Lee Wei Shooi v Eng Chai Seng (JA-22NCvC-184-12/2024)

LEE WEI SHOOI [NRIC NO. : 650430-10-5799]

ONG KAR BEE [NRIC NO. : 670316-08-6326] …PLAINTIFFS

ENG CHAI SENG [NRIC NO. : 610331-01-6153]

ENG GINNICE [NRIC NO. : 030826-01-1054]

TETUAN AHK ARKITEK HANAN [REGISTRATION NO. : 200003027709 (JM0313779-T)] 05/07/2026 11:09:21

MAJLIS BANDARAYA JOHOR BAHRU …DEFENDANTS AND TAN CHENG NGAP [NRIC NO. : 710529-01-5381 (NEW) / A1945380 (OLD)] [doing business under the name of HEIGHT POINT DESIGN bearing REGISTRATION NO. : 199403015598 (JM0208470-W)] …THIRD PARTY GROUNDS OF JUDGMENT

Good fences, it is said, make good neighbours. This case is about what followed when one came down. The Plaintiffs and the 1st and 2nd Defendants live in adjoining link houses in the same row in Taman Redang, Johor Bahru. When the 1st and 2nd Defendants began renovating and extending their home, the Plaintiffs next door complained that the works were noisy, dusty and damaging and that parts of the structure should never have been built. What began as a quarrel over a building site grew into a suit against the neighbours, the architect and the city council, with the neighbours pointing to their contractor. The question for me is narrow – “Have the Plaintiffs proved that the works were unlawful and caused them an actionable wrong as to make any of the Defendants liable”.

The 1st and 2nd Plaintiffs are the registered joint proprietors of the property known as No. 21, Jalan Redang 1/2A, Taman Redang, Johor Bahru (“the Plaintiffs' property”). The 1st and 2nd Defendants are the registered joint proprietors of the immediately adjoining property known as No. 23 which is the Defendants' property”. The 2nd Defendant is the 1st Defendant's daughter and authorised him to conduct the defence.

The 1st and 2nd Defendants engaged the Third Party to carry out the renovation works on a turnkey basis that included the obtaining of any approvals required from the 4th Defendant. The 1st Defendant paid RM5,000.00 towards the preparation of the plans. The works, which included earthworks and excavation, commenced in or about October 2023.

It is not in dispute that, when the works commenced, the prior approval of the 4th Defendant had not been obtained. On 25 June 2024, following a complaint, the 4th Defendant inspected the site, and on 26 June 2024 it issued a stop-work order under section 70(1) of the Street, Drainage and Building Act 1974 [Act 133], together with a direction to demolish the structures exceeding the permitted boundary. A penalty of RM3,230.00 for building without prior approval was imposed and paid on 17 July 2024 and the revised plans were approved, subject to conditions, on 28 July 2024.

The 4th Defendant thereafter required a dilapidation report before any resumption of works. The 1st and 2nd Defendants appointed Sinct-Lab Sdn Bhd, whose report was completed on or about 25 November 2024. The report inspected the neighbouring properties but not the Plaintiffs' property, the Plaintiffs having declined access.

On 14 April 2025 the 4th Defendant issued a letter of no objection to the resumption of works upon a fresh submission. The Plaintiffs thereafter obtained an interlocutory injunction restraining the 1st and 2nd Defendants from continuing the works on 28 October 2025 (Enclosure 71).

The Plaintiffs resided in their property throughout. These matters are largely reflected in the parties' agreed statements of fact and were not seriously contested at trial.

Enclosure 75 set out twelve issues to be tried : six for the Plaintiffs, three for the 1st and 2nd Defendants and three as between the 1st and 2nd Defendants and the Third Party. Many of them overlap or are subsidiary to one another and the determinative questions, as I summarised them, are five –

whether the works contravened the relevant law and, if so, with what consequence;

whether the 1st and 2nd Defendants (and, as the case may be, the 3rd Defendant) are liable to the Plaintiffs in private nuisance, trespass and/or negligence and whether the Plaintiffs have proved damage caused by the works;

whether the 3rd Defendant and the 4th Defendant bear any liability and whether the alleged conspiracy is made out;

what relief, if any, the Plaintiffs are entitled to, including the quantum of any damages; and

whether the 1st and 2nd Defendants are entitled to contribution and/or an indemnity from the Third Party. ANALYSIS Preliminary matters : objections and the documents

