Hasilharta (Malaysia) Sdn. Bhd. v 1. ) Ideal Advantage Sdn. Bhd. (WA-22NCvC-681-09/2019)

The plaintiff is suing (enclosure 2) the defendants for trespass and/or encroachment of its land, claiming mesne profits and RM2,818,002.73 in damages. A declaration is also sought to get the 30 Second Defendant (D2) to remove the retaining wall alleged to have infringed on the plaintiff's land.

D2 in its counterclaim (enclosure 6), alleged that the plaintiff's land, which is topographically higher than D2's, caused flooding to D2's land when the plaintiff failed to maintain the retaining wall on its land. 35 A sum of RM62,145.00 for repair had been spent, and D2 sought general damages against the plaintiff. 10/11/2022 15:57:29

On 19.10.2022, after considering the facts, all evidence adduced at the trial and the parties' respective arguments, I dismissed this suit with costs of RM20,000.00 for each defendant against the plaintiff. 40 Similarly, I dismissed the counterclaim by D2 against the plaintiff with costs of RM6,000.00. All costs are subject to the allocator fees.

Aggrieved, the plaintiff (enclosure 78) and D2 (enclosure 79) filed their respective appeal against my decision, and these are my reasons: 45 BRIEF FACTS [2] The agreed facts (enclosure 13), is summarised as follows:

The plaintiff is the registered owner of a property held under PT 38648, HSD 14979, Daerah Gombak, Mukim Batu, Negeri Selangor 50 Darul Ehsan (plaintiff's property). The First Defendant (D1), a company, is the registered owner of a property situated next to the plaintiff's property known as Lot 4604, PN 42371, Daerah Gombak, Bandar Kepong, Negeri Selangor Darul Ehsan. D2, a company, is the registered owner of a property situated next to the plaintiff's 55 property known as PT 8438, HSM 6663, Daerah Gombak, Mukim Batu, Negeri Selangor Darul Ehsan.

Both D1 and D2 were served with the plaintiff’s demand to remove the alleged encroachment on its land, to which both denied the allegation.

The plaintiff was served a letter by D2 (28.05.2019) notifying of the alleged landslide on the plaintiff's property, causing the retaining wall's collapse and flooding D2’s land. The plaintiff was alleged liable for the expenses to repair the retaining wall and for clearing works undertaken by D2, which the plaintiff denies.

During the trial, the following witnesses gave evidence in Court: For the plaintiff: i. Lim Weison (PW1) ii. Sr Tuan Haji Aziz bin Abdullah (PW2) iii. Chin Shiow Wei (PW3) 70 For D1: iv. Lee Aik Cheong (DW1) For D2: v. Chin Poh Fah (DW2) vi. Wong Keng Sam (DW3) 75 THE LAW [3] Trespass in a nutshell:

Trespass to land had been defined by the Federal Court as the unlawful direct and immediate interference with the possession of the 80 land which is in possession of another person, or which another person is entitled to possession of it: Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 MLJ 1, FC.

The tort may be committed only against a person who has possession of the land on which the acts complained of are 85 committed: Lim Yoke Foo v Pun Tat Meng [1974] 2 MLJ 99.

The tort of trespass to land is actionable per se without any proof of damage: Hashim bin Din v Sato Kogyo Co Ltd [1988] 1 MLJ 527.

A plaintiff in trespass is entitled, even though he has sustained no actual loss, to recover damages (nominal): Segar Restu (M) Sdn 90 Bhd v Wong Kai Chuan & Anor [1994] 3 MLJ 530. Liability is therefore strict: Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 24; Tan Wee Choon v Ong Peck Seng &

Article 13(1) Federal Constitution provides that a person may not be 95 deprived of his right over his property except as provided under the law.

A person in lawful exclusive possession over the land (denoting physical control or occupation of the land) may institute an action at the time of the trespass. It need not be the landowner as the 100 registered owner does not necessarily signify actual possession. Trespass is an injury to possessory right. The type of conduct necessary to prove possession varies with the kind of land: Yip Shou Shan v Sin Heap Lee-Marubeni Sdn Bhd [2002] 5 MLJ

105 [4] To constitute trespass:

The defendant must intend to trespass. This intention may be the intention to trespass, or although there is no intention to trespass, there must be a voluntary act in entering the land that is in possession 110 of another. It is not necessary to prove that the defendant knew that he was trespassing. The courts will also reject any argument by the defendant that he did not think he had no right in law to be on that piece of land: MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136. If the defendant’s 115 entry onto the plaintiff’s land is without his consent and is involuntary, the element of intention is not fulfilled.

Essential elements would be (1) An intention to commit a trespass,

entry was voluntary, and (3) the intrusion is a foreseeable consequence of the defendant’s action or omission: Terra 120 Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 24. The direct interference to the plaintiff’s land from the immediate act of the defendant takes the form of an unlawful encroachment, continues to remain on the impugned land, and places or projects any object on the land: Terra Damansara Sdn Bhd v 125 Nandex Development Sdn Bhd; Lim Kek Ping v Thai Wah Construction and Development Sdn Bhd [2006] 5 AMR 68; [2006] 4 MLJ 309; Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 5 AMR 629; [2005] 6 MLJ 289, CA.

A continuing trespass arises where a landowner raises the level of his 130 land and subsequently builds a retaining wall on adjacent land, which results in a disruption to the natural flow of water out of his neighbour’s land: Lim Kek Ping v Thai Wah Construction and Development Sdn Bhd [2006] 5 AMR 68; [2006] 4 MLJ 309. In Tay Tuan Kiat v Pritam Singh [1987] 1 MLJ 276, a wall encroaching 135 onto the plaintiff’s land was held to constitute a continuing trespass for as long as the wall was not demolished.

