Yb Engineering Sdn Bhd (Company No: 235788-H) 2. Yong Kok Heng (Nric: 541220-10-5819/4737058) v Standard Sofa Industries Sdn Bhd (Company No: 576190-T) (B-02(C)(W)-160-01/2018)

YB ENGINEERING SDN BHD

YONG KOK HENG (NRIC: 541220-10-5819/4737058) … APPELLANTS AND STANDARD SOFA INDUSTRIES SDN BHD (COMPANY NO: 576190-T) … RESPONDENT [In the matter of the High Court of Malaya at Shah Alam Civil Suit No. 22C-4-02/2015 (Construction) Between

YB Engineering Sdn Bhd (Company No: 235788-H)

Yong Kok Heng (Nric: 541220-10-5819/4737058) … Plaintiffs And Standard Sofa Industries Sdn Bhd (Company No: 576190-T) … Defendant And

Tu Yong Eng (Trading as YL Design Consultancy Services)

Hao Wu Construction Sdn Bhd … 3rd Party] Civil Appeal No. B-02(C)-(W)-160-01/2018 2 CORAM TENGKU MAIMUN TUAN MAT, JCA MARY LIM THIAM SUAN, JCA HASNAH DATO’ MOHAMMED HASHIM, JCA JUDGMENT OF THE COURT [1] This was an appeal by the appellants/plaintiffs against the decision of the High Court in dismissing their claim. We had allowed the appeal. We now furnish our reasons. Background Facts [2] The first appellant is the owner of a factory and/or building situated on Lot 3845 at Jalan 4D Kampung Baru, Subang, Section U6, 40150 Shah Alam (“the appellants’ land/Lot 3845”). The second appellant is the registered owner of Lot 3845. [3] The respondent/defendant is the registered owner of Lot 3846 (“the respondent’s land”). The appellants’ land is next to the respondent’s land and it is located on a higher ground to the respondent’s land. There was an existing retaining wall built between the appellants’ land and the respondent’s land. [4] The first appellant occupied the front portion of the appellants’ land, operating a factory for the business of engineering, metal work, tooling, fixture and component. The back portion of the appellants’ land together with a single storey factory was rented to RAE Industries Sdn Bhd since October 2004. Civil Appeal No. B-02(C)-(W)-160-01/2018 3 [5] It was the appellants’ case that around August 2011, the respondent carried out construction works and/or earthworks (“the said works”) along the common boundary on the respondent’s land for a project known as ‘Cadangan Membina Sebuah Kilang 1 Tingkat Serta Ruang Pejabat 2 Tingkat’, for which the approval of the Majlis Bandaraya Shah Alam (“MBSA”) was obtained by the respondent on 20.10.2011, i.e. after works had commenced. [6] It was further the appellants’ case that in carrying out the said works, the respondent dug and levelled the land vertically to a depth of about 20-30 feet with an angle of approximately 90 degrees and that the respondent had inter alia failed to take safety measures and to build a retaining wall structure and/or a proper reinforced concrete wall between the appellants’ land and the respondent’s land. [7] On 13.10.2011 at about 11.30 am, a landslide occurred at the boundary between the appellants’ and the respondent’s lands which resulted in the collapse of the retaining wall; damage to the appellants’ land and factory with subsequent soil erosion and soil subsidence, thus compromising the safety of the appellants’ workers, tenant and affecting the appellants’ daily factory operation. The landslide also caused the death of one of the respondent’s workers and/or agent. [8] The appellants complained to MBSA regarding the landslide. By its letter dated 22.12.2011 to the appellants, MBSA stated that the respondent had: Civil Appeal No. B-02(C)-(W)-160-01/2018 4

(i) been compounded with a sum of RM25,000.00 for infringement of section 70A(4) of the Street, Drainage and Builidng Act 1974 read with Undang-Undang Kecil (Mengkompaun Kesalahan-Kesalahan) (MBSA) Jalan, Parit dan Bangunan 2005 for conducting the earthworks on the respondent’s land without complying with the conditions approved by MBSA;

