Mokhtar Bin Abdul Wahab v Country Garden Pasificview Sdn Bhd (JA-23NCvC-5-05/2021)

MOKHTAR BIN ABDUL WAHAB [NRIC NO. : 680318-01-5627]

JAFALI BIN ABDUL WAHAB [NRIC NO. : 630101-01-9621]

MOHD NAJIB BIN ABDUL WAHAB [NRIC NO. : 611112-01-6035] …PLAINTIFFS AND COUNTRY GARDEN PACIFICVIEW SDN BHD [COMPANY NO. : 1044344-D] …DEFENDANT 24/07/2026 16:20:14 JA-23NCvC-5-05/2021 Kand. 135 GROUNDS OF JUDGMENT

This is the plaintiffs’ claim against the defendant for damage said to have been caused to their agricultural land, Lot 683, by water overflowing and ponding from a highway built by the defendant adjacent to the land. The plaintiffs plead negligence and seek general, special, aggravated and exemplary damages.

The three plaintiffs are brothers and the registered co-owners, in equal shares, of the property held under (originally) Geran Mukim 851, Lot 683, Mukim Tanjung Kupang, Daerah Johor Bahru, Johor (“Lot 683”). It is Malay reserve land in the category of agricultural use, on which a durian and duku orchard stood. Following the acquisition of part of Lot 683 for the access highway, the registered area was reduced from 1.2368 hectares to 1.1287 hectares and a replacement title (H.S.(M) 1823, PTD 7845) was issued.

The defendant, Country Garden Pacificview Sdn Bhd, is the owner and developer of the Forest City development. It is not in dispute that the defendant is the developer of Forest City and that on 13 January 2021 the plaintiffs sent the defendant a notice of demand.

The plaintiffs’ case is, in summary, as follows. The defendant was the party responsible for initiating and completing the highway built adjacent to Lot 683 and as such, owed the plaintiffs a duty of care to avoid causing damage to their property.

The defendant is said to have breached that duty by failing to construct the drainage system in accordance with the approved plan, in particular by failing to build the specified drains, by building drainage for only about 150 metres, by not channelling it to any drain or river and by not maintaining it.

As a result, in or about October 2020 the first plaintiff observed excessive overflow of water from the highway onto Lot 683, which caused ponding. The land became clogged and swampy, 40 durian trees and 98 duku trees are said to have died and the soil’s structure, stability and fertility are said to have been damaged.

The plaintiffs claim general damages and special damages of RM3,939,420.00 made up of –

RM1,846,660.00 for the dead trees;

RM851,000.00 for depreciation in the value of the land;

RM147,600.00 for loss of yield;

RM1,084,160.00 for reinstatement works; and

RM10,000.00 for the costs of engaging property consultants and consulting engineers, including site-visit expenses, together with aggravated and exemplary damages, interest and costs.

The defendant denies liability. First, it is not the owner of the highway or of the land on which the highway sits. That land was acquired by the Land Administrator under the Land Acquisition Act 1960 and the design and construction of the highway were carried out by independent consultants and contractors. The highway was, it says, properly designed and built.

Secondly, the damage alleged was not and could not have been, caused by the defendant. Lot 683 is naturally low-lying and flat, subject to surface runoff before the highway was built and without any proper agricultural drainage of its own, the swampy condition is the result of natural causes, including rainfall and the geography of the land, rather than the highway. The defendant emphasises that the ponding is confined to part of the orchard, away from the highway and separated from it by a laterite road.

Thirdly, the defendant says the plaintiffs have not proved their loss, that the depreciation and reinstatement heads are a double claim and that the yield-loss head, computed from 2016, pre-dates the alleged damage of October 2020.

The parties agreed the following issues to be tried –

whether the defendant owed the plaintiffs a duty of care as pleaded;

whether the defendant breached that duty;

whether any such breach caused rainwater to overflow from the highway onto the property and if so when;

whether that overflow caused ponding on the property;

at the time of any overflow, what crops (and how many) stood on the property and what was the condition of its structure, stability and fertility;

whether any ponding disturbed the roots of the crops and damaged the structure, stability and fertility of the land;

whether any root disturbance caused the death of the crops;

whether the plaintiffs are entitled to the general, special, aggravated and exemplary damages claimed;

whether the defendant has any meritorious defence; and

whether the plaintiffs took any steps to mitigate their alleged loss.

