Badan Pengurusan Sky Loft Premium Suites v Bukit Indah (Johor) Sdn. Bhd. (JA-22NCvC-120-07/2022)

The Plaintiff, a management corporation established under the Strata Management Act 2013 initiated a civil action against the First Defendant (developer) (“D1”) and the Second Defendant (main contractor) (“D2”) arising from alleged breach of contract against the D1 and negligence against both Defendants, in relation to cracks and delamination of the external plaster walls of the development Sky Loft Premium Suites. 26/05/2026 17:23:54

At the end of the full trial, I dismissed the Plaintiff’s claim and awarded costs of RM10,000.00 to each of the D1 and D2 subject to allocator fees, to be paid by the Plaintiff to D1 and D2 within fourteen (14) days from the date of this Order.

Below are the grounds of my decision.

The background facts of this case are gathered from the cause papers and submissions filed by the parties and stated in chronological order.

The Plaintiff is the Management Corporation of Sky Loft Premium Suites, established on 20.04.2016 pursuant to the Strata Management Act 2013 [Act 757] and brings this action in a representative capacity on behalf of parcel owners pursuant to subsection 143(2) of Act 757.

D1 is the developer of Sky Loft Premium Suites, a high-rise residential development in Johor Bahru, while D2 was appointed as the main contractor to carry out the construction works (the “Works”).

The project was completed and certified with the Certificate of Practical Completion (“CPC”) on or about 19.08.2014, followed by the expiry of the defect’s liability period (“DLP”) in July 2016.

It is not in dispute that—

The Plaintiff alleges that defects in the form of cracks and delamination of the external plaster walls were discovered several years after completion, and attributes the same to poor workmanship and/or negligence on the part of the Defendants. Plaintiff thereafter undertook rectification works and commenced this action against both Defendants for breach of contract and negligence, claiming, inter alia, rectification costs and damages.

(ii) RM328,240.00 for inspection by an independent surveyor;

(iii) RM53,700.00 for installation of safety netting;

(iv) RM33,500.00 for specific rectification works, and

it has locus standi under section 143 of Act 757;

the defects complained of are latent defects arising from poor workmanship;

the Defendants owed a duty of care and breached the same; and

the defects caused the Plaintiff to incur substantial rectification costs. Defendants by way of Writ and Statement of Claim (“SOC”) dated 30.07.2022. Defences, raising issues including locus standi, limitation, and absence of liability.

no duty of care arises in the circumstances, particularly against D2;

the alleged defects are not proven and/or are attributable to other causes, including poor maintenance; and

the Plaintiff has failed to prove causation and quantum. and PW2 (Nurhidayah Binti Jamaludin), as well as two (2) expert witnesses, namely PW3 (Kuan You Wai) and PW4 (Payam Shafigh). Baharuddin), DW2 (Nordin Mohamed), and DW4 (Ir. Dr. Kribanandan G.N ) as its expert witness. D2 called one (1) witness, namely DW3 (Hia Poi Nyap). ISSUE TO BE DETERMINED Act 1953 [Act 254]; ANALYSIS AND COURT’S FINDINGS Whether the Plaintiff has locus standi to commence this action under Act 757 Krishnan v. Bar Council Malaysia & Ors. [2008] 4 MLJ 941 and The Joint Management Body of the Cantonment v Melariang Sdn. Bhd. [2024] CLJU 1644 to support their contentions. Committee established under Act 757. Committee of the Plaintiff has given evidence during trial. Instead only two (2) administrative staff, who are not even employees of the Plaintiff but rather are employed by Kensington Strata Management Sdn. Bhd. (“KSM”), gave evidence on behalf of the Plaintiff. Plaintiff carrying out building maintenance work. No evidence, documentary or otherwise has been tendered during trial that this action is commenced by the Plaintiff in a representative capacity on behalf of the individual parcel owners. No witness statement states this. There are no minutes of the Plaintiff or resolution of its Management Committee to evidence any decision or authorization to commence this action in a representative capacity. None of members of the Plaintiff’s Management Committee have attended trial to testify on behalf of the Plaintiff. “(2) Where all or some of the parcel owners or proprietors of the parcels in a development area—

are jointly entitled to take proceedings for or with respect to the common property in that development area against any person or are liable to have such proceedings taken against them jointly; or

are jointly entitled to take proceedings for or with respect to any limited common property in that development area against any person or are liable to have such proceedings taken against them jointly, the proceedings may be taken—

Any judgment or order given or made in favour of or against the joint management body, management corporation or subsidiary management corporation, as the case may be, in any proceedings referred to in subsection (2) shall have effect as if it were a judgment or an order given or made in favour of or against the parcel owners or the proprietors, as the case may be.”. [Emphasis added] “(a) in relation to a building or land intended for subdivision into parcels, means so much of the development area—

(ii) used or capable of being used or enjoyed by occupiers of two or more parcels or proposed parcels; or

