Their Lordships also agreed with the Court of Appeal’s view that a right cannot be disassociated from its remedy. The Court agreed that the Court of Appeal was correct in relying on the Supreme Court decision in New Zealand Insurance Co Ltd v Ong Choon Lin (t/a Syarikat Federal Motor Trading) 1 CLJ Rep 230 to conclude that Clause 12 was caught by section 29. The Federal Court summarised that the issue for determination by their Lordships is whether Clause 12 offends section 29.Īccording to Balia Yusof FCJ who delivered the judgment of the Court, Clause 12 precludes the Plaintiffs from claiming any loss or damage and the Defendant will not be liable for any amount for loss of income or profit or savings, or any indirect, incidental, consequential, exemplary or special damages. “Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights is void to that extent.” “Notwithstanding anything to the contrary, in no event will the measure of damages payable by the Bank to the Borrower for any loss or damage incurred by the Borrower include, nor will the Bank be liable for, any amounts for loss of income or profit or savings, or any indirect, incidental consequential exemplary punitive or special damages of the Borrower, even if the Bank had been advised of the possibility of such loss or damages in advance, and all such loss and damages are expressly disclaimed.” exclusion clauses which absolve general secondary obligations).Ĭlause 12 and section 29 which are central to this appeal, read as follows –
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