Bungsar Hill Holding Sdn. Bhd v Damansara Realty Berhad (No. 01(f)-13-05/2016(W))

Bungsar Hill Holdings Sdn Bhd

Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur … Respondents] 2 [In the Matter of High Court of Malaya at Kuala Lumpur (Civil Division) Originating Summons No.: S3 (S1)-21-90-2001 In the matter of section 29(2) of the Land Acquisition Act 1960 And In the matter of land acquisition: Type and Registration Number: Grant 10474 Lot No.: 8345 Mukim: Kuala Lumpur Registered Proprietor: Bungsar Hill Holdings Sdn. Bhd. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur … Applicant Heard together with In the Matter of High Court of Malaya at Kuala Lumpur (Civil Division)

Bungsar Hill Holdings Sdn Bhd (Registered proprietor) …The First Applicant

Damansara Realty Berhad (Lease holder) … The Second Applicant

Sistem Penyuraian Trafik KL Barat Sdn Bhd (Concessionaire) … The Third Applicant 3 And Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur … Respondent] CORAM: RICHARD MALANJUM, CJ ZAHARAH IBRAHIM, CJM DAVID WONG DAK WAH, CJSS AZAHAR MOHAMED, FCJ ROHANA YUSUF, FCJ JUDGMENT OF THE COURT [1] This appeal relates to a compulsory acquisition of 139.29 acres of land held under Grant 10474, Lot 8345 in the District of Kuala Lumpur (the Acquired Land). Dispute arose as to which was the rightful party to receive the compensation pursuant to the Land Acquisition Act 1960 (the LAA). [2] The Acquired Land was registered in the name of Bungsar Hill Holdings Sdn Bhd (Bungsar Hill) when notices on acquisition were made including Borang K which was served on 21.12.2000. Damansara Realty Berhad (Damansara Realty), on 28.05.2001 applied to the Land Administrator pursuant to section 38(1) of the LAA claiming an interest in the 4 Acquired Land. Damansara Realty’s claim was anchoured on the basis that it had interest in the Acquired Land and thereby in the compensation on two following grounds: i. that it was in occupation of part of the Land pursuant to a Lease Agreement with Bungsar Hill for a period of 30 years from 03.06.1994, until a separate grant for the said area or part of the said Land is issued in Damansara Realty’s name; and ii.

08.07.2002 to 30.04.2013 5%

01.05.2013 to full payment RM802,503.68 (Late payment) nil nil S4 Action (Encl 39) (Add. compensation) 8%

22.11.2007 to 30.04.2013 5%

01.05.2013 to full payment 9 [11] The Deputy Registrar set a further hearing date on the issue of costs. At the hearing date on 07.02.2014 the Deputy Registrar ordered Damansara Realty to pay costs of RM2,500.00 to Bungsar Hill in each of the applications in Enclosures 21 and 39. However, Bungsar Hill’s application for costs of the S3 Action and the S4 Action was dismissed. [12] Damansara Realty appealed against the orders of the Deputy Registrar to the Judge in Chambers on the liability imposed on it, to pay interest for the compensation sums. Meanwhile Bungsar Hill, appealed against the orders of the Deputy Registrar on the dismissal of costs. [13] The learned Judicial Commissioner (JC) affirmed the decision on the liability of Damansara Realty to pay interest. The quantum of interest by the Deputy Registrar was however varied in the following terms: Compensation Sum Pre-Judgment Post Judgment Dates S3 Action (Encl 21) RM6,856,597.50 (75% of original Compensation) 3%