The magnitude of the alleged encroachment or interference is unimportant as long as an interference exists: Karuppannan s/o Chellapan v Balakrishnan s/o Subban [1994] 3 AMR 2279, FC. 140 The agreed issues to be tried (enclosure 14). However, in determining tortious liability, I have demarcated the issues to be tried as follows: [5] (A) Against the Defendants 145

Whether the respective defendants have separately encroached and/or trespassed onto the plaintiff's property?

If liability is found against either or both the defendants for encroaching and/or trespassing onto the plaintiff’s property:

Does the encroachment and/or trespass have caused the 150 plaintiff any loss or damage?

(ii) Whether the defendants are liable for the loss and damages suffered by the plaintiff resulting from the termination of the sale of the plaintiff’s Property to Home Entity PLT (if proven)? and

(iii) If so, what remedies are available to the plaintiff? 155 [6] The plaintiff argued that:

Its claim is based on the following:

Alleged loss of use of the part of the land encroached.

(ii) As a consequence of the unlawful encroachment and its non- 160 removal, the SPA entered with Home Entity PLT had to be terminated, causing a loss of profits from the purported sale of the said property.

(iii) The plaintiff had to bear the costs of the legal fees for the SPA and defend the civil suit taken against it from the purchaser (22 165 NCvC-414-07/2018 (suit 414).

The alleged encroachment by D1 is seen in the areas marked A and B of 85m2 (52m2 + 33m2) of the Detailed Measurement Plan No. JW/2018(11) SEL/044 prepared by Juruukur Warisan: 170 175

The alleged encroachment by D2 is seen in the areas marked C of 180 36.523m2 of the Detailed Measurement Plan No. JW/2018(11) SEL/044-PT prepared by Juruukur Warisan: [7] On 04.12.2017, the plaintiff entered into a SPA with Home Entity PLT on the sale of the said property for RM2,000,000.00 (SPA). The said SPA 185 was structured as follows:

Forfetiable deposit of RM600,000.00 (evidence of payment by the purchaser adduced).

The plaintiff gave an undertaking and warranty that the land is free from encumbrances and encroachment. Any purported breach of 190 this covenant must be remedied within fourteen days upon notice issued by the purchaser: and

In default, the purchaser can elect to terminate with agreed damages for breach of contract at RM600,000.00 with interests, together with the return of the deposit paid. 195 [8] Juruukur Wawasan was appointed by the purchaser that had surveyed the said property revealing the alleged encroachment by the defendants, resulting in discrepancies in land size:

A written notice was given under clause 14.5 of the SPA asking the plaintiff to remedy the situation within 14 days as agreed.

A solicitor’s demand was issued by the plaintiff to D1 and D2 to remove the alleged encroachment:

On 10.04.2018, D1 acknowledged the suspected encroachment by their tenant (third party) and asked for three months to remove it, to which the plaintiff requested D1 to seek 205 indulgence from the purchaser but reserved its legal right for redress on the said encroachment; and

(ii) On 24.04.2018, D2 denied in writing that they had encroached on the plaintiff’s land and denied that the retaining wall constructed on the plaintiff’s land was by them. 210 [9] Approximately twenty-six days after giving the plaintiff a written notice (04.04.2018) to remove the alleged encroachment, the purchaser denying any extension of time, terminated the SPA on 30.04.2018, seeking a refund of the deposit of RM600,000.00 and the payment of the 215 agreed liquidated damages of RM600,000.00 within 14 days. The purchaser made a repeat demand for the payment of RM1,200,000.00 on 22.05.2018. On 05.07.2018, suit 414 was taken against the plaintiff by the purchaser for the return of the deposit and payment of the LAD. On 03.12.2018, the HC granted the purchaser the right to sign a final 220 judgment under O.14 RC 2012. On 23.01.2019, the plaintiff honoured the judgment and paid the purchaser RM1,313, 002.73 (inclusive of interests and cost). [10] In support of its case, the plaintiff cited: 225 - Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 MLJ 1 that had ruled that every unlawful entry by one person on land in possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon the land if he wrongfully sets foot on it or places or fixes anything on 230 it or in it, or if he erects or suffers to continue on his land anything which invades the airspace of another. - Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd, on the elements of trespass. - In claiming damages for the alleged trespass by the defendants, the 235 plaintiff cited: - Amm a/l Joy (suing as Chairman Committee Members of Wat Boonyaram) v Chuan Seng Sdn Bhd [2018] 5 MLJ 255, CA, the plaintiff is entitled to receive such an amount as will compensate him for the loss occasioned by the unlawful encroachment. Apart from 240 damages, injunctive relief under s.51(2) Specific Relief Act 1950 can be ordered against the tort-feasor to prevent any further act or continuing act of trespass: Ladang Tai Tak (KT) Sdn Bhd v Suppiah a/l Andy Thavar [1999] 5 MLJ 257; MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd (No.2) [1998] 4 CLJ 136; 245 Karuppannan s/o Chellapan v Balakrishnan s/o Subban [1994] 3 AMR 2279, FC. [11] D1's only defence is that its tenant committed trespass (Midas Code Sdn Bhd). This position is untenable as it fails to account for (a) the 250 periods which fall outside the tenancy agreement between D1 and the tenant (15.07.2014-09.07.2018) and (b) a landlord will be held liable for the trespass of a tenant if it was caused or permitted by the landlord: Field Common Ltd v Elmbridge BC [2008] EWHC 2079 (Ch). The plaintiff submitted that the chronology of events does not support D1:

16.04.2007: D1 took over ownership and possession of D1’s land.

12.04.2011: Photograph (Bundle C/pg.50) from Google Earth already shows the encroachment on the plaintiff’s land.

15.07.2014-9.072018: D1 tenant allowed to build additional structures on the encroachment area.