(ii) used or capable of being used or enjoyed by occupiers of two or more parcels;”. [Emphasis added] Lumpur v Perbadanan Pengurusan Trellises & Ors And Other Appeals [2023] 3 MLJ 829 held that— “[491] ...(i) We are cognisant that based on s 143(2) and (3) of the SMA, if the parcel owners or proprietors of the parcels are jointly entitled to take 'proceedings' for or with respect to common property the same may be taken by the management corporation or the joint management body. However, this right conferred on the joint management body and the management corporation is specifically in relation to proceedings for or in respect of common property and no more. The present factual matrix relating to standing to sue of each of the parcel proprietors in relation to a neighbouring development which they contend adversely affects them, does not fall within the section.”. [Emphasis added] I find that the issue of lack of locus standi raised by the Defendants are devoid of merits. Whether the Plaintiff’s claim is time-barred under the Limitation Act 1953 and Accordingly, the limitation period would have commenced by then and expired by July 2021 at the latest. Federal Court held that – “In Board of Trade v Cayzer, Irvine & Co [1927] AC 610 617. Viscount Dunedin described “cause of action” as that which makes action possible. Now, what makes possible an action founded on a contract is its breach. In other words, a cause of action founded on a contract accrues on the date of its breach. Similarly, the right to sue on a contract accrues on its breach. In the case of actions founded on contract, therefore, time runs from breach (per Field J. in Gibbs v Guild 8 QBD 296 302). In the case of actions founded on any other right, time runs from the date on which that right is infringed or there is a threat of its infringement (see Bolo's case LR 57 IA 74). It would seem clear, therefore, that the expressions “the right to sue accrues”, “the cause of action accrues” and “the right of action accrues” mean one and the same thing when one speaks of the time from which the period of limitation as prescribed by law should run.”. [Emphasis added] [2014] 2 MLJ 749 affirmed the proposition in Nasri v Mesah (supra) and stated the followings: “[17] And Nasri v Mesah, we observe, is still good law (see the Federal Court cases of Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1984] 2 MLJ 280, Insun Development Sdn Bhd v Azali bin Bakar [1996] 2 MLJ 188, and The Great Eastern Life Assurance Co Ltd v Indra Janardhana Menon (representing the estate of the deceased, NVJ Menon) [2006] 2 MLJ 209, which followed Nasri v Mesah) which we readily endorse. A cause of action founded on a contract accrues on the date of its breach, and in the case of a debt, the cause of action arises at the time when the debt could first have been recovered by action.”. [Emphasis added] “Limitation of actions of contract and tort and certain other actions

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.”. [Emphasis added] However, on 08.08.2019, during a joint inspection by the Plaintiff and the painting contractor, the Plaintiff had discovered cracks on the external plaster wall at Tower B, Level 13 of Sky Loft (the “initial defect”). about the initial defect and urged D1 to arrange an inspection on the initial defect. However, D1 did not reply. The Plaintiff reminded D1 by an email on 11.12.2019. informed the Plaintiff that the initial defect is not a structural defect but a plaster crack. As such, D1 told the Plaintiff to arrange their own contractor to rectify/repair the initial defect. Builders”) to conduct the rectification/repairment works to the initial defect. Builders carried out further rectification/repairment works. PW4 discovered multiple layer of cement screed. PKN discovered that the causes of delamination are as follows: Builders, sometime in August 2019. In doing so, the Plaintiff has invoked the extended limitation period under section 6A of the Act 254. “(4) For the purposes of this section- respect of the relevant damage” means knowledge of—

(ii) …

(iii) includes the knowledge which the plaintiff or any person in whom the cause of action was vested before him might have been expected to acquire— [Emphasis added] Pacific Forest Industries Sdn. Bhd. & Anor. [2021] 4 MLJ 367 has decided that— “[175] The judge ought to have also kept in mind the salutary principle that once defendants had raised the defence of limitation, the burden of proving that the action was brought within the limitation period shifts to the plaintiffs…”. [Emphasis added] year limitation period from the start date had not expired prior to the filing of the Writ. HL Builders and the findings of their experts, PW4. Whether the Defendants are liable in contract and/or negligence were entered into between the D1 and individual purchasers. Plaintiff. The Plaintiff’s claim in contract must therefore fail. Defendants on behalf of the purchasers of Sky Loft in their representative capacity and hence the contentions of the Defendants are without basis. Whether the Defendants owe a duty of care to the Plaintiff Ors. v Loh Chiak Eong & Anor. [2015] 4 MLJ 734 where the Federal Court reaffirmed a structured three-fold test to determine the existence of a duty of care, requiring the following elements: (see paras [30-31]); [32- 33]); and “It would not be fair, just and reasonable to impose on architects a duty of care for a responsibility which they had not assumed or one which is not within their professional scope of duty. We are of the view that in this case, the requirements of reasonable foreseeability has not been satisfied. As the architect for the project, the layout plan was prepared and submitted in accordance with the instructions received by the respondents from the developer. The respondents were mainly responsible for the design and safety of the industrial buildings and compliance of the relevant laws. The appellants’ claims do not fall within the scope of work of the respondents. Thus applying the standards of the reasonable man, the respondents could not have foreseen any liability for consequential financial loss to the appellants when there was delay in the completion of the building and the issuance of the CFO. For this reason alone, the appellants’ claim against the respondents for pure economic loss on grounds of late delivery of vacant possession of their building units must fail. ”. [Emphasis added] Steven Phoa Cheng Loon & Ors [2003] 1 MLJ 567 has laid down the principles of law on tort of negligence as follows: “To make out a case against a defendant in the tort of negligence, a plaintiff must establish four ingredients. First, he must show that he was owed a duty by the defendant to take reasonable care. Second, that the defendant breached that duty, third, that the resultant breach caused the harm in question and fourth that he (the plaintiff) suffered damage that is not too remote. There is a tendency on the part of some textbook writers (in the interest of tidiness) to treat each of these elements in watertight compartments. Such an approach may be quite misleading. This is because what a court trying an action for negligence is concerned with is the interpretation of a particular set of facts as establishing or negativing one or more of the ingredients of the tort. The speeches made in the House of Lords in Woods v Duncan [1946] AC 401 illustrates the point. Taking the first ingredient, the starting point in all cases where there is absent any contractual relations between the parties is the following well-known passage in the speech of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at p 580,: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. … This notion was abandoned in England by the House of Lords in Donoghue v Stevenson [1932] AC 562, 580 and it was, to paraphrase Professor Winfield, given a 'decent burial' by the Privy Council in Grant v Australian Knitting Mills Ltd [1936] AC 85, 101-102. An attempt to revive it was repelled by Lord Denning in Greene v Chelsea Borough Council [1954] 2 QB 127, (Emphasis added.) The effect of the authorities applying Donoghue v Stevenson is that the question whether a duty of care is owed by a defendant to a plaintiff in a given case is to be resolved in accordance with the facts and circumstances of that case (see Canadian National Railway Co v Norsk Pacific Steamship Co Ltd [1992] 1 SCR 1021)..”. [Emphasis added] to the purchasers, parcel owners, proprietors of Sky Loft, and/or the Plaintiff to ensure that the design, development, and construction of Sky Loft were carried out properly and adequately, so as to prevent any potential injury to persons therein.

