) 示例性赔偿金 – RM20,000.00;和

(d) 加重赔偿金 – RM20,000.00。

11. D向上诉法院提出上诉。

 

 法庭判决：

1. P2只是一个估计，推测和假设而没有实际利润损失的证明。没有经审计的账目，支付其收入的所得税证明。
2. P2是由P准备提交给D作为申请D的银行贷款用途。P2的利润率是被夸大以支持其银行贷款申请。此外，P2不是由金融家和评估师准备而是P自己准备的。因此，P2不同于D的报告（D20）中的项目文件和可行性研究，该报告由金融和土地顾问，住房开发商和头等评估师编写。
3. 因此，P的实际利润损失不是RM3,627,360.00，而是RM265,800.00【RM22,150.00 x 2（一年有2个6个月）x 6年】。
4. P的破产状况已于2005年2月16日在媒体或公共文件（如报纸，破产局的信件发布给各银行经理，CTOS，马来西亚通信银行，吉兰丹信贷管理，电信等各机构。马来西亚，Tabung Haji和Amanah Saham Berhad等。
5. P是一位 在’pembinaan badan lori’界里的成功的土族企业家，超过23年。由于被判定破产，P的地位受到严重抹黑。此外，D持续不断地在法庭提出上诉，抗辩。D这样的态度表明D对P持续的不懈行为。
6. 其他损害赔偿修改如下::

(a) 损害声誉RM50,000.00增加至RM100,000.00;

(b) 示例性赔偿金RM20,000.00增加至RM50,000.00; 和

(c) 加重赔偿金RM20,000.00增加至RM50,000.00。

 

 

Facts:

1. P obtained a loan from D. P had failed to pay the loan instalments to D.
2. D commenced legal actions against P and made P a bankrupt on 08.1999.
3. P did not know about the bankruptcy proceedings as he did not receive any documents.
4. On 29.07.2003, P only realised that he was made a bankrupt when the Insolvency Department called him to attend a meeting.
5. On 10.07.2004, P lodged a police report for the police to investigate the bankruptcy proceedings, alleging that there was deceit, conspiracy and malicious prosecution by D.
6. When the police commenced their investigation, D had voluntarily applied and obtained order from the court to discharge D from bankruptcy.
7. In 2007, P sued D for losses suffered as a result of P making him a bankrupt.
8. P produced a forecast report (P2), a report where he used it to apply bank loan from D, as evidence to show the profit he could made from his business.
9. According to P, during 6 months of his bankruptcy, an estimated net profit stated in exhibit P2 was RM302,280.00
10. High Court ordered as follows:

(a) General damages for loss of profit – RM3,627,360.00;

(b) Injury to reputation and business – RM50,000.00;

(c) Exemplary damages in the sum – RM20,000.00; and

(d) Aggravated damages in the sum – RM20,000.00.

11. D appealed to Court of Appeal.

 

Court held:

1. P2 is only an estimation which is nothing more than a mere estimation, speculation and assumption without proof of actual loss of profits. There are no audited accounts, payment of income tax for such revenue gained,
2. P2 was prepared by P to support his bank loan application which he submitted to D. It is reasonable to infer that the profit margin in P2 has been inflated for the purposes of supporting his bank loan application. Furthermore, P2 was prepared by P who was an untrained financier and appraiser. As such P2 is unlike the project papers and feasibility study in D’s report (D20) which was prepared by financial and land consultants, housing developers and first class appraisers. D20 gave the details of the works to be carried out for purposes of the project, including construction costs, management costs, consultant’s fees, legal fees, contractors profits etc.
3. Therefore, the actual loss of profit by P is not RM3,627,360.00 but RM265,800.00 (RM22,150.00 x 2 (2 6months in a year) x 6 years).
4. P’s bankruptcy status was published and circulated in the media or public documents such as newspaper, letters of Insolvency Department to various agencies such as the Bank Managers, CTOS, Persatuan Syarikat-Syarikat Kewangan Malaysia, Kelantan Credit Management, Telecom Malaysia, Tabung Haji and Amanah Saham Berhad etc.
5. P is a successful bumiputra entrepreneur in the ‘pembinaan badan lori’ for over 23 years. P’s standing was badly tainted and tarnished for being adjudged a bankrupt. Further, there had been continuous conduct of unabated appeals by D. The above indignant attitude shows the persistent and unrelenting behaviour of D towards P.
6. Other damages were revised as follows:

(a) Injury to reputation RM50,000.00 enhanced to RM100,000.00;

(b) Exemplary damages RM20,000.00 enhanced to RM50,000.00; and

(c) Aggravated damages RM20,000.00 enhanced to RM50,000.00.

 

In Sime UEP Properties Bhd v Woon Yoke Lin [2002] 3 CLJ 719 where this court observed that:

“…in order to succeed in claims for damages for loss of profit one must establish the actual losses one would have suffered as a result of the breach. A projection as in this case is not sufficient to establish the would be losses of profit. A venture into a business would not necessarily mean that one can make a profit out of it because there are instances where people suffer losses. Not all business end-up with a profit. It is clear to us that the respondent failed to establish the expected losses as a result of the breach…”

 

[2016] MLJU 1033

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