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DALAM MAHKAMAH TINGGI DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA
GUAMAN NO: 22C-4-02/2015
ANTARA
1. YB ENGINEERING SDN BHD
(NO. SYARIKAT : 235788-H) …PLAINTIF PERTAMA
2. YONG KOK HENG
(NO. K/P: 541220-10-5819/4737058) …PLAINTIF KEDUA
DAN
STANDARD SOFA INDUSTRIES SDN BHD
(NO. SYARIKAT : 576190-T) …DEFENDAN
DAN
1. TU YONG ENG
(beramal di Tetuan YL Design Consultancy Services)
2. HAO WU CONSTRUCTION SDN BHD …PIHAK-PIHAK KETIGA
GROUNDS OF JUDGMENT
Parties and the claim
1. 1st Plaintiff is the owner of a factory and/or building situated on Lot
3845 in Jalan 4D Kampung Baru, Subang, Section U6, 40150 Shah Alam
(Plaintiff’s land, Lot 3845). 2nd Plaintiff is the registered owner of Lot 3845.
Defendant is the owner of Lot 3846 (Defendant’s land) which is located
next to Plaintiff’s land. Plaintiff occupied the front portion of its land for a
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factory for its business of engineering, metal work, tooling, fixture and
component. The back portion of Plaintiff’s land together with a single
storey factory was rented to RAE Industries S/B (RAE) in October 2004.
2. According to Plaintiff, around August 2011 Defendant carried out
construction work on Defendant’s land and failed to take safety measures
and to build a retaining wall structure and/or proper reinforced concrete wall
between Plaintiff’s and Defendant’s land. On 13-10-2011 around 11.30am
a landslide occurred which caused Plaintiff’s retaining wall to collapse,
damage to the land and factory and subsequently soil erosion and soil
subsidence. Around February 2012 Defendant completed the construction
of the retaining wall on Defendant’s land of which the improper construction
further weakened Plaintiff’s land.
3. Plaintiff’s claim is essentially for the reconstruction of a reinforced
concrete wall (paragraph 28 (a) to (g) of statement of claim), Defendant to
fix the damage to its land and damages for the loss of rental.
4. Defendant disputed the claim and brought in the consultant Engineer
Tu Yong Eng as 1st Third Party (TP1, Tu) and the contractor Hao Wu
Construction S/B as 2nd Third Party (TP2, Hao Wu) to claim contribution or
indemnity. It pleaded illegality in that the building/factory on Plaintiff’s land
was built without approval of Majlis Pebandaran Shah Alam (MPSA); the
landslide was caused by Plaintiff’s failure to build a drainage system and
the construction of the retaining wall on its land was with approval.
Defendant counterclaimed for Plaintiff to rebuild the retaining wall between
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Plaintiff’s and Defendant’s land, Plaintiff to bear half the cost of construction
of the retaining wall and the drainage system which it had incurred.
Witnesses
5. Witnesses for Plaintiff were Yong Kok Heng (Managing Director and
owner of Plaintiff’s land, PW1 and witness statement marked as WSP1),
Musa bin Ramli (Principal Assistant District Officer (Land), Pejabat Daerah
dan Tanah Petaling, PW2 and witness statement marked as WSP2), Lee
Kong Phang @ Lee Kon Pin, Sales and Marketing Manager, PW3 and
witness statement marked as WSP3), Wong Chee Lap (Director of RAE,
PW4 and witness statement marked as WSP4) and Dr Chin Yaw Ming
(Civil Engineer and Plaintiff’s expert, PW5 and affidavit dated 13-4-2017).
6. Witnesses for Defendant were Gan Kong V (General Manager, DW1
and witness statement marked as WSD1), Ghazali bin Abd Aziz, Engineer
and Defendant expert, DW2 and affidavit dated 6-4-2017), Wai Mok Suee
(Director of Hao Wu, DW3 and witness statement marked as WSD3) and
Yuen Choon Ghiat (Director of Defendant, DW4 and witness statement
marked as WSD4).
7. Witnesses for TP1 were Tu himself (TP1W1 and witness statement
marked as TP1WS1 and additional witness statement as TP1WS1A) and
Lau Wah Yong (Engineer and TP1’s expert, TP1W2 and affidavit dated 6-
4-2017).