neglected and/or failed to properly and/or adequately construct the external facade walls of Sky Loft in accordance with reasonable industry standards and/or common law standards;

neglected and/or failed to exercise reasonable skill and expertise in the construction of the external facade walls of Sky Loft in accordance with reasonable industry standards and/or common law standards;

neglected and/or failed to construct the external facade walls of Sky Loft in a good and workmanlike manner in accordance with reasonable industry standards and/or common law standards; and

neglected and/or failed to ensure that the construction of the external facade walls of Sky Loft was safe for use in accordance with reasonable industry standards and/or common law standards. Quickrender 387. Chiak Eong & Anor. (supra) and the case of Arab Malaysia Finance Bhd v Steven Phoa Cheng Loon & Ors. (supra), I find that despite there is no contractual relationship between the parcel owner or Plaintiff with D1 and D2, there is sufficient proximity exists to impose a duty of care on D1 and D2. Whether the Plaintiff has proven causation and loss on a balance of probabilities and

infrared thermal imaging;

(ii) close-range inspection with tapping tests; and

(iii) sampling for laboratory tests where items (i) and (ii) were conducted by PW3 (Mr. Kuan)

PW3 (Mr. Kuan) explained these three (3) methods in his evidence. In brief, PW3 informed that—

thermal equipment that uses infrared technology, similar to the one mounted on a drone. It measures temperature and captures thousands of data points, allowing them to identify areas where debonding has occurred as air and water retain heat differently compared to building materials, making anomalies easier to detect;

after conducting the first assessment using infrared, they found many anomalies across the facade. This justified moving to the second stage of inspection, which involved a closer, detailed examination, including tapping tests. Using a tapping rod, they knocked on the concrete and identified defects by listening to differences in sound; and

in the third stage, samples were taken from the external wall using a diamond cutter. The plaster was cut to the depth of the shear wall so that they could examine its base condition. Samples were also taken from areas without defects for comparison. This part was carried out by Dr. Payam (PW 4), who conducted the technical analysis.

During cross-examination, PW3’s professional qualifications were aggressively challenged. It was contended, among other things, that PW3 is not a qualified civil engineer and lacks the requisite expertise to interpret thermographic imaging.

According to PW3, building physics does not require an engineering background. It primarily concerns heat, air and moisture, which are not core components of the civil engineering syllabus. He further informed that he is a Level 1 certified thermographer. He explained that infrared imaging for facade inspection is a qualitative method used to identify anomalies, for which Level 1 certification is sufficient. Level 2 certification, by contrast, is intended for quantitative analysis involving calculations relating electrical resistance to temperature [see pages 132 and 152 of the Notes of Proceedings (“NOP”)].

D1’s expert, DW4 (Dr Kriban), admitted during cross-examination that he does not hold any certification in infrared thermography. He further stated that, in his capacity as an expert, he relies on testing companies and other specialists to provide the relevant information (see page 295 of the NOP).

PW3 has produced the evidence to prove that he has twenty two

years of experience in contracting repair work, thirteen (13) years of experience in non-destructive testing and inspection in dampness and concrete, more than five (5) years of experience in infrared thermography imaging. He has been appointed for three

consecutive years since 2023 to 2025 as an Elite Fellow (recognised industrial expert) to teach Building Pathology at University Malaya in the Building Surveying Department under the Build Environment Faculty. This appointment recognises his expertise in building pathology.

In this regard, I refer to section 45 of the Evidence Act 1950 [Act 56] which provides that—

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts.”. [Emphasis added]

Further, Johor Bahru High Court in the case of Ng Chee Meng v Wynn Resorts (Macau) SA [2021] MLJU 1808 held that a person can be an expert witness by experience— “[23] In any event, the Defendant’s contention that LWCV’s expertise was questionable as he was not an expert, was untenable. This is because an expert is defined in section 45 of the Evidence Act 1950 (“Evidence Act”) as a ‘person specially skilled’. The provision reads: Section 45 – Opinions of experts

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts [24] A ‘person specially skilled’ was described by Suffian LP in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, as follows: It is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he must become peritus in the way of his business or in any definite way. The question is, is he peritus? Is he skilled? Has he adequate knowledge? [25] As such, although an expert is referred to as someone with special skill, he need not be so by special study. He may be so by experience, and that is why even a semi-skilled or semi-professional person may qualify as an expert witness, as demonstrated in Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ

This is fortified by the description of expert in Order 40 rule 1 of the Rules of Court, which reads: Order 40 – Court expert Rule 1 – Appointment of expert to report on certain question …

In this rule “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.”. [Emphasis added]

Based on the authority above, I am of the considered view that for the purpose of carrying out infra-red imaging for facade inspection to identify anomaly for Sky Loft, Level 1 certification is enough. Level 2 is meant for quantitative study with calculation of resistance of electricity to the temperature. Further, PW3 does not involve in the quantitative study. The quantitative study was done by PW4.