(v) to build a retaining wall along the common boundary of the appellants’ land and the respondent’s land. [9] As required under paragraph 8(v) above, the respondent built a retaining wall at the adjacent land and/or at the boundary between the appellants’ land and the respondent’s land. The appellants however contended that the respondent inter alia did not repair and/or rebuild the retaining wall that had collapsed due to the landslide caused by the respondent. The appellants further contended that the respondent had failed, refused and/or neglected to restore the appellants’ land to its original state. [10] The appellants also contended that during the construction of the retaining wall, the respondent had excavated further into the appellants’ land Civil Appeal No. B-02(C)-(W)-160-01/2018 5 much beyond the affected area of the landslide, which had further widened the damaged area of the appellants’ land. [11] The respondent completed the construction of the retaining wall sometime in early February 2012. On or about 13.2.2012, cracks appeared on the concrete surface flooring along the retaining wall built by the respondent. Since mid-April 2012, the crack lines became wider and around 2.11.2012, there was major sinking of the concrete surface along the retaining wall. The sinking hole measuring more than 9 feet in depth, threatened the safety of the appellants’ workers and tenant. In early November 2012, the tenant moved out and the tenancy agreement was terminated. The appellants contended that they had suffered loss of monthly rentals and loss of use of their land. [12] The appellants filed a suit against the respondent in the High Court Shah Alam seeking for the following reliefs as per paragraph 28 of their statement of claim:

(a) the respondent to appoint a certified civil engineer and/or a certified professional (approved by the appellants) to reconstruct a reinforced concrete wall with hole for water transition in accordance to the laws at the boundary;

(b) the respondent to ensure that the reinforced concrete wall constructed in accordance to paragraph (a) is taken care of and to carry out all the maintenance works to ensure the said wall complies with paragraph (a) and the laws are adhered to; Civil Appeal No. B-02(C)-(W)-160-01/2018 6

(c) the respondent to restore and/or to refill the soil at the appellants’ land which was eroded, to the condition and/or position and/or the structure of the original state;

(d) the respondent to build a reinforced concrete wall, including the back part of the appellants’ land immediately, in accordance to the laws and to ensure that the soil at the appellants’ land is refilled with suitable materials in accordance to the laws;

(e) the respondent to appoint a certified civil engineer and/or a certified professional (approved by the appellants) to conduct a test on the reinforced wall which is built by the respondent;

(f) the respondent and/or its agent and/or its assignee and/or beneficiaries to undertake to conduct the maintenance works on the reinforced concrete wall in accordance to paragraph

(a) to paragraph (e) above from time to time;

(g) the respondent to submit a copy for all the construction works, the construction plan, test results, anything that had been approved and/or to obtain approval from the authorities, and all the construction works related to the appellants’ land in regards to paragraph (a) to paragraph (e) above at any time at the appellants’ request;

(h) the respondent to fix the damage caused to the building on the appellants’ land;

(i) special damages of RM306,000.00 for the losses based on the monthly rental of RM17,000.00 per month from December 2012 to June 2014 and continuing;

(j) general damages; and Civil Appeal No. B-02(C)-(W)-160-01/2018 7

(k) interest and costs. [13] The respondent disputed the appellants’ claim. It brought in the consultant engineer, Tu Yong Eng as the first third party (“TP1”) and the contractor, Hao Wu Construction Sdn Bhd as the second third party (“TP2”) for contribution or indemnity in respect of the appellants’ claim, both of whom had carried out the construction works. [14] The respondent also pleaded illegality in that the building or factory built on the appellants’ land was without the approval of MBSA; that the landslide was caused by the appellants’ failure to build a drainage system and that the construction of the retaining wall on the respondent’s land was with approval of the local authority. [15] The respondent counterclaimed for the appellants to rebuild the retaining wall between the appellants’ and the respondent’s land; for the appellants to bear half the cost of reconstruction of the retaining wall and the drainage system, which the respondent had incurred. Findings of the High Court [16] Having heard the witnesses, including the experts of the appellants Dr. Chin Yaw Ming (PW5) and the respondent’s expert, Ghazali bin Abd Aziz (DW2), the learned judge dismissed the appellants’ claim. In essence, the learned judge found that:

