Pembinaan EBSB Jaya Sdn Bhd v 1. ) Lifestyle & Heath Care Services Sdn Bhd (NA-23NCvC-12-11/2021)

Lifestyle & Health Care Services Sdn Bhd (No. Syarikat 201201032255 (1016743-M))

Chai Kim Fatt (No KP : 610704-05-5009) (menjalankan perniagaan sebagai tuan punya tunggal 15 di bawah nama dan gaya Chai Kim Fatt (No.Pendaftaran 199603036219 (001053211-V))

Loh Kong Yew (No. K/P : 840916-05-5135) (menjalankan perniagaan sebagai tuan punya tunggal 20 di bawah dan gaya CLEC Consultant (No. Pendaftaran 202103107316(IPO554633-A)) … Defendant-Defendant GROUNDS OF JUDGMENT 25 20/09/2024 16:25:40

This is an appeal by the Plaintiff against the decision of this Court dated 3.5.2024 in dismissing its case with costs. 30 The Plaintiff’s case

The Plaintiff is the registered owner of a piece of land held under the title GRN 21872, Lot 689, Mukim and Daerah Seremban. (the plaintiff’s land). The 1st Defendant (D1) is the registered owner of a piece of land 35 held under Lot 832-834, Mukim Daerah Seremban. Both lands sit adjacent to each other At the material time, the 1st Defendant was developing a retirement village project on its land (the project).

At the same time, the 2nd Defendant is the earthwork contractor 40 appointed by the 1st Defendant to undertake works in the project at the 1st Defendant’s construction site. The 3rd defendant is appointed by the 1st Defendant to provide civil and structural engineering consultancy services with regards to the said project. 45

Since the 1st Defendant was carrying out construction works on its land (lot 832), there was a request by the 1st Defendant to the Plaintiff that the earth extracted from the 1st Defendant’s land is deposited into the Plaintiff’s land, i.e. Lot 689 with the intention to create a flat platform between the two plots of land.

On 15.5.2019, by an agreement made partly orally and partly evidence, the Plaintiff agreed to the suggestion and allowed the Defendants to deposit the earth excavated from the 1st Defendant’s construction site onto the Plaintiff’s land. In principle, the Plaintiff agreed to the said 55 request on condition that the earth filling onto the Plaintiff’s land was to done in accordance with an Earthwork Drawing, a drawing which was prepared by the 3rd Defendant for the 1st Defendant’s project.

However, to the Plaintiff’s major disappointment, it was discovered that 60 the defendants had among others, built or constructed earth filled embankment with slopes encroaching and/or entering into the Plaintiff’s land without the Plaintiff’s approval or consent. A survey conducted by the Plaintiff’s surveyor had showed that the Defendants had installed the culvert pipe diverting the earth drain on the Plaintiff’s 65 land, also without the Plaintiff’s consent.

Despite the Plaintiff’s frequent demands to get the Defendants to remove the structures built on the land, the Defendants had failed to take any positive step to comply with the said requests.

The Plaintiff’s claim against the three (3) defendants are in the following capacity :- i. The 1st Defendant, as the owner of the Lot 832-834 and the Project 75 which was constructed on the construction site. ii. The 2nd Defendant, as the earthwork contractor appointed by the 1st Defendant. iii. The 3rd Defendant, as the civil and structural engineer appointed by the 1st Defendant for the Project and the person who had 80 prepared the Earthwork Drawing.

It is the Plaintiff’s case that :- 85 i. The 1st Defendant was negligent in appointing the 2nd Defendant who was not reasonably competent to carry out the earthwork construction; ii. The 3rd Defendant who failed to ensure that the earthwork 90 construction was carried out in compliance with the Earthworks Drawing; iii. The Defendants failed to take reasonable care to avoid causing damage to the Plaintiff’s land; iv. The Defendants intentionally or recklessly entered into the 95 Plaintiff’s land without the Plaintiff’s consent and built, constructed or positioned the earth filled embankment with slopes and culvert pipe on the Plaintiff’s land.

The Plaintiff’s causes of action against the Defendants are :- 100 i. Trespass and nuisance – due to the Defendants’ acts in filling and cutting soil in the Plaintiff’s land, allegedly carried out without the Plaintiff’s consent and resulted in the formation of a slope embankment on the Plaintiff’s land; 105 ii. Trespass and nuisance which had arisen from the Defendants conducts in installing culvert pipe at the boundary of the Plaintiff’s land. The 1st Defendant’s case 110

The 1st Defendant is the registered owner of a land held under Lot 832-834, Mukim Daerah Seremban. One of the titles, which is Lot 832 is located next to the Plaintiff’s land (lot 689). At the material time, the 1st Defendant was in the midst of accomplishing a retirement village 115 project (the Project) on its land.