8. There were no witnesses for TP2 which did not enter appearance.
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Facts
9. It is not disputed a landslide happened on 13-10-2011 around
11.30am, what is disputed is the cause and the ensuing damage. The
agreed facts as between Plaintiff and Defendant are that Plaintiff’s land is
located on higher ground than Defendant’s land and that Defendant built a
retaining wall between Plaintiff’s and Defendant’s land.
A. Plaintiff’s claim
(a) Cause of landslide and the collapse of Plaintiff’s retaining wall
10. It was Plaintiff’s case the landslide on 13-10-2011 happened due to
the work on Defendant’s land where there was digging and levelling of
Defendant’s land vertically to a depth of approximately 90 degrees and
about 20 to 30 feet and its failure to take appropriate safety measures
(paragraphs 6 and 7 of statement of claim).
11. According to PW1 in his Q&A 4 Plaintiff’s land was almost parallel
with Defendant’s land before Defendant bought Defendant’s land in 2010
and in Q&A 7 Plaintiff had built an L shaped retaining wall between
Plaintiff’s land and Defendant’s land and behind his land to avoid water
from going into the land of others. In Q&A 14 he stated around August
2011 Defendant carried out earthwork and/or excavation work along the
common boundary on Defendant’s land and it dug and excavated further
15 feet in depth and angle of 90 degrees which exceeded the existing
retention wall approximately 10 feet high. In cross examination as to the
documents he had to support his evidence on the excavation done he said
he only had photographs which are in B2 301 and 309. As to whether any
measurements were taken he said there were but are not in the bundle. As
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to what was the original rigid status of Plaintiff’s land he said it was flat and
referred to photographs in B2 291 and 295 where in page 295 (second)
Defendant excavated the earth and as a result of the excavation the
landslide. [NOP Vol 1 pages 47-50).
12. PW5 was engaged by Plaintiff and he produced his investigation
report dated March 2017 exhibited as “CYM-2” to his affidavit and also
separately marked as C1. As per his paragraphs 1, 2 and 4 he is a civil
engineer specializing in geotechnical engineering for about 26 years
especially in the area of hill slopes and basement excavations. He was
engaged to investigate the cause of the collapsed retaining wall and slope
on Lot 3845 bordering with Lot 3846 during the construction activities of the
development of Lot 3846 and the cause of the ground settlement of the
platform at the top of retaining wall built on Lot 3846 by Defendant. He
explained his report was based on the information available from drawings,
soil investigation report and photographs supplied by PW3. He visited the
site on 21-1-2017 and 14-2-2017.
13. In paragraph 2.4 of the report is stated-
“As shown in Photos 9 & 10 of Appendix B, excavation below the retaining
wall started on 24 August 2011. The excavation would be around 3m,
judging from the scale of excavation to the ground level at Lot 3845 in
Photo 9(a) of Appendix B. This would be around RL 33m which is also
round about the proposal platform level of the revised drawing dated 2013
(Section 1.2 (v) (a) & (b).
Further excavation below the original retaining wall was carried out on 12
October 2011 for the construction of the base of the retaining wall. This
excavation is estimated to be around 1.5m to 2m judging from Photo 15(b)
of Appendix B. This is likely to be the depth required for the base
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construction (min 1200 + T1 + lean concrete) as per details specified in
the drawing dated November 2010 with plan no.YL40-13/10/EW/02
(Section 1.2 (iv) (b)). This resulted in a total retained height of excavation
of about 8-9m as presented in Plate 9. It is around 4m to 5m of
excavation below the original retaining wall. Note that the excavation face
is very close to the original retaining wall as shown in Photo 10 (c) & (d) of
Appendix B. This cutting is unsustainable which is resulted in the
collapsed of the original retaining wall and the associated structures
supported on it, on the following day 13 October 2011, as presented in
Plate 10.”
14. His opinion on the cause of the collapse of the original retaining wall
on Lot 3845 can be found in paragraph 15 as follows-
“15. … the excessive cutting of earth below the retaining wall in terms of
height and steepness of the cut during the development at Lot 3846. The
cutting was very steep as it was very close to the original retaining wall.
