Thong Yuet Sheng v Myvilla Development Sdn Bhd (WA-22C-94-12/2021)

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JAUHARIS BIN ABU @ MUSA

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LO MUI NGO @ LOW MUI NGO S/N ett5WXOgC0GoG0qvywSaIg

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LML SYNERGY SDN. BHD. (COMPANY NO.: 201101013404) (941544-P) ... PLAINTIFFS AND MYVILLA DEVELOPMENT SDN. BHD. [COMPANY NO.: 200901000997 (843921-D)] ... DEFENDANT GROUNDS OF JUDGMENT

This was a claim by several purchasers of a high-end housing development project known as Garden Residence in Zone Flagship Cyberjaya, Mukim Dengkil, Daerah Sepang, Selangor Darul Ehsan (‘Project’) against the developer for numerous purported defects in their housing parcels.

Before the trial commenced, the 1st, 2nd and 3rd Plaintiffs (‘P1 - P3’) had decided to withdraw their claims against the Defendant. These claims were accordingly struck out on 26.10.2023 with total nominal costs of RM1,000.00 and without liberty to file afresh. Hence, hereinafter reference to the “Plaintiffs” means all the Plaintiffs except for the first three Plaintiffs. S/N ett5WXOgC0GoG0qvywSaIg

After having considered the pleadings, oral and documentary evidence, extensive written submissions and clarification by the learned counsels representing the parties, the Court found, among others, that the Defendant has a tortious duty of care to the Plaintiffs and has breached the same by failing to exercise all reasonable care, skill and diligence in constructing the Plaintiffs’ housing parcels.

The Defendant is dissatisfied with part of the Court’s decision, including as aforesaid. The Defendant has since filed a Notice of Appeal.

These are my full grounds of judgment for purposes of the Defendant’s appeal.

The Agreed Facts for the trial are as follows.

All the Plaintiffs are Malaysian citizens.

The 4th and 5th Plaintiffs (‘P4’ and ‘P5’) have an address of service at No.1, Jalan Bukit Prima 3A, Taman Bukit Prima Cheras, 56000 Kuala Lumpur.

The 6th and 7th Plaintiffs (‘P6’ and ‘P7’) have an address of service at No. 9, Jalan GR 6/2, Aspen Garden Residence, 63000 Cyberjaya, Selangor. S/N ett5WXOgC0GoG0qvywSaIg

The 8th and 9th Plaintiffs (‘P8’ and ‘P9’) have an address of service. at No. 12A, Jalan GR 6/1, Aspen Garden Residence, 63000 Cyberjaya, Selangor.

The 10th and 11th Plaintiffs (‘P10’ and ‘P11’) have an address of service at No. 12A, Jalan GR 6/2, Aspen Garden Residence, 63000 Cyberjaya, Selangor.

The 12th Plaintiff (‘P12’) has an address of service at No.1, Jalan GR 6/1, Aspen Garden Residence, 63000 Cyberjaya, Selangor.

The 13th Plaintiff (‘P13’) has an address of service at No. 8, Jalan GR 6/3A, Aspen Garden Residence, 63000 Cyberjaya, Selangor.

The 14th Plaintiff (‘P14’) is a company incorporated in Malaysia under the Companies Act 1965 [Act 125] with an address of service at No. 16, Jalan GR 6/2, Aspen Garden Residence, 63000 Cyberjaya, Selangor.

The Defendant is a company incorporated in Malaysia under the Companies Act 2016 [Act 777] with a registered address at Penthouse Suite 1, Wisma Mah Sing, No. 163 Jalan Sungai Besi, 57100 Kuala Lumpur, Wilayah Persekutuan and a business address at Penthouse Suite 2, Wisma Mah Sing, No. 163 Jalan Sungai Besi, 57100 Kuala Lumpur, Wilayah Persekutuan.

The Defendant is a wholly-owned subsidiary of Mah Sing Group Berhad and the developer of the Project. S/N ett5WXOgC0GoG0qvywSaIg

By way of Sale and Purchase Agreements (‘SPA’) between the Plaintiffs and the Defendant, the Plaintiffs purchased from the Defendant exclusive housing parcels in the Project, as particularised in paragraph 11 of the Amended Statement of Claim (‘SoC’) and shown below: PLAINTIFFS PARCEL NO. DATE OF SPA PURCHASE

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23.5.2013 3,804,444.00 13.

5.5.2017 3,200,800.00 14.

15.5.2011 3,222,800.00

On 29.8.2017, pursuant to an inspection conducted on the 12th Plaintiff's parcel, the Energy Commission (‘EC’) purportedly found that the electrical installations are defective for not complying with the Electricity Regulations 1994 (‘ER 1994’) and pose a danger. The EC directed the Defendant to engage an electrical contractor that is registered under the EC and to submit a Completion and Test Report to the EC.

On 12.9.2020, P6 and P7 lodged a police report pertaining to a fire incident that took place in their housing parcel on 3.9.2020. S/N ett5WXOgC0GoG0qvywSaIg The said incident was caused by a short circuit followed by smoke from the electrical distribution box (‘DB Box’). The Defendant became aware of the said incident during a joint inspection of the said housing parcel.

Between 2016 and 2021, the Plaintiffs discovered continuing leakages and hazardous electrical problems in their parcels.

Between 2016 and 2019, P4, P5, P8, P9 and P12 engaged a certified architect, Ar Patrick Ho Sze Keen to conduct property inspections wherein the report confirmed severe water leakages in the Plaintiffs’ parcels. However, the Defendant has failed to rectify the electrical installations and wiring.

Around end of November 2019 and early December 2019, P4, P5, P6, P7 and P13 engaged an electrical contractor, Sir Electrical Enterprise (‘SEE’) to conduct an Earth Electrode Resistance Test on their parcels. SEE found that the earthing cables do not comply with the wiring size.

In 2020, the Plaintiffs, except for P14, engaged AM Engineering Trading (‘AMET’) to conduct another electrical cable inspection. AMET prepared an Inspection Report which reaffirmed that the electrical cables installed by the Defendant were not according to the specifications. S/N ett5WXOgC0GoG0qvywSaIg

P6 and P7 also engaged Kristal Maya Resources to conduct a test on the electrical earthing system and DB Box wherein the report confirmed, among others, that:

the earthing system failed to comply with the conditions set out in the Electricity Supply Act 1990 [Act 447] (‘ES Act 1990’);

the various short circuits were caused by the location of the DB Box under the washroom where there are leakages; and

the cable wiring route that passes through the toilet posed severe danger.

Around September and October 2020, the Plaintiffs engaged NVT Architects Sdn Bhd (‘NVTA’) to inspect all of the Plaintiffs’ parcels. Ar. Steven Thang Boon Soon prepared a report in June 2021 wherein he found, among others, that –

the leakages were mainly caused by the location of the electrical wires in conduits that are in the shared wall with the shower head;

the electrical conduits inside the wall of the shower room are potential electrical hazard. Renovation or modification of the shower head can be extremely dangerous as any damage to the electrical conduits can lead to electrocution; S/N ett5WXOgC0GoG0qvywSaIg

leakages to the bathroom and on the roof of the car porch were caused by the flat roof. The flat roof has a shallow gradient which slows down the process of channelling the rain and in turn allows dirt and algae to accumulate and block the rain water outlet;

leakage to the rooms, including the master bedroom, was caused by the absence of window hoods above the windows, allowing the rain to seep into the room walls from the window edges; and

the external wall at the pump room was badly constructed with exposed corner bead, allowing water to seep into the wall.

The same report concluded that:

the design and specification for the development of the Project were flawed;

there are leakages and a clear and present danger of live wires behind the shower wall;

installation or upgrading of the shower head may puncture the electrical conduits and cause electrocution; and

remedial works would be costly given that it would involve rerouting the electrical wirings. S/N ett5WXOgC0GoG0qvywSaIg

Based on the above, the Plaintiffs alleged that the Defendant was negligent and has failed to exercise all reasonable care, skill and diligence in constructing their parcels, in particular, the Defendant as developer negligently installed the electrical cables or wires and violated the standards set under the ES Act 1990, ER 1994 and the Building (Federal Territory of Kuala Lumpur) By-Laws 1985, which may cause or have caused danger and severe damage to the Plaintiffs and their family, parcels and belongings. Further, the Defendant failed to –

install safe electrical cables or wiring caused by, among others, wrong incoming supply cable, weak earthing cable, non-compliant wiring size, non-compliant electrical single line drawing, damaged armoured cable, joint wiring, sub-standard cable connection and inter-floor leakage affecting the power cables;

construct the Project professionally and in a workmanlike manner thereby causing fire and short circuits;

comply with the ER 1994 by installing electrical wirings that are sub-standard;

comply with the earthing conditions prescribed under the

comply with the directions from the EC to rectify all units and submit a Completion Report (Form G) and Test Report (Form H); S/N ett5WXOgC0GoG0qvywSaIg

comply with the standards in the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 in that –

the materials used in the erection of the parcels are not of a suitable nature and quality in relation to the purposes for, and conditions in, which they are used for;

(ii) the materials used in the erection of the parcels do not adequately perform the functions for which they are designed; and

(iii) issuing or causing the issuance of the Certificate of Completion and Compliance (‘CCC’) dated 21.10.2013 with the aforesaid non-compliance of statutory provisions, defects and where the parcels are not fit for occupation;

construct the parcels using materials of a suitable nature and quality; and

ensure that the parcels are safe for human habitation and fit for purpose as exclusive property.

The Plaintiffs thereby claimed for, among others, the following:

general damages as assessed by the Court;

special damages as set out in Annexure A of the SoC; S/N ett5WXOgC0GoG0qvywSaIg

a declaration that -

the CCC is null and void; and

(ii) the delivery of vacant possession of the parcels to the Plaintiffs is defective, null and void;

damages at the rate of 10% per annum of the purchase price from the expiry date for delivery of vacant possession until a new CCC is issued in compliance with the statutory laws; and

an order for specific performance that the Defendant rectify –

the wiring in the Plaintiffs’ parcels to be in compliance with the statutory requirements within one month from the date of the order;

(ii) the leakages at other places on the Plaintiffs’ parcels within one month from the date of the order; and

(iii) the bathroom leakages on the Plaintiffs’ parcels within one month from the date of the order. THE DEFENDANT’S CASE

Upon the completion of the Project, the Fire and Safety Department granted its approval of the overall condition of the S/N ett5WXOgC0GoG0qvywSaIg housing development and the CCC was issued. Vacant possession of the housing parcels was delivered to the Plaintiffs.

Between 2014 and 2017, P6 to P12 and P14 raised complaints of alleged defects in respect of their respective housing parcels. The Defendant rectified the alleged defects at no additional cost to the Plaintiffs.

During the same period, the same Plaintiffs and the Defendant conducted joint inspections of the respective housing parcels to examine the Defendant’s rectification works, which were subsequently acknowledged or approved by these Plaintiffs.