(i) the appellants had not proved that the respondent had caused the landslide; Civil Appeal No. B-02(C)-(W)-160-01/2018 8

(v) the factory built on the appellants’ land is illegal and as such the appellants would not be able to claim on the loss of rental. [17] Although the learned judge found that the landslide was not caused by the respondent digging and levelling its land to a depth of approximately 90 degrees and about 20 to 30 feet, the respondent’s counterclaim was also dismissed. The respondent’s claim against TP1 was likewise dismissed while no order was made against TP2 who did not enter appearance. [18] Aggrieved with the decision of the learned judge, the appellants appealed to this Court. The Appeal [19] It was submitted for the appellants that the learned judge erred in her finding that the appellants failed to prove that the landslide was caused by the respondent. It was highlighted that the appellants were on the land for 50 years where nothing happened whereas the landslide occurred on 13.10.2011, two months after the respondent undertook or started the excavation works in August 2011. Civil Appeal No. B-02(C)-(W)-160-01/2018 9 [20] On the learned judge’s finding that the appellants could not rely on the photographs, the appellants submitted that the learned judge failed to consider the overall evidence of the witnesses and the timing of the landslide. The appellants submitted that they had proved their claim on the balance of probabilities and sought for the reliefs as prayed for in prayer 28(a), (b), (c),

(d), (g), (i) and (j) of the statement of claim. [21] In response, learned counsel for the respondent submitted that from the testimony of the experts, there was no issue of security of the retaining wall built by the respondent and that the respondent was not liable for the first event of the landslide. The respondent took the position that there were other proximate causes of the landslide, in particular, that it was due to the absence of a water installation system on the appellants’ land and due to the illegal nature of the factory or structure on the appellants’ land. In any event, the respondent submitted that they had taken remedial action after the landslide. [22] The respondent also objected to the appellants’ claim for rental on the ground that it had made compensation of RM139,000.00 to the tenant in another suit. As for prayer 28(a) and (b) of the appellants’ claim, the respondent submitted that no certification was needed as the respondent had obtained a certificate of practical completion for its project. For the rest of the prayers, it was submitted that the respondent had done the reinforcement of the concrete wall and is in fact maintaining the wall. Civil Appeal No. B-02(C)-(W)-160-01/2018 10 Our Decision [23] The appeal was very much fact-based. In a nutshell, the appellants’ grievance was that the appellants had a back wall which had collapsed because of the landslide and that the landslide was caused by the respondent’s deep and vertical excavation of the land. Although the respondent had rebuilt the retaining wall, the appellants complained that in the course of rebuilding the retaining wall, the respondent had failed to restore and had in fact caused further damage to the appellants’ land. [24] The principles on appellate intervention are trite. Suffice to state that an appellate court will not readily interfere with the findings of fact arrived at by the trial court unless the trial court has so fundamentally misdirected itself that an appellate court had a duty to intervene (see Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395; China Airlines Ltd v Maltran Air Corp Sdn Bhd & Another Appeal [1996] 3 CLJ 163; Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; Loo Hon Kong v Loo Kim Lim @ Loo Kim Leong [2004] 4 AMR 591; Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453). [25] Having considered the submissions and having perused the grounds of judgment and the records of appeal, we were satisfied that this was a fit and proper case for appellate intervention. [26] The dispute between the parties concerned the construction of the retaining wall by the respondent at the adjacent land and/or at the boundary of the appellants’ and the respondent’s land after the landslide. The fact that there was a retaining wall between the rear part of the appellants’ land and Civil Appeal No. B-02(C)-(W)-160-01/2018 11 the neighbour’s land lot 3748, i.e. that there was a back wall which had subsequently collapsed due to the landslide was admitted to by the respondent’s witnesses, DW2 and DW4 during cross-examination. [27] The learned judge found inter alia that the appellants failed to prove that the respondent dug and levelled its land to a depth of approximately 90 degrees and about 20 to 30 feet. [28] We found that the respondent did not in fact deny the measurement or depth of the excavation in its defence. Neither was PW5 cross-examined on this aspect of the appellants’ case. In fact what was pleaded by the respondent in the statement of defence was that the construction works on its land were done in accordance with the rules and the standard approved by its engineer, TP1. As such, the measurement or depth of the excavation done by the respondent was not an issue which required determination by the learned judge. We endorsed the following observations made by Sharma J in Janagi v Ong Boon Kiat [1971] 2 MLJ 197: “An issue arises when a material proposition of law or fact is affirmed by one party and denied by the other. The court is not entitled to decide a suit on a matter on which no issue has been raised by the parties. It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact it is not proper for the court to displace the case made by the party in its pleadings and give effect to an entirely new case which the party had not made out on its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. If the parties agree to a factual position then it is hardly open to the court to come to a finding different from such agreed facts.”. Civil Appeal No. B-02(C)-(W)-160-01/2018 12 [29] Her Ladyship therefore erred in dismissing the appellants’ claim on the ground that the appellants failed to prove the measurement or depth of the excavation carried out by the respondent. [30] Further, the learned judge, with respect, failed to appreciate the totality of the evidence and the real dispute between the parties. The dispute between the parties was in relation to the safety of the retaining wall that was rebuilt by the respondent following the landslide which the appellants alleged was caused by the respondent. And while the learned judge was quite correct to say the photographs without more cannot be accepted as proof of the appellants’ case, her Ladyship failed to consider all the evidence on record. [31] DW2, the expert who was engaged by the respondent did not support the respondent’s case as to the other proximate cause of the landslide. DW2 made no mention of water drainage system or rather the lack thereof on the appellants’ land. DW2 however made very pertinent findings on the dispute i.e. whether the said retaining wall was built by the respondent according to good engineering practice and whether the constructed retaining wall is defective. In his report, DW2 stated the following: “3.4 Whether the said retaining wall was built according to good engineering practice?: Yes, the said retaining wall was not built according to good engineering practice