The 1st Defendant had appointed the 2nd Defendant who is an independent engineer to be the earthwork contractor to undertake the necessary earthworks for the building of the Project. At the same time, 120 the 1st Defendant had also appointed the 3rd Defendant, who happened to be a consultant engineer for the task of preparing the earthworks drawing for the said Project.

It is the 1st defendant’s case that the Plaintiff’s lot 689 is an unused and a land locked area, inaccessible from the main road. Due to its 125 unreachable location, the said lot has also been left empty and abandoned. Hence, there was a request by the Plaintiff that the earth from the construction site in the 1st defendant’s land, i.e. lot 832 was to be deposited in the Plaintiff’s land in order to create a levelled surface at the common boundary.

Via a letter addressed to the 2nd Defendant dated 17.5.2019, the Plaintiff has given its consent for the 2nd defendant to carry out earth filling works on Lot 689. It was not disputed that the earth which was to be deposited into the Plaintiff’s land was to be exhumed from lot 832 135 owned by the 1st Defendant.

Thus, it is the 1st Defendant’s case that :- i. There was a consent letter by the Plaintiff to the 2nd Defendant 140 dated 17.5.2019 which gave the Defendants the permission to enter into the Plaintiff’s land in order to carry out the earth filling works in the manner as stipulated in the letter. ii. Since the consent letter was only addressed to the 2nd Defendant (as the earthworks contractor), the 1st Defendant is presumably 145 not bound by the terms of the letter or directly involved in the performance of the works under the said letter. iii. As far as the 1st Defendant is concerned, the only relevant document which explains the manner and the scope in which the earthworks were to be performed is the terms as outlined in the 150 consent letter. iv. The presence of the letter means that there was no such case as trespass by the Defendants into the Plaintiff’s land as made out by the Plaintiff. It is the 1st Defendant’s case that the consent letter negates trespass and the lack of trespass further negates 155 nuisance. 2nd Defendant’s case

It is the 2nd Defendant’s case that the earth filling works on the Plaintiff’s 160 land was executed with the Plaintiff’s consent and authorization as clearly spelled out in the letter of consent dated 17.5.2019 issued by the Plaintiff to the 2nd Defendant.

It is also the 2nd Defendant’s assertion that in carrying out his duty as the earthwork contractor, he had simply followed the instructions given 165 by the Plaintiff in the consent letter. Acting in accordance with the said instructions, the Defendants proceeded with the excavation works at the project site and as directed, deposited the excess earth onto the Plaintiff’s land. As ordered under the consent letter, the 2nd Defendant had also constructed a culvert pipe. The 2nd defendant had completed 170 the works on or around October 2019. The 3rd Defendant’s case

The 3rd Defendant was appointed by the 1st Defendant pursuant to a 175 letter of appointment dated 16.4.2.18 to provide civil and engineering consultancy services for the 1st defendant’s retirement village project. As a consultant appointed by the 1st Defendant, the 3rd Defendant received all instructions regarding the project directly from the 1st Defendant. 180

The 3rd Defendant’s job scope includes providing Civil Engineering Consultancy, Structural Engineering Consultancy, Contract Administration and Application for Certificate of Completion and 185 Compliance.

On 15.4.2019, as required by terms of his engagement as the Civil and Structural Engineer Consultant for the 1st Defendant’s Project, the 3rd Defendant has prepared the Earthworks Layout Construction drawing 190 No. CLEC/207/EW01 (the earthworks drawing). As far as the 3rd Defendant is concerned, the earthworks drawing was only in respect of the Construction Site only.

One of the main claims made against the 3rd Defendant by the Plaintiff 195 is that the 3rd Defendant had purportedly failed to monitor or inspect the earth filling work to ensure that the technical and earthwork contractors were adhering to the earthwork drawing.

It is the 3rd Defendant’s assertion that his job scope does not include 200 standing site supervision or soil investigation on the Plaintiff’s land. At all material times, the 3rd Defendant’s job scope is limited to the letter of appointment and that is only to ensure that the works done on the 1st Defendant’s project conform with the Earthwork Drawing.

The said letter of appointment does not state that the 3rd Defendant is 205 also to be responsible for the earth filling works on the Plaintiff’s land. Thus, it is the 3rd Defendant’s position that the Plaintiff has no cause of action against him. ISSUES 210

The first issue to be discussed is whether the Defendants had trespassed into the Plaintiff’s land without the Plaintiff’s consent. In this case, the court is to decide whether the 2nd Defendant’s act of entering the Plaintiff’s land for the earth filling work constitutes trespass to land.