Consequent to EC’s letter dated 29.8.2017, the Defendant and PAC & Rakan-Rakan Sdn. Bhd. (‘PAC’; the Mechanical and Engineering Consultant appointed by the Defendant for the Project) conducted a joint inspection of P12’s parcel to inspect the defects. PAC found that P12’s parcel had been undergoing renovations at the material time, which had affected the integrity of the electrical wiring.

On 22.1.2020, the Defendant received a letter dated 6.1.2020 from the EC stating, among others, that there were defects in the electrical wiring of the housing parcels and that the registered electrical contractor of the Project and the Management Corporation of the housing development were to take steps to rectify the said defects.

In response, on 22.9.2020, PAC together with P6, P10, P12 and P13 conducted a joint inspection of the respective housing S/N ett5WXOgC0GoG0qvywSaIg parcels (‘Joint Inspection’). PAC found that the electrical design, wiring systems, and installation works at the housing parcels were compliant with the applicable laws, regulations and requirements.

In light of the above, the Defendant’s case was, inter alia, that –

there is no basis in any of the Plaintiffs’ allegations of defects in the Project or housing parcels;

the materials, equipment and workmanship employed for the construction of the Project or the housing parcels were in accordance with the SPA and all requirements in law; and

the design and installation of all earthing cables or systems, electrical cables or wiring, and cable wiring routes in the Project or housing parcels were fully compliant with the applicable laws, regulations and requirements.

Flowing from the above, the Defendant denied that it was negligent or failed to exercise all reasonable care, skill and diligence in constructing the housing parcels.

Further, the Plaintiffs are estopped from ventilating allegations of defects after they have accepted delivery of vacant possession without complaint or protest and had approved or acknowledged the Defendant’s rectification works. S/N ett5WXOgC0GoG0qvywSaIg

Any defects in the Project or housing parcels were caused or contributed solely or substantially by the negligence of P6, P7 and P12 and/ or the contractors and/ or agents appointed by them.

The Plaintiffs were not entitled to the reliefs claimed in paragraph 24 of the SoC.

The Defendant had raised preliminary points of law in the Amended Defence dated 31.10.2023 (‘Defence’).

On 27.10.2023, the parties agreed to dispose the following points of law under O. 33, r. 2 of the Rules of Court 2012 (‘RC 2012’):

the defects in the Plaintiffs’ pleadings as particularised in subparagraph 2.3 of the Defence (‘Defective Pleadings Issue’) (the defence in subparagraph 2.1 that the Plaintiffs’ claim was time-barred under s 6A of the Limitation Act 1953 [Act 254] (‘LA 1953’) was reserved for the substantive stage);

the Plaintiffs’ failure to exhaust the internal grievance procedure as particularised in subparagraph 2.4 of the

the legal standing of the Plaintiffs to ventilate a complaint in respect of the Defendant’s alleged failure to comply with S/N ett5WXOgC0GoG0qvywSaIg the Selangor Uniform Building By-Laws 1986 (‘SUBB 1986’) as particularised in subparagraph 2.5 of the Defence (‘Locus Standi Issue’).

It was additionally agreed by the parties that the Plaintiffs shall call P8 to adduce evidence with regards to the Internal Grievance Procedure Issue and that his testimony shall bind the other Plaintiffs.

On 5.12.2023, after having considered the pleadings, oral and documentary evidence, written submissions and clarification by the learned counsels representing the parties, the Court pronounced the broad grounds of decision as follows: 1) Defective Pleadings Issue It is indisputable that the words “duty of care” and “breach of the duty of care” do not appear in the Amended SoC. This led the Defendant to contend that the Plaintiffs’ purported claims in negligence as pleaded in the Amended SoC is obviously unsustainable on the grounds as pleaded in subparagraph 2.3 of the Defence. Based on the case authorities submitted by the learned counsels, the Court is of view that, in respect of the decisions by the –

Federal Court: S/N ett5WXOgC0GoG0qvywSaIg

the ratio in Kep Mohamed Ali v Kep Mohamed Ismail [1981] 2 MLJ 20 is as what was submitted by the Defendant i.e. for the specific situation involving the pleading of an acknowledgment of the debt as a reply to a defence of limitation raised in the statement of defence;

(ii) Wee Kee Puan v. Oversea-Chinese Banking Corporation Ltd [1982] 1 MLJ 64 laid down that an alternative cause of action must be pleaded in the SoC. In the present suit, the Plaintiffs’ cause of action is premised on the tort of negligence, as can be seen in the Amended SoC, and maintained in the Amended Reply To Defence. This is not a case of a plaintiff pleading an alternative cause of action in the reply;

(iii) Letchumanan Alagappan @ L Allagappan (Sebagai Pelaksana Wasiat/ Executor kepada SL Alameloo Achi @ Sona Lena Alamelo Acho, Si Mati) & Anor v Secure Plantation Sdn Bhd [2017] MLJU 379 involved a discussion on the specific plea of fraud and whether it is necessary to plead the word “fraud” if the facts which make the conduct fraudulent are pleaded. The Plaintiffs relied on this case to draw a parallel with the absence of the words “duty of care” and “breach of duty of care” in S/N ett5WXOgC0GoG0qvywSaIg the Amended SoC. However, there is an even clearer or direct case on point i.e. the decision of the Court of Appeal in Clearpath Marketing Sdn Bhd v Malayan Banking Bhd [2019] MLJU 100, which will be alluded to later; and

(iv) Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v Malaysia Airlines Bhd and other appeals [2019] 1 MLJ 59 is essentially on the legal principles for an application under O. 18, r. 19(1) RC 2012, which is not the provision in question in the instant suit;

Court of Appeal:

in Tan Sri Norian Mai & anor v. Suzana Md Aris [2011] 1 LNS 1912, the court found that the plaintiff’s cause of action was not based on negligence, but rather on assault and battery. Negligence as a cause of action and its particulars were not pleaded in the SoC. It was only in the plaintiff’s reply to the defence that it made a bare allegation of negligence and hence, the court held that this is not a substitute for the plaintiff’s claim based on negligence. The judgment of the High Court, which was contrary to the pleading, was thus set aside. As mentioned earlier, the Plaintiffs in the present case has pleaded negligence as a cause of action and the particulars S/N ett5WXOgC0GoG0qvywSaIg of the Defendant’s negligence are set out in paragraph 22 of the Amended SoC;

(ii) similarly, in Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd and another appeal [2016] 6 MLJ 512, the court set aside the decision of the trial judge on the ground that the trial judge had decided on causes of action that were not pleaded by the respondents. This case is a reminder on the function of pleadings, which is, among others, to set the parameters of the parties’ case and to prevent surprises during trial;

(iii) in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2019] MLJU 1510, the plaintiff pleaded, as an alternative cause of action, that a duty of care was owed by the 1st and 4th defendants to the plaintiff and the particulars as to how the duty of care was breached were also pleaded. This Court knows it as a fact because the trial on liability and on assessment of damages had taken place in this Court;

(iv) the case of Khazanah Jaya Sdn Bhd v. Hisco (M) Sdn Bhd [2022] 5 MLJ 744 is significant for the legal principle that each party must plead all the material facts on which that party intends to rely on at trial. The Court of Appeal also reiterated the function and purpose of a reply to defence which is to answer matters raised in the defence. The general rule that S/N ett5WXOgC0GoG0qvywSaIg a party cannot supplement the SoC through the reply to defence was affirmed. In the instant suit, the Plaintiffs pleaded that their cause of action against the Defendant is based on duty of case in the form of tort as a developer towards the Plaintiffs as purchasers where the Defendant has breached this duty, as their response to subparagraph 2.3 of the Defence. Whilst the Plaintiffs’ Amended Reply may be seen as seeking to supplement the SoC for the absence of the words “duty of care” and “breach of duty of care”, nevertheless the fact that the Defendant is the developer of Garden Residence and the Plaintiffs are the purchasers of parcels in the said development project and the material facts upon which the Defendant is said to have failed to exercise all reasonable care, skill and diligence were pleaded; and

the issue on defective pleadings in the instant suit and in Clearpath Marketing (supra) is strikingly similar. In that case, the Plaintiff had failed to expressly plead what was the respondent’s duty of care to the appellant and how that duty was breached. The trial judge held the view that this failure was fatal but the Court of Appeal thought otherwise. The Court of Appeal found that the relationship between the parties and the material facts upon which the allegations of breach are made have been clearly identified. The same can be said of the present case (see paragraphs 10 - 22, S/N ett5WXOgC0GoG0qvywSaIg Amended SoC). Moreover, the Court of Appeal emphasised that under O. 18 of the RC 2012, there is no legal requirement to plead literally, the existence of a duty of care in tort. The Court of Appeal had perused, not only the amended SoC, but also the defence, and concluded that the respondent had no difficulty in meeting the case. Similarly, here, the Defendant clearly understood what the Plaintiffs’ claim and cause of action are as it has prepared the Defence, the pre-trial documents and the Witness Statements without much difficulty. It is on the strength and relevance of the decision in Clearpath Marketing that the Court finds, the Defendant’s allegation of the Plaintiffs’ failure to plead a whole and coherent cause of action to be unsubstantiated. 2) Internal Grievance Procedure Issue 3) Locus Standi Issue For the reasons as submitted by the Defendant, the Court finds that the domestic remedy procedure available to the Plaintiffs have yet to be exhausted and that no statutory duties are imposed upon the Defendant in its capacity as the developer under the SUBB 1986. The parts in the Common Issues To Be Tried (‘ITBT’) which refer to the S/N ett5WXOgC0GoG0qvywSaIg SUBB 1986 are to be deleted i.e. in subparagraphs 2(a) and (g). Costs associated with the Preliminary Points of Law are to be in the cause and will be addressed at the end of the trial. The Plaintiffs’ solicitors are to amend the ITBT and both solicitors are to sign and e-file the same by the next day. THE SITE VISIT

A site visit to seven of the housing parcels took place on 30.4.2024 (see the Protocol For Site Visit with its Annexures and Appendices dated 29.4.2024), which was towards the end of the trial.

The sequence in which the housing parcels were inspected is as follows:

1st parcel owned by P6 and P7;

2nd parcel owned by P10 and P11;

3rd parcel owned by P14;

4th parcel owned by P12;

5th parcel owned by P8 and P9;

6th parcel owned by P13; and S/N ett5WXOgC0GoG0qvywSaIg

7th parcel owned by P4 and P5. THE TRIAL & AMENDED ITBT

On 9.8.2023, an Order for a bifurcated trial on the issue of liability and for assessment of damages was made.

The trial on liability was held for a total of 17 days. The Plaintiffs called 10 witnesses while the Defendant had four witnesses.