10.07.2002 to 30.04.2013 RM7,659,101.18 (original sum plus late payment) 5%

01.05.2013 to 21.10.2013 10 RM802,503.68 (Late payment) nil nil S4 Action (Encl 39) (Add. compensation) nil nil * 2% interest on all sums from date of payment into Court (01.08.2002 to 31.09.2013). On top of the pre-judgment and post-judgment interest, the learned JC further ordered for Damansara Realty to pay 2% interest on all sums paid into Court. The order was made pursuant to the Pekeliling Ketua Pendaftar Bil 1. Tahun 1998. The other part of the order was varied by the learned JC. It was found that a delay of 1 year 5 months, disentitled Bungsar Hill to any pre-judgment interest for the period between 12.10.2011 to 11.03.2013, relying on O.90 r.6 of the Rules of Court 2012 (ROC). The post-judgment interest for the compensation under the S3 Action was reduced from 8% to 5%. [14] In upholding the imposition of interest on Damansara Realty made by the SAR, the learned JC held that the High Court is seised with the necessary jurisdiction to award both pre-judgment and post-judgment interest. Thus it 11 was held that the Court has the necessary discretion to award interest on sums paid into Court by the Land Administrator even against a co-claimant in the S4 Action, notwithstanding that the co-claimant did not have the use of the money for the relevant period. The learned JC then construed the Consent Order in the S4 Action and held that the terms of the Consent Order, precluded Bungsar Hill from claiming costs and interest in that S4 Action, and Bungsar Hill’s appeal on costs was dismissed. [15] Aggrieved by the decision of the learned JC, both Damansara Realty and Bungsar Hill filed a Notice of Appeal and the Notice of Cross Appeal respectively against that decision. The appeal to the Court of Appeal lodged by Damansara Realty was only in respect of Enclosure 21 in the S3 Action. Bungsar Hill’s Notice of Cross Appeal is for the reinstatement of the order of the SAR for 8% pre-judgment be made against Damansara Realty, or in the alternative prayed for a rate of 6% per annum on total sum of RM7,659,101.18 deposited into Court, post-judgment interest at 5% and costs of both S3 and S4 Actions. [16] The Court of Appeal heard the appeal and the cross appeal together on 22.06.2015. The appeal of Damansara Realty was allowed and the 12 decision of the High Court imposing the liability on Damansara Realty to pay any interest on the compensation amount, was set aside. Bungsar Hill’s cross appeal was dismissed. Leave was obtained on 12.05.2016 by Bungsar Hill to bring the matter before us on one question of law, as to whether Damansara Realty being unsuccessful in the claim for a share of the compensation is liable to pay interest on the compensation monies. The full terms of the leave question are as below: “Whether a person who has no interest in the ownership of land and does not possess caveatable interest therein, nevertheless makes an unsuccessful claim for a share of compensation payable for that land upon its acquisition by a State Authority acting under the Land Acquisition Act, 1960 (“the Act”), must pay interest on such compensation monies upon their release to their true beneficiary, namely the registered proprietor of the said land.” THE CASE FOR APPELLANT [17] On appeal before us the core averment of the appellant’s case can be surmised as this: that the Court is always seised with jurisdiction to award judgment interest and because the order for payment into Court is a 13 judgment, the jurisdiction would be sufficiently conferred by the Civil Law Act 1956 as well as pursuant to various Orders under the ROC. It was further contended that the High Court in awarding judgment interest was doing so in the exercise of its discretionary power and should not be unnecessarily disturbed. [18] In essence the appellant’s case is premised on the argument that the discretion to award interest is always conferred on the Court pursuant to section 11 of the Civil Law Act 1956 and the ROC. The decision of the Court of Appeal in Mirra Sdn Bhd v The Ayer Molek Rubber Company Bhd [2008] 2 MLJ 348 has been cited as an authority. Following the decision of this Court in Wong Chong Chow v Pan-Malaysian Cement Works Bhd. [1980] 2 MLJ 75, it was the contention of learned counsel that an order for judgment interest may also be made in a case where a plaintiff has been kept out of the use of his money wrongfully by a defendant. [19] Learned counsel then cited the decision of the High Court in Renas Development Sdn. Bhd. v Pemungut Hasil Tanah, Daerah Timur Laut, Pulau Pinang [1985] 1 MLJ 248 in support of his argument that interest had been granted in a land reference matter by the High Court. In that case the 14 High Court having recorded a consent order for payment of additional sum by way of compensation in a land reference proceedings, allowed interest on that sum. [20] It was further asserted by the appellant that because the money paid into Court was made pursuant to an application under section 37 of the LAA, it is deemed a judgment under section 47(3) of the same Act. Under this section “every such written decision or award shall be deemed a judgment within the meaning of the law for the time being in force relating to civil procedure”. Since the payment into Court was made pursuant to a judgment order the Court may impose interest