Also the retained height of excavation at the time of the collapse was
about 8-9m without any lateral support. It collapsed within a day of
excavation.”.
15. In cross examination by Defendant counsel PW5 stated he has been
to Plaintiff’s land but not Defendant’s and the photographs in his report
were provided by Plaintiff (NOP Vol 1 page 172). In cross examination by
TP1 counsel PW5 stated he was engaged by Plaintiff in January 2017. He
agreed the scale and size of objects are distorted depending on the
position and angle of the photographs and that when one sees something
in the photographs whatever is there can be seen and whatever is not there
can’t be seen (page 188). He was referred to plate 9 of his report and
asked to explain how he prepared it. He stated that the level of 40 was
from the drawing referred to in paragraph 1.2.i of his report and the levels
of 36 and 32.8 from the as built drawing referred to in paragraph 1.2.ii and
the final excavation levels were from two photographs. The height of
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excavation of 8-9 meters was from the photograph in C1 40(a) where the
distortion is minimal and the retaining wall is about 4m and this would be
around 3m by scale. He also referred to the photograph in C1 43 where
the additional excavation is about 1.5m judging from the water pool which
is above the same distance and therefore the distortion minimum. [pages
190-192]. The 4m height of the retaining wall was derived from the
photographs and the 2 trenches which is about 2m and platform level in
plate 9 was 40m and original ground level before excavation was 36m and
40m minus 36m is 4m (page 194].
16. The evidence of DW1 and DW4 were that Defendant wanted to build
a factory on its land and construction works started in August 2011 wherein
Hao Wu was its contractor and Tu the professional engineer who designed
and supervised the work. DW4 in cross examination by Plaintiff counsel
said the work in August 2011 was clearing of rubbish and demolition of the
old factory and that although there was excavation he could not remember
when that was done (NOP Vol 2 page 392).
17. According to DW3 Hao Wu carried out the construction work
according to the approved plans drawn by TP1 and it hired a few sub
contractors to carry out work which was not within its expertise (Q&A 2 and
3 WSD3). The work started before the landslide and there was an
approved drawing as in B4 693 dated 10-10-2011. To a question as the
approval was dated 10-10-2011 and the landslide occurred on 13-10-2011
and since the work started before the landslide this meant there was no
approval, he disagreed. He further disagreed when he started work it was
illegal. To a question that Defendant’s witness said work started in August
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2011 he disagreed as in August 2011 the work was demolition of factory
which was done by Defendant (NOP Vol 2 page 358). The digging of the
land was done by YSS Transport which is Hao Wu’s sub contractor and the
instruction to excavate came from Defendant. He confirmed the
construction work done by Hao Wu included the retaining wall (page 358).
DW3 said the excavation was 1m deep and referred to B7 223 where T1
column showed 350 and T3 600 which added together is almost 1m. In re
examination on when Hao Wu started work he was referred to B3 474
which was MPSA approval dated 28-9-2011 for kelulusan pelan pelan
lampu laman he agreed he started work around September (page 384).
18. DW2 was engaged by Defendant to provide an expert report on inter
alia whether Plaintiff, Defendant or TP1 and/or TP2 caused the soil erosion
in Lot 3845 during the construction of the retaining wall or after the
completion of the constructed retaining wall between Plaintiff’s and
Defendant’s land. At page 10 of his affidavit was stated as follows-
“2.2 No proper drainage on lot 3845
a. From the survey plan No SH/17/SEL/158/A (Appendix 5) … showed
that the concrete drain with a dimension of 0.45m (wide) x 0.15m (deep)
constructed between the hostel and the factory convey the surface runoff
and flow towards west before it meets a larger drain size of 0.50m (wide) x
0.35m (deep) which was constructed parallel to lot 3844 which flow
towards the discharge point located near to the entrance of lot 3845.
b. There was no perimeter drain or surface drain constructed on the
eastern side of lot 3845 (refer Appendix 5). …
c. The photos 314 in Appendix 7 shows that the rainwater that drops from
the roof eaves of the factory directly on the concrete floor slab and then it
flow towards a kerb of the eastern side of lot 3845 before it is conveyed
through a pvc pipe of 6in diameter with brackets to the discharge point in
lot 3846.
