We are mindful of the limited role of the appellate court in relations to the findings of court made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the finding ought not to be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant an appellate court interference merely because the appellate court entertains doubt whether such finding is right. (see: Lee Ing Ching Ors v Gan Yook Chin & Anor [2003]2CLJ 19, [2003] 1 MLRA 95. Gan Yook Chin & Anor v Lee Ing Chin Ors [2004] 4 CLJ 309, [2004] 2 MLRA 1) (penekanan oleh Mahkamah) [20] The Plaintiffs were house owners at the Defendants housing project at Bandar Puteri, Klang. There are 31 Plaintiffs commenced proceedings against the Defendants vide 17 cases being filed in Klang Sessions Court. The Plaintiffs claimed that their houses suffers external defects due to soil subsidence; hence the Defendant has breached its duty to the Plaintiffs. The Defendants has breached the express and or implied terms of the contract to construct the Plaintiffs’ house in good and workmanlike manner. The Plaintiffs suffers loss and damages due to the external defects of the houses. [21] The Defendant denies any soil subsidence. The defects are merely cosmetic in nature as the structural integrity of the main building is safe for occupation. The Defendant upon receiving complaints from the Plaintiffs during the defect liability period had carried out rectification of the defects which were acknowledged by the Plaintiffs. The defects according to the Defendant were caused by renovations and/or extensions carried out by the Plaintiffs or their neighbour without approval or in violation of the approval given by the authorities. LIABILITIES I. Did the Plaintiffs proved that the Defendant breached the duty of care owed to the Plaintiffs? [22] It is trite law that the burden is upon the Plaintiffs to prove their claim against the Defendant as provided under Section 101 and 102 of the Evidence Act 1950. Parties in proving their cases will produce witnesses of fact supported by documents in order to reach the threshold of proving a case on balance of probabilities. In Lim Guan Eng v PP [1998] 3MLJ 14, Gopal Sri Ram JCA (as he then was) “Now among the general rules that govern judicial appreciation of evidence in both civil and criminal causes in the adversarial system of justice, there is one fundamental importance. It is that a party is bound by the evidence of witnesses whom he calls in proof of his case”. [23] The learned SCJ in her grounds of judgement made a finding of fact and in law that the Defendant as developer owes a duty of care towards the Plaintiffs as house buyers to ensure the housing project site is suitable for construction of houses. It is undeniable that the Plaintiffs as prospective house buyers of the said project is relying on the expertise of the Defendant as developer to ensure the house that will be sold to the Plaintiffs is safe, good and in a workmanlike manner to lived in. It is understood that there will be some defects but it will be curable or make good by the developer during the defect liability period. This Court then perused the Records Of Appeal (‘RR’), and found that the complain by the Plaintiffs on external defects of their houses in this case is an ongoing and a never ending complaint, until they lodged a complaint to Jabatan Perumahan Negara and take the Defendants to Tribunal for house buyers because it seems that the Defendant did not put a finality solutions to the Plaintiffs’ house which suffers external defects. [24] The main issue that parties raised is the Defendant had failed to do a proper soil treatment that caused soil settlement impacting the housing area. SD2 [Lee Han Woon - Civil Engineer) in reply to Q & A No 6 [RR Jilid 2A page 9 -10) said the project is situated in soil that is soft clay as the case of most land in Klang. SD5 said the Defendant is fully aware that the defects were due to soil subsidence The Defendant informed SD5 (Jamil bin Omar @ Idris - Building Service Manager) that the houses had soil settlement problem in 2014. [25] For a better understand of the cause of the defects, parties introduced 2 expert reports for court determination. The learned SCJ in her grounds of judgment states her reason for rejecting SD1 report. The learned SCJ had this to say when it comes to SD1’s report: - i. It is SD1’s evidence that he did not conduct any soil investigation but relied on data given to him by Defendant. He did not do his own investigation, his reports is based on the data and information given to him by the Defendant and the Plaintiff’s expert report. ii. The said evaluation was prepared and done by his assistant and he is not 100% involved with the analysis and preparation of the report. iii. The Defendant claimed that they did not conduct analysis or the the assessment on the respective houses where the external damage becomes apparent because they did not have access to the said houses. The learned SCJ ruled that the Defendant have the avenue to actually gained access to the said property by getting a court order but this was not done. [26] As for SP7 (Krishnan a/l Raman@ Ramasamy - Qualified Competent Engineer) , he conducted physical examination of the structure of the property surrounding during which he observed the external and internal defects . [RR Jilid 2A page 51 -52, PSP 6 – Q&A No 10 -12) and [RR Jilid 2B page 152]. SP7 then drilled investigative boreholes at houses No. 1 Lorong Gelang 8F, Bandar Puteri and No 32, Lorong Gelang 8D. [RR Jilid 2A page 53 -54 and RR Jilid 2H page 163]. Based on this data collection process, an analysis was done and the full report and borehole log was prepared [exhibit P1 & P1(a) RR Jilid 21 page 152 -238] [27] Based on these 2 