on those sums. THE CASE FOR RESPONDENT [21] The respondent maintained its position that the LAA is a special law which specifically deals with compulsory acquisition. Learned counsel pointed out that there is no mention of interest employed under it, but instead it espouses Late Payment Charges on the Land Administrator to compensate for any late payment. In any event it was submitted that the imposition of the Late Payment Charges is plainly made on the Land Administrator, as the LAA does not contemplate any other party, particularly 15 an interested person like the respondent to hold any obligation for late payment. It was further impressed by learned counsel that when the High Court sits in a land reference proceedings it is doing so as a creature of a statute. This legal position according to counsel was enunciated by the Court of Appeal in The Royal Selangor Gold Club v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2012] 5 MLJ 364. [22] That legal position is further made clear by section 40A of the LAA. The jurisdiction of the Court in such proceedings is as conferred by LAA, hence it must therefore be confined within the jurisdiction as found in the LAA itself. In authority Chang Chai Chin & Anor v Superintendent of Lands and Surveys, Samarahan Division and other references [2008] 2 MLJ 122 was cited. The imposition of the liability to pay interest on the respondent for late payment made by the High Court was said to be a clear error and it was correctly set aside by the Court of Appeal. [23] It was also the contention of the respondent that the appellant had never pleaded any wrong doing against the respondent and no case was established by Bungsar Hill against the respondent to warrant any liability be imposed by the High Court. Such, the imposition of any liability on 16 Damansara Realty was unjustified and without legal basis as Damansara Reality was just exercising its right pursuant to the LAA. OUR DECISION [24] To answer the questions before us, we first examine the scheme of compensation as found in the LAA. Any discourse on the subject of interest under the LAA must begin by a proper appreciation that the object of the LAA in dealing with compensation to a person’s right to property and adequate compensation is a law which has an underlying background in Article 13 of the Federal Constitution. A person’s right to property is protected and entrenched in Article 13 of the Federal Constitution, which promises that no person shall be deprived of his property save as in accordance with the law. Such a law shall provide for compulsory acquisition with adequate compensation as clearly envisaged by Article 13 Clause (2). The LAA does not recognise interest [25] We agree with the respondent that LAA is a special and specific law to regulate the compulsory acquisition of land. Under the LAA the clauses on payment of compensation are clearly articulated in sections 29A (5), 32(1) and (1B) as well as section 48. In all of these provisions, Late Payment 17 Charges are imposed on the Land Administrator for any delay in paying compensation. The concept of Late Payment Charges came about following the amendment to the LAA pursuant to the Land Acquisition (Amendment) Act 1997 (Act A999) which came into force on 01.03.1998. By that amendment the original interest based payment under the LAA, was replaced by Late Payment Charges. [26] From the cited cases before us, Renas Development Sdn. Bhd. v Pemungut Hasil Tanah, Daerah Timur Laut, Pulau Pinang (supra) is one case where the High Court had granted interest on Land Acquisition compensation. In that case the compensation was agreed to, by way of consent and the Court allowed interest on that sum. Before we delve further it must first be appreciated that Renas Development was a decision made pre-amendment to the LAA. The concept of interest was recognised under the then section 32 and section 48 which stated: Section 32: “(1) When the amount of any compensation awarded under this Act in respect of any land is not paid or deposited on or before taking possession of such land, the Collector shall pay the amount awarded with interest thereon at the rate of six per cent per 18 annum from the time of so taking possession until the time of such payment or deposit. “(1B) Where, in the case of an award the payment of which is subject to subsection (1) of section 29A, seventy-five per cent of the amount of the award is not paid or deposited on or before taking possession of the land in respect of which the award is made, the Collector shall pay on the amount paid under subsection (3) or (4) of that section interest at the rate of six per cent per annum from the time of so taking possession until the time of payment or deposit of seventy-five per cent of the amount of the award.” Section 48: “If the sum which in the opinion of the Court the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of six per cent per annum from the date on which the Collector took possession of the land to the date of payment of such excess to the Court or to the person interested.” [Emphasis ours] 19 [27] The learned Judge in Renas Development allowed interest on the basis that O.42 r.12 of the Rules of Court 1980 applied, because section 45(2) of the LAA which provides that: “Save in so far as they may be inconsistent with anything contained in this Act, the law for the