15.07.2014-09.07.2018: The tenant surrendered possession of the land and its encroachment to D1, but D1 still refuses to remove the brick wall at the encroachment area (photograph A, B, C Bundle C/pg.34-35).

01.01.2019-18.10.2019: New tenant of D1 had continued with the 265 alleged unlawful encroachment. In support, the plaintiff cited Desa Samudra Sdn Bhd v Bandar Teknik Sdn Bhd & Ors [2012] 1 MLJ 729, FC: “the wrongful act in trespass to land relates to plaintiff’s possession of the land as opposed to its ownership. A person’s possession of the 270 land provides the link to their right to sue for the tort – the cause of action is primarily concerned with the infringement of the possession of land, rather than one’s ownership of it”. [12] In the present case, D1 had allowed its tenant to build structures on 275 the encroached area of the plaintiff’s land. According to PW1, his investigation revealed that the encroachment occurred before the alleged tenancy of D1 tenant and had persisted. PW1 was not crossed on this averment, making it undisputed: Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors [1995] 2 MLJ 770. DW1, in giving evidence for D1, 280 said he did not know what had transpired before his appointment (28.12.2017) in D1. There is no evidence of any action taken by D1 against its tenant on the alleged encroachment. It merely instructed its tenant to remove the steel structure marked as A, not the brick wall marked B on the drawings tendered by the plaintiff. Even after being made 285 aware of the alleged encroachment, D1 failed to warn its new tenant about the alleged trespass resulting in a continuing act of trespass. The plaintiff’s omission to include the defendants as third parties in suit 414 concerning the purchaser in the impugned SPA does not bar this claim against the defendants for damages. Third-party proceedings for contribution are also 290 regarded as independent of and separate from the proceedings by a plaintiff and the defendant: Mat Abu Bin Man v Medical Superintendent, General Hospital, Taiping Perak & Ors [1989] 1 MLJ 226. In the circumstances, D1 should be liable for trespassing on the plaintiff's land. 295 [13] D2 deny any act of trespass as alleged, claiming that the retaining wall erected on the plaintiff’s land separating the two plots of adjacent land was not done by them:

The plaintiff argued that it does not matter who erected the said retaining wall on its land (marked C on the drawings), but the fact 300 remains that with the said wall in place, the plaintiff could not access its part of the land behind that wall to which D2 has easy and free access.

This fact shows that D2 had unlawfully encroached and taken possession of the plaintiff’s land marked C making it actionable per 305 se: Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd .

After part of the retaining wall on the plaintiff’s land collapsed sometime at the end of May 2019, despite knowing the encroachment issue, D2 elected to rebuild the retaining wall that had collapsed. They could have removed it entirely but decided otherwise.

D2’s argument that the duty is against the higher land proprietor (the plaintiff) to build the retaining wall and to make sure the flowing of water from their land flow in a proper way to the adjacent land, it is only reasonable to assume that this retaining wall was built by the plaintiff themselves as the previous owner of the land, rather than 315 being constructed by D2, is unsustainable. Since D2 developed its land by building a factory, it is reasonable to assume that the said retaining wall was erected by D2 and not the plaintiff, who had not done any development. The retaining wall was constructed on the plaintiff's land giving D2 unrestricted access to the encroached area 320 marked X and Y in the drawings. Arguments on the right of support from neighbouring land under s.44(1)(b) NLC is misplaced: Chan Ah Hah v Lim Kuoh Wee & Anor [2018] MLJU 1417, CA; Ampang Estate Ltd v Guan Soon Tin Mining Co. [1972] 1 MLJ 131; Wong See Lee & Ors v Ting Siik Lay [1997] 2 CLJ 205, FC.

In Karuppannan v Balakrishnan (Chong Lee-Chin & Ors, Third Parties) [1994] 3 MLJ 584, FC is evident on the position that a plaintiff would still be entitled to remedies for trespass even though the trespass had already existed before the new owner came to own the land, and whether or not he knew or had notice of it.

The plaintiff’s claim against D2 is not impacted by its civil suit 414 with the purchaser of the SPA. Contrary to D2’s allegation that it is caught under res judicata is untenable.

The plaintiff did not depart from its pleaded case of trespass, as argued by D2. It is pleaded that D2’s retaining wall had trespassed on 335 the plaintiff’s land and caused the loss of use and enjoyment of the plaintiff’s land measuring 36.523m2 (or 393.134 square feet) as seen in the area marked as “C”. The words “caused the plaintiff loss of use and enjoyment of the Plaintiff’s Land” would mean the plaintiff no longer had possession of its own land, which, by its natural context, 340 would be construed as D2 having taken possession of the area. [14] The counterclaim by D2 is baseless. No tangible evidence has been adduced to establish the cause of the collapse of the said retaining wall that had allegedly flooded D2’s land, causing damage. DW2 evidence is riddled with hearsay, and he is not a qualified expert/engineer to provide 345 technical drawings and render engineering opinions. The findings of the Majlis Perbandaran Selayang are not admissible since the maker was not called to verify the report. It is incorrect for D2 to argue that since the plaintiff did not dispute the evidence of Majlis Perbandaran Selayang, the same cannot be admitted without calling the maker for verification and 350 cross-examination. In the circumstances, D2 should be liable for the trespass on the plaintiff’s land. [15] Apart from damages for trespass, the defendants must be held liable for the losses (RM2,818,002.73) arising from the termination of the SPA 355 with Home Entity Sdn Bhd: Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 352 that had ruled “that sum of money which will put it in the same position as it would have been if it had not sustained the wrong for which he is now getting his compensation or reparation”. The plaintiff, premised on the user principle, 360 seeks to recover reasonable rent for wrongful use of its property against D1 (RM34,834.86) and D2 (RM36,733.65): Amm a/l Joy (suing as Chairman Committee Members of Wat Boonyaram) v Chuan Seng Sdn Bhd [2018] 5 MLJ 255, CA. In the premise, the plaintiffs pray for order in terms of its prayers and the counterclaim by D2 is dismissed with 365 costs. [16] (B) Against the First Defendant (D1)

Was there a conspiracy to defraud D1 by a fictitious SPA between the plaintiff and Home Entity PLT (purchaser)? 370

Whether the alleged encroachment and/or trespass, if any, was by D1 or D1’s tenant Midas Code Sdn Bhd (MIDAS)?