testimonies of the expert, the learned SCJ opted to admit the reports and analysis prepared by SP7. The learned SCJ had the opportunity to look at SD1’s testimony and the report prepared by him and her remarks on the way the said report and analysis was done by SD1, I find that there is no room for this court to disturb he finding of fact as to the cause of defect, unless there is a flaw in her findings; which this court find none. SP7 in his testimony explained the practical and economical method of treatment commonly adopted in Malaysia context is to place a surcharge fill on it and accelerate the development of the soil pressure in the soft clay and then allowing the dissipation as well as gain in strength of the soft clay after a certain period of time, the ground gets improved to a level that is tolerable for the structures as well as ancillary that means main structure as well as the ancillary structures. Then there will be testing and monitoring that the treatment is complete and when it has reached the improvement target levels, the geotechnical engineer will give the necessary certification for commencement of the building development. [28] The learned SCJ in her grounds of judgment when talking about the ground treatment that the Defendant said they have done is the Defendant’s Civil & Structural Engineers for the project (SD2) said they had designed the ground treatment and improvement earthworks for the project. There is no geotechnical engineer appointed by the Defendant to carry out the earthworks and do the analysis that according to SP7 need to be done before any construction work is done. SD2 also confirms that the said earthworks design was not before the court. [29] The learned SCJ further analyse the claim by the Defendant that the earthworks were carried out in 2002 and was left to rest for 9 years. However, the learned SCJ states that neither SD1 or SD2 provide any evidence to proof that the land was left to rest for 9 years. She also finds the evidence of SD2 is contradicting when it comes to the issue of whether the Defendant did conduct earthworks and whether there were test done on the stability of soil, at one point she said that there was no engineering analysis done to determine this but later changed his evidence and said it was done but do documents tendered in court to support it. [30] By just looking at the evidence tendered in court, this Court finds there the learned SCJ had based her findings on the evidence tendered in court and documents that was tendered to support the witnesses evidence. She had given due consideration to the evidence tendered by parties, and this Court cannot find anywhere that she did not give sufficient judicial appreciation on the evidence tendered by parties. [31] To justify the Defendant’s contention that they had done the necessary earthworks and the land was left to rest for 9 years; the learned SCJ relied on the Google Map tendered by the Plaintiffs and accepted it as evidence to proof that the earth works were not carried out in year 2022 as alleged by the Defendant. The Defendant objected the referring of the Google Map claiming it was blurred and there is hardly any indication on whether there is any construction works done in year 2000. Very importantly, the land was rested since 2002 until 2008, it is clear the bushes will grow over the period. The learned SCJ in accepting the use of Google Maps to show that earthworks were not carried out in the year 2002 as alleged by Defendant, she refers to the case of Eddy bin Salim & Ors v Iskandar Regional Development Authorities & Ors [2017]1 MLJU 2308 where the High Court held that authenticity of Google Maps should not be challenged and the only issue alive is the weight to be given to them. Further, it was held that Google Maps though not accurate can still be treated as indicative maps to help Plaintiffs to identify the entire areas and waters as claimed by the Plaintiff. [32] The learned SCJ is correct in making a finding of fact that the consequences of not carrying the ground treatment is reflected when there is an overall ground subsidence and damage to the external part of the house such as driveway, car porch, drain compound, wall and apron. The learned SCJ made her findings after careful consideration of the evidence of 2 experts called by parties SP7 and SD1. SP7’s evidence in explaining how the soil if not treated the correct way will give way and caused damage to the structure of the building. This is what SP7 said in his testimony that explains the fact that from time of vacant possession of the house in 2014, the Plaintiffs have reported ground subsidence induced damages on all external components such as apron, driveway, car porch, drain and compound wall. “ if one were to fill in 2011 and then execute your development and give vacant possession in 2014.. we are looking at a very short timeline for accrual of the consolidation settlement. And because of the fact that this ground settlement did not follow through the engineering requirement, it was simply dump the soil and just compact it and then allow it to naturally go through a process of consolidation it did not achieve. So and that’s the reason why physically after the construction of the building and the service…stage of the building where people are already in habitant……..it caused potential problems particularly on the aprons, drains the compound walls, the driveway, the porches…” [33] The Defendant blamed it on the renovation that some of the house owners have done that caused further settlement hence the defects on the property. Through SP6, the court finds that even though no renovation carried out at the external components, still cracks were found at the external