time being in force relating to civil procedure shall apply to all proceedings before the Court under this Act”. It was against that background that the Court ordered payment of interest on compensation sum in that case. Even then the interest was ordered against the Land Administrator and not any other party. This case is therefore not an authority to suggest that interest is payable under the LAA or that any imposition of interest may be made on a co-complainant. [28] We do not find the above legal position on payment of interest in Renas to be any longer the accurate position. When the LAA moves away from paying “interest” to a regime of “Late Payment Charges” the application of interest in a civil procedure proceedings can no longer hold. Allowing payment of interest under the current LAA would militate against the regime of Late Payment Charges and run inconsistent with the various provisions in the LAA. We hold so for the following reasons. 20 [29] One acceptable principle of interpretation of a statute is that, when a statute provides for a specific remedy, it necessarily excludes any other remedy not provided for by that statute. The House of Lords’s decision in Pasmore v The Oswaldtwistle Urban District Council [1898] AC 387 had often be referred to on this legal position. In the speech of the Earl of Halsbury L.C he said: The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy or any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law. [30] The above principle was accepted by the Court of Appeal in Parkson Corp Sdn Bhd v Fazaruddin bin Ibrahim (t/a Perniagaan Fatama) [2002] 4 MLJ 122, as well as in Persatuan Pegawai-Pegawai Bank, Semenanjung Malaysia (ABOM) v Ketua Pengarah Kesatuan Sekerja, Malaysia and 2 Ors [2014] 2 AMR 285. It was further observed by the Court of Appeal in Parkson Corp Sdn Bhd (at page 128) in relation to section 16 of the Trade Descriptions Act 1972 that, “If Parliament had wished to confer jurisdiction upon a court making an order under s 16 of the Act to also award damages, it would had said so expressly”. Since under that Act the intention was only to criminally punish the infringer of merchandising marks amongst others, the 21 contention on section 16 was rejected. This Court had also accepted this principle of interpretation in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Berhad [1981] 1 MLJ 234. [31] We agree with counsel for the respondent therefore, that the maxim expresso unius est exclusion alterius, express mention of one thing implies the exclusion of another thing not so mentioned, applies in interpreting these provisions of the LAA. This principle of interpretation and the maxim is already well entrenched as is also found in the decision of this Court in Jamaluddin bin Mohd Radzi & Ors v Sivakumar a/l Varatharaju Naidu (claimed as Yang Dipertua Dewan Negeri Perak Darul Ridzuan), Election Commission, intervener [2009] 4 MLJ 593. The expressed provisions in sections 29A(5), 32 and 48 of the LAA which provide for Late Payment Charges therefore necessarily exclude any payment of interest to be paid by the Land Administrator or by any other person. [32] The proposition that the LAA does not recognise payment of interest is further compounded by the fact that pursuant to the amendment Act A999 the word “interest” has been intentionally removed. Act A999 had specifically substituted the words “Late Payment Charges” for the word “interest” in 22 sections 29A, 32 and 48 of the LAA. The intention of Parliament in choosing to use a different terminology in the amendments must mean that it intends to deliberately remove the concept of interest or any imposition of interest under the LAA and land acquisition cases. It was held by the Privy Council in D.R. Fraser and Company, Limited v Minister of National Revenue [1949] AC 24 at page 33 that: “When an amending act alters the language of the principal statute, the alteration must be taken to have been made deliberately.” [33] We therefore agree with the Court of Appeal’s observation at paragraph 37 of the grounds of judgment that – “…the LAA expressly specify “late payment charges” at the rate of 8% per annum for a specified period of time and nothing more. This would necessarily mean that the imposition of pre-judgment interest and post judgment interest on an interested person in land acquisition cases are excluded…” We further agree with the Court of Appeal where at paragraph 39 of the judgment, it was observed that: “…when an amending act alters the language of the principal statute, the alteration must be taken to have been made deliberately. (See D.R. Fraser and Company, Limited v Minister 23 of National Revenue [1949] AC 24). We, therefore, with respect, found the learned JC had, in paragraph 21 of his Grounds of Judgment, erred in holding that “the principle enunciated in Parkson Corp Sdn Bhd v Fazaruddin bin Ibrahim would not apply in the case of the LAA to preclude a party to claim interest on a compensation sum, even though such interest had not been specifically provided for in the LAA.”. With the specific exclusion of interest in the LAA in our view section 11 of the Civil Law Act can no longer be applied to cases under the LAA. [34] Apart from such exclusion, section 11 cannot be applied here for yet another reason. Section 11 speaks of “cause of action” and “judgment” when it says:

In any proceedings tried in any Court for recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: [emphasis ours] 24 [35] Both applications in Enclosures 21 and 39 were in fact made with respect to the release of compensation monies deposited by the Land Administrator and not for recovery of debt or damages. For this reason alone the application of section 11 of the Civil Law Act is not sustainable. We are in agreement with the Court Appeal that section 11 applies only to proceedings tried in any Court for recovery of debts. As observed at paragraphs 45, 46 and 47 of the judgment: “45. It is also germane to note that the S3 and S4 Actions were proceedings initiated under the LAA. Both S3 and S4 Actions were not proceedings for the recovery of debts or damages. Thus, with respect, the learned JC had erred in law when he concluded that section 11 of the Civil Law Act 1956 (CLA) did not preclude interest being claimed in respect of a debt due from a party in circumstances where the person from whom interest is being claimed was responsible for the delay in the discharge of the debt. By referring to the Oxford English Dictionary on the meaning of “debt”, the learned JC concluded that “debt” shall include the compensation due to be paid to a claimant in a land reference proceeding. We found that the present appeal did not fall under the purview of section 11 of the CLA as there was no debt owing by Damansara Realty to Bungsar Hill nor where there monies belonging to Bungsar Hill being kept by Damansara Realty. The monies were in the 25 deposit accounts of the High Court and/or the Land Administrator. As such, there was no basis whatsoever for Damansara realty to bear the interest on the said monies.