At the trial, the parties asked the Court to record their objections, which I did and I directed that any objection be taken up in the written submissions, where I would rule upon it. The objections recorded were as follows –

the Plaintiffs’ objection to the Third Party cross-examining the Plaintiffs’ witnesses, and that the Third Party’s questions should be confined to the parameters of its pleadings against the 1st and 2nd Defendants;

the 1st and 2nd Defendants’ objection that parts of SP1’s evidence were documentary hearsay, resting on documents of which he was neither the maker nor the recipient;

the 1st and 2nd Defendants’ objection that certain documents and photographs and parts of the oral evidence, had not been pleaded;

the 1st and 2nd Defendants’ objection to SP2’s standing as an independent expert; and

the Third Party’s objection that the earthworks and the description of the yellow structures as unlawful, had not been pleaded.

Save for the objection to SP2’s standing as an expert at (d), which the 1st and 2nd Defendants pursued in their written submissions and which I address under Issue (b) below, none of these objections was pursued in the written submissions. My direction having been that they be taken up there, and they not having been, I take it that they are not pressed, and I make no ruling upon them. In any event, the Third Party’s entitlement to cross-examine the Plaintiffs’ witnesses was the subject of leave granted by this Court’s order of 13 March 2025 in Enclosure 23.

The Common Bundle and the four Additional Bundles were tendered as Part B documents (Bahagian B) : their authenticity is admitted, but the truth of their contents is not, the weight to be given to them being for the Court. Where the contents of a Part B document were put to a witness in cross-examination and not displaced, or were not challenged at all, I have taken the document at face value as accepted; where the truth of a document’s contents was specifically disputed, I have weighed it accordingly. Approached in that way, the documents recording the 4th Defendant’s enforcement, the Sinct-Lab dilapidation report and the Third Party’s contemporaneous communications were not displaced in cross-examination, and I accept them.

The trial was conducted over four days, from 30 March to 2 April

The Plaintiffs called two witnesses, SP1 and SP2. The 1st and 2nd Defendants called SD1. The 3rd Defendant called SD2 and SD3. The 4th Defendant called SD4 and the Third Party gave evidence as SPK1. All parties filed written submissions and bundles of authorities.

The legal burden of proving the claim rests on the Plaintiffs, who must establish each element of their causes of action on the balance of probabilities. [See : sections 101 to 103 of the Evidence Act 1950 [Act 56]). As will appear, much of the difficulty in the Plaintiffs' case lies in the discharge of that burden. SP1 (1st Plaintiff)

SP1, Lee Wei Shooi, gave evidence that –

the works were a major reconstruction carried out without approval and without notice;

they generated noise and dust; and

they caused or risked structural damage to his property.

Under cross-examination, however, SP1 accepted that he is a businessman and not an engineer and that his assertions as to structural alteration and the effect of the works on the stability of his property were matters of his own opinion.

He further accepted that the works and photographs he relied upon depicted the Defendants' property (No. 23) rather than his own and, when it was put to him, that there was no conspiracy (“subahat”) between the Defendants.

The 2nd Plaintiff did not testify; as joint proprietors the Plaintiffs’ claim stands or falls together, and the claim failing on its merits, no question of an adverse inference arises from her absence. SP2 (the Plaintiffs' architect)

SP2, Ar. Amerpal Singh Khosa, is an architect. His evidence was directed to compliance with the approved plans, in particular his opinion that certain structures shaded yellow on the plans fell to be demolished. He did not give evidence as a structural engineer, and offered no opinion establishing that the works had caused structural damage to the Plaintiffs' property, nor any valuation of loss. SD1 (1st Defendant)

SD1, Eng Chai Seng, gave evidence that –

he had entrusted the entire project, including the obtaining of approvals, to the Third Party;

he believed (wrongly) that approval had been applied for, having paid for the plans since 30 June 2023;

he did not supervise the works; and

the only complaint during the works concerned a water leak, which was found to originate from the Plaintiffs' property and was repaired as a goodwill gesture.