…”.
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19. At paragraph 3.1(a) DW2 concluded Plaintiffs failed to provide proper
drainage in lot 3845 to discharge water that drops on the factory’s concrete
floor when it rains … contributed to the cause of soil erosion. The same
was reiterated in paragraph 3.3(a) where he stated Plaintiffs were negligent
to provide a drainage network to collect water that drops in the eastern side
of lot 3845.
20. In cross examination by Plaintiff counsel DW2 was not able to tell
from the photos in B2 453-459 if there was a wall at the back portion of
Plantiff’s land as there soil beneath had already eroded (NOP Vol 2 page
298) and that the earth was eroding towards south which lot 3847 (page
299). He said the erosion was solely dependent on drainage (page 303).
To a question if a proper wall was constructed at the back portion would
soil erosion happen he said “possibly no”. No compaction could also be a
cause of soil erosion, there could be other factors and it cannot be only the
drainage system (page 306). As to whether if there is a wall built and
refilled proper compaction would soil erosion happen he said ‘no” (page
307). There followed a series of questions and answers-
Qn: … And it would not happen even with the current drainage system if
there is a wall and proper compaction?
…
Ans: Means the current drainage system if there is no drainage? Then the
soil be soaked.
…
Ans: If there is no proper drainage then the soil will be soaked. And then
they will lose strength.
Qn: Will be soaked ya. But it will not there’s no soil erosion? There won’t
be erosion.
Ans: So the water will carry along the particles, the clay particles out.
Judge: The question is will there be soil erosion?
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Ans: Yes.
Judge: There will still be soil erosion.
Qn: There will still be soil erosion.
Ans: There will still”.
[pages 307-308].
(b) Analysis and finding
21. This evidence of DW1 and DW4 shows there was at the very least
construction work by Defendant on its side of the land from August 2011.
As to what the nature of work was DW3 as the contractor would be better
placed to say what it was. According to DW3 the work in August 2011 was
for the demolition of the old factory which was by Defendant’s contractor
and his construction work which included the retaining wall was around
September 2011 from the date of MBSA’s 1st approval for kelulusan pelan
pelan lampu laman. Regardless of whether it was August or September
2011 this was before the landslide of 13-10-2011.
22. Going by Plaintiff’s pleaded case the landslide and the collapse of its
retaining wall was due to Defendant digging and leveling its land to a depth
of approximately 90 degrees and about 20 to 30 feet. As explained by
PW5 the collapse was due to excessive cutting of the earth below the
retaining wall in terms of height and steepness of the cut. Plaintiff must
thus prove this was what was done by Defendant.
23. It was PW1 evidence Defendant dug and excavated further 15 feet in
depth and angle of 90 degrees which exceeded the existing retention wall
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approximately 10 feet high. In cross examination as to the documents he
had to support his evidence on the excavation done he said he only had
photographs which are in B2 301 and 309. As to whether any
measurements were taken he said there were but are not in the bundle.
His evidence on the specifics of excavation was therefore only with
reference to photographs.
24. Plaintiff’s expert PW5 had produced his report where in paragraph 15
he stated cause of the collapse of the retaining wall was due to the
excessive cutting of earth below the retaining wall in terms of height and
steepness of the cut during the development at Lot 3846 and the retained
height of excavation at the time of the collapse was about 8-9m without any
lateral support. Although certain levels were obtained from drawings the
final excavation level was obtained from 2 photographs namely C1 40(a)
and C1 43. Refer to NOP Vol 1 pages 190-192. By themselves the
photographs do not prove anything. The Court is thus unable to without
more accept the evidence solely on photographs.
25. The evidence of PW1 and PW5 who relied on photographs to prove
excavation shows that PW1’s excavation was 15 feet which is about 4.57m
as contrasted to PW5 who said it was 8-9m. This shows the Court cannot
rely solely on photographs.
26. It was submitted by Plaintiff’s counsel that TP1W1 had given
evidence that the excavation was the cause of the landslide. In this regard
it was TP1W1 evidence that excavation was one of the reason (NOP Vol 2
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page 480). Further he was not asked as to the excessive cutting in terms
of height and steepness which was the bone of Plaintiff’s contention.