The witnesses who testified at the trial are as follows:

Wong Weng Yew, Director (PW1);

Thong Yuet Sheng (P4), owner of University Bookstore

Lee Meng Leng, P14’s Director (PW3);

Lo Mui Ngo @ Low Mui Ngo (P12), Company Director (PW4);

Paramjit Singh a/l Pertap Singh (P6), retired pilot (PW5);

Ridza binti Ahmad (P11), housewife (PW6); S/N ett5WXOgC0GoG0qvywSaIg

Zul Azri bin Hamidon, Pengarah Kawasan Suruhanjaya Tenaga, Pejabat Kawasan Negeri Selangor, Wilayah Persekutuan Kuala Lumpur dan Putrajaya (PW7);

Kumaran a/l Ellappan, Managing Director, Samudra

Ar Steven Thang Boon Ann, Architect, NVTA (PW9);

Saravana Kumar a/l M. Nachiappan, Project Engineer, AMET (PW10);

Ahmad Nazuan bin Abdul Halim, Senior Project Architect,

Ar Hazri bin Abdul Aziz, Principal, Hazri Architect Studio (DW2);

Yap Chung Piao, Director, PAC (DW3); and

Annie Yong Ai Nie, Head, Customer Service, L&T Realty Sdn Bhd (former Senior Manager, Customer Service, Mah Sing Development Sdn Bhd, the Defendant’s parent company)(DW4).

The Amended ITBT as agreed by the parties are as follows: “1. Whether the Defendant, as the developer, owes a tortious duty of care to the Plaintiffs to ensure that the purchased housing parcels (hereinafter S/N ett5WXOgC0GoG0qvywSaIg referred to as “Housing Parcels”) are safe for human habitation and/or fit for purpose as exclusive property?

If it is established that a tortious duty of care is owed, whether the Defendant has breached the same by failing to exercise all reasonable care, skill and diligence in constructing the Plaintiffs’ Housing Parcels, as follows:- a) The Defendant as Developer negligently installed the electrical cables and/or wires and/or violated the standards set under the Electricity Regulations 1994 and/or Electricity Supply Act 1990, which may cause and/or have caused danger and severe damage to the Plaintiffs and/or their family and their Housing Parcels and belongings; b) The Defendant failed to install safe electrical cables and/or wiring caused by the (among others) wrong incoming supply cable, weak earthing cable, non-compliant wiring size, non-compliant electrical single line drawing, damaged armoured cable, joint wiring, sub-standard cable connection and interfloor leakage affecting the power cables; S/N ett5WXOgC0GoG0qvywSaIg c) The Defendant failed to construct the said Project professionally and in a workmanlike manner thereby causing fire and short circuits; d) The Defendant failed to comply with the Electricity Regulations 1994 by installing electrical wirings that are sub-standard; e) The Defendant failed to comply with the earthing conditions prescribed under the Electricity Supply Act 1990; f) The Defendant failed to comply with the directions from the Commission to rectify all units and submit a Completion Report (Form G) and Test Report (Form H); g) The Defendant failed to construct the Housing Parcels using materials of a suitable nature and/or quality; and i) The Defendant failed to ensure that the Housing Parcels are safe for human habitation and/or fit for purpose as exclusive property.

Whether upon delivery of vacant possession:- S/N ett5WXOgC0GoG0qvywSaIg a) The materials, equipment and workmanship employed by the Defendant in the construction of the Housing Parcels were in accordance with the Sale and Purchase Agreements and compliant with the applicable regulations and requirements? b) The electrical design, wiring systems and installation works at the Housing Parcels were compliant with the applicable regulations and requirements?

Whether the Certificate of Completion and Compliance (“CCC”) issued by the Architect is defective;

Whether the Plaintiffs are estopped from ventilating complaints of alleged defects in the Housing Parcels after: a) Accepting vacant possession of the Housing Parcels without complaint or protest; and/or b) Approving and/or acknowledging the rectification works performed by the Defendant in response to the said alleged defects? S/N ett5WXOgC0GoG0qvywSaIg

Whether the Plaintiffs’ complaints of alleged defects were caused and/or contributed solely and/or substantially by the negligence of the Plaintiffs, the contractors and/or the agents appointed by them?

If negligence is established, whether the Plaintiffs are entitled to the following claims:- a) Special damages as set out in Annexure A of the Statement of Claim; b) Damages as a result of defective CCC at the rate of 10% per annum calculated on a daily basis from the date of delivery of vacant possession to the date of the issuance of a complete and valid CCC; c) Loss of use of the parcels fully or at all due to the threat of electrocution and leakages; d) Loss of investment and/or rental at the rate of RM10,000.00 per month from 2016 to date and continuing; e) Diminution in value of the parcels; f) Continuous losses as a result of leakages at the bathroom and other defects; S/N ett5WXOgC0GoG0qvywSaIg g) Continuous losses as a result of leakages at other places for all the Plaintiffs except the 1st, 2nd and 3rd Plaintiffs; and h) Continuous losses as a result of defective installation of electrical wiring; and i) Mental anguish, stress and fear of electrocution.

If negligence is established, whether the Plaintiffs are entitled to the following prayers:- a) Declaration that the Certificate of Completion and Compliance dated 21.10.2013 is null and void; b) Declaration that the delivery of vacant possession of the parcels to the Plaintiffs are defective, null and void; c) An order of specific performance that the Defendant rectify the wiring in the Plaintiffs’ parcels to be in compliance with the statutory requirements within one month from the date of the order; d) An order of specific performance that the Defendant rectify the leakages at other places on all the Plaintiffs’ parcels except S/N ett5WXOgC0GoG0qvywSaIg the 1st, 2nd and 3rd Plaintiffs’ parcel within one month from the date of the order; e) An order of specific performance that the Defendant rectify the bathroom leakages on the Plaintiffs’ parcel within one month from the date of the order; f) Damages at the rate of 10% per annum of the purchase price from the expiry date for delivery of vacant possession until a new Certificate of Completion and Compliance is issued in compliance with the statutory laws; g) General damages as assessed by the Honourable Court; h) Special damages as set out in Annexure A of the Statement of Claim; i) Interest at the rate of 5% per annum of the judgment sum from the date of the judgement until the date of full settlement; j) Cost; and k) Such further and/or other reliefs as deemed fit and proper by this Honourable Court.”. S/N ett5WXOgC0GoG0qvywSaIg

Before proceeding to analyse the ITBT, a preliminary issue which must first be addressed is whether the Plaintiffs’ claims are barred by limitation and/ or the doctrine of laches.

In subparagraph 2.2 of the Defence, the Defendant pleaded, in the alternative to the defence that the Plaintiffs failed to plead the exact dates of accrual of the purported causes of action against the Defendant, that the purported claims in negligence are obviously unsustainable and barred by limitation as being filed beyond the period of limitation under s 6A of the LA 1953.

Section 6A of the LA 1953 reads as follows: “Limitation of actions to claim damages for negligence not involving personal injuries

(1) Notwithstanding subsection 6(1), this section shall apply to any action for damages for negligence not involving personal injuries, where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued.

An action to which this section applies shall not be brought after the expiration of three years from the starting date if the period of three years expires later S/N ett5WXOgC0GoG0qvywSaIg than the period of limitation prescribed in subsection 6(1). ILLUSTRATIONS

C bought a house from D in 2000. In 2010, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2010 to file an action in court against D for damages.

C bought a house from D in 2000. In 2006, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2006 to file an action in court against D for damages.

C bought a house from D in 2000. In 2005, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2005 to file an action in court against D for damages. … S/N ett5WXOgC0GoG0qvywSaIg

For the purposes of this section –

“starting date” means the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such action; …”.

However, in the Defendant’s Written Submissions On Liability (encl. 171), it was submitted that the defects alleged by the Plaintiffs were not latent defects and therefore, the Plaintiffs’ claims were time-barred under paragraph 6(1)(a) of the LA 1953 which stipulates that: “Limitation of actions of contract and tort and certain other actions

6.

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

actions founded on a contract or on tort; …” S/N ett5WXOgC0GoG0qvywSaIg

The Defendant had further tabulated the dates of accrual of the cause of action and expiry of limitation as shown below: PLAINTIFF(S) DATE OF ACCRUAL OF CAUSE OF ACTION (VACANT POSESSION DATE) DATE OF EXPIRY OF LIMITATION

16.8.2021

27.1.2020

5.12.2019

5.12.2019

5.12.2020

11.8.2023

5.1.2021 and contended that, except for P13, the Plaintiffs’ action was time-barred as the instant suit was filed only on 23.12.2021.

In Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd and another appeal [2016] 6 MLJ 512, the Court of Appeal held, among others, that: “[16] … The Statement of Claim would set out the cause or causes of action of the Plaintiff against the Defendant. The Statement of Defence would, of necessity, set out basically what the answer to that claim would be. By the close of S/N ett5WXOgC0GoG0qvywSaIg pleadings, parties would know exactly what is being claimed by the Plaintiff and what the answer to that claim would be. Pleadings therefore prevents surprises during trial as both parties are sure and certain as to what they are supposed to do in terms of establishing their respective positions in court. There is no element of trial by ambush where a party would be taken by surprise by the other party introducing evidence outside the contemplation of what had been the pleaded cause or causes of action or of defence. It is trite law that parties to a suit are bound by what have been pleaded in their respective pleadings. To further refine the dispute, parties would normally agree with each other as to what are the issues to be tried. Although the pleadings would expressly bind parties, it has the effect of also limiting the power of the adjudicating court, in that the decision of the court, at the end of the trial of the suit, must be in consonance with what had been pleaded by the parties. ...” (emphasis added).

Applying the legal principles as above quoted to the instant case, my decision must be in consonance to what the Defendant has pleaded in the Defence, namely that the Plaintiffs’ claim was time-barred under s 6A of the LA 1953, and not s 6 of the same statute. S/N ett5WXOgC0GoG0qvywSaIg

The rationale for the insertion of s 6A in the LA 1953 was alluded to in Badan Pengurusan Bersama KM1 East Condominium v Berjaya Hartanah Berhad [2024] MLRHU 1449 as follows: “[17] The purpose for the addition of s 6A(2) of the Limitation Act 1953 was to give a plaintiff in negligence cases for latent defects or latent damage in the construction of a building, a further three years from the date of the plaintiff's knowledge of the latent defects or latent damage if the period of three years expires later than the 6-year period of limitation prescribed in subsection 6(1) of the Limitation Act 1953. [18] The intention was to cure the inequitable position that would arise when a suit is barred by s 6(1) of the Limitation Act 1953 if a plaintiff only discovers the latent defects or latent damage more than 6 years after the said latent defects or latent damage had occurred. [19] The rationale was explained in Parliament in 2018 as can be seen in the Hansard “Penyata Rasmi Parlimen Dewan Rakyat” dated 3 April 2018 for the “Parlimen Ke-13, Penggal 6, Mesyuarat Pertama”: “Fasal 2, bertujuan untuk memasukkan seksyen baharu 6A ke dalam Akta 254 untuk membolehkan seseorang untuk mengambil tindakan berasaskan kecuaian yang tidak melibatkan kecederaan diri dengan membenarkan pelanjutan had masa tiga tahun daripada tarikh pengetahuan orang yang mempunyai klausa tindakan S/N ett5WXOgC0GoG0qvywSaIg itu. Peruntukan ini mengambil kira kes kecuaian yang melibatkan kerosakan pendam dalam kes pembinaan.”.