Further, section 11 of the CLA relates to a “cause of action” and a “judgment”. There was no cause of action as against Damansara Realty nor any judgment against the same in both the S3 and S4 Actions. Instead the S3 and S4 Actions were in respect of the release of compensation monies from the deposit accounts. Damansara Realty was not adjudged liable to pay the compensation monies. Thus, section 11 of the CLA could not to be relied upon by Bungsar Hill in its attempt to seek an award of interest against Damansara Realty.

It is also settled law that an order for the release of monies deposited into Court is not a judgment and does not attract the award of pre-judgment or post judgment interest. (See: Newall v Tunstall [1971] 1 WLR 105).” Interest payment pursuant to section 11 of the Civil Law Act therefore has no application to matters relating to land acquisition under the LAA. The case of Lim Kar Bee v Abdul Latif Bin Ismail [1978] 1 MLJ 109 is clear that the power to award interest in section 11 by the Court must include interest on 26 the sum in which there is a judgment given by the Court. Since there is no judgment entered against Damansara Realty, no reliance could be placed on section 11. [36] Learned Counsel cited the case of Mirra Sdn Bhd v The Ayer Molek Rubber Company Bhd. [2008] 2 MLJ 348 to contend that the Court is empowered to award pre-judgment interest on the sums made in an Order, be it made after a full trial or upon an interlocutory application. In that case a judgment in default was entered, which led to a winding up application against the respondent company. The default judgment was successfully set aside at the High Court and was affirmed by the Court of Appeal. The Court of Appeal in reliance on section 11 allowed pre-trial interest by expanding the word “tried” in section 11 to also include any order made by the Court which had kept out the other party from the use of the money, which ought to have been paid. In his finding, the learned Judge therein had held that the defendant in that case had been accorded sufficient opportunity to enter defence, but failed to do so. [37] Mirra Sdn Bhd is not an authority to support a case that an Oder for payment into Court can be considered as a case being “tried” as required by 27 section 11. It was a totally different scenario in the instant appeal. The default was clearly found on the defendant by the Court in that case. No such finding was made against Damansara Realty here. With respect, we therefore find the reliance placed by learned appellant’s counsel on Mirra Sdn Bhd was misplaced. [38] To sustain an argument that by virtue of section 47 of the LAA the order for payment into Court is a judgment would not serve any purpose. Section 47 requires a decision made under that Part V of the LAA to be in writing and signed by the Judge and the two assessors. Even if the order is a judgment it must be again stressed that it is not a judgment against Damansara Realty, to warrant a liability to pay interest. [39] We then proceeded to consider Pekeliling Ketua Pendaftar Bil 1 Tahun 1998 relied on by the High Court. The relevant rules of court regarding interest for monies paid into Court are O.90 r.6 and r.7 of the ROC. These rules read with Pekeliling Ketua Pendaftar, stipulate that interest for payment into Court is payable by the Ministry of Finance or Accountant General and not any other person. They cannot be used to justify an order for interest to be borne by Damansara Realty. We however note in particular, that there 28 was no appeal on this part of the Order. Hence there is no necessity to delve further on this point, except to illustrate a point that even under the circular or ROC, the liability to bear interest for monies paid into Court is on the Accountant General or the Ministry of Finance and not another party. [40] Learned appellant’s counsel relied on item 7 of the Schedule to the Courts of Judicature Act 1964 read with section 25(2) of the Act to contend that the Court is granted additional power to make an order of interest. The clear injunction under section 25(2) is for these additional powers to be exercised in accordance with any written law or rules of court. Pursuant to item 7, the Court’s jurisdiction to direct interest to be paid is on debts or sums found to be due or unpaid by any person liable to account to Court. As noted by the Court of Appeal in Public Bank Berhad v Hara Industries Sdn. Bhd. [1988] 2 MLJ 618, section 25 of the Courts of Judicature Act provides that the additional powers given to courts are only to be exercised in accordance with written law or rules of court. As we had earlier concluded, the LAA, which is the written law here, does not recognise interest but only Late Payment Charges. A fortiori the Court has no jurisdiction to invoke this additional discretion. The Land Reference Court does not have any jurisdiction to award interest and hence there is no inherent power to be exercised. 29 [41] It bears noting that post-judgment interest under O.42 r.12 of the ROC is also inconsistent with Late Payment Charges. For one thing O.42 r.12 speaks of judgment debt which is absent in this case. The LAA was legislated specifically to impose upon the Land Administrator the duty to pay Late Payment Charges. Whereas, post-judgment interest is imposed upon a judgment debtor. The Late Payment Charges has been fixed at 8% per annum hence imposing further post-judgment interest at 5% per annum would militate against the legislative intent of the LAA. The LAA even specifies periods upon which Late Payment Charges will be incurred by the Land Administrator. [42] The LAA does not draw a line between the period before and after the determination by the Court to enable a separation of “pre-judgment” and “post-judgment” interest. In fact “post-judgment interest” would only commence from the date of judgment which would necessarily be after the determination by the Court. We are clear in our mind that the element of interest is no longer applicable in cases involving land acquisition compensation. 