27. The evidence of Defendant’s expert DW2 showed there could be
other reasons for the landslide namely no proper drainage on Plaintiff’s
land which led to the soil erosion. He agreed that if there was a proper wall
at the back portion and proper compaction there would be no soil erosion.
However he said that with the current no drainage system there would be
soil erosion even with the proper wall and compaction. The evidence of
PW4 as Plaintiff’s tenant showed it built facilities and amenities for its
workers such as toilet, washing area, cooking area and hostel (NOP Vol 1
page 138). The water from the toilet goes into a drain which links to a main
drain in front of his factory and the drainage was not approved by the
Sewerage Services Department (page 142). As per Plate 6 in PW5’s
report the kitchen, toilet and water pool collapsed and the hostel cracked.
28. Thus from Plaintiff’s own evidence as outlined above Plaintiff has not
proved that Defendant dug and leveled its land to a depth of approximately
90 degrees and about 20 to 30 feet. There could have been other factors
as agreed by DW2.
29. In this regard section 101 of Evidence Act 1950 provides that –
“101. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts must prove
that those facts exists.
(2) When a person is bound to prove the existence of any fact, it is said that
the burden of proof lies on that person.”.
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30. In Tenaga Nasional Bhd v Perwaja Steel S/B [1995] 4 MLJ 673 the
court referred to the aforesaid provision and stated what this meant was
that “the plaintiff must prove such facts as the plaintiff desires the court to
give judgment as to its right to claim against the defendant”. Here Plaintiffs
have not proved the existence of the facts of Defendant digging and
leveling its land to the depth as asserted.
31. Although it was not disputed Defendant had paid a compound of
RM25,000.00 imposed by MBSA it was explained by DW4 if they had not
paid the construction work cannot be continued (NOP Vol 2 page 454).
Payment of the compound does not amount to proof it was the excavation
work that caused the landslide.
(c) Improper backfilling/no compaction during construction of
retaining wall
32. For this Plaintiff relied on the expert report where at paragraph 5.0
were set out the events of ground settlement. It will be seen this is based
on the chronological events as complied in Appendix B which are based on
the photo compilation prepared by Plaintiff. These were again based on
photographs without more. As to the cause it was stated to be “likely” due
to the serviceability limit state of the retaining wall in retaining the soil.
There were “other possible influencing factors” such as improper filling, no
compaction, no drainage filter and non granular fill material. These were
again taken from photographs namely C1 46 and 48.
33. Plaintiff had therefore not proved its allegation of ground settlement
due to the construction of the retaining wall.
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(d) Finding on Plaintiff’s claim
34. For the above reasons the Court found that Plaintiffs had not proved
its case.
(e) Illegality
35. Illegality was pleaded by Defendant that the retaining wall, building
and factory on Plaintiff’s land was built without approval and therefore
illegal. This would be relevant if Plaintiffs had proved its case and relates
to the claim for loss of rental claimed by Plaintiff. Plaintiff had rented the
back portion of its land with a single storey factory to RAE which it said
RAE terminated due to safety issues.
36. The evidence of PW1 shows that in 2007 there was a programme by
the State Government “The Illegal Factories Rehabilitation Programme”
where all factories set up before 2007 would be legalized provided the
premium for land status conversion from agriculture to industry was paid.
Plaintiff duly applied for the conversion which was approved by letter of
approval dated 5-10-2011 (B2 94-97) and the premium of RM625,197.00
was charged as per Notice to Pay (Form 7G, B2 98). Plaintiff paid a
premium of RM308,700.00 which was a 50% deduction due to payment
within 3 months together with the cukai tahunan of RM7,797.00 on
25-10-2011 (B2 99-100). From 2011-2017 Plaintiff has been issued a lesen
perindustrian (B2 86-93). [Q&A10-13].