Therefore, I find PW3 is an expert within the meaning of section 45 of Act 56 where he possesses a special skill in conducting the infra red imaging. Therefore, the issue raised by the Defendants on his capacity as an expert witness is devoid of merits.

During cross-examination, PW3 was also extensively questioned by D1 and D2 regarding his lack of awareness of the updated version of HKCI:TM1 published in August 2022. He was further challenged on the ground that his expert report did not demonstrate any consideration of the factors introduced in the updated version of

In PKN’s report at page 1641 of Bundle A6, PW3 stated that infrared thermographic imaging was carried out using a drone in accordance with HKCI:TM1. As infrared thermographic imaging is highly dependent on solar energy and the position of the sun, the imaging for the front facade was conducted in January 2022, whereas the imaging for the rear facade was conducted in June 2022.

It is to be noted that the updated version of HKCI:TM1 was published in August 2022 whereas the thermographic imaging was conducted before the publishment of the updated version was in January 2022 and June 2022. Further, the HKCI Guidelines is voluntary in nature and not binding. This has been agreed by the DW4, Dr. Kriban.

Therefore, I am of the considered view that the guideline HKCI: TM1 that PW3 relied to carry out infra-red imaging for facade inspection to identify anomaly for Sky Loft is the version available as at June

Hence, the arguments of the Defendants are without basis.

whether the PW3 has complied with the guideline HKCI: TM1 2022

DW4, the D1’s expert witness has identified the non-compliance of the guideline in HKCI: TM1 2022 as stated in the slides in page 21 of Enclosure 90, in particular on the record of the weather conditions, wind speed and failure to follow the standards as required by the

PW3 has admitted during the cross-examination that he did not record the weather temperature or cloudiness in his report. He only indicated in his report that he started the inspection under fine weather (see page 1633 Bundle A6). He explained that his infra-red drone is not water proof and will crash into the wall due to strong wind. Hence, they can only do it in very good weather with minimal wind and opitmum sunlight.

I find that despite PW3 has explained the failure to record the weather conditions and wind speed when he used infra-red drone to conduct survey, the failure to adhere to the procedure laid down in the HKCI:TM1 2022 in carrying out the thermographic imaging when using a infra-red drone would have an impact on the findings made by PKN as to the accuracy of the results.

(ii) whether the chemical assessment test by PW4 can distinguish how many layers applied

The Plaintiff’s expert, PW4 (Dr. Payam) has informed during the trial that the building is experiencing serious delamination of the facade walls which would seriously affect the safety of the residents therein (see pages 156 to 157 of NOP). PW4 explained that all the delaminated must be removed and if not, by time, it will be extremely delaminated and it will be high risk (see page 164 of the NOP).

PW4’s used the destructive methods, site observation (including close range inspection and rod tapping test) and sampling for testing in laboratory to inspect the facade cement plaster delamination issue for total of 33 locations. Through these methods, he found that—

the thickness of the cement plaster varied from 2.4mm to 30mm, that composed of one (1) or up to three (3) layers of cement plaster. The thickness for one (1) layer cement plaster varied from 2.4mm to 18.2mm;

it is suspected that additional layer(s) of cement plaster is added at some locations for the purpose of levelling to achieve a uniform and levelled surface finish of the entire facade wall;

in all 33 cases, after opening the cement plaster, the RC wall with original surface texture was observed. The surface of RC wall should be treated to improve adhesion between the wall surface and the cement plaster. The RC wall should be clean, free of loose debris, porous and chipped or otherwise roughened to achieve satisfactory mechanical bond with plaster coating;

RC and cement mortar have different thermal expansion coefficient. When the bonding between these two (2) materials are not strong enough to withstand the thermal stress, the bonding will fail and they will be separated (delamination);

from the inspected delaminated areas, an obvious gap between cement plaster and RC wall can be seen in most cases, such as shown in sample ID: A-1-D, A-5-D, A-11-D, A-13-D, A-15-D, A-18-D, A-22-D, B-1-D, B-5-D, B-6-D and

a proper surface preparation of concrete wall would not result in the delamination defects.

In contrast, D2’s witness, Mr. Hia Poi Nyap (DW3) explained the process of its plastering works which was strictly adhered and using the approved material, QuickMix QuickRender 387, which consisted of a 19mm thick cement plaster with two coats of compo silicon. The specifications for this product were approved by the project architect. DW3 also testified that any application exceeding the thickness tolerance would have caused the plaster to fail and fall off during application itself and not years later (see page 172-173 of NOP).

Mr. Nordin Mohamed (DW2) who is the project architect has testified that the inspections were conducted visually in line with the industry norms (see pages 240 to 241 of NOP). He informed that the plastering works will be carried out and supervised by specialist’s contractor employed by D2 and used the quality materials procured by D2. All the inspections were done progressively and any deviation during the site inspection would be rectified immediately (see page 219 of the NOP).