He said that, upon the stop-work order, he complied with every direction of the 4th Defendant. SD2 and SD3 (3rd Defendant)

SD2 (Azhar bin Idris) and SD3 (Tan Tiang Fatt) gave evidence that –

the 3rd Defendant was engaged in June 2024 and by the contractor, not by the 1st and 2nd Defendants;

its role was confined to preparing and submitting the plans and filing the statutory forms;

that it was never at the site; and

the works stopped before the stage of completion and the issuance of a certificate of completion and compliance (“CCC”). SD4

SD4 (Noratika binti Wahid), an officer of the 4th Defendant, set out the local authority's enforcement : the site inspection, the stop-work order under section 70(1) of Act 133, the penalty, the conditional approval of the revised plans and the requirement of a dilapidation report before any resumption. She denied any negligence, breach of statutory duty or conspiracy on the part of the 4th Defendant.

SPK1, Tan Cheng Ngap, gave evidence that –

the works were carried out competently on the instructions of the 1st and 2nd Defendants and the 3rd Defendant;

dust was contained by boundary sheeting and the site cleaned daily;

the water leak originated from within the Plaintiffs' property;

that the areas shaded yellow on the plans were existing structures to be demolished as part of the renovation, with the red shading denoting the new additions; and

the dilapidation survey could not inspect the Plaintiffs' property because access was refused. Issue (a) : Whether the works contravened the relevant law and, if so, with what consequence

The Plaintiffs' position is that the works were unlawful, having been commenced in October 2023 without the prior approval of the 4th Defendant and that this illegality is, of itself, sufficient to found their claim and to entitle them to the relief they seek.

I accept, as is not in dispute, that the works commenced without prior approval and that approval was obtained only on 28 July 2024, after a penalty had been imposed and paid. To that extent there was a contravention.

The Plaintiffs' position is, however, flawed in the inference it draws from that contravention. The requirement of prior approval under Act 133 is a matter of public regulation, the enforcement of which is entrusted to the local authority, here by the stop-work order and the penalty, both of which occurred. A contravention of that character does not, of itself, confer upon a neighbour a private cause of action.

If the Plaintiffs wished to impugn the validity of the approval ultimately granted, the proper recourse was judicial review against the 4th Defendant, and not a collateral attack in a private civil action. [See : Ng Chok Ling v. Abdul Gaffar Khan Amirullah [2025] MLRHU 1528]. The contravention takes the Plaintiffs only to the threshold. To succeed they must still establish a recognised tort and, the gist of the tort being damage, prove damage. I turn to that question. Issue (b) : Whether the works caused an actionable nuisance, a trespass, or damage to the Plaintiffs' property

The principles of private nuisance are settled. A private nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over it, and may take the form of an encroachment, of physical damage to the neighbour's land or buildings, or of interference with the quiet enjoyment of the land. [See : Chin Moy Yen & Ors v. Chai Weng Sing & Ors [2020] 1 MLRA 122 and Tok Jwee Kee v. Tay Ah Hock & Sons Ltd & Town Council, Johore Bahru [1969] 1 MLRA 210].

The conduct complained of need not itself be unlawful. What matters is the character and consequence of the interference. The Plaintiffs put their case in three ways (a) noise and dust, (b) physical damage from the earthworks, and (c) trespass, which I take in turn. Noise and dust

The Plaintiffs' position is that the works subjected them to excessive noise and dust. The difficulty with that position is twofold. Works of finite duration ordinarily occasion some inconvenience to a neighbour and the law does not treat every such inconvenience as an actionable nuisance. And the evidence of SPK1 was that dust was contained by boundary sheeting and the site cleaned daily. That evidence was not challenged in cross-examination and I accept it. [See : Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212, on the consequence of a failure to challenge]. On the evidence, the noise and dust did not cross the threshold of an actionable nuisance. Physical damage from the earthworks

Whether the works caused physical damage to the Plaintiffs' property is a question of fact. The burden of proving it lies on the Plaintiffs, and I approach it by setting the evidence on each side against the other and asking which is the more persuasive.

The Plaintiffs' evidence was that of SP1 and SP2.

SP1 spoke of cracking, settlement and instability said to follow from the excavation. However, he accepted in cross-examination that he is not an engineer and that the works and photographs he relied upon depicted the Defendants' property rather than his own. When it was put to him that his account of the structural effect of the works was opinion, “because you are not an engineer”, he answered simply, “Ya”.

SP2, though an architect, gave evidence directed to compliance with the approved plans, not to the causation of structural damage. He is not a structural engineer. No valuation evidence was led to prove any diminution in the value of the Plaintiffs' property.