37. In cross examination PW1 stated that at that time of construction no
submission of plans to MBSA was made (NOP Vol 1 page 18) and that
when the application for business license was submitted there was no
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building plan as that was not required (page 19). Certain conditions in the
letter of approval were not complied with (page 26) and so too the condition
in the Land Office Circular dated 31-7-2006 (C2 3-10) where within 1 year
of the approval of change of land use there had to be an application for
building and planning approval and Certificate of Fitness (page 29). When
Plaintiff built the factory in front and at the back of Plaintiff’s land there was
no Development Order (DO) and PW1 disagreed the rental to RAE was
illegal (page 42-43) but agreed conversion was not the same as DO or
approval and the licence was for Plaintiff to operate (page 46).
38. In re examination PW1 stated when he paid the land premium neither
the Land Office nor MBSA asked for the building plan to be submitted
(page 58) and the same too for the application of business licence and its
renewal (page 60).
39. PW2’s evidence essentially was that with the payment of the
premium Plaintiffs’ land “mendapatkan status pemutihan” (Q&A 14 WSD2).
In cross examination when asked whether with the payment the proses
pemutihan was complete, he replied sebahagian sahaja and that the
process is completed when the document of title is issued (NOP Vol 1
pages 79-80). He confirmed there were conditions in the letter of approval
which had not been complied with (page 81) and the Land Office Circular
stated that after payment of premium there was 1 year to comply with the
conditions (page 82). At the time of the letter of approval the process of
conversion was completed “tetapi perlu memproses untuk mendapat
kelulusan bangunan” (page 84). To a question the borang 7G was for the
change of status and not the rehabilitation of illegal factory he agreed it was
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for change of status and a part of rehabilitation (page 85). In re
examination he stated the 1 year for compliance was not stated in the letter
of approval (page 87).
40. From the evidence above although Plaintiffs have paid for the
premium for the conversion of Plaintiffs’ land from agriculture to industrial
the process of conversion will not be completed until the conditions in the
letter of approval and the Land Office Circular have been complied with.
The evidence is that these conditions were not complied with. The
business licence is only the licence to operate. It follows the factory is
illegal such that the rental to RAE is illegal and Plaintiffs would not have
been able to claim on the loss of rental. The law is clear the Court will not
grant any relief founded on illegality nor enforce any rights based on
illegality. This Court looks no further than Merong Mahawangsa S/B v
Dato Shazryl Eskay bin Abdullah [2015] 5 MLJ 619.
(f) Consent judgment between RAE and Dft and Hao Wu
41. In an earlier case 52-1168-05/2012 filed by RAE against Defendant,
Hao Wu and TP1, there was a consent judgment obtained between RAE
and Defendant and Hao Wu dated 6-12-2012 (B1 12-13). Pursuant to that
consent judgment Defendant and Hao Wu were to pay RAE RM139,000.00
as full and final settlement. It then further stated “sekiranya terdapat
tuntutan lain untuk kerugian yang sama seperti diplidkan di dalam
Pernyataan Tuntutan Plaintif, pihak Plaintif bersetuju untuk menanggung
rugi pihak Defendan Pertama dan Defendan Kedua terhadap tuntutan yang
dibuat oleh pihak tersebut”. Although the digging and excavation and
landslide was pleaded what was claimed by RAE in that case were for
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losses and damage sustained on its property which was rented to it by
Plaintiff. The subject matter of the claim by RAE is different from that by
Plaintiffs in this instant suit. Defendant can be liable if Plaintiffs prove their
case which they have not.
(g) Credibility of DW1 and DW4
42. It was submitted by Plaintiffs’ counsel the Q&A of DW1 and DW4
were identical other than the answers to Q1 and Q2 as confirmed by DW4
(NOP Vol 2 pages 386-388) and raises a doubt as to whether the answers
of DW4 were that of his or provided by DW1. However as explained by
DW4 as to why it was word for word the same as that of DW1 he said it
was “because we speak the truth. So we speak the truth. The answer will
be the same”. He confirmed his witness statement was his evidence (page
388). Plaintiff counsel then went on to cross examine him “I will ask you
every line. I will find out whether it is your evidence”. The questions posed
to DW4 were answered by him and there was no answer such as I don’t
know or I cannot answer which would perhaps suggest his evidence was
not as per the witness statement. DW4 was the director of Defendant since
2002 (page 390) and would have personal knowledge of the facts at the
relevant time. This was borne out by his answers in cross examination.