The facts of the case show that by an agreement made by the parties, the Plaintiff allowed the Defendants, through the 2nd Defendant to deposit the earth excavated from the construction site of the 1st Defendant’s land onto the Plaintiff’s land. According to the Plaintiff, the 220 earth piling works were to be executed in accordance to the Earthworks Drawing prepared by the 3r Defendant as had been agreed by the parties

It is the Plaintiff’s case that prior to the commencement of the work on 225 its land, there was an oral arrangement between the Plaintiff and the 1st Defendant, where it was orally agreed that the earth filling work was to be executed in compliance with the Earthwork Drawing. On 15.5.2019, there was a site visit to the Plaintiff’s land which was attended by the representations from both sides. Among the attendees 230 were SP2 on the Plaintiff’s side and the 2nd Defendant on the Defendant’s. What was agreed during that site visit was that the earth filling works on the Plaintiff’s land was to be based on the Earthwork Drawing. 235

After the completion of the works, the Plaintiff found that the works done by the 2nd Defendant had caused massive damage to the land. The Plaintiff concluded that the damage was the consequence of 2nd Defendant’s negligence in failing to perform his works in compliance with the said Earthwork Drawing. 240

To substantiate it’s claim, the Plaintiff relied on the evidence of its expert witness, SP1. The said expert had stated that the earth filling work conducted by the 2nd Defendant was a deviation from what had originally been planned and agreed by both parties, i.e. for the works 245 to be in compliance with the Earthwork Drawing prepared by the 3rd Defendant for the 1st Defendant’s Project.

In coming to his conclusion, SP1 has relied on the following documents :- 250 i. The details and spot level survey for the original terrain of the area in dispute at lot 689; ii. The Earthwork Drawing for the original proposed earthworks, ie. the retirement village project at the 1st Defendant’s land in Lot 832; 255 iii. The As-Built Drawing for the actual earthwork carried out.

Based on the data obtained from the above documents, the SP1 had come to the conclusion that the earthworks on Lot 689 is not solely earth filling work but a mixture of cut and fill. SP1 was also of the 260 opinion that the earthwork carried out has resulted in the creation of more usable land on the 1st Defendant’s land, and inadvertently, has resulted in an unusable area of 1,558.38 on the Plaintiff’s land.

To make matters worse, the said unusable land at lot 689 consist 265 mainly of slopes which were not there prior to the earth filling work. The said work has also resulted in the formation of a slope embankment on the Plaintiff’s land.

Based on the opinion of SP1, the Plaintiff took the stand that the 2nd 270 Defendant had failed to carry out the earth filling works in accordance with the agreed specification. Having failed to perform his works on the agreed manner, the 2nd Defendant had exceeded the consent given by the Plaintiff under the Consent Letter. The absence of the consent means that the 2nd Defendant’s presence on the Plaintiff’s land is no 275 longer with the Plaintiff’s permission, and under the law, is considered to have illegally trespassed into the Plaintiff’s land.

The Defendants outrightly denied the Plaintiff’s statement. As it is, there is no issue that any of them had trespassed into the Plaintiff’s 280 land as there was a clear authorization by the Plaintiff in the issuance of the Consent Letter to the 2nd Defendant allowing the 2nd Defendant to begin the earth filling work on the land.

The Defendants also questioned the Plaintiff’s expert’s decision to use 285 the earthwork drawing as reference and parameters for the earthworks on Lot 689. The Defendants that insisted the said earthwork drawing is only confined to the works on the 1st Defendant’s project and not for other purposes. As far as the Defendants are concerned, the only relevant document which is applicable to the execution of the earth 290 filling works on the Plaintiff’s land is the consent letter.

Thus, the Defendants argue that the Plaintiff’s action against them for trespass to land is completely unfounded as there was a consent letter issued to the 2nd Defendant prior to the 2nd Defendant’s entrance into 295 the said land.

Looking into the facts of the case, the court finds that it is irrefutable 300 that there is a letter of consent issued by the Plaintiff to the 2nd Defendant prior to the commencement of the earth filling work by the 2nd Defendant on the Plaintiff’s land.

The question is whether, in the presence of such a letter, the Plaintiff 305 can still proceed with an action of trespass against the Defendants.