Based on those evidence, D2 submits that there is no requirement for D2 or the project architect to go beyond visual inspection standards unless contractually required or otherwise imposed by the statutory regulations. There are no such requirements or guidelines in Malaysia which mandate or prescribed specific testing procedures for the inspection of external plaster finishes. Thus, it is unreasonable and unfair to impose obligations on D2 to adopt detailed technical inspection methods which are not recognized by local industry practice, nor required under the contract or regulations.

Dr. Kribanandan (DW4) in his report (page 57 of Enclosure 44) has stated that he and a senior engineer together with two (2) other persons has made site walkthrough observation at the common area at Level 5 facility floor, Level 1 driveway around the blocks, unit 2704-C in Block B Level 27. He observed that the only concerns were located at South East facing external facade recessed wall of Block B Level 13 and it was noted that the debonded and delaminated area had been repaired. He found several concrete walls with plaster were sighted during the limited walk through and in general there was no sign of cracking, debonding or delamination i.e. the problem did not appear to be systematic throughout the building.

DW4 had identified serious deficiencies in PKN’s methodology, including:

failure to conduct pull-off testing to evaluate actual bonding strength;

the recessed facade area at Level 13 of Block B, where the alleged delamination was first identified, was exclusion from the infrared survey and not surveyed at all (see page 273 of NOP);

PKN’s tapping survey covered only 5% of the facade and was therefore not representative of the building as a whole (see page 272 of NOP);

the thermographic results did not include colour scales or objective reference benchmarks, rendering the interpretation speculative and subjective(see pages 274-275 of NOP);

lack of correlation between infrared thermographic survey results and tapping survey (see page 276 of NOP);

non-compliance with the HKCI:TM1-2022 standard (see page 277 of NOP);

chemical assessment test by PW4 cannot distinguish how many layers applied; and

only 33 samples (that were disturbed) were physically tested, and no pull-off testing was conducted (pages 302–312 of NOP).

DW4 opined that the PKN Report did not provide any reliable basis to conclude systemic latent defects attributable to poor workmanship.

I refer to PKN’s report in pages 1669 to 1672 Bundle A6 which demonstrate the delamination surface of Block A and Block B. The percentage of delamination surface of Block B is higher than Block B. It is pertinent to note, both Block A and Block B were constructed by D2. Hence, it raises the issue why the percentage of delamination of Block B is more serious than Block A and who should be responsible for such Defects.

I find that the overall tapping survey conducted by PW2 was inadequate as it covers only 80 square metres, representing only 5% of the builidng’s facade. Such a limited sample size is insufficient to credibly substantiate allegations of systemic delamination throughout the entire building.

Those findings confirmed the opinion of DW4 that the delamination issues are a localised issue and not systematic issue.

The survey was conducted by PW3 and PW4 only at Level 6, being the podium level, and at Levels 10 to 13, covering approximately 80 square metres out of the total wall area, which represented merely 10.5% of the entire facade. Although the survey results indicated that 40% of the plaster had delaminated within the surveyed areas, the sample size was too limited to be regarded as representative of the overall structure. Accordingly, the survey was significantly limited in scope and scale.

Further, it is pertinent to note that the primary area of concern, namely Level 13 of Block B was excluded from the survey due to access constraints, notwithstanding that it was the location where delamination was allegedly observed. Further, the drone survey was limited to scanning external vertical surfaces and was not capable of adequately assessing recessed wall areas.

According to DW4, the thermographic outputs failed to include a continuous colour scale, which is an essential feature for the proper interpretation of thermal anomalies. As a result, the images were rendered ambiguous and incapable of independent verification (see page 274 of NOP).

Further, I find that the thermographic image do not correspond to the location identified by the tapping survey conducted by PW3 is defective and it renders the findings are questionable.

The sampling and testing methodology adopted by PW4 is unreliable. Although 33 samples were collected from 12 locations, only 24 samples were ultimately submitted for testing. More importantly, the samples comprised cut-out specimens, which are inherently disturbed samples and therefore do not accurately represent the actual adhesion condition of the plasterworks in situ.

Furthermore, PW4’s findings regarding the thickness of the plaster layers are equally questionable. His conclusion that multiple layers existed was based solely on visual inspection, notwithstanding that the same material, namely QuickRender, had been applied throughout. In such circumstances, it would be impracticable to differentiate the alleged layers merely by naked-eye observation.

The absence of proper pull-off testing, the reliance on disturbed samples, and the speculative assessment of the plaster layering collectively render PW4’s findings unreliable for the purpose of establishing any systemic defect in the facade works (see page 278

It is pertinent to note that out of 33 samples, only 10 samples were taken from Block B and the rests are from Block A. This is not in line with the contentions of the Plaintiff that the delamination was allegedly observed at Level 13 of Block B. However, PW4 has taken more samples from Block A and there is no explanation why he did so.

PW4 ’s method of visually identifying one to three (3) plaster layers was unscientific and unreliable. He claimed thicknesses ranged from 2.4 mm to over 30 mm and identified up to three layers, but his ability to distinguish these layers was not credibly demonstrated

Therefore, I find that the expert evidence adduced by the Plaintiff is inconsistent and lacks sufficient reliability, particularly when weighed against the Defendants’ evidence that—

the Defects were localised and not systemic; and

alternative causes, including maintenance issues, were plausible.

It is the Defendants’ position that PKN’s report cannot be relied on and D2 submits that the findings by PKN are flawed.