Whether the plaintiff give sufficient time to D1 to remedy the alleged encroachment and/or trespass and mitigate the loss of the suspected encroachment and/or trespass by D1 or its tenant?

Is the plaintiff liable for the alleged landslide on its property (Landslide)? [17] D1 argued that:

It is a known fact that to the plaintiff (confirmed by the surveyor PW2), 380 all the while that MIDAS (D1’s tenant) had encroached on the plaintiff’s land on its own, and this fact had never been objected to by the plaintiff. For the plaintiff to claim that it had only discovered the alleged encroachment after the survey for the SPA with Home Entity PLT was carried out is farfetched. In support, D1 cited Bayangan 385 Sepadu Sdn Bhd v. Jabatan Pengairan dan Saliran Negeri Selangor & Ors[2022] 2 MLRA 1, FC and Bukit Lenang Development Sdn Bhd v Penduduk-Penduduk yang menduduki atas Tanah HS (D)151079– HS(D)151601, Mukim Plentong, Daerah Johor Bahru [1999] 6 MLJ 25, where the unlawful entry was 390 intentional and known, but there was no objection or taken to address the encroachment.

D1 cited Desa Samudera Sdn Bhd v Bandar Teknik Sdn Bhd [2012] 1 MLJ 729, FC that had ruled that the cause of action is primarily concerned with the infringement of the possession of land, 395 rather than one’s ownership of it that had referred to and followed Shaikh Sahied bin Talip bin Jaafar bin Tally v. Khoo Kang Chek [1931] 1 MLRH 488; [1934] 1 MLJ 283 where Simpson J observed that: "Possession is primarily divisible into possession in fact (physical control) and 400 possession in law"). What we mean to say is that although the Main Contractor may not have possession, in fact, it may still retain possession in law. Applying it to the present situation, it is not in dispute that Autoways did, in actual fact, vacate the site. Hence, the appellant did indeed take over the site upon the said termination. Accordingly, the appellant did physically have possession of the 405 site…This is what we mean by possession, in fact. However, legal possession remained with Autoways because the PAM Contract was not validly terminated. This is what we mean by possession in law.

MIDAS, the tenant, had been in possession, in fact, and control of 410 D1’s land lawfully under a tenancy agreement. There is no nexus between the alleged encroachment of the plaintiff’s land with D1, who at the time only retained possession in law as the registered owner. The right to institute a proceeding for an infringement is generally founded on a person’s physical control or occupation of land: “any 415 possession is a legal possession against a wrongdoer. Such a right may thus lie with a person enjoying the immediate right to possession, such as a tenant or subtenant”: Abdul Muthalib Bin Hassan v Maimon Bt Haji Abdul Taib [1992] 2 CLJ. The responsibility to remove any suspected structures allegedly infringing the plaintiff’s 420 land rested with MIDAS and not D1. It would be wrong to assume liability on the part of D1 in such circumstances.

The plaintiff's letter of demand (06.04.2018) was brief, with no specific mention of the alleged encroachment. It merely emphasizes the purported sale of the plaintiff’s land. Upon receipt of the said letter of 425 demand, D1 requested three months to remove the alleged structure erected by the tenant (MIDAS), who was in lawful possession of D1’s land. On 16.5.2018, D1 instructed MIDAS to remove the alleged structure suspected of infringing the plaintiff’s land. The structure that allegedly had infringed on the plaintiff’s land was not built by D1. 430 DW1, D1's sole witness, gave evidence that he had never known the existence of any structure on the impugned land since it was rented out to MIDAS as an empty, vacant lot adjoining the plaintiff’s land. It is, therefore, safe to conclude that since possession had been granted to MIDAS, it was MIDAS, if at all, that had erected the 435 structures that allegedly encroached on the plaintiff’s land as shown in the drawings by the surveyor (PW2). It is wrong for the plaintiff to infer that MIDAS needed to get consent from D1 to erect the said structure when D1 did not know who built the structure and brick wall, as shown in the drawings. Not a single piece of evidence is adduced 440 to support its allegations. It carries no weight and should be rejected.

The plaintiff had never demarcated the boundaries of their land since the very beginning until a survey was done for the impugned SPA. It is not the duty of D1 to produce documents on the land's demarcated boundaries, let to MIDAS. MIDAS had possession of the land at all 445 times under the tenancy.

Similarly, with the new tenant, Kiam Yen Motors Sdn Bhd, the possession of land is let out to them. There is no tangible evidence but only speculation that D1 had caused or permitted both tenants to encroach and continue encroaching on the plaintiff’s land. D1 cannot 450 be held liable for the alleged encroachment by another party possessing the land.

In the absence of compelling evidence, such allegations are untenable. At all material times, D1 did not have in its possession the land that MIDAS lawfully occupied as a lawful tenant. The tenant, if at 455 all, had encroached on the plaintiff’s land and erected the suspected structures. The plaintiff knew that MIDAS was occupying D1’s land, adjoining the plaintiff’s land. The indolent plaintiff did nothing to have the structures allegedly encroaching on its land removed, even when receiving the surveyor’s report in 2018. No action was taken against 460 MIDAS by the plaintiff on the alleged encroachment, but they were busy selling their land. Even after MIDAS, at the instruction of D1, removed the said structures, the plaintiff still failed to make any markings on the boundaries of its land for clearer demarcation.

