Condolink Sdn Bhd v Sdb Properties Sdn Bhd (BA-22NCvC-327-07/2025)

SDB PROPERTIES SDN BHD

INTA BINA SDN BHD (COMPANY NO: 166877-X) … DEFENDANTS GROUNDS OF JUDGMENT Introduction

This is the First Defendant’s application in Enclosure 12 to strike out the Writ and Statement of Claim against it pursuant to Order 18 rule 19(1) of the Rules of Court 2012 (ROC).

After hearing the parties, and having read the pleadings, affidavits and written submissions, I allowed the application and 31/03/2026 14:42:20 BA-22NCvC-327-07/2025 Kand. 35 struck out the Plaintiff’s claim against the First Defendant with costs. The Plaintiff has now appealed. I now set out my reasons.

The Plaintiff is the registered proprietor of the land known as Lot

The First Defendant is a property developer of a project adjacent to Lot 1195. The Second Defendant is the contractor appointed by the First Defendant to carry out the main building works for the project. Salient Facts

The Plaintiff’s claim is in trespass. The Plaintiff alleges that there was extensive and ongoing trespass on Lot 1195, including unauthorised entry, construction of wooden rooms, occupation by foreign workers, dumping of construction materials, debris and domestic waste, and the creation of an access road across the Plaintiff’s land.

The Plaintiff pleads that the Defendants, without consent or lawful authority, had entered and occupied Lot 1195, erected structures, stored materials, and allowed workers to reside on the land, thereby causing damage and interference with the Plaintiff’s use and enjoyment of its land.

The Plaintiff contends that the First Defendant is the principal party behind the project, the party who appointed the Second Defendant, and the party who stood to benefit from the impugned activities carried out on Lot 1195.

The First Defendant denies any involvement in the alleged trespass. It contends that the Second Defendant was appointed as an independent contractor and was solely responsible for its workers, site operations, and the manner in which the works were carried out.

It is also not disputed that the Second Defendant has admitted that the workers on Lot 1195 were its workers and has taken responsibility for the acts complained of. Order 18 Rule 19 of the ROC

The principles governing an application to strike out are well settled. The court will only strike out in plain and obvious cases where the claim is clearly unsustainable on the face of the pleadings.

In Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC), the Supreme Court held that the summary jurisdiction to strike out must be exercised sparingly and only in cases where it is obvious that the claim cannot succeed.

The same principles were reaffirmed in Tan Wei Hong (a minor suing through his guardian ad litem Chuang Yin E) & Ors v Malaysia Airlines Bhd & Ors [2018] 9 CLJ 425 (FC), where the Federal Court emphasised that the court should not embark on a minute examination of the facts but consider whether the claim is obviously unsustainable.

Where the pleadings disclose no reasonable cause of action, the court is entitled to strike out the claim at an early stage. Analysis and Findings Whether the Statement of Claim discloses a cause of action against the First Defendant

The Plaintiff’s allegations of trespass are pleaded generally against “the Defendants” without distinction.

Upon perusing the Statement of Claim, I find that there is no specific pleading identifying any act, omission, or conduct by the First Defendant showing that it committed, authorised, or participated in the alleged trespass.

Trespass is a tort against possession and is actionable against the person who directly commits or authorises the entry. In Sahabudin bin Sulaiman v Government of Malaysia [1987] 1 MLJ 379 (SC), the court made clear that liability must be founded on clear acts of intrusion or participation, and not on mere association or status.

The Plaintiff must therefore plead material facts showing how the First Defendant is connected to the alleged entry onto Lot

This is absent.

In Pantai Green Development Sdn Bhd v Ancubic Capital Sdn Bhd & Anor [2023] MLRHU 274 (HC), the High Court held: “[19] In respect of the pleaded case, there were no material facts relied upon by the Plaintiff in its statement of claim as a basis to allege that it was the 1st defendant who had constructed the temporary structures and fenced-up the Adjacent Land. On the same breadth, there was equally nothing to show that the Plaintiff attached liability on the 1st defendant for the acts committed by the 2nd defendant on the basis of the imposition, either under common law or statutory requirements, of any direct duty on the 1st defendant which cannot be delegated to the 2nd defendant as an independent contractor. The Plaintiff did not plead the breach of any such non-delegable duties by the 1st defendant. At best, the material facts in support of the Plaintiff’s pleaded case were made in general against the defendants. In my considered view, the Plaintiff cannot cast a wide net without specificity in its statement of claim and expects the Court to rope in the 1st defendant based on its general allegations as to the material facts in support of the pleaded cause of action.” - emphasis added

I find that the present case falls within that principle. The Plaintiff’s case, as pleaded, rests on general allegations without identifying any specific role or conduct attributable to the First Defendant. This is not a defect of evidence, but of pleading. Independent contractor and attribution of liability

The Plaintiff’s case against the First Defendant is premised entirely on the acts of the Second Defendant.