As decided in the case of Samundee Devan a/l Kerishnan Muthu v Public Prosecutor [2009] 1 MLJ 697, the Court of Appeal held as follows: “[19] The value of expert opinions can never be doubted. Expert opinions have a high probative value. Two reasons may be advanced for this. Firstly, an expert witness has the necessary experience in arriving at and justifying his opinion in his specialist field. Secondly, expert opinions can readily be tested against the known facts and the opinion of another expert called by the opposing party in the case. Here, the accused did not call another expert to challenge the evidence of the government chemist. As to the duty of an expert witness, I need only to refer to the case of Davie v Magistrates of Edinburgh [1953] SC 34at p 40...”. [Emphasis added]

Further, the Court of Appeal in the case of Ong Hooi Beng & Ors v Public Prosecutor [2015] MLJU 22 held the following: “[8]… In any event expert opinion must be challenged by another expert. The challenge in cross examination if at all of an expert witness is merely to lay the groundwork for the evidence of another expert, if called.”. [Emphasis added]

Further, I am guided by the case of Kris Heavy Engineering & Construction Sdn. Bhd. v Mah Sing Properties Sdn. Bhd. [2011] 1 LNS 572 where it was decided that— “The evidence of DW 2 on the hairline cracks is that these cracks are likely to be caused by the penetration of rain water and other adverse weather condition, causing the plaster to expand and shrink resulting in the formation of hairline cracks. The lack of maintenance to the buildings had caused rain to come in and also without the doors and windows, apparently these had been vandalised, and the exposure of the buildings to the vagaries of the weather and the differences in temperature-all these have led inevitably to the hairline cracks appearing. Some parts of the rooftops have also been blown away and one can imagine the rivers of water draining down the walls and onto the floor when there is a torrential downpour. I had taken a look at the interior of the adjacent Unit 8 and no such cracks were found. As the said Unit 8 is being occupied and maintained, and the interior being not exposed to the rain and extremes in temperature, I see no hairline cracks at all. I can accept the conclusion of DW 2 that these hairline cracks are architectural and not structural. There has been no maintenance of the 2 units of Shop Offices by the Plaintiff since delivery of vacant possession on 7 April 1998!” [Emphasis added] Whether the breach of the duty of care has caused harm or damage to the

The Plaintiff submits the findings of PKN that the delamination issue was caused by poor workmanship by D2 and hence D2 has clearly breached the duty of care.

The Plaintiff further submits that had the Defendants been careful in performing their duties and ensuring their good workmanship, the delamination issue would not happen in Sky Loft. The Plaintiff would not have suffered the losses but for the Defendants’ negligent act.

The Defendants contended that the Plaintiff has failed to discharge its burden to prove, on a balance of probabilities, that any breach by D2 was the factual and legal cause of the alleged loss. Causation is a necessary element in the tort of negligence, and the burden lies squarely on the Plaintiff under section 101 of the Evidence Act 1950 [Act 56] where it is trite that “he who asserts must prove”.

The Plaintiff bears the burden of proving its claim on a balance of probabilities.

In the instant case, I find there is sufficiently proven that even on the Plaintiff’s own case it is not proven that “but for” acts or omissions of the Defendants, the cracks would not have occurred. Rather, independent acts or omissions including the Plaintiff’s failure to repair plaster cracks and prevent water penetration and the effect of solar radiation are likely operative causes, as confirmed by the Plaintiff’s own expert.

I am of the considered view that the evidence of the Plaintiff’s own expert, PW4 who concedes that poor maintenance, namely the failure to inspect and rectify plaster cracks on the building surface by the Plaintiff, could itself have resulted in delamination.

Further, I am of the view that weather conditions such as rain and wind can result in water penetrating existing cracks. This coupled with the Plaintiff’s failure to properly maintain Sky Loft, has resulted in delamination.

I find that being the case, the necessary ingredient of “causation” in proving negligence is not satisfied, and any case of negligence against the Defendants must fail.

Hence, I rule that the Plaintiff has failed to discharge the requisite burden of proving factual causation. No credible or cogent evidence has been adduced to establish that the alleged defects in the external facade walls were directly caused by any act, omission, or breach of duty on the part of D2.

Furthermore, failure of the Plaintiff to call HL Builders, the rectification contractor, as a witness is fatal to the Plaintiff’s own case. This omission is significant, as it deprives the Court of material evidence regarding the actual condition of the works, the nature and source of the alleged defects, and whether such defects were attributable to workmanship issues, rectification works, or other intervening causes.

In the absence of such evidence, the Plaintiff has failed to establish a clear and unbroken causal nexus between the works carried out by D2 and the alleged damage complained of. Consequently, there exists a fatal evidential lacuna in the Plaintiff’s case on causation.

I refer to the case of Tropicana Golf & Country Resort Berhad v. Loke Wei Kuen & Anor and Other Cases [2022] MLJU 1969 where it was decided that— “[35] Firstly, a plaintiff can only claim for damages from a defendant for a tort if the causa causans of the plaintiff’s injury, loss and/or damage [Loss/Injury/Damage] is the commission of a tort by the defendant. This is a question regarding “causation in fact” of the Loss/Injury/Damage (Factual Causation Issue). Besides the term causa causans, case law has used various terms, ie., “effective” cause, “real” cause, “proximate” cause, “immediate” cause, “operative” cause, “dominant” cause, “true” cause and “substantial” cause as the factual cause of the Loss/Injury/Damage which is enforceable in law. In this judgment, I will employ the term causa causans as the factual cause of the Loss/Injury/Damage which is enforceable in law… …(2) a plaintiff bears the evidential onus to satisfy the court on a balance of probabilities regarding the Factual Causation Issue, namely, the commission of a tort by the defendant is the causa causans of the