During the period up to September 2019, neither party was made 465 aware of any Court proceedings (suit 414) taken by the purchaser (Home Entity PLT) against the plaintiff for breach of the impugned SPA:

The plaintiff claimed that the impugned SPA was terminated due to the inability of the plaintiff to remedy the alleged encroachment 470 of the plaintiff’s land within 14 days from the notice by the purchaser.

(ii) Suit 414 was taken by the purchaser to recover the RM600,000.00 and the agreed LAD of RM600,000.00 for breach of SPA.

(iii) The plaintiff, in his defence, argued that suit 414 was premature, unreasonable and with no valid foundation. Third parties did the encroachment, and the plaintiff is asking for the removal of the structures allegedly infringing the plaintiff’s land. However, D1 and MIDAS were not added to suit 414 as parties to answer the 480 claim.

(iv) A final judgment under O.14 RC 2012 was recorded on 03.12.2018.

The claim for damages against D1 is predicated on the summary judgment obtained by the purchaser in suit 414, to which D1 was 485 not a party.

(vi) D1 observed and queried the honest intentions of parties in the impugned SPA and that it was a possible ruse:

The plaintiff averred that all terms had been complied with when executing the SPA.

Clause 9 of the SPA provides that parties to the said SPA have inspected the land and are satisfied with its condition. What they did subsequently is the exact opposite.

Upon the inspection and before the execution of the SPA, land size and structures should have been known as it was 495 apparent.

What is also apparent is that at the time of the SPA (04.12.2017), MIDAS was the occupier of D1’s land adjacent to the plaintiff’s. Therefore, it is the plaintiff’s duty to land that is not encumbered. The land survey was only carried out after 500 the SPA was executed, making the SPA transaction suspect in the circumstances of the facts of this case.

No compelling evidence had been adduced that the judgment sum was paid to Home Entity PLT. The cheque for payment was issued to Home Entity Sdn Bhd when the purchaser was 505 Home Entity PLT. There is no evidence to show otherwise; and

The alleged SPA was none other than a ploy that D1 was not privy to and to its ensuing legal consequences. D1 should not be made accountable for such a ruse by the parties in the SPA. 510 [18] D1 is not responsible for the termination of the impugned SPA between the plaintiff and Home Entity PLT and its ensuing consequences. The plaintiff cannot use the claim on the size of the alleged encroached area as a basis for the computation of a 515 reasonable rent on the user principle against D1. The Court of Appeal in Johandra Realty Sdn Bhd & Anor v Ketua Pengarah Jabatan Pengairan dan Saliran Malaysia & Anor [2021] 2 MLJ 738, CA referred to and followed Goddard LJ in Bramwell v Bramwell [1942] 1 All ER 137, and ruled that generally, a claim for mesne profit arises 520 from a tenant’s refusal to deliver up vacant possession at the end of a tenancy period (tenant holding over). In Gurudas Kundu v Hemendra Kumar AIR 1929, PC 300 and Harry Kempson Gray v Baghu Meah AIR 1930 PC 82 held that the criterion for calculating mesne profits could not be what the person out of possession might 525 have got had he been on the land. Mesne profits could only consist of what the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom. [19] The plaintiff was never deprived of the enjoyment of its land 530 occasioned by the alleged encroachment as claimed in its SoC. No tangible evidence has been adduced to establish the kind of loss that would be enjoyed of that vacant land of the plaintiff. In fact, it was shown at the trial that what was found in evidence and during the trial was that the said vacant land is impacted by an Indah Water sewer or a sewerage 535 treatment plan as indicated in the Surveyor Report. The surveyor and the valuer ignored this adverse factor in considering the value. The plaintiff's valuation report in para 11 (Bundle C) stated: “for the purpose of this valuation, we have been specifically instructed by the client to ascertain the value of the land as a plot of vacant land, disregarding any 540 existing structures on the land.” [20] As such, the valuation evidence by PW2 must be rejected or taken with extra caution. It was not a complete and truthful valuation for this 545 litigation. Therefore, D1 concluded as follows:

Did the alleged encroachment and/or trespass cause any loss or damage to the plaintiff: Negative

Are the defendants liable for the loss suffered by the plaintiff from the termination of the SPA (if proven): Negative 550

What are the remedies available to the Plaintiff: MIDAS and not D1

The plaintiff’s claim in the circumstances must fail:

Failed to prove the alleged encroachment by D1;

(ii) No damages recoverable from D1 since there is no privity between D1 and Home Entity PLT. The termination of the SPA is 555 the fault of the plaintiff;

(iii) D1 did not in any way benefitted from the alleged encroachment, and therefore the user principle must fail. [21] (C) Against the Second Defendant (D2) 560 If liability is found against the plaintiff for the landslide:

Whether the landslide has caused any loss or damage to D2; and

If so, what are the remedies available to D2? [22] D2 argued and maintained that it did not erect the retaining wall on 565 the plaintiff's land as alleged and denied the plaintiff’s action. On the other hand, D2, in its counterclaim, alleged that:

On 28.05.2018, D2's land was flooded with rainwater due to the ground and a retaining brick wall on the plaintiff's property collapsing. An investigation found that the landslide was caused by backfill 570 works on the plaintiff's land in 2017. The landslide also caused a new brick wall built on the plaintiff's land in 2017 and the retaining wall to collapse into D2’s property adjoining the plaintiff’s land.

The plaintiff built the new brick wall on the retaining wall (old wall), which is in dispute, in this case, intended purportedly to retain the land 575 elevated beyond the old wall through the backfill works mentioned above.

A further investigation revealed that the backfill works and the construction of a new brick wall carried out by the plaintiff were not following the proper engineering specifications.