The law is settled that an employer is not liable for the torts of an independent contractor. In Mehrzad Nabavieh & ANor v Chong Shao Fen & Anor and another appeal [2016] 4 MLRA 142, the Court of Appeal stated: “[17] The general position is that if an employer, such as the 1st and 2nd defendants here, have employed an independent contractor to do work on their behalf, the 1st and 2nd defendants are not responsible for any tort committed by the independent contractor in the course of the execution of the work. As such, they are not liable directly for any torts committed, unless the damage complained of may also be attributable to the negligence or personal fault of the employer. … [25]…If the employer determines what is to be done and retains control of the actual performance, the doer is a servant/agent. However, if the employer prescribes the work to be done but leaves the manner of doing it to the control of the doer, the doer is an independent contractor. In our case therefore, the 3rd to 5th defendants fell within the category of independent contractor rather than servant/agent. To that extent, the general principle will prevail, ie that the 1st and 2nd defendants would not be liable for the negligent acts of the 3rd to 5th defendants.” -emphasis added

The same position is reflected in Pantai Green, where the court reiterated the settled principle that an employer is not responsible for any tort committed by an independent contractor. I adopt that reasoning and quote: “[16] It is trite that an employer is not responsible for any tort committed by an independent contractor. (See: Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2010] 3 MLRA 78; [2011] 2 MLJ 1; [2011] 1 CLJ 409). In finding that vicarious liability cannot attach to an employer for the negligence of the contractor, the Court of Appeal in Lim Gim Seah v. Lokman Talib & Ors [2012] 3 MLRA 291; [2012] 4 MLJ 308; [2012] 5 CLJ 561, adopted the test propounded by Lord Justice Widgery in Salsbury v. Woodland And Others [1970] 1 QB 324 as follows: “It is trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor. He is not able to control the way in which the independent contractor does the work, and the vicarious obligation of a master for the negligence of his servant does not arise under the relationship of employer and independent contractor.” (See also: MTD Prime Sdn Bhd v. See Hwee Keong & Ors And Another Appeal [2017] 4 MLRA 130; [2016] 4 MLJ 695; [2016] 8 CLJ 623). [17] In acknowledging an exception to this general rule, Lord Justice Widgery in Salsbury v. Woodland And Others (supra.) continued and explained as follows: “I think that it is entirely accepted that those cases - and there are some - in which an employer has been held liable for injury done by the negligence of an independent contractor are in truth cases where the employer owes a direct duty to the person injured, a duty which he cannot delegate to the contractor on his behalf. The whole question here is whether the occupier is to be judged by the general rule, which would result in no liability, or whether he comes within one of the somewhat special exceptions - cases in which a direct duty to see that care is taken rests upon the employer throughout the operation. This is clear from authority; and for convenience I take from Salmond on Torts, 14th ed. [1965], p 687, this statement of principle: One thing can, however, be said with confidence: the mere fact that the work entrusted to the contractor is of a character which may cause damage to others unless precautions are taken is not sufficient to impose liability on the employer. There are few operations entrusted to an agent which are not capable, if due precautions are not observed, of being sources of danger and mischief to others; and if the principal was responsible for this reason alone, the distinction between servants and independent contractors would be practically eliminated from the law.”. [18] The exception to the general rule which does not excuse an employer for tortious acts committed by the independent contractor applies only in cases whereby a specific duty, either by common law or under a statute, is imposed on the employer. This duty is referred to as non-delegable duties. In this regard, the Federal Court in Hemraj & Co Sdn Bhd v. Tenaga Nasional Berhad [2023] 2 MLRA 25; [2023] 1 MLJ 785; [2023] 1 CLJ 651, observed as follows: “[31] Based on Woodland, the correct approach to impose the non-delegable duty of care is, to firstly determine, whether the case falls under either category 1 or 2. In the case of the first category, following Biffa Waste, it is those acts which are “exceptionally dangerous whatever precautions are taken”. In establishing the second category, it must possess all five defining features (which we have stated in the main judgment) as outlined by Lord Sumption in Woodland. Once the category of case has been established, the court would have to further consider whether the imposition of such a duty were fair, just and reasonable as a matter of judicial policy in the local context (refer to Dr Kok Choong Seng at para 40).”. (See also: Salsbury v. Woodland And Others(supra.)).

In the present case, the Plaintiff has not pleaded any material facts showing that the First Defendant retained control over the manner, method or execution of the works carried out by the Second Defendant, or that it authorised or directed the alleged trespass.