the following considerations are relevant in the determination of the Factual Causation Issue –

the most important consideration is common sense - Majlis

what is fair, just and reasonable in the circumstances of the case in question - Majlis Perbandaran Ampang Jaya;

policy considerations are relevant according to the following joint judgment of Mason CJ, Deane and Toohey JJ in the High Court of Australia (the highest court in Australia) in Bennett v Minister of Community Welfare (1992) 107 ALR 617, at 619 – “In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the “but for” test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude.” (emphasis added); and

the court may apply the “but for” test, ie., would the plaintiff have suffered the Loss/Injury/Damage “but for” the commission of a tort by the defendant? - please refer to Ravi A/L Ratnam v Ghandi Rajan A/L Arjunan & Ors [2020] 7 MLJ 591, at [23] and [24]..”. [Emphasis added]

Based on the authority above, in the exercise of its discretion, I have considered that the alleged Defects have not been sufficiently proven and/or are attributable to other causes, including poor maintenance and/or too remote and that the Plaintiff has failed to prove causation. Whether the reliefs sought by the Plaintiff are legally sustainable

Given the findings above, it is unnecessary to consider quantum in detail.

Nevertheless, for the sake of completeness, I will address the reliefs sought by the Plaintiff.

Even if factual causation is established, the Plaintiff must further prove that the alleged losses were reasonably foreseeable consequences of D2’s alleged breach. This principle was established in Overseas Tankship (UK) Ltd. v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388.

In the present case, the Plaintiff has failed to establish that the scope, nature, and costs of the rectification works allegedly carried out by HL Builders were reasonably foreseeable consequences of D2’s works. This is particularly so in light of the significant lapse of time following the issuance of the CMGD, as well as the Plaintiff’s failure to call HL Builders as a material witness.

Further, I find the rectification works undertaken by HL Builders constitute a novus actus interveniens, namely an intervening act which breaks the chain of causation between D2’s alleged breach and the losses now claimed by the Plaintiff.

The rectification works done by HL Builders may have caused the excessive thickness of cement screed to correct the concrete shear wall with poor verticality, in particular at Levels 10, 11, 12, 13, 14 and

This corroborate with PW4’s findings that multiple layer of cement screed discovered on certain level in Block A and B. However, this was not explain by HL Builders as this witness was not called by the Plaintiff.

The doctrine of novus actus interveniens is well established in law. In Devan & Asso (law firm wholly owned by Devan a/l Narayanan Raman) v TSR Bina Sdn Bhd [2015] 3 MLJ 454, the Court of Appeal recognised and affirmed that a subsequent intervening act may operate to break the chain of causation: “[24] The principle of novus actus interveniens, which is Latin term, it means a new intervening act. It is an act or event that breaks the causal connection between a wrong committed by the defendant and subsequent happenings. The new event relieves the defendant from responsibility for the happenings. As to the effect of this defence of novus actus interveniens, we would only allude to the decision of Justice James Foong J (as he then was) in the case of Billion Origin Sdn Bhd v. Newbridge Networks Sdn Bhd & Anor; Yap Burgess Rawson International Sdn Bhd (Third Party) [2006] 4 CLJ 113 at para. (30) therein, where he had said: ... This concept of novus actus interveniens acts in this manner: If a particular consequence of the defendant's wrongdoing is attributable to some independent act or event which supersedes the effect of the initial tortious conduct, then the defendant's responsibilities may not extend to the consequences of the supervening event. In short, if there is a break in the chain of causation then the original wrongdoer is not liable for starting the wrong - see Clerk & Lindsell on Torts, 17th edition, para 2-

24.”. [Emphasis added]

According to the Plaintiff, the Plaintiff has engaged HL Builders to conduct the rectification/repairment works to the initial defect sometime in April 2020 after D1 rejected their request to carry out the rectification works [please see the purchase order, invoice and payment vouchers between Plaintiff and HL Perfect Builders at page 1967 – 1975 Bundle A7, Exhibit P3(a), ID3(b), P4(a)-(c), ID5(a), P5(b)-(d)].

Upon rectification and inspection of the Initial defect, HL Builders discovered further defects in Level 10, 11, 12, 14 and 15. HL Builders then continued to carry out further rectification/repairment works.

The Plaintiff has claimed the following expenses incurred for the works carried out by HL Builders and future costs of rectifications:

RM 23,000.00 for initial repairs;

RM 116,000.00 for further repairs at Levels 10, 11, 12, 14, and 15;

RM 53,700.00 for safety netting;

RM 39,000.00 for works at Level 25, Block B; and

an estimated sum of RM3,500,000.00 or such amount to be assessed for further rectification works, as well as general damages, interest, costs, and further seeks an order compelling the Defendants to rectify all identified defects within a stipulated period.

In the instant case, HL Builders was a material and indispensable witness in relation to the Plaintiff’s claim for rectification costs. The Plaintiff’s failure to call HL Builders is therefore fatal to its claim for damages, particularly as all of the alleged rectification works were undertaken exclusively by HL Builders.

The omission to call this material witness substantially prejudices the Defendants’ right to scrutinise and challenge the authenticity, necessity, and extent of the alleged rectification works. In the circumstances, the Plaintiff’s claim for damages is rendered unreliable, and an adverse inference pursuant to section 114(g) of the Evidence Act 1950 ought to be drawn against the Plaintiff as the evidence of HL Builders, if produced, could have been unfavourable to the Plaintiff’s case.