D2, through its solicitor on 28.05.2018, informed the plaintiff of the landslide and resulting flooding in its property, demanding the plaintiff to be responsible for all expenses incurred for the repair of the retaining wall and the cleaning works to be done, but was denied by the plaintiff.

It is trite law that the plaintiff's land, which is substantially higher than the D2’s, bears the duty and/or liability to control/prevent their land and, amongst others, from entering/escaping to the adjoining lower land.

Due to the plaintiff’s refusal to rectify the landslide damage, D2’s land 590 continues to be flooded with dirt and water. In desperation, D2 was therefore forced to appoint a third party to carry out cleaning and repair works on the retaining wall to remove the flooding and also to prevent the soil and water from the plaintiff's land from collapsing/entering D2’s adjoining land and incurring costs of 595 RM62,145.00 for the remedial works. [23] D2 denied any unlawful encroachment or trespass on the plaintiff’s land, as pleaded in paragraphs 9 to 11 of the plaintiff’s SoC and in support cited: 600 - Spektra Segmen Sdn Bhd v TC Autoworld Sdn Bhd [2018] MLJU 819, HC that held that the tort of trespass involves the violation of the possessory right of another to his land. Also cited are the following: - Karuppannan v Balakrishnan (Chong Lee-Chin & Ors., third parties [1994] 3 MLJ 584, FC, referred to and following Mann v 605 Saulnier, [1959] N.B.J No. 12 (N.B.C.A.) that stated trespass to land is the act of entering upon land, in possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so. - MBT Property Services Sdn. Bhd. v Madihill Development Sdn. 610 Bhd. (No. 2) [1998] 4 CLJ cited Ellis v Loftus Iron Co. [1874] LR 10 CP10 where Coleridge, CJ said the slightest crossing of the boundary is sufficient to constitute trespass. - Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 2, HC decided that trespass to land consists of three 615 factors. Firstly, it is the act of entering upon the land in possession of another in which the entry is unlawful. Secondly, having entered upon such land, the trespasser continues to remain on the land and thirdly, the trespasser placed or projected any object on that land. 620 [24] D2 further argued that:

The plaintiff had failed to adduce any convincing, tangible or compelling evidence at the trial that D2 has committed or is liable for trespass.

By the plaintiff’s own admission, there was no intrusion by D2.

The retaining wall on the plaintiff’s land was already there before D2 owned the land.

The plaintiffs do not even know when and who erected the said retaining wall on its land; and

The previous owner of the plaintiff’s land may have built the retaining 630 wall to prevent water and soil from escaping and flowing into the adjacent land. In support, D2 referred to s.101 and s.103 of the Evidence Act 1950. In Jauhir Bin Sadikon v PKENJ [1996] 3 MLJ, CA, ruled that a failure to 635 prove material allegations of facts is fatal to the claim. [25] Premised on the plaintiff's evidence at the trial, there is no evidence to support the allegation of trespass against D2 or that the retaining wall was erected there by D2. Evidently, the plaintiff failed to establish (1) D2 640 had unlawfully encroached on the plaintiff’s land, (2) that D2 had remained on the plaintiff's land, and (3) that D2 had placed or projected any object upon it. None of these essential elements had been proven denying the plaintiff’s claim against D2. The plaintiff, by its admission, has been the registered proprietor of the impugned land since 22.07.1998. When D2 645 acquired the adjoining land on 28.08.2009, the retaining wall on the plaintiff’s land was already there. It is reasonable in the circumstances to infer that the plaintiff must have known of the existence of the retaining wall after it had acquired the said property in 1998. It cannot now come to Court and testify that it did not know the existence of the retaining wall 650 until the issue of the terminated SPA came into play: Bayangan Sepadu Sdn Bhd v Jabatan Pengairan Dan Saliran Negeri Selangor & Ors [2020] MLJU 1276, CA observed that a plaintiff’s claim on trespass against the defendant was without basis as when acquiring the property, it was incumbent on the buyer to apply the Latin maxim “caveat emptor” 655 (“let the buyer beware”). He is to make an inspection and inquiry as to what he is proposing to acquire. All the years, the plaintiff did not make it an issue until, in 2018, it was raised as an issue in the purported termination of the impugned SPA with Home Entity PLT, in which the defendants had no part. D2 also argues it since the plaintiff failed to 660 establish encroachment on its land by D2, they propose that liability still be attached to D2 even if the retaining wall was built by the previous owner, which is not in their pleadings taking D2 by surprise. Relying on Karuppannan, FC, the plaintiff argued that they are entitled to the remedy for trespass notwithstanding that the trespass had already existed before 665 the new owner came onto the land and whether or not he knew or had notice of it. It is procedurally trite that parties are bound to their pleadings. [26] In the present case, the plaintiff had not offered any evidence to establish that the previous owner had built the retaining wall or had 670 trespassed on the land, making the principles in Karuppannan, FC, inapplicable. The law on trespass does not work on the assumption of parties. D2 further submit that the plaintiff’s action is impaired by res judicata since the facts on the allegation of trespass by the defendants herein are the same factual allegation raised in suit 414 that the Court had 675 determined by allowing the purchaser (Home Entity PLT) to sign a final judgment under O.14 RC 2012 against the plaintiff herein. This summary judgment is the basis for the plaintiff’s action against the defendants in this present suit which the res judicata should restrain: Jan De Nul (M) Bhd v Berjaya Sompo Insurance Bhd [2018] 12 MLJ 800, HC; Serac 680 Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ, FC; Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, SC. [27] On its counterclaim, D2 argued that:

Premised on s.44(1)(b) NLC 1965 it had proven its counterclaim. The section advocated the plaintiff, as a landowner, has a duty of care to their neighbours not to disturb or withdraw the natural right to support in which soil to soil support.

DW2 and DW3 have testified that the landslide was caused by the 690 plaintiff’s land in which a newly built brick wall in 2017 had collapsed, causing flooding on D2’s land and resulting in alleged loss and damage.