In the absence of such facts, the general rule applies and liability cannot be attributed to the First Defendant. Non-delegable duty

The Plaintiff seeks to overcome this by asserting a non-delegable duty.

However, such a duty must be supported by material facts bringing the case within recognised categories in law. It is not sufficient to merely label a duty as non-delegable.

In The President of Majlis Perbandaran Tawau v Amiruddin bin Rasake & 245 Ors and another appeal [2017] 4 MLRA 440 (CA), the Court of Appeal had lengthily discussed at para 19-21 and I quote the principles as follows: “[21] … there is no general duty of care imposed on a defendant to prevent harm caused by the deliberate act of a third party, over whom the defendant has no control except in specific circumstances which he identifies.. …in Hart and Honore, Causation in the Law, 2nd edn (1985).. ..But one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing..”

The court further explained that the law does not impose liability for mere omissions unless special circumstances giving rise to such a duty are established.

In the present case, the Plaintiff has not pleaded any facts showing proximity, control, assumption of responsibility, or any statutory or recognised basis for imposing such a duty on the First Defendant.

The assertion of a non-delegable duty therefore remains bare and unsupported, and cannot sustain the claim. Effect of the Second Defendant’s admission

The Second Defendant has admitted that its workers occupied Lot 1195 and has taken responsibility for the alleged trespass.

While such an admission does not automatically absolve the First Defendant, it is a relevant factor.

It reinforces the position that the acts complained of were carried out by the Second Defendant, and highlights the absence of any pleaded basis to connect those acts to the First Defendant. Triable issues

The Plaintiff submits that there are triable issues which ought to be ventilated at trial, particularly on the role of the First Defendant as developer and its alleged responsibility for the acts of the Second Defendant. I do not agree.

The issue at this stage is not whether the Plaintiff may be able to prove its case at trial, but whether the Statement of Claim, as pleaded, discloses a reasonable cause of action against the First Defendant. A trial cannot be used to cure a defective pleading (see Tun Dr Mahathir Mohamad & Ors v Datuk Seri Mohd Najib Tun Haji Abdul Razak [2018] 1 MLRA 419).

In Bandar Builder, the Supreme Court made clear that the court is entitled to strike out where the claim is plainly unsustainable on the face of the pleadings.

The existence of triable issues presupposes that there are properly pleaded material facts giving rise to those issues.

In the present case, the Plaintiff has not pleaded material facts showing that the First Defendant committed, authorised, or participated in the alleged trespass, or that any recognised exception to the independent contractor principle applies.

In the absence of such pleaded foundation, there are no genuine triable issues as against the First Defendant.

This is therefore not a case where the pleadings disclose a weak claim requiring evidence, but one where the essential ingredients of the cause of action against the First Defendant have not been pleaded. Abuse of process

The continuation of proceedings against a party without a proper legal basis may amount to an abuse of process.

In Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 1 MLRA 67 (CA), the Court of Appeal (Gopal Sri Ram, JCA) held that proceedings constitute an abuse of process where they are not brought for the genuine purpose of obtaining relief but are used to exert pressure or pursue collateral purposes. In his judgment, Justice Gopal Sri Ram adopted the reasoning of Lord Denning MR in the English case of Goldsmith v. Sperrings Ltd [1977] 1 WLR 478, stating: “The law will not allow its process to be used for a purpose other than that for which it was intended... It is an abuse of the process of the court to use it for a collateral purpose - to exert pressure on an opponent so as to achieve an end which is improper in itself.”

In the present case, given the absence of material facts establishing liability against the First Defendant, the maintenance of the claim against it serves no legitimate purpose and amounts to an abuse of the court’s process. Conclusion

Having considered the pleadings and the applicable legal principles, I am satisfied that the Plaintiff’s claim against the First Defendant does not disclose a reasonable cause of action.

The deficiencies in the pleadings are fundamental. They go to the absence of material facts necessary to establish liability against the First Defendant.

This is a plain and obvious case where the claim against the First Defendant is unsustainable and constitutes an abuse of process under Order 18 Rule 19 of the ROC.

Accordingly, the First Defendant’s application in Enclosure 12 is allowed. The Writ and Statement of Claim against the First Defendant are struck out with costs of RM5,000.00, subject to the allocator. Dated this: 31th March 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Plaintiff : Azmina Izzati together with Tee Qian Yu Messrs Vilasiny Gan & Co. For the 1st Defendant : Joy Appukuttan together with Kelvynn Foo Messrs KH Lim & Co. For the 2nd Dedendant : Mohd Aiziezuddin bin Suib Messrs S. Mathavan & Nur Hafizah