30 [43] That said, we are not excluding however any other cause of action that may be available in any proceedings relating to land acquisition. Such cases would definitely be within the ambit of civil proceedings which would be treated as normal cases of civil litigation. No cause of action [44] From the pleadings, allegation of any wrongdoing was conspicuously absent in the affidavit averred and affirmed by Chong Koon San on 08.10.2014 in support of the applications by Bungsar Hill. On the other hand, the reply affidavit by Nawfal Naim bin Osman on behalf of Damansara Realty had clearly averred that no cause of action has been pleaded or established by Bungsar Hill to impose liability of interest on Damansara Realty. There was also no cause of action against Damansara Realty in the Land Reference Proceedings or in the land acquisition compensation matter. The proceedings before the High Court in Enclosures 21 and 39 are purely applications to be repaid with the monies already ordered to be paid into Court. It is not a case where Bungsar Hill and Damansara Realty are parties in contest with one another. They are in fact a co-claimant to the monies paid into Court in the S4 Action. 31 [45] Allegations of wrongful or frivolous claims were only raised by way of submissions both oral and written by counsel for the appellant before us. It is clearly stated at paragraph 27 of the written submission that: “…the Compensation monies that were deposited by the Land Administrator in Court on 8 July 2002 should have been paid to Bungsar Hill from the outset, and DRB had wrongfully and frivolously claimed for part of the Compensation Sum, and in consequence, denied Bungsar Hill the use of the Monies since 8th July 2002.” [emphasis ours] Now, the allegation of wrongful and frivolous claim on the part of Damansara Realty, as submitted, remained a mere conjecture as this was neither a pleaded case against Damansara Realty nor was any judicial finding made against it on the same, to justify any liability on Damansara Realty. [46] We would refer to the decision of this Court cited to us by the appellant in Wong Chong Chow v Pan-Malaysian Cement Works Bhd (supra). The decision on the issue of interest in Wong Chong Chow was that the trial Court in awarding interest of 6% from the date of judgment was made without basis. It was then varied to the completion date of the contract instead by the Court of Appeal. It is no authority to support the proposition of the appellant 32 that interest must be given for the deprivation of the use of the money due to the appellant, on account of the money being paid into court pursuant to the LAA. With respect, we do not find this case relevant except that the case had quoted an English decision in London, Chatham and Dover Railway Co v South Eastern Railway Co [1983] AC 429 at 437 which observed the principle that interest is not only a compensation for damages done, but also for being kept out of the use of the money by the plaintiff. The issue is was Damansara Realty guilty of keeping Bungsar Hill out of the use of money, in the exercise of its legal right under the LAA. Person Interested: Right under the LAA [47] We cannot lose sight of the fact that Damansara Realty throughout was an interested party and had joined Bungsar Hill to seek for a higher compensation in the Land Reference Proceedings in the S4 Action. Section 29 of the LAA in dealing with payment of compensation into Court does not contemplate for a losing party to bear the burden of paying interest on such payment into Court. At no time did Bungsar Hill ever put Damansara Realty on notice that between the period of payment into Court on 08.07.2002 to the time it applied for the release of monies on 11.03.2013 it would be claiming interest against Damansara Realty. 33 [48] It is pertinent to note that Damansara Realty in staking its claim for compensation in the process of the land acquisition, is not a class of persons excluded by the definition of “person interested” pursuant to section 2 of the LAA. On the face of it Damansara Realty was indeed exercising its legal right under that statute. As such any imposition of liability on the exercise of that right is not in tandem with the object and the spirit of the LAA. The protection accorded to Damansara Realty too emanates from Article 13 of the Federal Constitution. The right of a person interested is also to be similarly protected, under the said Article. [49] It is towards the objective of protecting the rights of a person to property that the LAA contains provisions for ensuring that all persons affected by that compulsorily acquisition be heard. This is clearly encapsulated in the requirement that the Land Administrator pursuant to section 10 must commence the process of land acquisition proceedings by firstly, giving notice in Form E to the list of peoples enumerated in section 11 who are: a) the occupier of such land; b) the registered proprietor of such land, where he is not the occupier thereof; c) any person having a registered interest in such land; 34 d) any person whom he knows or has reason to believe to be interested therein: Damansara Realty had fallen under one of the above classes of persons. The categories intended are rather wide and all encompassing, and as such can it be said that Damansara Realty is a frivolous claimant? [50] During the enquiry proceedings and in accordance with section 12 of the LAA, the Land Administrator shall also enquire into the respective interest of all persons claiming compensation or any objection in respect of the land to be acquired in accordance with section 12(2). These provisions in our view, serve to demonstrate the point that anyone who claims to have interest in the acquisition process deserves to be considered in the spirit of Article