The action was tried over five days, 27, 28, 29 and 30 January 2026 and 13 April 2026. The evidence

The plaintiffs called seven witnesses (SP1 to SP7) and the defendant two (SD1 and SD2). I summarise the effect of each witness’s evidence and deal with the contested matters in my analysis. SP1 - Mokhtar bin Abdul Wahab (1st plaintiff)

SP1 spoke to the ownership of Lot 683, his discovery of the overflow and ponding in October 2020, the death of the trees, his complaints to the police, the defendant, MBIP, the JPS and the JAS and the engagement of the experts. In cross-examination he accepted that the number of dead trees stated in his first police report and demand letter (30 durian and 60 duku) differed from his corrected report (40 and 98) and from the 2024 survey, which he attributed to flooding at the time, later spray-marking and decomposition, that the land already had a pre-existing earth perimeter drain and that he had assumed the laterite slope was the defendant’s land until the new survey. SP2 - Mohd Zamri bin Buang (MBIP)

SP2 produced MBIP’s reply to the complaint, which recorded a non-conforming “cascade” drain and a direction to the defendant. He accepted in cross-examination that he was not involved in the highway project, did not write the letter and did not personally conduct the site investigation and could speak only to MBIP’s general complaint procedure. SP3 - Mahayuddin bin Makmin (Registered Valuer, SRG)

SP3 gave evidence of his valuation of Lot 683, opining a loss of about RM7 per square foot (about RM6 swampy against about RM13 if sound). He was challenged on his treatment of the partly-swampy land and his comparables. SP4 - Mazlan bin Mohamed Salleh (Agriculture Officer)

SP4 spoke to the District Agriculture Office estimate of crop loss and replanting cost (RM1,846,660.00). He attended as a witness of fact rather than as an expert. His field visit was on about 22 August 2021. SD1 - Azleena binti Zainal Abidin (FAMA)

SD1 was called by the defendant and interposed on the third day, produced FAMA’s average market prices for kampung durian and duku. She accepted that FAMA held no record of the plaintiffs transacting with it. SP5 - Shamsuri bin Sharani (contractor)

SP5 produced the reinstatement quotation of RM1,091,360.00, which he said was based on his experience and current prices. SP6 - Mohd Zubidi bin Abd Razak (Engineer, Max Konsult)

SP6 gave the plaintiffs’ causation evidence through his monitoring report. In cross-examination he accepted that he is a civil engineer and not a hydrologist, that this was his first expert report, that on his site visit it was not raining and he did not observe water flowing from the highway over the laterite into the orchard, that the ponding area and the highway are separated by raised laterite ground, and that he had not used rainfall data. SP7 - Pauzi bin Muda (Licensed Surveyor)

SP7 produced the 2024 demarcation and topographic plan and his on-site count of damaged and dead trees and confirmed the area of the land. SD2 - Loo Kung Hoe (Registered Valuer, Rahim & Co)

SD2 gave the defence valuation on a residential highest-and-best-use basis (Basis 1, RM1,060,000.00; Basis 2, RM1,460,000.00), treating the crops as not relevant and about 65% of the land as swampy. In cross-examination he had inspected the land once, did not notice roadside drainage and accepted that there was a possibility that the swampy condition was due, among other things, to water flowing from the adjacent higher highway land.

I set out my assessment of the weight to be given to this evidence in dealing with each issue below. Burden and standard of proof

The legal burden of proving the claim lies on the plaintiffs, on the balance of probabilities. He who asserts must prove. [See : sections 101 and 103 of the Evidence Act 1950; International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86]. In an action founded on negligence the plaintiff must establish not only a duty of care and its breach, but also that the breach was the effective cause of the damage complained of. A failure to prove any link in that chain is fatal to the claim.

Special damages must be specifically pleaded and strictly proved. It is not enough for a plaintiff merely to set out the particulars and leave them to the court. [See : Bonham-Carter v Hyde Park Hotel Ltd

64 TLR 177, approved in Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777]. Exemplary damages are confined to the recognised categories. [See : Rookes v Barnard [1964] AC 1129]. Parties are bound by their pleadings, and the court will not decide a case on an issue that has not been pleaded. ANALYSIS AND FINDINGS

For ease of analysis I have grouped all ten agreed issues under four heads : liability (duty and breach), causation, damages and the defence and mitigation. As the plaintiffs carry the burden on each link of the chain, a failure to prove any one of them is fatal to the claim. A. Liability : duty of care and breach (Issues 1 and 2)

The plaintiffs’ case on duty and breach rests on the proposition that the defendant, as the party responsible for the highway works, was obliged to construct and maintain the drainage in accordance with the approved plan and failed to do so. On the evidence, I am not satisfied that the plaintiffs have established either the duty pleaded or its breach.

My principal difficulty is that the approved plan on which the entire case is built was never produced in evidence. Without it, the court cannot determine what the plan in fact required, whether it required the construction of the drains said to be missing, or that responsibility for constructing those drains lay with the defendant rather than with the State authority or the independent consultants and contractors. The plaintiffs’ case on the content of the duty is, in the result, unproven.

That difficulty is compounded by three further matters. First, it is not disputed that the land on which the highway sits was acquired by the Land Administrator under the Land Acquisition Act 1960 and that the design and construction were carried out by independent consultants and contractors, with a practical-completion certificate having been issued. The defendant is not the proprietor of the highway.

Secondly, the MBIP letter recording a non-conforming “cascade” drain was produced through SP2, who was not its maker, was not involved in the project and did not carry out the investigation. The relevant officer was not called. In those circumstances only limited weight can be given to that document and it does not establish a breach by the defendant of a duty owed to the plaintiffs.

