Chan Ah Hah v LIM Kuoh Wee (C-02-(NCVC)(W)-2176-10/2017)

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LIM TSE TAP … RESPONDENTS [IN THE HIGH COURT OF TEMERLOH IN PAHANG CIVIL SUIT NO. 22NCVC-09-06/2015]

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LIM TSE TAP … PLAINTIFFS AND CHAN AH HAH … DEFENDANT CORAM DR. BADARIAH SAHAMID, JCA SURAYA OTHMAN, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 2 of 12 JUDGMENT OF THE COURT Suit In The High Court [1] The 1st Respondent was the registered owner of Lot 10932 held under HS(M) 3923, PT 7439, Mukim of Gali and the adjoining Lot 10933 held under HS(M) 3924, PT 7440, Mukim of Gali belonged to the 2nd Respondent. The Appellant’s Lot 10916 held under HS(M) 3907, PT 7421, Mukim of Gali was adjacent to the two parcels of land of the Respondents, separated by a road on a road reserve land. [2] The Respondents claimed that the Appellant had wrongfully excavated the reserve land adjacent to the Respondents’ land by digging and removing the earth without leaving proper or sufficient vertical or lateral support for the Respondents’ land thereby causing extensive damage. [3] The Respondents complained that slope cuttings were carried out to the boundary of Lot 10932 and Lot 10933 which encroached onto the boundary of Lot 10932 and Lot 10933; that there was large extent of soil collapse found during a site visit on 28.02.2009 and that based on the site inspection and slope stability analyses carried out, the slopes were not stable. The Respondents requested the Appellant to take immediate steps to restore the land by constructing a retaining wall to the cut slopes but the Appellant denied responsibility and refused to do so. [4] The Respondents contended that they intended to develop the two parcels of land and in the midst of preparing all relevant documents to be submitted to the relevant authorities but had to take remedial Page 3 of 12 steps to strengthen and improve the stability of the slopes incurring costs and expenses amounting to RM550,127.29. The Respondents complained that the excavation had affected their land development and that they had suffered losses and damages. [4] The Respondents sought (i) a declaration that they were entitled to support for their land from the adjacent land of the Appellant and underlying land and that they be allowed to take all reasonable steps to build the retaining wall; (ii) for an injunction to restrain the Appellant, by himself, his servants of agents or employees from excavating as to cause further subsidence or damage to the Respondents’ land; (iii) for damages for trespass and continuing trespass; and (iv) for general, special, aggravated and or exemplary damages. [5] The Appellant contended that he only bought and occupied his land since March 1996 and that there were other parcels of land next to his and the Respondents’ land. The Appellant denied the Respondents’ claims and contended that the land shouldering the Respondents’ land was a reserved road which was used by many others to go to their land and that he did not excavate the land which shouldered the Respondents’ land. The Appellant contended that there was no evidence that he had excavated the land and that the Respondents’ claims were unsustainable. [6] After a full trial, the trial judge allowed the Respondents’ claims for the declaration and injunction sought, and awarded RM533,512.60 for general, aggravated and exemplary damages, RM16,194.69 as special damages, interest at 5% per annum from 6.7.2009 until full realization and costs of RM10,000.00 subject to allocatur. Page 4 of 12 The Appeal [7] The Appellant appealed against the decision of the trial judge. The Appellant submitted that to make out a case for a tort of negligence, the Respondents must establish four ingredients namely;

they must show that they were owed a duty by the Appellant to take reasonable care, (ii) that the Appellant breached that duty, (iii) that the resultant breach caused the harm in question, and (iv) that the Respondents suffered damage that was not too remote. The Appellant submitted that in this case there was no evidence of breach by the Appellant which was correctly pointed out in the grounds of judgment. [8] The Appellant submitted that during the trial the Respondents failed to prove that the Appellant had cleared the land on the reserved road which shouldered the Respondents’ land and emphasized that the land which shouldered the Respondents’ land was a road reserve which was used by many to commute to their land passing both the Appellant’s and Respondents’ land. It was submitted that the excavation could have been carried out by any of the neighbouring landowners. [9] It was submitted that the High Court Judge was wrong to presume that it was the Appellant who had committed the tort in the absence of proof but merely relying it was probably the Appellant who had excavated the land. It was submitted that the trial judge had erred because the tortious conduct or act of the Appellant needed to be proven by admissible evidence. [10] In opposing the appeal, the Respondents submitted that based on evidence the Appellant through his agents, servants or Page 5 of 12 representatives had physically interfered with the Respondents’ land by wrongfully excavating the earth on land adjacent to their lots. The Respondents submitted that the Appellant had dug out and removed the earth from a gentle slope leaving a vertical (90 degree) cliff shorn of its