The 1st and 2nd Defendants and the Third Party objected to SP2’s evidence, on the grounds that he was not shown to be an independent expert and that his qualifications were not stated as Order 40A rule 3(2)(a) ROC 2012 requires. I need not decide that objection, because even taken at its highest SP2’s evidence goes only to compliance with the approved plans and not to the causation of any damage to the Plaintiffs’ property.

The evidence on the other side was largely unanswered.

SPK1’s evidence was that the works were carried out with dust containment and daily cleaning and that the water leak relied upon by the Plaintiffs originated from within their own property. The only engineering assessment before the Court is the dilapidation report prepared by Sinct-Lab Sdn Bhd dated 25 November 2024, a visual survey commissioned at the 4th Defendant’s requirement. That report records the existing condition of the neighbouring properties at Nos. 7, 9 and 25 but it expressly records that the Plaintiffs’ property (No. 21) could not be inspected at all because the owner did not respond to the request for access, Sinct-Lab having written on 13 November 2024 seeking permission to attend on 18 November 2024. The report accordingly contains no assessment of the Plaintiffs’ property and attributes no damage, whether to that property or to any other, to the works.

Weighing the two bodies of evidence, the Plaintiffs' does not establish, on the balance of probabilities, that the works caused physical damage to their property. The point is illustrated by the authority closest in point. In R Kanagasingam R Rajasingam & Anor v. Wong Chong Fatt & 3 Ors [2009] 12 MLRH 605, adjoining link houses, a “renovation” that was in substance a reconstruction, and an injunction, the neighbour succeeded in nuisance, but the claim succeeded because it was proved. Two experts agreed that the works had departed from the approved plans, the structural and aesthetic damage was established by expert evidence and a valuer gave unchallenged evidence of the consequent loss of value.

Here that evidential foundation is absent.

No survey or other evidence was led to establish that any structure encroaches upon the Plaintiffs' land and the allegation of trespass is not made out.

I accordingly find that the Plaintiffs have not proved that the works caused an actionable private nuisance, a trespass, or any physical damage to their property and the claim against the 1st and 2nd Defendants fails.

For completeness, two further matters that were argued do not alter the result. The Plaintiffs contended that the 1st and 2nd Defendants’ duty to a neighbour in respect of such works was non-delegable, so that they could not escape liability by pointing to the Third Party. The 1st and 2nd Defendants, for their part, laid the blame on the Third Party. As the Plaintiffs have not proved any actionable tort, the question whether that duty was non-delegable does not arise and I need not decide it.

The Plaintiffs also invited an adverse inference under section 114(g) of the Evidence Act 1950 against the 1st Defendant. But even were such an inference drawn, it could not supply the proof of damage that the Plaintiffs’ own case lacks, and it does not assist them. Issue (c) : Whether the architect (3rd Defendant) or the city council (4th Defendant) is liable and whether there was any conspiracy The 3rd Defendant

The Plaintiffs' position is that the 3rd Defendant, as the architect and “person in charge”, failed to ensure compliance with the approved plans and failed to halt the works. That position cannot be sustained on these facts. The duty of a principal submitting person is engaged at the stage of completion and certification. It is upon the issuance of the CCC that the architect certifies that the building has been constructed in accordance with the approved plans and is safe for occupation. On this point, I rely on my decision in Anuar Mahmood & Anor v. Johor Land Berhad [2026] MLRHU 346, where I had occasion to consider the requirements of By-Law 25 of the Uniform Building By-Laws. The works here stopped well before that stage, so a complaint that the “final construction” does not comply with the approved plans is premature and speculative.

The further flaw is that I find, on the evidence of SD2, SD3 and SPK1, that the 3rd Defendant was engaged only in June 2024 and by the contractor rather than by the 1st and 2nd Defendants and that its involvement was confined to the preparation and submission of plans. The contrary statement, that the 3rd Defendant was appointed by the 1st and 2nd Defendants around October 2023 and was the “person in charge”, appears only in the statement of agreed facts signed by the Plaintiffs’ solicitor and was not adopted by the 3rd Defendant. The 3rd Defendant owed no duty of care to the Plaintiffs, who were neighbours and not its clients. [See : Caparo Industries plc v. Dickman [1990] 2 AC 605]. Accordingly, the claim against the 3rd Defendant fails. The 4th Defendant

The Plaintiffs' position is that the 4th Defendant negligently approved the plans, failed to intervene and should be ordered to revoke its approval. That position is flawed for three independent reasons.