Further to that, the LAA also defines in section 2 “person interested” to include every person claiming interest in compensation to be made on account of acquisition of land excluding only “a tenant at will”. It is quite clear from this definition that the only exclusion is a tenant at will. [51] A person interested is also required to testify before the Land Administrator, in accordance with section 13 of the LAA. Under section 17(5) in a summary enquiry under that section, the Land Administrator will have to 35 adjourn it if persons interested fail to attend. Section 37 of the LAA allows a person interested who does not accept the Land Administrator’s award to make objection, inter alia, to “the person to whom it is payable”. Taking into account all these factors it would be inconceivable to treat the interest pursued by Damansara Realty as frivolous. Damansara Realty is very much a person interested as envisaged by the LAA and was exercising its lawful right pursuant to the law. Not without relief [52] Be that as it may, Bungsar Hill is not without relief. It has been awarded an interest of 2% by virtue of the Pekeliling Ketua Pendaftar Bil.1 Tahun 1998 by the High Court. Otherwise it would have had recourse to the Ministry of Finance or Accountant General for interest on the monies deposited into Court and if necessary may initiate proceedings for that purpose, as was done in Schroeder v Accountant General [1980] 2 All ER 648. In that case legal action was taken against the Accountant General for interest over money that had been lodged into court. There is also nothing to prevent the appellant to stake a claim against Damansara Realty on a proper cause of action. 36 [53] An adjudication on a properly pleaded cause of action is always available to Bungsar Hill. It had not taken any other step, but instead had collaterally added the prayer of interest on Damansara Realty in proceedings for the refund of monies paid into Court, without any pleaded case against Damansara Realty. Surely if there is any allegation of wrongdoing on the part of Damansara Realty, it cannot be part of the proceedings or collateral to the applications for the release of moneys paid into Court. We therefore agree with the submission of the respondent’s counsel that the recourse open to Bungsar Hill is to file a separate cause of action. [54] Before we end, let it not pass unsaid that the Order of the High Court is yet seriously flawed for another reason. Not only was the imposition of interest on Damansara Realty itself baseless, the period for Damansara Realty to bear the interest, which is until the date of payment being made to Bungsar Hill, is not a matter within its control. This is a clear injustice inflicted upon Damansara Realty which would have had no control over when the payment of the compensation sums would be made to Bungsar Hill. Thus to make Damansara Realty bear interest during such a period may further lead to abuse at the behest of an indolent party. The longer the claimant takes to claim the money, the longer will the interest be borne. 37 Conclusion [55] We are now back to the leave question. The question posed relates to a person which has no interest in the ownership of the Acquired Land and does not possess caveatable interest. The concept of caveatable interest in a term is alien to the LAA. As we had earlier adverted to the list of person interested in the Acquired Land has a wider meaning than a person with caveatable interest, pursuant to the National Land Code. The law on what amounts to caveatable interest has long been settled. [56] Damansara Realty is to all intent and purposes, a person interested as contemplated by the LAA and it had participated in the proceedings before the Court in exercise of its right under it. In other words, it cannot be classified as a person who has no right to participate in the land acquisition process. Damansara Realty was acknowledged by all concerned as an interested party in all the land acquisition proceedings and was merely exercising its right pursuant to the law. [57] In view of all our findings and the conclusions we have reached, it is unnecessary for us to answer the question posed. In the circumstances the appeal of the appellant must stand dismissed. 38 signed ROHANA YUSUF Judge Federal Court of Malaysia Dated: 13th March 2019 Counsel for the Appellant: Puan Sitpah Selvaratnam (Alan Andrian Gomez and Michael Yap Chin Hong with her) Messrs. Tommy Thomas No. 101, Jalan Ara Bangsar Baru Bangsar 59100 KUALA LUMPUR Counsel for the Respondent: Dato’ Zamani Ibrahim (Helmi bin Hamzah with him) Messrs. Zamani Ibrahim Suite 6.01, Wisma Arab Malaysian Jalan Tuanku Munawir 70000 Seremban