As a consequence of the plaintiff refusing to remedy the damage, D2 had to appoint a third party to carry out cleaning and repair work on 695 the retaining wall so that the soil and water from the plaintiff's land do not collapse/enter D2's land to continue to occur.

D2 relied on the report by the Majlis Perbandaran Selayang on the landslide incident, but the maker was not called. However, the plaintiff did not dispute the information from the municipal council.

Premise on the foregoing, D2 argued that it had proven its counterclaim against the plaintiff and claimed RM62,145.00 it had expended for the remedial works. [28] D2 in support cited (among the cases): 705 - Wong See Lee & Ors v Ting Siik Lay [1997] 2 CLJ, FC ruled that building retaining walls has become one of the bulwarks in the fight against soil erosion and the preservation of soil-to-soil support enjoyed by neighbouring lands, particularly where excavation activities have become necessary on one’s property. This duty of care 710 by landowners to their neighbours not to disturb or withdraw the natural right to support, i.e., soil-to-soil support, should no longer be questioned in this country as a cause of action in negligence and/or nuisance, where the breach of such duty has caused injury to the adjoining property. 715 - Chan Ah Hah v Lim Kuoh Wee & Anor [2018] MLJU 1417, CA, ruled that the claims for disturbance of the right to support are recognized by the common law, and when the harm is foreseeable, the tortfeasor is liable to the full extent of it. - Kerajaan Negeri Selangor & Ors v Sagong Bin Tasi & Ors [2005] 720 6 MLJ 289, CA, ruled that a plaintiff cannot use its neglect or wrong to defeat the action of the defendant to mitigate the damage. In the circumstances, D2 asks that the counterclaim is allowed as prayed, but the plaintiff’s suit is dismissed. 725 FINDINGS [29] It is the plaintiff’s pleaded case that the defendants had committed trespass by encroaching unlawfully on his property. The alleged encroachment by D1 is seen in the areas marked A and B of Detailed 730 Measurement Plan No. JW/2018(11) SEL/044. While the alleged encroachment by D2 is seen in the areas marked C of the Detailed Measurement Plan No. JW/2018(11) SEL/044-PT, prepared and adduced by Juruukur Warisan, PW2, during the trial. Anchored on these allegations, the plaintiff claims (1) alleged loss of use of the part of the 735 land infringed; (2) the SPA entered with Home Entity PLT had to be terminated, causing loss and damage; and (3) the plaintiff had to bear the legal fees for the SPA and to defend the civil suit taken by the purchaser in KL HC Suit No. 22 NCvC-414-07/2018 (suit 414). To establish trespass, the plaintiff is required to prove an intention to commit trespass by the 740 defendants, a voluntary act of unlawfully encroaching on to the land of the plaintiff, where the said intrusion is a foreseeable consequence of the unlawful action. This direct act of interference takes the form of illegal encroachment, continuing to remain on the land unlawfully, or placing any object on the land: Terra Damansara Sdn Bhd v Nandex Development 745 Sdn Bhd [2006] 6 MLJ 24, referring to and applying Barker v The Queen (1983) 153 CLR 338 at 356; Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 5 AMR 629; [2005] 6 MLJ 289, CA. The magnitude of the alleged encroachment or interference is unimportant as long as an interference exists: Karuppannan s/o Chellapan v 750 Balakrishnan s/o Subban [1994] 3 AMR 2279, FC. [30] To establish the plaintiff’s claim, among other things, the following facts or alleged facts were before the Court:

The impugned (04.12.2017) SPA to establish its termination.

A purchaser should inspect and make inquiries about the property; otherwise, the plaintiff could not complain upon discovering the existence of unwanted structures: Bayangan Sepadu Sdn Bhd v Jabatan Pengairan dan Saliran Negeri Selangor & Ors [2021] 1 MLJ 322, CA.

Though evidence was led at the trial that the parties in the SPA had all the while covenant on the satisfaction with the plaintiff’s land, a survey of the land was subsequently carried out (after the SPA was already executed) to produce, the detailed drawings by PW2 to establish an area of the alleged encroachment.

As it played out, a notice by the purchaser to the plaintiff was served to remedy the alleged encroachment on the land in the SPA within fourteen days.

The plaintiff then demanded the defendants to remove the alleged trespass after being indolent for several years before the impugned 770 SPA was executed. However, the evidence was led at trial that the suspected encroachment had been within the plaintiff’s knowledge all these years, with no objection taken.

The play continued with approximately twenty-six days after the purchaser's notice to remedy was served on the plaintiff, denying any 775 extension of time, the purchaser terminated the SPA and demanded a refund of the deposit of RM600,000.00 and a payment of the agreed LAD (RM600,000.00) for breach of the SPA. [31] On 05.07.2018, suit 414 was taken against the plaintiff to recover 780 the claimed RM1.2M:

The HC KL granted summary judgment approximately five months later on 03.12.2018.

No appeal to contest the said decision was lodged, contrary to a position of a genuinely aggrieved party generally in such 785 circumstances.

Slightly more than one month later, the plaintiff appeared to have promptly paid by a cheque the RM1.2M (23.01.2019), not to the purchaser (Home Entity PLT) but to the wrong party.

No compelling evidence was adduced to show correction taken and 790 to verify the alleged satisfaction of the judgment sum.

The defendants were not made parties in suit 414, though a summary judgment obtained, would adversely impact the defendants since the basis of the termination of the impugned SPA was the alleged unlawful encroachment of the plaintiff’s land.