First, section 95(2) of Act 133 confers immunity on the local authority and its officers in respect of acts done in good faith in the execution of the Act, which includes the approval of plans and the conduct of inspections. [see : Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors [2006] 1 MLRA 166]. Secondly, and in any event, the 4th Defendant owed no duty of care to the Plaintiffs as neighbours. [See : Badan Pengurusan Bersama Kristal Heights 2 & Anor v. Syarikat Sri Malawati Sdn Bhd & Anor [2019] MLRHU 2061]. However, the relief sought, i.e to compel the 4th Defendant to revoke its approval, is a public-law remedy available, if at all, only on judicial review. [See : Ng Chok Ling]. Thirdly, to the extent the claim is put as a breach of statutory duty, the duties imposed on the 21 4th Defendant by Act 133 are public regulatory duties, enforced by the local authority in the public interest. Whether such a duty gives rise to a private right of action is a question of the construction of the statute and Act 133 discloses no intention to confer on a neighbour a private right to sue for its breach, the remedy for non-enforcement lying in public law and not in a private action for damages. Far from being inactive, the 4th Defendant in fact enforced against the works. The claim against the 4th Defendant fails.

The pleaded allegation that the Defendants conspired to permit the works to proceed without approval was not pursued. SP1 agreed, in terms, that there was “tiada subahat” between his neighbours and the 4th Defendant. In any event, no evidence of any agreement or of any intention to injure the Plaintiffs was placed before me. Accordingly, the allegation of conspiracy is rejected. Issue (d) : What relief, if any, the Plaintiffs are entitled to

Given my findings on liability, the question of relief does not strictly arise. I address it briefly for completeness.

The claim for an order of demolition rested on the contention that the areas shaded yellow on the approved plans denote unlawful structures to be removed. That premise is not borne out. The unchallenged evidence of the 3rd Defendant, which prepared the plans and of the Third Party, was that the yellow shading denotes existing structures to be demolished as part of the renovation and the red shading the new additions, the plan as a whole having been approved. The premise for the demolition order therefore fails. In any event, while the 4th Defendant's approval stands and has not been set aside on judicial review, it would not be appropriate for this Court to order demolition. [See : Ng Chok Ling].

As to damages, the Plaintiffs did not prove their loss. The substantial heads originally pleaded, in particular RM1,000,000.00 for the profit said to have been lost on an aborted sale, together with claims for alternative accommodation, storage and a koi pond, were not supported by the evidence and were not pursued. The figures advanced for general damages and for professional and engineering assessment costs were asserted but not proved.

The claim for alternative accommodation is, moreover, irreconcilable with the agreed fact that the Plaintiffs resided in their property throughout. No damage having been established, no question of quantum arises. Issue (e) : Whether the 1st and 2nd Defendants may recover contribution or an indemnity from the Third Party

On this issue the party who does not succeed is the 1st and 2nd Defendants, whose position is that, if held liable to the Plaintiffs, they are entitled to contribution and/or an indemnity from the Third Party, who carried out the works and undertook to obtain the approvals. The answer is that the third-party claim is derivative. It is contingent upon the 1st and 2nd Defendants first being found liable to the Plaintiffs. As the Plaintiffs' claim against the 1st and 2nd Defendants has failed, the third-party claim does not arise and is dismissed accordingly.

For the reasons set out above, the Plaintiffs have failed to establish their claim against any of the Defendants. I make the following orders–

the Plaintiffs' claim against the 1st, 2nd, 3rd and 4th Defendants is dismissed;

the third-party claim is dismissed accordingly;

the interlocutory injunction granted on 28 October 2025 (Enclosure 71) against the 1st and 2nd Defendants is discharged; and

a global costs of RM100,000.00 to the Defendants and the Third Party (RM 20,000.00 each), subject to allocatur. Dated : 10 June 2026 -signed- (DR. NORADURA BINTI HAMZAH) Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Plaintiffs : : Dinesh Kanavaja Messrs. Melissa Ram Counsel for the First and Second Defendants : : George Neo Hee Kwang together with Christie Liau Hui Min Messrs. Yeo Chambers Counsel for the Third Defendant : : JK Eng Messrs. J.K. Eng & Co Counsel for the Fourth Defendants : : Syahmi Nawawi Messrs. Azwad Ihsan & Co. Counsel for the Third Party : :