Thirdly, on SP1’s own evidence the perimeter drain said to be “unmaintained” was a pre-existing earth drain on the plaintiffs’ own land and no basis was shown for imposing on the defendant a duty to maintain drains on Lot 683.

For these reasons, I answer Issues 1 and 2 in the negative. The plaintiffs have not established that the defendant owed and breached the duty of care pleaded. That conclusion is, by itself, sufficient to dispose of the claim. For completeness, I go on to consider causation. B. Causation : the overflow, the ponding and the death of the trees (Issues 3, 4, 5, 6 and 7)

Issues 3 to 7 are, in substance, a single question broken into stages. Whether any breach by the defendant caused water to overflow from the highway onto Lot 683 (and when), whether that overflow caused ponding, what crops stood on the land and in what condition, whether the ponding disturbed the roots and damaged the soil and whether that disturbance caused the trees to die. Even if a duty and breach had been established, I am not satisfied that the plaintiffs have proved this chain of causation.

As to the overflow and the ponding, the only person present at the material time in October 2020 was SP1, whose account is that of a layman and is uncorroborated. In my judgment, no witness was able to fix when or how the alleged overflow occurred. The plaintiffs’ only technical witness on causation, SP6, accepted that he is a civil engineer and not a hydrologist, that hydrology is the discipline concerned with the cause of flooding, that on his visit it was not raining and he did not observe water flowing from the highway over the laterite ground and into the orchard, that the ponding area and the highway are separated by raised laterite ground and that he had not used any rainfall or meteorological data. His report does not, in my view, establish on the balance of probabilities that runoff from the highway caused the ponding. Nor does the concession by the defendant’s valuer, SD2, that there was “a possibility” that the swampy condition was due in part to water from the adjacent higher land assist the plaintiffs. It is trite that possibility is not proof on the balance of probabilities and the burden remains throughout on the plaintiffs. The defendant’s evidence that Lot 683 is naturally low-lying and flat, was subject to surface runoff before the highway and lacked any proper agricultural drainage of its own and that the ponding sits away from the highway behind the laterite road, is at least as consistent with a natural cause.

As to the crops and their death, the number of trees said to have died is inconsistent across the plaintiffs’ own materials. The first police report and the demand letter spoke of 30 durian and 60 duku, the corrected report of 40 and 98, while the 2024 survey recorded materially fewer dead trees. That unexplained discrepancy undermines proof of the extent of the damage. More fundamentally, no witness with the appropriate expertise in agronomy, botany, or soil science was called to establish the condition of the soil before and after the alleged incident, or to show that ponding, rather than age, neglect, disease, or some other cause disturbed the roots and killed the trees. SP4 attended as a witness of fact and not as an expert, and SP6 disclaimed any expertise in agronomy. The causal link between the alleged ponding and the death of the trees is therefore not made out.

Accordingly, I answer Issues 3, 4, 5, 6 and 7 in the negative. The plaintiffs have not proved that any act or omission of the defendant caused the overflow, the ponding, or the death of the trees. C. Damages (Issue 8)

Given my findings on liability and causation, the question of damages does not arise and Issue 8 does not fall to be decided. For completeness I record that, had it arisen, the plaintiffs would have faced real difficulty in proving their special damages strictly for the following reasons –

the tree count was inconsistent;

the heads rested substantially on the evidence of SP1 and on estimates;

the depreciation head (Head 2) and the reinstatement head (Head 4) appear to claim the same loss twice; and

the yield-loss head (Head 3) was computed from 2016, before the alleged damage of October 2020.

I am also not satisfied that any basis for aggravated or exemplary damages was made out. D. The defence and mitigation (Issues 9 and 10)

Before stating my conclusion on the defence, I deal with two threshold matters arising from the pleadings. In their submissions the plaintiffs advanced a case in trespass and relied on Seong Fatt Sawmills Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd [1983] 1 MLRA 483; [1984] 1 MLJ 286. The pleaded cause of action, however, is negligence. I observed that trespass was not pleaded, and parties are bound by their pleadings. The plaintiffs are not entitled to put their case on a basis they did not plead and I say no more about trespass. Conversely, the failure-to-mitigate point raised against the plaintiffs was not pleaded by the defendant and the claim having failed on liability and causation in any event, the mitigation question (Issue 10) does not fall to be determined.

It follows from my findings above that the plaintiffs have failed to establish liability and that the defendant succeeds in resisting the claim. I answer Issue 9 by holding that the defendant has a meritorious defence, and Issue 10 does not arise.

For the reasons given, I find that the plaintiffs have failed to discharge their burden of proving their claim on the balance of probabilities. Liability is not established against the defendant. Accordingly, I dismiss the plaintiffs’ claim with costs of RM80,000.00 subject to the allocatur. Dated : 24 June 2026 -signed- (NORADURA BINTI HAMZAH) Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Plaintiffs : : Amirul Fairuzzeen Bin Jamaluddin Messrs. Amirul Fairuzzeen & Co Counsel for the Defendant : :