area, in fact the cracks appeared prior to the renovation. The learned SCJ make her finding that the Defendant failed to take reasonable care, skill and diligence to ensure the site was suitable for construction of the houses based on the totality of evidence. [34] The learned SCJ have given her judicial appreciation of evidence as what was stated by the Court of Appeal in UMW Motor Sdn Bhd & Anor v Allan Chong Teck Hin [2021] 5CLJ 193. She had arrived at her decision on issue of fact by assessing, weighing and for good reasons, either accepting or rejecting the part or any part of the evidence placed before him. She also had tested contemporaneous documents against the oral testimony of witnesses. This court cannot just not to disagree with the finding of fact unless it is founded on the wrong principle of law, which is not the case here. Remedial Works [35] Both experts in their testimonies agreed that remedial works must be carried out; but they have different views and opinion as to how the remedial works should take place on the Plaintiffs’ houses. The learned SCJ found that the recommendation for remedial by SP7 are towards permanent remediation whereas SD1’s recommendation was merely cosmetic. [36] The finding of the learned SCJ on SD1’s report is that it concludes that the cause observed defects are due to local variation of the ground conditions and affect the car porch /driveway interface and the building /apron interface. So, it is important to highlight that SD1 said the defect must be rectified for safety and proper use as intended.SD1 in his witness statement stated that this will introduce differential settlement between pile and non-pile area causing further cracks in the interface zone and further said that if the driveway or apron is provided with piles which will limit the settlement driveway and the non-pile surrounding is expected to settle further 379 mm which will cause further distress to the building and its surrounding. [37] SD1 proposes 2 remedial solutions: a. For observed differential settlement less than 50 mm - for both car porch/driveway and building/apron interfaces, reinstatement to original finishes allowing a smooth gradient with an appropriate construction joint; b. For observed differential more than 50 mm – i. Car porch/driveway: Introduce a 1.5 m transitional slab for the driveway to allow a smooth movement of vehicle; ii. Building/Apron: Introduce an extend edge beam on the edge of the building and make good building /apron interface. [38] The learned SCJ had also look at the recommendation of SP7 in which he recommends 2 options towards permanent remediation which is to install secondary pile to support all the settling external element or to conduct settlement grouting within the underlying soft clay layer. It is SP7’s opinion that the option to install secondary pile to support all the settling external element is costs effective and ought to be implemented. He also cautioned that any superficial repair will only be a temporary measure that will not address the underlying cause and hence will result in the recurrence of the damages. [39] In support of his solutions to overcome the external damage, SP7 said his proposed method of rectification is feasible to install the piles with smaller machine within the headroom. SP7 also dismissed the Defendant’s solicitor suggestion that if piling is carried out on the driveway and car porch and the front road continues to settle, the unit owners will not be able to get into their houses because the road will be lower than the house. SP7 clarified that the road is premix road which is flexible entry is always amenable to enter the property. [40] So, here we have to conflicting opinion of an expert as rightly pointed out by the learned SCJ. She then as required by law test it against the background of all other evidence available in that particular case in order to decide which expert evidence is to be preferred. She refers to authorities of Lim Teck Kong v Dr Abdul Hamid Abdul Rashid [2006] 3 MLJ 213 (COA) and Jitweer Singh a/l Ojagar Singh v Public Prosecutor [2016] 4 MLJ 525 (COA). Using both authorities as guidelines, the learned SCJ is of the view that SP7’s report ought to be preferred on the ground that his findings are supported by reliable evidence. She stated her reasons for doing so only on one ground that SP7 conducted site inspection and observed the defects on the Plaintiffs property. Further, SP7 conducted a soil investigation by drilling 2 boreholes in order to determine the soil condition. This is according to the learned SCJ more reliable compared to a data collection kind of report as per SD1’s report. [41] To further support her finding on liability, the learned SCJ referred to Section 73 of the Uniform Building By Law 1984 where the provision states that the foundation of a building shall safely sustain and transmit to the ground to combine load impose load in such a manner as not to cause any settlement. As such whatever done in relation to foundation it should not cause anything that impair its functional performance. In her findings, she held that if the Defendant placed fill on soft ground, the Defendant must go through the full treatment exercise diligently so that there will be no subsequent soil settlement or ground subsidence problem. They have failed to do that and this cause the Plaintiffs house having external damage and how good is the remedial, the damage will re appear and re occurring. The learned SCJ finds that the Defendant has breached the duty of care towards the Plaintiff to ensure that the housing project site is suitable for construction of property/ houses and the Defendant has breached the duty to ensure the houses are safe are safe for