natural vegetation with inadequate drainage thereby removing the Respondents’ right to support, vertical or lateral support. [12] The Respondents submitted that the Appellant had earlier approached the 1st Respondent to ask him to sell earth from the Respondents’ land which was on high ground so that the Appellant could cut and fill his own land which was on a lower level at the foot of the slope after the short strip of road reserve land but the 1st Respondent refused as he wished to maintain the natural gentle slope of the land for future development as a high elevation property. [13] It was submitted that when the 1st Respondent discovered that the Appellant had carried out the earthworks, he had confronted the Appellant who said that he had only excavated the road reserve which did not belong to the Respondents. The Respondents submitted that the Appellant by his actions and omissions had unlawfully interfered with the Respondents’ land. [14] The Respondents submitted that the right to support of land is recognized by the common law and this has been given statutory recognition by section 44(1)(b) of the National Land Code 1965. The Court’s Decision [15] It was the Appellant’s case that there was insufficient evidence that he had carried out the excavation to the land on the road reserve Page 6 of 12 which was adjacent to and which encroached onto the two parcels of land belonging to the Respondents resulting in damages. The Appellant submitted that there was insufficient judicial appreciation of evidence by the trial judge that the Appellant did not carry out the excavation. [16] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist. Where a party on whom the burden of proof lies has discharged that burden, then the evidential proof shifts to the other party: Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 5 MLJ 398. [17] Based on the appeal record, the road on the reserve land separating the Appellant’s land and the Respondents’ land was an existing earth track running along the southern boundary of Lot 10916 and Lot 13100 and the northern boundary of Lot 10932 and Lot 10933, gently sloping up from the southern boundary of Lot 10916 and Lot 13100 towards Lot 10932 and Lot 10933 which were on higher ground. [18] In 2008 the 1st Respondent discovered that the earth track running along the boundary of the Appellant’s land and the Respondents’ land had been excavated, which cut and encroached onto the northern boundary of Lot 10932 and Lot 10933. The excavation on the northern boundary dug out and removed the earth from the gentle slope leaving vertical steep cut slopes shorn of its natural vegetation with inadequate drainage. The gradient of the steepest cut slope was about 80o and the maximum height of the cut slopes was approximately 6 metres thereby removing the Respondents’ right to support. Page 7 of 12 [19] The 1st Respondent made complaints to the Raub District Office and Raub Land Office. The 1st Respondent had also confronted the Appellant who said that he only excavated the road reserve which did not belong to the Respondents. Subsequently the Appellant denied that he was responsible for the excavation and that any of the landowners in the vicinity could have done so. Although the excavation carried out also affected his land, he did not lodge any complaint to the said District Office or the Land Office or the police. [20] The record showed that the Appellant had earlier approached the 1st Respondent to sell the earth from the Respondents’ land so that he could cut and fill his land but the Respondents did not agree. After the 1st Respondent discovered the excavation, the Respondents sent a letter of demand to the Appellant to reinstate the cut slopes to their original condition. The Appellant denied knowledge of any demand and denied having received it. When shown the AR postal receipt, he said he did not receive it but then acknowledged that it was signed and received by his wife but she did not show it to him. The trial judge also dealt with other pieces of evidence put to the Appellant which challenged his credibility as a witness. [21] The Appellant then relied on a report prepared by a field geologist Abdul Manan Bin Abdullah of Geo Technology Resources (GTR), dated 24.3.2017. The report stated that geophysical studies have been conducted involving Lot 10916, Lot 10932 and Lot 10933, presumably on 25.2.2017, that small slope failures had occurred between these three lots where the cliffs have collapsed toward Lot 10916. The results of this study found that the landslide or toppling area had a high Page 8 of 12 resistivity value and indicating the slope soil and it’s surrounding area was very dry and from field observations that there was no vegetation cover that could support the region for a stable slope. It went to say that when it rained, the water would make the soil loose causing the toppling. [22] Reading the Defence, dated 6.3.2015, set out in the record of appeal, the Appellant did not plead that there was a landslide or slope failures or that these caused or resulted in the cut steep slopes to the northern boundary of the Respondents’ land. The Appellant must be bound by his own pleadings: see Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1. [23] Not only that the GTR report, which was only prepared in 2017, was an afterthought, it contradicted the case of the Appellant that the excavation was on the road reserve land and not on the Respondents’ land. The trial