Further, the Plaintiff has consistently maintained that rectification works were undertaken by HL Builders. However, notwithstanding these alleged rectification works, the PKN report continues to identify a substantial risk of delamination. It was revealed in the PKN report (pages 1652 to 1653, Bundle A6) recorded high percentage of delamination risk, allegedly reaching 50%, across several levels of the building, namely Levels 6 to 13 and 9 to 17 (page 1652), as well as Levels 6 to 16 (page 1653). This is confirmed by PW3 during the cross-examination that the rectification works has only partially rectified the problems(see page 150 of NOP).

This material inconsistency significantly undermines the credibility of the Plaintiff’s claims. It suggests either that the purported rectification works by HL Builders were not properly carried out, or alternatively, that the findings and conclusions of the PKN report are themselves unreliable and incapable of being safely relied upon.

The Plaintiff’s claim is further weakened by the absence of direct evidence from HL Builders, the contractor allegedly engaged to undertake the rectification works. Although the Plaintiff relies heavily on these purported rectification works in support of its claim for loss and damage, HL Builders was never called as a witness. The failure to adduce evidence from HL Builders renders the alleged rectification works unsubstantiated, and no credible or admissible evidence has been produced before this Court to establish the nature, extent, or causal connection of the said works to any alleged breach on the part of D2. It renders the Plaintiff’s claimed losses are not satisfactorily proven and are speculative in nature. Other Issues Contributory negligence by the Plaintiff

D2 contended that the inaction of the Plaintiff to take any action to rectify the cracks when they discovered the delamination in year 2019, five years after the vacant possession of Sky Loft in August 2014 shows that the Plaintiff has failed its statutory duties to maintain the common property pursuant to sections 21 to 59 of Act 757.

Further, there is no record of the maintenance done by the Plaintiff. This is confirmed by PW1 in his evidence (see page 37 of NOP). PW1 aslo admitted there was no works being carried out to rectify the cracks for a period of eight (8) months and the failure has caused the condition of the crack to deteriorate (see pages 37-38 of NOP).

The failure of the Plaintiff to conduct routine inspection and implement timely remedial measures, in particular the sealing of surface cracks, permitted moisture ingress which would have further aggravated the damage. The Plaintiff’s omissions materially deteriorated the condition of the facade and directly contributed to the very loss and damage now complained of.

Therefore, I hold the Defendants should not be liable to the Plaintiff for such failure. See the Federal Court decision in the case of Tenaga Nasional Malaysia v Batu Kemas Industri Sdn. Bhd. and another appeal [2018] 5 MLJ 561. Failure to mitigate the loss

The Plaintiff also failed to take any reasonable measures to mitigate the loss. It is supported by the evidence of PW1 (see pages 37 to 38 of NOP).

It is a well established principle that the Plaintiff who has suffered loss arising from a tortious breach is under a duty to take reasonable steps to mitigate such loss. The Plaintiff cannot remain passive, permit the situation to deteriorate, and thereafter seek to recover the entirety of the resulting damages from the Defendants. See the case of Supreme Court in the case of Malaysian Rubber Development Corporation Bhd v Glove Seal Sdn. Bhd. [1994] 3 MLJ 569.

Accordingly, I rule that the failure of the Plaintiff to take reasonable and timely steps to address the alleged defects constitutes a breach of its duty to mitigate loss. As such, the Plaintiff is not entitled to recover any damages arising from its own unreasonable delay, omissions, and inaction. New evidence adduced by the Plaintiff during the closing submission

D1 contended that the Plaintiff has filed submissions that are not based on evidence proven in Court. The Plaintiff’s closing submission in particular, at paragraphs 33 to 35, the Plaintiff claims that the cement plaster fell on 08.02.2024, and that an inspection of the affected area was allegedly carried out on 09.05.2024 by the Plaintiff’s painting contractor.

D1 submitted that the failure of the Plaintiff to lead any evidence on this sequence of events during trial render such evidence cannot be accepted as evidence by this Court.

I agree with the contention of D1 and hence I rule that such evidence is not accepted and considered by this Court. Such evidence if accepted will prejudice and caused injustice to the Defendants as the Defendants do not have any opportunity to cross-examine the Plaintiff’s witness.

Upon a holistic evaluation of the evidence and submissions, I find that—

the Plaintiff being a management corporation has locus to bring an action against the Defendants;

the Plaintiff’s claim is not time-barred;

a duty of care has been established against the Defendants;

the Plaintiff has failed to prove breach of duty of care and the breach has caused harm or damage against the Defendants; and

the Plaintiff has failed to prove its damages against the Defendants.

Therefore, I rule that the Plaintiff’s claim is not supported by any cogent evidence and failed to discharge its burden of proof on a balance of probabilities for this Court to allow its claim. Since the Plaintiff has failed to establish its claim against D2, consequently, the claim against D1 must also fail.

Accordingly, I dismiss the Plaintiff’s claim with costs of RM10,000.00 to be awarded to D1 and D2 respectively, subject to allocator fees and to be paid within fourteen (14) days from this Order by the Plaintiff. Dated 20 May 2026. Signed by: Sgd. ………………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor for the Plaintiff: Messrs. Redza Eleena Chong Counsel/Solicitor for the First Defendant: Mr. Mohanadass Kanagasabai & Mr. Eizad Arian B Sazmal Effendi Messrs Mohanadass Partnership Counsel/Solicitor for the Second Defendant: Mr. Felix Dorairaj &