In Construction Law in Malaysia, Sweet & Maxwell Asia, 2012 by the learned authors Datuk Sundra Rajoo and Ir Harbans Singh KS, the difference between latent defects and patent defects was described as follows: “Patent defects are defects that can be discovered through reasonable inspection and testing (see Robinson, Lavers, Tan and Chan, Construction Law in Singapore and Malaysia, 2nd edn, p 160). These are the ones that are more commonly noticed and therefore reported to the contractor prior to completion or during the defects liability period. On other hand, latent defects cannot be discovered by either reasonable inspection or testing even by a reasonably careful person skilled in the works in question (see Victoria University of Manchester v Hugh Wilson (1984) 2 Con LR 43). These are inherent in the works themselves and become apparent or noticeable or capable of being discovered only when they become patent (see Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; see also Steven Phoa Cheng Loon & 72 Ors v Highland Properties Sdn Bhd & 9 Ors [2000] 2 AMR 3567).”. S/N ett5WXOgC0GoG0qvywSaIg

The Plaintiffs had also tabulated the dates when the defects were reasonably discovered in their Submission In Reply (encl. 182) as follows: Plaintiffs Defects PW2 (Thong Yuet Sheng) PW5 (Paramjit Singh a/l Pertap Singh PW1 (Wong Weng Yew) PW6 (Ridza binti Ahmad) PW4 (Lo Mui Ngo) PW8 (Kumaran a/l Ellapan) PW3 (Lee Men Leng) Electrical defects i.e. 10mm substandard cable in the DB Box, substandard cables in splitter to ELCB links, faulty wire connections, absence of the anchor wall expansion, leakage into DB Box, poor earth reading

12.3.2020 Report, pp 847-851, B5 5.6.2020 Report, pp 863-870, B5 9.3.2020 Report, pp 1002- 1005, B5 20.10.2020 Report, pp 5 - 10, B18 10.3.2020 Report, pp 1104 - 1109, B6 9.3.2020 Report, pp 1147 - 1155, B6 Leakages 1.12.2021 Report, Report, Report, Report, Report, Report, Report, S/N ett5WXOgC0GoG0qvywSaIg Patchy paintworks/ paintworks flaking off, brittles, peeling wallpapers 1.12.2021 Report, Report, Report, Report, Report,

1.12.2021 Report,

1.12.2021 Report, Report, Report,

1.12.2021 Report,

1.12.2021 Report,

1.12.2021 Report,

1.12.2021 Report, Presence of live wires behind the shower wall in Master Bath 1 1.12.2021 PW9’s Report, B8 & B9 Flawed design and specification 1.12.2021 PW9’s Report, B8 & B9

I was inclined to accept the Plaintiffs’ submission that –

the defects could not have been reasonably discovered by PW2 and PW8 as soon as vacant possession was delivered as there was no supply of water and electricity at the time vacant possession was delivered. Any defects S/N ett5WXOgC0GoG0qvywSaIg could not have been reasonably discovered by these Plaintiffs without the presence of water and electricity;

the SPA allows for a period of two years after the delivery of vacant possession for the purchasers to file a complaint on any defects that were apparent during the Defects Liability Period (‘DLP’). Thus, the dates of accrual of the cause of action cannot be the date of the delivery of vacant possession; and

the defects are latent as they were only discovered by the Plaintiffs when the reports by the experts (who are the reasonably careful person skilled in the matter) were issued to the Plaintiffs (see Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] MLJU 140). In respect of –

the earthing, the Plaintiffs had only discovered the defects upon the issuance of the letters by the EC to the Chief Executive Officer, Mah Sing Group Berhad dated 29.8.2017 (‘EC’s 29.8.2017 Letter’) and to the Chairman of the Management Corporation of Garden Residency dated 6.1.2020 (‘EC’s 6.1.2020 Letter’), The EC’s 29.8.2017 Letter reads as follows: “PENDAWAIAN ELEKTRIK TIDAK

Hasil siasatan yang telah dilakukan mendapati ada kecacatan pepasangan elektrik kerana penggunaan Perlindungan terhadap arus kebocoran bumi tidak mengikut

Pemasangan perlindungan terhadap arus kebocoran bumi hendaklah selaras dengan Peraturan 36, Peraturan-Peraturan 1994.

Sehubungan itu, pihak tuan hendaklah segera membaiki semua unit yang terlibat dengan melantik Kontraktor Elektrik yang berdaftar dengan Suruhanjaya Tenaga selaras dengan Akta Bekalan Elektrik 1990. Sila kemukakan Laporan Penyiapan (Borang G) dan Laporan Pengujian (Borang H). S/N ett5WXOgC0GoG0qvywSaIg

Kegagalan mematuhi Peraturan-Peraturan Elektrik 1994 tersebut adalah menjadi satu kesalahan di bawah Peraturan 122, Peraturan-Peraturan Elektrik 1994 apabila disabitkan, boleh didenda tidak melebihi LIMA RIBU RINGGIT (RM 5,000) atau DIPENJARAKAN selama tempoh tidak melebihi SATU (1) TAHUN atau kedua-duanya.”. while the EC’s 6.1.2020 Letter states that: “PENDAWAIAN ELEKTRIK

Hasil daripada pemeriksaan di beberapa buah rumah didapati terdapat kecacatan seperti yang dinyatakan di bawah i. Perlindungan arus bocor kebumi tidak mematuhi peruntukan di bawah Peraturan 36, Peraturan-Peraturan Elektrik 1994. S/N ett5WXOgC0GoG0qvywSaIg ii. Konduktor perlindungan tidak mengikut saiz yang telah ditetapkan.

Sehubungan itu tindakan pemeriksaan dan pembaikan mestilah dilakukan oleh kontraktor elektrik berdaftar dan pihak tuan diminta memastikan perkara ini dilaksanakan sewajarnya oleh pemilik rumah.”. Subsequently, the Plaintiffs engaged PW10 who confirmed low earth readings in the Plaintiffs’ housing parcels. The Defendant contended that the Court should attach little to no weight to PW7’s evidence as he had no personal knowledge of the EC’s 29.8.2017 Letter and EC’s 6.1.2020 Letter. However, I accepted the Plaintiffs’ rebuttal submission that PW7 was aware of the Plaintiffs’ complaints as he has access to the EC’s records, and the contents of the EC’s 29.8.2017 Letter and EC’s 6.1.2020 Letter speak for themselves;

(ii) the electrical defects, although there were multiple tripping in the Plaintiffs’ housing parcels, they would not have discovered by any reasonable means that the tripping were caused by the 10mm substandard cable in the DB Box, substandard cables in splitter to ELCB links, faulty wire connections and leakage into the DB Box until PW10’s inspection; S/N ett5WXOgC0GoG0qvywSaIg

(iii) the absence of the anchor wall expansion bolt in PW8’s DB Box, this was also discovered through PW10’s report;

(iv) the leakages, DW1 testified that there could be recurring leakages after the DLP if the water leakages are not rectified properly. DW2 gave evidence that crystallisation indicates the presence of water travelling through the slab and crystallisation, which takes years to form due to the performance of waterproofing. PW3, PW5, PW6 and PW8 discovered the failure of waterproofing in 2021 when they engaged PW9 to conduct an inspection. The leakages are thus recurring latent defects;

the patchy paintworks, paintworks flaking off, brittles, peeling wallpapers and algae are latent defects as they are caused by water seepage in the wall due to the defective waterproofing and were only discovered when they become patent, as observed in PW9’s Expert Report in 2021 in respect of PW1’s to PW6’s housing parcels. DW2 himself acknowledged that there was poor workmanship of the window frame and that patchy paintworks and brittles were caused by the effect of water over time; and

(vi) the cracks, these became patent in 2021 in PW1’s, PW3’s, PW5’s and PW6’s housing parcel, as observed by PW9. Similarly, rust was observed by S/N ett5WXOgC0GoG0qvywSaIg PW9 and became patent in 2021 in PW5’s housing parcel;

as regards the Defendant’s argument that the Certificate of Practical Completion (‘CPC’) would not have been issued if there were glaring defects in the Project and the Plaintiffs did not challenge the CPC within the period prescribed by the contract in order to sustain a claim for latent defects and did not seek to impugn the CPC in this suit, the Plaintiffs never had sight of the CPC. The Defendant did not include the CPC in the bundle of documents for the trial; and

even if the date of expiry of limitation was taken to be the dates as submitted by the Defendant, the Plaintiffs have an additional three years from the dates as shown in the Plaintiffs’ table above, pursuant to s 6A of the LA 1953, to file this action.

The Preliminary Issue was therefore answered in the Plaintiffs’ favour.

At this juncture, it would be apt for the Court to acknowledge the diligent efforts by the learned counsels for the Plaintiffs and the Defendant in preparing the documentary evidence which consisted of, among others, the expert reports, expert Joint Statement, numerous pictures and videos (see APP(1), APD, APB(1) and (2) and P1; the videos were shown during the trial) and comprehensive written submissions and Scott Schedules S/N ett5WXOgC0GoG0qvywSaIg which have much assisted the Court in the deliberation of this case.

Even though each contention/ argument from the written submissions and Scott Schedules are not explicitly mentioned in this judgment for the sake of brevity, the parties’ respective positions on the issues or matters at hand were considered before the final decision was made. 1st Issue: Whether the Defendant, as the developer, owes a tortious duty of care to the Plaintiffs to ensure that the Housing Parcels are safe for human habitation and/ or fit for purpose as exclusive property

The 1st Issue was answered in the affirmative because the Defendant did not make any submission as regards the Plaintiffs’ argument that the Defendant owes such a duty of care on the strength of the ingredients of the tort of negligence as expounded by the Court of Appeal in Arab Malaysian Finance Bhd v. Steven Phoa Cheng Loon [2003] 1 CLJ 585 and the case authorities of Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000] 4 MLJ 200 and Malayapine Estates Sdn Bhd v Yew Boon Chai & Ors [2023] MLJU 3249.

The fact that the Defendant did not address the 1st Issue was admitted by its counsel, Ms. Dawn Wong.

Instead, the Defendant chose to focus its arguments on the 2nd Issue by contending, with reference to sub-s 101(1) of the S/N ett5WXOgC0GoG0qvywSaIg Evidence Act 1950 [Act 56] (‘EA 1950’), that the burden of proof rests on the Plaintiffs to show that the Defendant has breached its duty of care and to introduce evidence to support the said breach. 2nd Issue: If it is established that a tortious duty of care is owed, whether the Defendant has breached the same by failing to exercise all reasonable care, skill and diligence in constructing the Plaintiffs’ Housing Parcels, as follows:

The Defendant as developer negligently installed the electrical cables and/ or wires and/ or violated the standards set under the ER 1994 and/ or ES Act 1990, which may cause and/ or have caused danger and severe damage to the Plaintiffs and/ or their family and their Housing Parcels and belongings

In the Post-Trial Submission (encl. 175), Plaintiffs first referred to the definition of “electrical work” in s 2 and s 23B of the ES Act 1990 and regulation 15(1) of the ER 1994 in submitting that the electrical work carried out by the Defendant was defective. These provisions are quoted below for ease of reference: Sections 2 and 23B of the ES Act 1990: S/N ett5WXOgC0GoG0qvywSaIg “Interpretation

In this Act, unless the context otherwise requires – … “electrical work” means any work performed or carried out on an electrical installation and includes the installing, constructing, erecting or repairing, the altering of the structure, the replacing of any of its parts, the adding of any part to it or the carrying out of any work for the purposes of its maintenance, but does not include work in relation to—

the manufacturing of an electrical installation or the assembling in the course of, or in connection with, its manufacture for the purpose of producing a new article; or (b) the oiling, greasing, cleaning or painting of an electrical installation; … Installation to meet requirements

No person shall use or operate any installation unless the installation meets such requirements as may be prescribed in respect of the efficient use of electricity. S/N ett5WXOgC0GoG0qvywSaIg Regulation 15(1) of the ER 1994: “Regulation 15. Apparatus, conductor, accessory, etc.