3.5 Whether the constructed retaining wall is defective? Yes, the constructed retaining wall is defective Civil Appeal No. B-02(C)-(W)-160-01/2018 13

3.6 Whether there are plausible resolutions to rectify this problem? This problem could be solved with the re-construction of a retaining wall taking into account of the present site condition with long term stability that could benefits (sic) the neighbouring land owners.” [32] Hence, from the evidence of DW2, it was crystal clear that the retaining wall built by the respondent was defective and was not according to good engineering practice. The appellants’ complaint was thus founded and the learned judge was plainly wrong in failing to consider the respondent’s own expert evidence. In the circumstances, we allowed the appeal and we set aside that part of the order of the High Court in dismissing the appellants’ claim. [33] Insofar as the reliefs were concerned, we took into account the testimony of DW2 who advised that the problem could be solved by reconstruction of a retaining wall taking into account the present site condition with a long term stability that could benefit the neighouring land owners. [34] We therefore allowed the appellants’ claim in paragraph 28(d) of the statement of claim as modified by the respondent’s own terms i.e. that the respondent do construct a reinforced retaining wall taking into account the present site condition with a long term stability that benefit the neighbouring land owners. And we ordered that this be done within a reasonable time, failing which the appellants may undertake the construction at costs to be borne or indemnified by the respondent. Civil Appeal No. B-02(C)-(W)-160-01/2018 14 [35] In respect of the claim for rental, we noted that the tenant’s claim was for the damage caused to the tenant’s own building, whereas the appellants’ claim was not for the building but for the land. As such we allowed the relief prayed for in paragraph 28(i) of the statement of claim, namely for special damages for loss of rental for one year from 15.12.2012 until 15.12.2013 at RM17,000.00 per month with interest at 5% per annum from 15.12.2012 until realization and, costs. Dated: 19th December 2018 signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors: For the Appellant: Richard Tee (Caryn Shua with him) Messrs. Richard Tee & Chin For the Respondent: William Foo (Tan Li Min with him) Messrs. Foo Hiap Siong & Co.