the Plaintiffs to reside. [42] This court took judicial notice that some of the land in Malaysia that were used for housing projects were once used to be paddy fields, palm oil estates, land reclamation of mining area, rivers and sea. The soil on these kinds of land usually soft and not settled. As for the type of soil in this case, it is clay soil. Those who developed properties on these kinds of land had and must do proper and thorough land treatment exercise and it must be done diligently. Same goes to development on hill side to avoid land slide. This is important and could not be treated as just one of the exercises to be followed because if any disaster is to occur, it will caused lives and property loss. In this case, the external damage to the Plaintiff’s houses, is not just any normal cracks, it is shown to have something to do with the land with their house on it. There were expert reports to support their claim. This court finds that the learned SCJ is correct in having the Defendant to bear 100% liability in respect off all categories (major renovation, minor renovation and no renovation) Whether the Defendant has breached the express and/or implied terms of the contract to construct the Plaintiffs’ houses in good and workmanlike manner which is clearly stated in the SPA? [43] It is the Plaintiffs’ case that with the condition of the Plaintiffs’ house, the Defendant has breached the express and/ or implied terms of the contract to construct the Plaintiffs’ houses in good and workmanlike manner. The Defendant submits that it is the Plaintiffs’ who need to prove their allegations. The Plaintiff must prove that the Defendant had made such implied warranty to the Plaintiffs. The learned SCJ refers to Clause 13 of the SPA which provides: “… The said building shall be constructed in a good and workmanlike manner in accordance with the description set out in the Fourth Schedule and in accordance with the plans approved by the Appropriate Authority as in the Second Schedule, which descriptions and plans have been accepted and approved by the Purchaser hereby acknowledges.”. The learned SCJ ruled that Clause 13 of the SPA is an express obligation to construct the house in a proper and workmanlike manner in accordance with specification and plan agreed and acknowledged. Subsequently, the clause also carries an implication that the Plaintiffs property is constructed in a skilful manner and is free from substantial defects and that the Defendant has exercised reasonable care in all aspects of planning and development of the property to ensure it is fit for Plaintiffs’ habitation. This Court finds that the obligation of the Defendant is well spelt out in Clause 13 of the SPA and the learned SCJ had correctly made her finding based on the said clause 13. Is the Defendant liable to pay to the Plaintiff the cost of rectification as claimed by the Plaintiffs? [44] The Defendant claimed that any renovation carried out by the Plaintiffs on the property can cause further soil settlement hence the observed defects on the property. SP7 testified that for houses with major renovation, his inspection of the property discovered that there were structural extensions to the original building. However, the sinking earth platform constructed by the Defendant was not in any way altered or modified in the property and the Defendant’s contention is baseless and merely a deflection from the logical fact that their housing development was not engineered correctly in respect of raising a stable ground platform over very soft compressible clay. This is the finding of the learned SCJ. The Court also finds that the defects in the Plaintiffs houses even started as early as the Plaintiffs obtained their vacant possession i.e. before any renovations were made. In fact, SD1 also agreed that the observed defects are also seen in the units where no renovation has been carried out. So, to blame it on the renovation carried out by the Plaintiffs is an easy way out when they knew the cause of the damage to the house is the issue of soil treatment not being done properly. Even for one second, we to take that it could be those carrying renovation had not taking into consideration the building structure, yet we have houses who did not do any renovation have faced the same external defect. So, the learned SCJ is correct when she ruled that the main issue that caused the external damage is the soil treatment not properly done. Is the Defendant still liable even after the defect limitation period (DLP) expired? [45] Clause 25(1) of the SPA provides the DLP is within 24 months from the date after the Plaintiffs take vacant possession. The learned SCJ refers to Teh Khem On v Yeoh & Wu Development Sdn Bhd [1995]1 2 MLJ 663 which held as follows: - “ Clause 23 of the agreement which provided for the 12 month defect liability period would not take away the right of the purchaser to sue the defects which were not discoverable within that period”. She also refers to Court of Appeal decision in Raja Lob Sharuddin bin Raja Ahmad Terzali & Ors v Sri Seltra Sendirian Bhd [2008] 2 MLJ 87 where it was held: - “Clause 23 in particular, is meant to be an additional protection for house buyers without affecting or limiting their rights under common law. This was the ruling made by the Privy Council in City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs Tanggungan Bhd [1988] 1 MLJ 69. In that case Lord Templeman said but the Act of 1996 and the Rules were designed to improve and supplement common law remedies and do not expressly or by implication deprive a litigant of a contractual remedy which is not dealt with under the Rules”. QUANTUM [46] The quantum awarded to the Plaintiffs are as follows: - Name Quantum