Any apparatus, conductor or accessory for the purpose of connection to an installation shall be sufficient in size, power and number to serve the purpose for which it is intended and shall be constructed, installed, arranged, protected, worked and maintained in such a manner as to prevent danger.”.

At the clarification session, the Plaintiffs’ counsel cited other definitions in s 2 of the ESA 1990 and s 23C as well as regulations 2 and 36 of the ER 1994. In my opinion, the submission by the Plaintiffs’ counsel lacked depth as regards to the meaning of each word in the respective provisions being relied upon, for example, the words “apparatus, conductor or accessory” in regulation 15(1) of the ER 1994, and the applicability of these provisions to the present case. As submitted by the Defendant, on a plain reading of s 23B, ES Act 1990, in order for the Plaintiffs to establish a breach of this provision, the following elements must be present:

there is an “installation” as defined by the ES Act 1990;

(ii) the “installation” is being used or operated; S/N ett5WXOgC0GoG0qvywSaIg

(iii) there is a person using or operating the “installation”; and

(iv) the “installation” does not meet the prescribed requirements for the “efficient use of electricity”.

The word “installation” is defined in s 2, ES Act 1990 as – “the whole of any plant or equipment under one ownership or, where a management is prescribed, the person in charge of the same management, designed for the supply or use, or both, as the case may be, of electricity; including prime movers, if any, with all necessary plant, buildings and land in connection therewith, pipe line, supply line and consuming apparatus, if any”, while “supply line” is defined as – “a conductor or conductors or other means of conveying, transmitting or distributing electricity, together with any casing, coating, covering, tube, pipe, insulator or post enclosing, surrounding or supporting the same or any part thereof, or any building or equipment connected therewith for the purpose of transforming, conveying, transmitting or distributing electricity”.

Hence, “installation” encompasses all plant, equipment, and systems, whether under common ownership or management, S/N ett5WXOgC0GoG0qvywSaIg used to generate, supply, or use electricity. This would reasonably include wires and cables, as they form part of the apparatus used to supply and distribute electricity.

The Defendant then drew the Court’s attention to s 53, ES Act 1990 which empowers the Minister to make regulations in respect of “efficient use of electricity”. Examples of such regulations are the Electricity Regulations 1994 (Amendment 2013) and Efficient Management of Electrical Energy Regulations 2008.

Premised on the above, the Defendant correctly submitted that, to establish a breach of s 23B, ES Act 1990, the Plaintiffs must prove that an installation is being used or operated in contravention of any regulation made under the ES Act 1990 which prescribes requirements for the efficient use of electricity. However, the Plaintiffs’ pleaded case and evidence adduced at the trial do not concern the efficient use of electricity, as contemplated under s 23B, ES Act 1990, but rather, their allegations were on matters relating to workmanship quality, compliance with wiring standards and general electrical safety; issues which fall outside the scope of s 23B, ES Act 1990.

The learned counsels for the parties could agree on one fact i.e. that there are no case authorities to date which can shed light on the interpretation of the provisions being relied upon by the Plaintiffs and their application in the context of a particular factual scenario before the court. In such circumstances, it was even more incumbent on the Plaintiffs’ counsel to do adequate research and to make submissions which can assist the Court to S/N ett5WXOgC0GoG0qvywSaIg arrive at a reasoned decision as opposed to merely citing legal provisions without full comprehension of what they mean and how they are to apply in the instant case.

Therefore, I have no hesitation in finding that the Plaintiffs have failed to establish any factual or legal basis to support the submission that the Defendant has breached s 23B, ES Act 1990.

Moving on to regulation 15(1) of the ER 1994, the Defendant referred to the entire regulation 15 and submitted that to establish a breach of the former, the Plaintiffs must show that the apparatus, conductors, or accessories within the Housing Parcels were either not properly sized, powered or adequate for their intended purpose; and/ or not constructed, installed or maintained in a manner that would prevent danger.

The definitions of “conductor” pursuant to s 2, ES Act 1990 and “accessory”, “apparatus” and “cables” under regulation 2, ER 1994 were also cited to support the submission that the Plaintiffs did not make any allegations about defects of an “accessory” or “apparatus” in the Housing Parcels, and that the original cables installed in the Housing Parcels were correctly sized, powered, and adequate for its intended purpose and in accordance with the Electrical Single Line Diagram.

However, in view of EC’s 29.8.2017 Letter, the Defendant has evidently not complied with regulation 36, ER 1994 which provides that: S/N ett5WXOgC0GoG0qvywSaIg “Regulation 36. Protection against earth leakage current

For an installation in a place of public entertainment, protection against earth leakage current shall be afforded for any final circuit supplying electricity to an equipment which is intended to provide service to the public or which is intended to be accessible to, used by or operated by the public by a residual current device having a rated residual operating current not exceeding 10 milliamperes.

For an installation in a place where the floor is likely to be wet or where the wall or enclosure is of low electrical resistance, protection against earth leakage current shall be afforded for any final circuit supplying electricity to any equipment, either individually or in a group, by a residual current device having a rated residual operating current not exceeding 10 milliamperes.

For an installation where hand-held equipment, apparatus or appliance is used or is likely to be used, protection against earth leakage current shall be afforded for any final circuit, either individually or in a group, by a residual current device having a rated residual operating current not exceeding 30 milliamperes. S/N ett5WXOgC0GoG0qvywSaIg

For an installation, other than the installations mentioned in subregulations (1), (2) and (3), protection against earth leakage current shall be afforded for any final circuit, either individually or in a group, by a residual current device having a rated residual operating current not exceeding 100 milliamperes unless—

for functional reasons, it is impractical to provide the protection; or

it is unsafe or even dangerous to provide the protection.”.

In my view, the evidence adduced at the trial as regards non-compliance with regulation 36, ER 1994 falls within the pleaded facts in paragraph 14 and subparagraph 22(a) of the SoC. The Plaintiffs have therefore proven, on a balance of probabilities, that the Defendant as developer had violated the standards set under the ER 1994 which may cause and/ or have caused danger and severe damage to the Plaintiffs and/ or their family and their Housing Parcels and belongings.

Issue 2(a) was answered in the affirmative.

The Defendant failed to install safe electrical cables and/ or wiring caused by (amongst others) wrong incoming supply cable, weak earthing cable, non-compliant wiring size, noncompliance S/N ett5WXOgC0GoG0qvywSaIg with the electrical single line drawing, damaged armoured cable, joint wiring, sub-standard cable connection and interfloor leakage affecting the power cables

The Defendant failed to construct the Project professionally and in a workmanlike manner thereby causing fire and short circuits

The Defendant failed to comply with the ER 1994 by installing electrical wirings that are sub-standard

The Defendant failed to comply with the earthing conditions prescribed under the ES Act 1990

These matters, which were pleaded in subparagraphs 22(b) – (e) of the SoC, are interrelated and shall be discussed together.

The analysis as to the alleged failures in Issue 2(b) is set out in turn below.

10mm substandard cables that were not in compliance with the single line drawing PW10 gave evidence that the Defendant failed to install 16mm cables in the DB Boxes in accordance with the single line drawing, but have instead installed cables that were 10mm in diameter. S/N ett5WXOgC0GoG0qvywSaIg In his Witness Statement, DW3 stated that the electrical cables provided by the Defendant were compliant with the specifications in the Schematic Diagram within the DB Box. However, new and additional cables were added by third parties commissioned by the respective Plaintiffs except for P10 and P11. DW3 said that he was able to identify these were additional and not original cables due to the fact that they were not properly aligned and the additional cables were not compliant with the wiring size in the Schematic Diagram. Upon close scrutiny of the evidence, I find that DW3’s evidence is inaccurate because the DB Box in PW2’s, PW4’s, PW6’s and PW8’s housing parcels and on the 1st floor of PW5’s housing parcel were in their original condition. PW5 had to replace the DB Box on the ground floor of his house following the explosion at the DB Box which then caught fire on 3.9.2020. PW5’s evidence on the fire incident was supported by, among others, his police report and photographs of the burnt cables. DW3 did not produce any documentary evidence to show that the DB Box which were handed over to the Plaintiffs had complied with the approved drawings. PW10 has also testified that the cables are not labelled with the SIRIM certification as should be in all developments. S/N ett5WXOgC0GoG0qvywSaIg

(ii) Substandard cables in Splitter to ELCB links & faulty wire connections During the trial, PW10 testified that the Defendant had installed substandard 10mm cables from the Splitter to the ELCB in PW5’s DB Box and had failed to install the cables using the correct colour code in PW4’s DB Box. The 10mm substandard cables do not comply with the single line drawing. The substandard cables in Splitter to ELCB links and faulty wire connections had caused multiple tripping to the Housing Parcels on several occasions, as testified by PW10. The word “danger” in s 2, ES Act 1990 means danger to health, human life or limb from shock, burn or other injury and includes danger to property, installation or equipment resulting from the generation, transmission, distribution or utilization of electricity. In this regard, the recurring tripping problems triggered by the substandard cables have caused danger to the Plaintiffs and their family members, property and equipment.

(iii) Anchor wall expansion bolt not fixed PW10 gave evidence that the Defendant has failed to fix the anchor wall expansion bolt in one of PW8’s DB Box. S/N ett5WXOgC0GoG0qvywSaIg

(iv) Interfloor leakage into the DB Box PW10 testified as to the presence of water in PW5’s DB Box located at the 1st floor. Four videos which were referred to by PW5 in his Witness Statement and played in court during the trial show water droplets in the DB Box at the 1st floor.

Earthing Subsequent to the EC’s 29.8.2017 Letter and the EC’s 6.1.2020 Letter, the Plaintiffs engaged PW10 in 2020 and he confirmed poor earth reading on all the Housing Parcels except PW4’s as she had installed an additional earth pit. PW10 also testified on the effect of poor earth reading. The same testimony was given in his Witness Statement in respect of PW1’s, PW2’s, PW5’s and PW8’s housing parcels. DW3 himself agreed that the rectification works by the Plaintiffs were undertaken subsequent to the EC’s Letters and that there was no rectification works in respect of earthing or electrical at the time of EC’s inspection. The EC had inspected the original state of the Housing Parcels, as agreed by DW3. Contrary to the EC’s Letters, the Defendant did not inspect all the housing parcels and as such, the Defendant could not have known the earthing defects, as confirmed by DW3 S/N ett5WXOgC0GoG0qvywSaIg himself, and in the end, no rectification works were carried out by the Defendant.