judge did not believe nor accepted the evidence of the Appellant and found that he was not a credible witness. The trial judge had the advantage of listening and watching the witnesses including the Appellant in giving evidence in court. We have read the record and the grounds of judgment and there was no reason to intervene with his finding on the credibility of the Appellant. [24] The 1st Respondent had engaged G&P Geotechnics Sdn Bhd (G&P) to carry out inspection and provide expert opinion on the cut slopes affecting their land. Investigations were carried out from 22.12.2008 to 19.1.2009 by Ir Dr. Gue See Sew (PW1), and his team, the managing director of G&P who is a renowned geotechnical expert, who prepared a report which was tendered as exhibit P2 and gave Page 9 of 12 expert evidence in the trial which were accepted by the trial judge. There was no serious challenge to the expertise and testimony of PW1. [25] PW1 testified that based on the investigations and slope analyses carried out, the cut slopes were found to have a Factor of Safety (FOS) against slope failure of approximately 0.59 to 0.83 indicating the slopes were not stable and that the FOS was inadequate to maintain the slopes in safe condition which required improvement measures or strengthening works to be carried out to ensure the safety and stability of the slopes. Based on the report of PW1, PW2, a civil engineer, designed a retaining wall for the cut slopes. [26] Based on the appeal record, there was an excavation carried out along the southern boundary of the Appellant’s land and the northern boundary of the Respondents’ land. The excavation dug and removed the earth resulting in vertical cut steep slopes along the northern boundary of the Respondents’ land and the earth was used to fill the Appellant’s land to the benefit of the Appellant. These facts had been proven. These together with the Appellant’s pleadings, the GTR report and the credibility of the Appellant led the trial judge to come to his finding that it was the Appellant and his agent who had carried out the said excavation resulting in the damage to the Respondents’ land. Based on the record, there was ample evidence adduced that the excavation was carried out by the Appellant and we did not find that the trial judge was plainly wrong in his finding as such which required appellate intervention: see Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309; UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785. Page 10 of 12 [27] The Respondents’ claim is grounded on their right of support as incidence of their landownership’s right. It is an ordinary right of property necessarily and naturally attached to the soil which requires no separate registration from the land itself. Claims for disturbance of the right to support are recognized by the common law. This common law right of support by neighbouring land was given statutory recognition by s.44(1)(b) National Land Code: Wong See Lee & Ors v Ting Siik Lay [1972] 2 CLJ 205. [28] From the excavation which encroached and trespassed onto the land of the Respondents with removal of the earth resulting in vertical cut steep slopes along the northern boundary of their land which deprived the Respondents of their right of support. As a result, they had sustained damages and had to incur costs and expenses to remedy the harm. This was reasonably foreseeable. Once the kind of harm is foreseeable, then the tortfeasor is liable to the full extent of it: see Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors [2003] 1 CLJ 585; Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v

[29] In respect of damages, the Appellant did not appeal against the assessment of damages made by the trial judge. This was not raised in the memorandum of appeal nor in the submission of the Appellant. The trial judge has dealt with the assessment of damages and there is no reason for us to revisit the award of damages. [30] We are satisfied that the High Court Judge was not plainly wrong. The decision of the High Court Judge is affirmed and the appeal is Page 11 of 12 dismissed with costs of RM10,000.00, subject to allocatur and the deposit to be refunded. [31] In respect of the cross-appeal on costs in the court below, the Respondents submitted being mindful that the judge has discretion on costs, ex facie the award of RM10,000.00 for a full trial spanning several days with several witnesses without affording parties an opportunity to be heard on the principle as well as quantum is one which was an erroneous exercise of judicial discretion. It was submitted that the costs awarded should be at least RM50,000.00 but realistically ought to be RM100,000.00. [32] Pursuant to O.59 r.7(2), at the conclusion of the proceedings, the court will hear submissions from the parties as to the quantum of costs to be awarded. The court shall direct that the submissions of the parties on costs are to be tendered as part of the substantive submission of the case or separately. In this case the complaint was that it was not done and that the parties were not heard on the costs. [33] After hearing parties on costs, we allowed the cross-appeal and substitute the costs of the lower court from RM10,000.00 to RM50,000.00, subject to allocatur. Dated: 20th September 2018 sgd STEPHEN CHUNG HIAN GUAN (delivering the judgment of the court) Court of Appeal Judge Putrajaya Page 12 of 12 For Appellant : Joshua Kevin Sathiaseelan and Leng Wie Mun Messrs. Kevin & Co.