This summary judgment formed the foundation of the action against the defendants in the present case; and

It led to speculation and thinking that it was all too convenient, and a ruse transaction conveniently designed on the defendants for monetary gains, discerned from the conduct of parties in the SPA, 800 facts and circumstances of the case read against the impugned SPA and its contents. The propriety of the action by the parties in the SPA is suspect as argued by the defendants in their defence. [32] Premised on the facts and evidence before me, I find as follows:

(A) The position on D1:

I agree with the arguments of D1 that the party having possession in fact, of D1’s land adjoining the plaintiff’s land was MIDAS (D1’s tenant).

(ii) There is no compelling evidence adduced by the plaintiff save for 810 conjectures that D1 had consented to the unlawful conduct of MIDAS in encroaching on the plaintiff’s land in the area marked A and B on the drawings. In the absence of that permission by D1, it renders this action against D1 unsustainable.

(iii) I find the evidence of D1 that the plaintiff knew of the alleged 815 encroachment for several years during the tenancy but elected to remain indolent with no objection taken against MIDAS convincing. The law is trite on acquiescence. MIDAS was, undoubtedly, the occupier. To impute liability on D1 for the action of MIDAS in the absence of D1’s permission to such unlawful encroachment by 820 MIDAS is misplaced.

(iv) Similarly, the plaintiff failed to prove the required intent to commit trespass by D1, and neither did they establish D1’s voluntary act of unlawfully encroaching on the land of the plaintiff regarding the area marked A and B, where the alleged intrusion is a foreseeable 825 consequence of the unlawful action.

The plaintiff’s action against D1 is untenable for lack of compelling evidence at the trial. To expect the Court to hold otherwise, in light of the facts and evidence, would be unjust.

(vi) Concerning the allegation that D1 refuses to remove the brick wall 830 allegedly erected on the plaintiff's land by MIDAS during the tenancy period in an area marked B on the drawing must remain an issue between the plaintiff and MIDAS in light of my earlier finding that D1 is not liable for the alleged unlawful encroachment on the plaintiff’s land by MIDAS. To hold D1 accountable for this brick wall would be 835 inconsistent with my earlier findings that D1 is not liable for trespass allegedly committed by MIDAS on the plaintiff’s land. No tangible evidence had been adduced that D1 authorized its new tenant having possession in fact, of D1’s land presently, to continue with MIDAS’s illegal encroachment of the area marked B on the drawing. If indeed 840 there is an encroachment as alleged, then recourse must be had to the new tenant, not D1.

(vii) I must also state that I find it probable D1’s arguments on the issues about the episodes on impugned SPA played out by the plaintiff and the purchaser (Home Entity PLT) as set out above and I take 845 cognizance of this. However, without needing to lean into it, the lack of compelling evidence on the claim against D1 is sufficient to tilt the scale in D1’s favour. The consequence of such a finding, can only lead to one conclusion, i.e., the allegation of trespass against D1 is untenable and must, of course, be dismissed.

(B) The position on D2:

I find there is no compelling evidence by the plaintiff to sustain its suit against D2. What has been adduced are merely bare averments and conjectures.

(ii) The drawings by PW2 are simply the technical drawing of the area suspected of an unlawful encroachment and nothing else. Without supporting persuasive evidence, it cannot be attributed to D2.

(iii) There is no cogent evidence on who, when and how the area marked C on the drawing was allegedly infringed but only the speculations of 860 the plaintiff. There is no evidence of the retaining wall's origin and construction. There is nothing tangible before me to attribute the existence of the retaining wall conclusively to the conduct of D2.

(iv) The plaintiff failed to prove the intent to commit trespass by D2. Neither did the plaintiff establish D2’s voluntary act of unlawfully 865 encroaching on the land of the plaintiff regarding the existence of the retaining wall, where the alleged intrusion is a foreseeable consequence of the unlawful action.

In short, the plaintiff’s action against D2 is entirely unsustainable for lack of compelling evidence before the Court. To hold otherwise 870 would be factually erroneous and legally unjust to the interest of D2.

(vi) The consequence of such a finding, can only lead to one conclusion, i.e., the allegation of trespass against D2 is untenable and must, of course, be dismissed. 875

(C) D2’s Counterclaim I find the counterclaim by D2 unsustainable for lack of evidence. No tangible evidence has been adduced to establish the cause of the collapse of the said retaining wall that had allegedly flooded D2’s land, causing damage. The crucial piece of evidence, the landslide report by the 880 Selayang Municipal Council, though tendered (under Part B) but was not admitted and marked since the maker was not called to verify the report and to be cross-examined. That makes reliance on the contents of the said report inadmissible. The law is trite that if the evidence is inadmissible, it remains so, though no objections are taken. The evidence 885 by DW2 is layman’s evidence. Though he may be experienced, he remains unqualified to analyse and make civil engineering conclusions on the facts attributed to the landslide. Relying on s.44(1)(b), NLC alone would be insufficient without persuasive evidence. To make a claim is one thing, but to prove it is another. Evidentiary law is trite that he who alleges 890 must prove. Therefore, for lack of compelling evidence, D2’s counterclaim against the plaintiff is dismissed. CONCLUSION [33] In light of the foregoing, after considering the facts, the evidence 895 adduced at the trial, the parties' respective written and oral submissions, I dismissed this suit with costs of RM20,000.00 for each defendant against the plaintiff. By the same token, I dismissed the counterclaim by D2 against the plaintiff with costs of RM6,000.00. All costs are to be paid within 14 days and are subject to the allocator fees. 900 Dated 10.11.2022 905 (HAYATUL AKMAL ABDUL AZIZ) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 910 Counsels: Mr. Sean Tan Tee Li together with Mr. Lock Jun Qi 915 Messrs. Jeffrey Tan & Chng Counsels for the plaintiff Mr. Muhammad Azwar bin Ab Manab Messrs. Azwar & Partners 920 Counsel for D1 Mr. Danny Ng Yeong Chong Messrs. Danny & Co. Counsel for D2 925