In the final analysis, Issues 2(b) - (e) were answered in the affirmative, in particular with respect to earthing cable and interfloor leakage affecting the power cables.

The Defendant failed to comply with the directions from the EC to rectify all units and submit a Completion Report (Form G) and Test

This matter was pleaded in subparagraph 22(f) of the SoC.

When cross-examined, DW3 agreed that the Defendant did not inspect the other Housing Parcels apart from P12’s and thus, he does not know if there was a need to carry out rectification works. DW3 also admitted that the Reports in Forms G and H were not submitted in accordance with paragraph 3 of the EC’s 29.8.2017 Letter.

Issue 2(f) was thus answered in the affirmative.

The Defendant failed to construct the Housing Parcels using materials of a suitable nature and/ or quality S/N ett5WXOgC0GoG0qvywSaIg

The Defendant failed to ensure that the Housing Parcels are safe for human habitation and/ or fit for purpose as exclusive property

These matters were pleaded in subparagraphs 22(h) and (i) of the SoC. As Issues 2(g) and (h) are interconnected, they shall be discussed together.

The Plaintiffs relied on PW9’s Expert Report dated 1.12.2021 where his findings in respect of each of the Plaintiffs’ housing parcel pursuant to his inspection in 2020 were tabulated in paragraph 63 of the Written Submission (encl. 175).

During the trial, PW9 has testified regarding the presence of live wires in the shower wall.

The presence of such live wires was confirmed by DW2 in the APD at p 19 as re-produced below: “General Observations … E. Master Bath 1 [2nd Floor]

It was observed that the electrical wiring was placed inside the conduits at the shower wall and no electrical socket or plug points were placed near the shower wall. S/N ett5WXOgC0GoG0qvywSaIg

Full checking of the electrical circuit layout plan and relevant testing required for the performance and suitability of the placement of the conduit layout and placement method of the conduit are to be conducted by the relevant professional.

This to verify and determine the cause of the alleged short circuits.”.

In the Defence, the Defendant seems to suggest that the installation of such live wires in the shower wall poses no danger as there is no electrical socket or plug points near the shower wall. However, the absence of any socket or plug points does not negate the fact that live wires are running in the same wall as the shower head, and that water conducts electricity. Indisputably, water and electricity are a hazardous combination. As explained by PW9 in his report at p 1432, B8: “6.3 … This is a potential electrical hazard when water pipe and electrical conduits are sharing a small wall. This is extremely dangerous especially when the owners were to do renovation or modification to the shower head and accidentally damaged one of the numerous electrical conduits, leading to electrocution! … S/N ett5WXOgC0GoG0qvywSaIg

7.1 … Not only there are water leakages but also the clear and present danger of the live wires behind the shower wall. Installation of, future upgrading, of shower heads and taps may unknowingly to the plumber, puncture the electrical conduits and the possibility of electrocution. …

The electrical conduits chased into the wall of the shower stall sharing with the shower head is a highly and potentially dangerous, waiting to happen. …”.

PW9 additionally found that water leaked down from the shower wall to the DB Box on the 1st floor. This has deprived the Plaintiffs from the full use and enjoyment of their property as they were not able to utilise Master Bath 1 on the 2nd floor.

It must be emphasised that the presence of electrical conduits behind the shower wall in Master Bath 1 on the 2nd floor was demonstrated through the Bosch wall scanner D-Tect 150 during the site visit. In fact, based on my observations and the notes I made in the bundle on the Protocol For Site Visit, the common S/N ett5WXOgC0GoG0qvywSaIg complaints across the seven Housing Parcels, apart from the said electrical conduits, were –

leakages at the car porch, living and dining area (the ceiling is where the bath tub in Master Bath 2 on the 1st floor is located), from Master Bath 1 on the 2nd floor to the DB Box on the 1st floor and from the roof deck down to the back of the bedrooms/ bathrooms on the 2nd floor); and

(ii) water seeping in through the windows in Master Bedroom 1.

It was also noted that the condition in P4’s and P5’s housing parcel was the closest to the original plans as these Plaintiffs rarely occupied the house and minimal renovations were done, and yet the defects complained of, for which no rectification works were carried out by these Plaintiffs, were still seen. This fact is most relevant in relation to the 6th Issue which will be addressed below.

The Plaintiffs had submitted on other defects such as interfloor leakages, water stains/ watermarks, failure of waterproofing, patchy paintworks/ paintworks flaking off, brittles, peeling wallpapers, cracks, rust, algae, flawed design and specification and poor workmanship and reliance was placed on case authorities such as Badan Pengurusan Bersama Tropicana Bay Residence @ Penang World City v Mutiara Metropolis Sdn Bhd & Ors [2024] MLJU 1948 [2024] MLJU 1948 and Dua Residency (supra) (see paragraphs 72 - 101, encl. 175). S/N ett5WXOgC0GoG0qvywSaIg

In my opinion, the Plaintiffs have adduced sufficient evidence to discharge the burden of proof on them and Issues 2(g) and (h) were therefore answered in the affirmative, in particular in relation to the electrical conduits behind the shower wall in Master Bath 1 and leakages.

I should add that detailed and lengthy submissions were made by the Plaintiffs and the Defendants on the issue of whether the Plaintiffs have proven the defects complained of, and breach of the duty of care owed to them by the Defendant. In the final analysis, the Plaintiffs have sufficiently rebutted the Defendant’s arguments to tip the scale in favour of a finding for the Plaintiffs on the main issues. 3rd Issue: Whether upon delivery of vacant possession –

the materials, equipment and workmanship employed by the Defendant in the construction of the Housing Parcels were in accordance with the SPA and compliant with the applicable regulations and requirements

the electrical design, wiring systems and installation works at the Housing Parcels were compliant with the applicable regulations and requirements

The Plaintiffs’ counsel did not refer to any clauses in the SPA in the post-trial written submissions. Hence, the findings made by S/N ett5WXOgC0GoG0qvywSaIg the Court are limited to the “applicable regulations and requirements” i.e. the ES Act 1990 and ER 1994 as per the 2nd Issue above. 4th Issue: Whether the CCC issued by the Architect is defective

The 4th Issue was answered in the Defendant’s favour and is not part of the decision being appealed against.

It was the Plaintiffs’ case that the CCC is defective for being issued despite the defective state of the Housing Parcels, making them unfit for occupation.

In this regard, the Plaintiffs took umbrage to the contents of the CCC, which was signed by Ar. Siew Kok Hong as the Principal Submitting Person (‘PSP’), where he “… memperakui bahawa bangunan / bangunan-bangunan itu adalah selamat dan layak untuk diduduki” whereas PW9 and DW2 have testified that there is a real possibility of electrocution. Hence, it was submitted that the Housing Parcels are not safe for the purpose of the CCC.

In addition, the Plaintiffs referred to the case of Ooi Cheng Huat @ Ooi Peng Huat (suing in his own name and as the executor and trustee of the estate of Linda Patricia Lim Sooi Hong, deceased) & Ors v Sime Darby Property Bhd and other cases [2024] MLJU 83 where the court held that the defendant cannot rely on the issuance of the CCC to excuse the defendant from its liability towards the plaintiffs. S/N ett5WXOgC0GoG0qvywSaIg

Furthermore, the Plaintiffs contended that Ar. Siew Kok Hong should have been called by the Defendant to testify on the alleged supervision of the construction and completion of the Project and to be cross-examined on the issue of the CCC, in particular whether the issuance of the CCC conforms with sub-s 70(21) of the Street, Drainage and Building Act 1974 [Act 133]. An adverse inference under s 114(g) of the EA 1950 should be invoked against the Defendant for not calling Ar. Siew Kok Hong.

Upon deliberation of the evidence and submissions on this matter, the following were my findings:

the CCC is prima facie evidence that a property was built in a good and workmanlike manner, and in conformance with the approved building plans, and that the property is safe for occupation (see Pua Yu Len & anor v. Bandar Eco-Setia Sdn Bhd [2018] MLJU 761);

there are no provisions there are no provisions in statute or under any Uniform By-Laws which cater for the invalidation of a CCC issued by a PSP. While a PSP may be penalised for issuing a CCC in contravention of statutory requirements, the CCC issued remains intact (see Perbadanan Pengurusan One Tanjong v. Province Valley Sdn Bhd [2023] MLJU 2263 where the case of Dama Design & Build Sdn Bhd v. Universiti Pendidikan Sultan Idris (UPSI) [2017] MLJU 639 was cited, see too, Tan Siew Hong v. Mohd Azli bin Abdul Hamid & Ors and other appeals [2018] MLJU 2008). The Plaintiffs have failed to S/N ett5WXOgC0GoG0qvywSaIg plead or specify which By-Law was purportedly breached by Ar. Siew Kok Hong in issuing the CCC;

in order to sustain an attack on the CCC, the architect and Lembaga Arkitek Malaysia as well as the relevant regulatory bodies and professionals should have been sued as well (see Yeoh Weoi Leong & Ors v. BM City

the grounds of challenging a certificate are limited and the Court may entertain a challenge to a certificate if the architect had not done what he was appointed to do or if there are any grounds which disqualify the certifier (see Keating on Construction Contracts, 11th Edition, Thomson Reuters, 2021 at 5-038; the Malaysian position is consonant with the English position). No evidence was led by the Plaintiffs to this effect. Further, in order to successfully attack a certificate such as the CCC, the Plaintiffs must show that at least one of the following factors are present:

that the matters stated therein are not within the architect’s jurisdiction;

(ii) that the certificate was not properly made in accordance with the contract, for example, that the certificate was not in the form required by the contract or that the architect had delegated the function of certifying; and S/N ett5WXOgC0GoG0qvywSaIg

(iii) that the certifier should be disqualified, for example, on the grounds of fraud, collusion or dishonesty (see Keating on Construction Contracts (supra) at 5-049, 5-050, 5-054, 5-055 and 5-064). Again, no evidence was led by the Plaintiffs to this effect; and

in cross-examination, DW1explained that Ar. Siew Kok Hong signed the CCC as he is a director of Atelier ADT Arkitek, whereas DW1 is not a director. DW1 testified that he was called as a witness for the Defendant to give evidence in respect of architectural matters due to his intimate knowledge of, and involvement in, the design and construction of the Project

In sum, it was my considered view that the Plaintiffs have failed to prove, on a balance of probabilities, that the CCC issued by the Architect is defective. 5th Issue: Whether the Plaintiffs are estopped from ventilating complaints of alleged defects in the Housing Parcels after –

accepting vacant possession of the Housing Parcels without complaint or protest; and/ or

approving and/ or acknowledging the rectification works performed by the Defendant in response to the said alleged defects S/N ett5WXOgC0GoG0qvywSaIg

The crux of the Defendant’s submission was that, upon delivery of vacant possession, the materials, equipment and workmanship employed by the Defendant were in accordance with the SPA and compliant with the applicable regulations and requirements. In addition, the design and installation of all earthing cables or systems, electrical cables or wiring and cabling wiring routes were also fully compliant with the applicable laws, regulations and requirements.