His evidence is that of his own and not provided by DW1 and can be given
due weight.
43. With regard to DW1’s evidence being hearsay it is not disputed he
joined the sales team of Defendant in February 2013 which is after the
landslide and the construction of Defendant’s retaining wall. Some of his
evidence were from photographs, documents and as informed to him.
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Where it was not from his personal knowledge he was forthright and
admitted so. His evidence from photographs and documents can be given
due weight and to be tested in the light of the overall evidence and not to
be relied on merely by virtue of his say so.
B. Defendant’s counterclaim
44. Defendant’s counterclaim is dismissed. With regard to the claim for
Plaintiff to rebuild the retaining wall between Plaintiff’s and Defendant’s
land although it was the Court’s finding the landslide and the collapse of the
retaining wall was not caused by by Defendant digging and levelling its land
to a depth of approximately 90 degrees and about 20 to 30 feet, the other
factors as agreed by DW2 were drainage and no proper compaction of
which only drainage may be attributed to Plaintiff. As per the evidence of
DW4 there were plans to build the retaining wall on its land before the
landslide (NOP Vol 2 page 402). This means the retaining wall was not
necessitated by the landslide. The reliance on MBSA’s letter dated
15-11-2011 C3 485 that Plaintiff was to bear half the cost is misplaced as
that letter merely asked Defendant to have a discussion with Plaintiff “bagi
cadangan perkongsian kos tembok penahan”. As to the construction cost
of the drainage system built there was no proof it had been built with the
consent of Plaintiff.
45. Although there was evidence led in respect of a counterclaim for
trespass and nuisance for the mixture of soil and stone that flowed from
Plaintiff’s land to Defendant’s land, trespass and nuisance was not pleaded
and the Court will not consider this part of the counterclaim.
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C. Defendant’s claim against Third Parties
46. As Plaintiff has not proved its case against Defendant, Defendant’s
third party claim against TP1 does not arise. Defendant’s case against TP1
is dismissed with costs.
47. The Court adds that in any event the design of the retaining wall on
Defendant’s land was not that of Tu’s but of one Wong Chiang Heng
(Wong) wherein the L shaped wall was supplied by Alliance Precast
Industries S/B (API). It was the evidence of Tu he advised Defendant to
build the retaining wall according to 3 approved plans submitted to MBSA
as in B7 222, 223 and 225 but Defendant did not follow the approved plans
and that Defendant wrote a letter to MBSA (B9 2) it had constructed the
retaining wall as per API’s specification and requirement.
48. From the evidence the plans of Tu required 2 walls to be built and
ultimately 1 was built as per Wong/API’s L shaped wall and not that of Tu’s.
This was confirmed by DW1 (NOP Vol 2 pages 274-275). DW3 also
confirmed in Tu’s design in B7 225 there was no L shaped wall and that C3
81-84 were the L shaped design drawings (page 380). He agreed they had
built according to Wong’s design and it was not following Tu’s (page 381).
DW3 further agreed the documents in B3 541-547 were to buy the L
shaped wall supplied by API to Hao Wu to be put on the boundary
between.
49. Plaintiff’s and Defendant’s land (page 376). DW4 stated Hao Wu had
built 1 wall which was L shaped (page 432). He also agreed the wall was
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built according to the design of API which follows that of Wong’s (pages
436-437).
50. With regard to MBSA’s letter in B9 2 DW4 confirmed he issued it and
it was received by MBSA on 16-1-2014. He agreed based on the letter
Defendant will repair any defects and that it stated the current wall was
constructed as per API’s specification and requirement.
51. In respect of TP2 it did not appear appearance. The Court will not
make any order against TP2.
Conclusion
52. Plaintiffs’ claim against Defendant and Defendant’s counterclaim is
dismissed with costs to Defendant. Defendant’s claim against TP1 is
dismissed with costs.
Dated : 28 December 2017
See Mee Chun Hakim Mahkamah Pembinaan Shah Alam
Solicitors for Plaintiff Mr Richard Tee, Ms Caryn Shua and Ms Karen Tan Tetuan Richard Tee & Chin, Kuala Lumpur