It was further submitted that none of the Plaintiffs had raised any complaints or protests upon the delivery of vacant possession and even if there were defects, the Defendant had made good the same by way of the Defects Notification Form (‘DNF’) during the DLP at no additional cost to the Plaintiffs. All the DNFs were signed off by the Plaintiffs at the material time. Consequently, the Defendant cannot be held liable for defects which were not reported by way of the DNF and the Plaintiffs were estopped from re-ventilating these complaints.

In my considered view, the Plaintiffs were not estopped from ventilating complaints of alleged defects in the Housing Parcels for the following reasons:

Upon accepting vacant possession of the Housing Parcels, the Plaintiffs filed complaints of defects to the Defendant through the DNF. The defects filed through this suit are the defects that were not apparent during the DLP and hence, not the same as in the DNF. The underlying defects could not have been known to the Plaintiffs at the time of S/N ett5WXOgC0GoG0qvywSaIg handover. The Plaintiffs did not receive the Notice of Completion of Defects Rectification Works and did not have the knowledge and expertise to complain of the defects during the DLP. These findings are supported by the evidence given by PW1, PW2, PW3, PW4, PW5, PW6 and PW8;

the case of Ooi Cheng Huat @ Ooi Peng Huat (supra) held that the DLP clause in the SPA was only applicable to defects that were apparent during the DLP period. The DLP clause does not take away the right to sue in respect of defects that were not discoverable during the DLP and do not afford any ground for the Defendant to evade its liability towards the Plaintiffs (see too, Teh Khem On & Anor v. Yeoh & Wu Development Sdn. Bhd. & Ors. [1996] 2 CLJ 1105 and Chrishanthini Angela Regina Sebastiampillai v View Esteem Sdn Bhd [2022] 1 LNS 2212). The DLP clause does not affect or limit the Plaintiffs’ rights under the common law [see Raja Lob Sharuddin bin Raja Ahmad Terzali & Ors v Sri Seltra Sendirian Bhd [2008] 2 MLJ 87 (CA)]; and

in respect of PW2’s and PW8’s SPA, there was no supply of electricity and water during the handover and hence, the defects were not apparent to them during the handover. Any defects reported during the handover was only based on the aesthetics of their housing parcels.

The 5th Issue was therefore answered in the negative. S/N ett5WXOgC0GoG0qvywSaIg 6th Issue: Whether the Plaintiffs’ complaints of alleged defects were caused and/ or contributed solely and/ or substantially by the negligence of the Plaintiffs, the contractors and/ or the agents appointed by them

The Defendant submitted that the Plaintiffs had performed third-party renovation or rectification works at the affected areas including hacking works and major waterproofing works, and these constitute a novus actus interveniens within the meaning as explicated in cases such as Devan & Assoc (law firm wholly owned by Devan a/l Narayanan Raman) v TSR Bina Sdn Bhd [2015] 3 MLJ 454, thereby breaking the chain of causation between the Plaintiffs and the Defendant and operates to relive the Defendant from liability.

The Defendant asserted that the defects were caused or contributed solely or substantially by the contributory negligence of the Plaintiffs and their third-party contractors. PW9 conceded that he was unable to inspect any Housing Parcel in its original form in 2020 and in particular, the Defendant’s original waterproofing works.

It was contended that each house was identical and yet, every house has different defects of varying degrees of severity, for example, PW9 identified that only two houses suffer from leaking at the car porch and only four houses have leaking at Master Bath 2. Hence, this indicates that it was a third-party renovation issue rather that the Defendant’s issue. S/N ett5WXOgC0GoG0qvywSaIg

None of the experts were able to conclusively detect or opine on the precise source of the alleged leaking. The Defendant accused the Plaintiffs of building their case on hypotheticals where the questions asked during cross-examination of the Defendant’s witnesses were largely prefaced with “If”, thereby encouraging these witnesses to engage in speculation.

The Defendant also alleged that some of these renovation works amount to improvements, additions or modification to the Housing Parcels but were passed off by the Plaintiffs as rectification works.

After analysing the evidence and submissions by the parties, the 6th Issue was answered in the negative on the following grounds:

the Plaintiffs’ solicitors had meticulously prepared a comparative table of the defects in each Housing Parcel and the rectification works undertaken as seen in paragraph 119 of the Written Submission (encl. 175). With the exception of PW3 at the Master Bath 2 and Powder 1; PW4 at Master Bath 1 and Master Bath 2; and PW8 at Bedroom 4, Master Bath 1, Master Bath 2, Bath 5 and targeted areas at Bedroom 3 and Bath 3, all other waterproofing works undertaken by the Plaintiffs only involve the external surface of the housing parcels such as the car porch, RC flat roof, Balcony 1, Balcony 2 and roof deck floor. For example, PW6 testified that the waterproofing works undertaken by her were only in respect of the exposed external area such as the porch and rooftop. All other surfaces including the internal surfaces S/N ett5WXOgC0GoG0qvywSaIg were as originally handed over by the Defendant. Yet, PW6’s housing parcel suffers from severe water leakages;

the Plaintiffs have all employed different contractors for the rectification works undertaken by them and the defects complained by the Plaintiffs are the same in respect of leakages, water stains/ watermarks, failure of waterproofing, patchy paintworks/ paintworks flaking off, brittles, peeling wallpapers, cracks and rust;

cross-examination of DW2 that crystallisation due to the performance of waterproofing forms over time and is not an immediate effect of the performance of waterproofing. This shows that the failure of waterproofing is a persisting issue. Comparatively, as can be seen from the table, rectification works in respect of waterproofing undertaken by the Plaintiffs are rather recent. In respect of –

the live wires behind the shower wall in Master Bath 1, none of the Plaintiffs have undertaken any rectification works due to the high risk;

(ii) the DB Box, PW5 had to replace the burnt cables on the ground floor DB Box due to the fire incident. PW1 and PW6 have installed additional DB Box on the ground floor. PW4 has installed additional DB Boxes on the ground, 2nd and roof deck floors. However, the additional DB Boxes do not involve any replacement of cables in the original DB Box installed by the Defendant; and S/N ett5WXOgC0GoG0qvywSaIg

(iii) the earthing, in the EC’s 29.8.2017 Letter and the EC’s 6.1.2020 Letter, the EC has clearly directed the Defendant to inspect and rectify the earthing on all the housing parcels. The Defendant has failed to carry out such inspections and rectification. Hence, with the exception of PW4 who has installed additional earth pit, the earth reading on the other Housing Parcels remain very low; and

novus actus interveniens only applies where the Plaintiffs’ acts were such that they constituted a wholly independent cause of damage (see Muirhead v Industrial Tank Specialists Ltd [1986] QB 507, Billion Origin Sdn Bhd v Newbridge Networks Sdn Bhd & Anor (Yap Burgess Rawson International Sdn Bhd, third party) [2006] 6 MLJ 768 and Ahmad Abid Abdul Hamid v Subangi Munusamy [2015] MLJU 2354). However, in the present case, the rectifications works were necessitated by the defects in the Housing Parcels and were not independent acts which broke the chain of causation. The Defendant cannot rely on the rectification works by the Plaintiffs to escape from its liability [see Ooi Cheng Huat @ Ooi Peng Huat (supra)]. Other Issues on Liability raised by the Defendant - Expert evidence S/N ett5WXOgC0GoG0qvywSaIg

The Defendant cited Ku Jia Shiuen (an infant suing through her mother and next friend, Tay Pei Hoon) & Anor v Government of Malaysia & Ors [2013] 4 MLJ 108 and Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia Tenaga Nasional Bhd [2015] 5 MLJ 52 for the legal principles on the duties and responsibilities of expert witnesses in civil cases before proceeding to submit that PW10’s expert opinion should be disregarded by this Court.

The crux of the Defendant’s submission is summarised as follows:

PW10 lacks the necessary qualifications and experience to render an expert opinion;

PW10’s expert report in APP1 contains multiple errors which constitute material errors;

APP1 is flawed due to serious omissions of material facts; and

PW10 exceeded the defined scope of his engagement, which was to provide an expert report in relation to the wiring cables in the DB Box and the earthing test, by giving unsolicited opinions on the habitability of the Housing Parcels and on the Defendant.

I was not inclined to accept the Defendant’s submission for the following reasons: S/N ett5WXOgC0GoG0qvywSaIg

there is no hard and fast rule on the issue of the competency on an expert witness (see Junaidi Bin Abdullah v Public Prosecutor [1993] 3 MLJ 217). An expert’s practical experience is just as good as professional paper qualification (see Al-Ambia Sdn Bhd v Foremost Prospect Sdn Bhd & Anor [2019] MLJU 1246, Diniyarif bin Fairus Shaba v Jaafar bin Abu & Ors [2021] MLJU 2190 and Muhammad Zulkarnain bin Mohamed Rokani & Ors v Pengarah Hospital Sultan Ismail Johor Bahru & Ors [2020] MLJU 1338). In this regard, PW10 is a Project Engineer with a Bachelor’s Degree in engineering from the University of Northumbria and has 23 years of working experience in electrical, mechanical, civil and fibre engineering;

there are many safety passport programme under the Ministry of Human Resources and “NTSP” that was referred to by PW10 is the NIOSH Tenaga Safety Passport, the training under which provides the necessary knowledge on legislation, specifically the ES Act 1990 and its regulations. PW10 has renewed his Safety Passport three times thus, the provisions of the ES Act 1990 were within his knowledge. In any event, the Safety Passport supports his qualification and does not negate his knowledge and expertise in the field;

all of PW10’s report are verified by a Project Technician; S/N ett5WXOgC0GoG0qvywSaIg

PW10’s findings are consistent with the multiple tripping in the Housing Parcels. PW9 also testified that there will always be tripping if the earth test is very low. PW9 additionally opined that electricity and water should not be in the same proximity; and

DW3 has no knowledge on the issue of earthing as he did not inspect any of the Housing Parcels and he did not produce any report or evidence to support his contention on the earth reading or the earthing defects as raised by the Plaintiffs. - PW8’s claim: “as is where is” basis

The Defendant argued that PW8’s claim against the Defendant should fall because he bought his housing parcel on an “as is where is” basis (see Clause 16 of the SPA and cases such as Chua Moh Huat, Dennis v. Harvester Baptist Church Ltd. [1992] 1 CLJ 229, One Visa Sdn Bhd v. Telekom Malaysia Bhd [2015] 10 CLJ 569, Antonina Marleen Yarendra v. Chai Wei Chung [2017] 1 LNS 536 and Fabulous Range Sdn Bhd v. Helena a/p K, Gnanamuthu [2021] 8 CLJ 1 which have explicated on the meaning on “as is where is”).

The onus was said to be on PW8 to satisfy himself as to the condition of his housing parcel by carrying out his own investigations and due diligence (see Puchong Sports Arena Sdn Bhd v. Calcium Carbonate Manufacture Sdn Bhd & Anor [2021] MLJU 1080). PW8 was aware that there were water leakage S/N ett5WXOgC0GoG0qvywSaIg issues at the roof or jacuzzi area, which necessitated the replacement of the wooden flooring. As there had already been indications of water leakage, he should have carried out a thorough inspection of the housing parcel. However, he failed to do so and had instead focused purely on the “aesthetics” of the housing parcel as conceded in cross-examination.

I was similarly not persuaded by the Defendant’s submission due to the following reasons:

the underlying defects could not have been known to PW8 at the time of handing over as there was no supply of water and electricity. PW8’s inspection was limited to what is apparent to the naked eye and not any latent defects. PW8’s evidence was that he only replaced the wood flooring after moving in and he noticed the water penetration. This was possible only when there is supply of water; and

none of the cases which were cited by the Defendant deals with “as is where is basis” in the context of a breach of duty of care for negligently constructing the Housing Parcels, thereby causing latent defects that were only reasonably discovered upon the inspection by the experts S/N ett5WXOgC0GoG0qvywSaIg 7th Issue: If negligence is established, whether the Plaintiffs are entitled to the following claims:

special damages as set out in Annexure A of the

damages as a result of defective CCC at the rate of 10% per annum calculated on a daily basis from the date of delivery of vacant possession to the date of the issuance of a complete and valid CCC;

loss of use of the parcels fully or at all due to the threat of electrocution and leakages;

loss of investment and/ or rental at the rate of RM10,000.00 per month from 2016 to date and continuing;

diminution in value of the parcels;

continuous losses as a result of leakages at the bathroom and other defects;

continuous losses as a result of leakages at other places for all the Plaintiffs except P1 - P3;

continuous losses as a result of defective installation of electrical wiring; and S/N ett5WXOgC0GoG0qvywSaIg

mental anguish, stress and fear of electrocution

It necessarily follows from the findings and decision by the Court on the 4th Issue that Issue 7(b) must be answered in the negative. The other claims will be decided after the 2nd tranche of the trial on assessment of damages. 8th Issue: If negligence is established, whether the Plaintiffs are entitled to the following prayers:

declaration that the CCC dated 21.10.2013 is null and void;

Section 41 of the Specific Relief Act 1950 [Act 137] (‘SRA 1950’) provides as follows: “Discretion of court as to declaration of status or right

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.”. S/N ett5WXOgC0GoG0qvywSaIg

O. 15, r. 16 of the RC 2012 on “Declaratory judgment” stipulates that “No action or other proceeding shall be open to objection merely on the ground that a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed.”.

In Tan Siew Hong (supra), the High Court declined to nullify and/or invalidate the CCC for, among others, the following reasons: “[8] The Plaintiffs in these 3 consolidated suits are the owners of 3 Units in Gurney 8. They are attempting to nullify the CCC by instituting the actions to move the court into declaring that Vacant Possession has not been delivered in respect of the entire development. Their pleaded case does not confine the prayers to their respective units only. The CCC issued is in respect of the entire Gurney 8 development. [9] The prayers sought by the Plaintiffs will necessarily affect all other Unit Owners in Gurney 8. In the event the court rules that the CCC issued by 2nd and 3rd Defendants is null and void, this declaration cannot be confined to the 3 Units only. This Court is now posed with the question as to whether they are entitled to bring such an action without the explicit consent of all owners/the Joint Management Body (JMB) and which is not in the form of a Representative Action. S/N ett5WXOgC0GoG0qvywSaIg … [11] Since the prayers being sought is seeking to nullify the CCC in its entirety, it is trite that a representative action should be initiated as opposed to actions by the 3individuals. The nullification of the CCC would affect each and every Unit Owner. Alternatively, it is for the JMB to bring such an action as the JMB is a creature of statute, established under the Building and Common Property (Maintenance and Management) Act 2007 (BCPA 2007). The JMB hence represents the residents/owners of Gurney 8 with Section 4(3) of the Act providing the JMB with the capacity to sue or being sued in its name.”.

The case before this Court was similar to Tan Siew Hong (supra) in that the Plaintiffs’ pleaded case does not confine the prayers to their respective housing parcels only. The CCC was issued in respect of the entire Project as opposed to the individual housing parcels. The Plaintiffs sought to nullify or invalidate the CCC in its entirety. Doing so would necessarily affect the other 62 owners of the housing parcels in the Project who are not parties to the instant action.

In the circumstances, a representative action should have been initiated as the nullification or invalidation of the CCC would affect the other owners and not just the seven housing parcels which were the subject of the instant action. S/N ett5WXOgC0GoG0qvywSaIg

It also follows from the decision in respect of the 4th Issue that Issue 8(a) must be answered in the negative.

declaration that the delivery of vacant possession of the parcels to the Plaintiffs are defective, null and void;

The abovementioned statutory provisions on declaration apply here.

In Boo Kok Ngeak & Anor v. Lim Kian Hoe & Anor [1998] 6 MLJ 727, the court said: “In Topfell Ltd v Galley Properties Ltd [1979] 1 WLR 446, the court defined vacant possession as a term applied to premises sold or offered for sale and not subject to a lease, where the vendor must give vacant possession on completion, subject to an agreement to the contrary. The court also held that vacant possession meant more than being empty and unoccupied. The property conveyed must be capable of occupation by a purchaser. It is my judgment that the term ‘vacant possession’ connotes the handing over of lawful and complete possession of a said property to another in a vacant condition and thus capable of occupation and free from any claim of right of possession either by the vendor or any other party.” (emphasis added). S/N ett5WXOgC0GoG0qvywSaIg

In this case, I accepted the Defendant’s submission that vacant possession was duly delivered as the lawful and complete possession of the Housing Parcels in a vacant condition were handed to the Plaintiffs. The Housing Parcels were capable of occupation and free from any claim of right of possession by the Defendant or any other party. The Plaintiffs have enjoyed the right of possession of the Housing Parcels for more than 10 years.

Therefore, there are no grounds to nullify or invalidate the delivery of vacant possession. By succeeding to prove their claim in negligence, this does not translate into the nullification or invalidation of the delivery of vacant possession.

an order of specific performance that the Defendant rectify the wiring in the Plaintiffs’ parcels to be in compliance with the statutory requirements within one month from the date of the order;

an order of specific performance that the Defendant rectify the leakages at other places on all the Plaintiffs’ parcels except the 1st, 2nd and 3rd Plaintiffs’ parcel within one month from the date of the order;

an order of specific performance that the Defendant rectify the bathroom leakages on the S/N ett5WXOgC0GoG0qvywSaIg Plaintiffs’ parcel within one month from the date of the order;

Paragraphs 20(1)(a) and (b) and sub-s 21(1) of the SRA 1950 states that: “Contracts not specifically enforceable

20.

The following contracts cannot be specifically enforced:

a contract for the non-performance of which compensation in money is an adequate relief;

a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; Discretion as to decreeing specific performance

21.

The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant any such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. S/N ett5WXOgC0GoG0qvywSaIg …”.

An order of specific performance is an equitable remedy. It cannot be asked for as of right. It is a discretionary remedy but the discretion cannot be exercised arbitrarily or capriciously. The exercise of the discretion is always governed by fixed rules and principles (see MMI Industries Sdn Bhd v. Let Sin Industries Sdn Bhd [2010] 1 CLJ 36 (CA) where reference was made to Caesar Lamare v. Thomas Dixon [1873] 6 LRHL 414 at p 423).

The Court was convinced by the Defendant’s submission on the reasons as to why orders for specific performance as set out above were unsuitable, namely, –

as the Plaintiffs’ cause of action is founded in the tort of negligence, and not a breach or potential breach of contractual obligations, orders for specific performance were not a suitable remedy;

(ii) as provided under paragraph 20(1)(b) of the SRA 1950, an order of specific performance will not be granted where close or continued supervision is required. In Civil Remedies, 2nd edition, Sweet & Maxwell by Cheong May Fong and Lee Yin Harn at 5.079, the learned authors illuminated that: S/N ett5WXOgC0GoG0qvywSaIg “5.3.2.2 Contracts which are detailed or require close supervision [5.079] Section 20(1)(b) also provides that a contract cannot be specifically enforced where it “runs into such minute or numerous details … that the court cannot enforce specific performance of its material terms”. Thus, specific performance will not be granted for contracts which are extremely detailed or require close supervision by the court …” (emphasis added; see too, Mohammad bin Baee v. Pembangunan Farlim Sdn Bhd [1988] 3 MLJ 211).

There is no doubt that, based on the reliefs sought by the Plaintiffs, there would be a need for detailed inspection of –

all rectification works carried out for the purposes of ensuring compliance with the rectification works on wiring to ensure that they comply with the statutory requirements; and

(ii) all the Plaintiffs’ housing parcels to determine which leakages have been caused by the Defendant, and the supervision of the rectification of the same within the time stipulated. Clearly, the Court is not in the position to supervise these numerous and minute details relating to the rectification works to be carried out; and S/N ett5WXOgC0GoG0qvywSaIg

(iii) damages will be an adequate remedy. The Plaintiffs were not entitled to receive both general damages and specific performance as this would result in the Plaintiffs being unjustly enriched [see Cornerstone Development Sdn Bhd v. IRDK Sdn Bhd [2022] MLJU 3544 (CA)].

The Court additionally considered the fact that the Plaintiffs have carried out their own rectification works and hence, damages would be the appropriate remedy. After the decision was pronounced, the learned counsel for the Plaintiffs enquired as regards the electrical conduits behind the shower wall and the interfloor leakages which have not been rectified by the Plaintiffs and whether the Court would be minded to grant an order for specific performance for this.

After hearing the short submissions by the counsels, I expressed concern that if the Court was to accede to the Plaintiffs’ counsel request, it would highly likely result in another dispute between the parties. With the filing of this suit, the animosity between them was visible. In the circumstances, it would be best for the Plaintiffs to appoint their own contractors and the quotations, invoices and receipts be submitted for purposes of the trial on assessment of damages.

damages at the rate of 10% per annum of the purchase price from the expiry date for delivery of vacant possession until a new CCC is issued in compliance with the statutory laws; S/N ett5WXOgC0GoG0qvywSaIg

Again, it necessarily follows from the decision in respect of the 4th Issue that Issue 8(f) must be answered in the negative.

general damages as assessed by the Court;

special damages as set out in Annexure A of the

interest at the rate of 5% per annum of the judgment sum from the date of the judgment until the date of full settlement;

costs; and

such further and/ or other reliefs as deemed fit and proper by the Court

Issues 8(g) to (k) will be decided after the 2nd tranche of the trial on assessment of damages.

Premised on the aforesaid reasons, the Court was of the view that the Plaintiffs have established, on a balance of probabilities, liability on the part of the Defendant for some of the Plaintiffs’ claims as discussed above. S/N ett5WXOgC0GoG0qvywSaIg

The Plaintiffs were directed to file the Notice of Assessment within one week from the date of decision. Dated: 6.1.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Plaintiffs : Viola Lettice Decruz (Nur Atiqah Binti Ahmad Ariff with her) Messrs. V.L. Decruz & Co. Solicitors for the Defendant: Dawn Wong Keng Jade (Adrienne Sena with her) Messrs. Steven Thiru & Sudhar Partnership S/N ett5WXOgC0GoG0qvywSaIg