The law is clear in that before any action of trespass can be established against any of the Defendants, the duty is on the Plaintiff to demonstrate to the Court that the Defendants have wrongfully entered 310 on the Plaintiff’s land when they have neither right nor permission to be on the land. On top of that, the Plaintiff also bears the responsibility to show the court that the Defendants had the intention to commit the alleged trespassing and it is voluntarily committed.

In this case, the Plaintiff’s claim against the Defendants is rested on the fact that the Defendants, through the act of the 2nd Defendant had failed to carry out the earth filling work on the Plaintiff’s land in accordance with the specifications under the Earthwork Drawing, as had been agreed by both parties. Both the 1st and the 3rd Defendant’s 320 involvement in this suit is mainly due to their failure to control and supervise the 2nd Defendant’s work on the Plaintiff’s land.

As far as the Plaintiff’s is concerned, the failure of the Defendants to conduct the works in compliance with the earthwork drawing has 325 caused a massive irreparable damage to the Plaintiff’s land. According to the Plaintiff, such a consequence is similar to an act of interference with the Plaintiff’s use of land. Thus, despite the presence of the consent letter, such an act of non-compliance to the work specifications is in itself an unlawful intrusion into the Plaintiff’s land and constitute 330 trespass to land.

To begin with, it is helpful to go into the legal definition of trepass to land. In the Halsbury’s Laws of England (4th Ed Vol 45) para 1384, p 631 defines trespass to land as follows :- 335 - Unlawful entry on a property which is in possession of another “Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully 340 sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it, or if he erects or suffers to continue on his own land anything which invades the airspace of another , or 345 if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected buy him on his own land on to another’s land”

In the case of Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor 350 [1994] 3 MLJ 530, Abdul Malik Ishak J opines :- “In law, a trespasser is one who wrongfully enters on land in the possession of another, and has neither right nor permission to be on the land” 355

In principle, there are two elements which the Plaintiff must prove before trespass to land can be established and they are :- i. The mental state of the defendants, i.e there must be an intention 360 to trespass and the act must be done voluntarily; ii. Interference in three forms: a) The act of entering land in the possession of another; b) Having entered the land, the trespasser continues to remain on the land; 365 c) The trespasser placed or projected an object on that land ( Norchaya Talib on Torts in Malaysia – page 35-37.

From the authorities above, for an action of trespass to land to be established, the Plaintiff needs to prove that the 2nd Defendant has the 370 intention to commit trespass and at the same time, he has neither right nor permission from the owner to enter the land.

However, in this case, the facts are rather unique, as there was the presence of the consent letter authorizing the 2nd Defendant’s entry 375 into the Plaintiff’s land. At the first glace, the presence of the letter negates the idea that the 2nd Defendant’s entrance on the Plaintiff’s land was made without the Plaintiff’s permission. For ease of reference, the said letter of consent is reproduced below :- 380 RE: CONSENT FOR EARTH FILLING ON LOT 689, MUKIM DISTRICT OF SEREMBAN. We refer to the discussion with Mr Chai Kim Fatt on 15 May 2019 pertaining to the above matter, we hereby grant you permission for earth filling into our lot 685 subject to the following conditions: 385 iii. The maximum area of earth filling shall not exceed 3 acres. iv. Earth filling into Lot 689 shall be suitable material come with layer compaction. v. You shall provide suitable temporary and permanent drainage system to drain out the water upon completion of the backfiling 390 works. vi. You shall carry out slope protection as necessary upon completion of the backfilling works. vii. The exact level of filling shall be adjusted based on the availability of earth volume but shall not be higher than the 395 platform level at your side. viii. All the above-mentioned activities shall fully at your own cost.

The above letter clearly shows that the Plaintiff had given the 2nd Defendant full permission to enter into the land and proceed with the 400 earth filling work. In other words, the 2nd Defendant had every right to not only enter the Plaintiff’s land, but also to commence the earthwork on the said land.

The consent letter also demonstrates the lack of intention on the part 405 of the 2nd Defendant to simply trespass on the Plaintiff’s land unwarranted. From the letter, it is clear that the 2nd Defendant’s entrance into the land was with the Plaintiff’s permission and for a valid purpose.

At this juncture, the Court is of the opinion that no action of trespassing had been committed by the 2nd Defendant on the Plaintiff’s land.

The trespassing issue started to emerge when the Plaintiff discovered that the earth filling works had caused serious damage to its land. The 415 whole project was about getting the excess earth from the 1st Defendant’s construction site into the Plaintiff’s land to create flat surface at the common boundary of the lands. Nevertheless, the Plaintiff claimed that the 2nd Defendant had done the opposite. Instead of creating a flat surface, the 2nd Defendant had built the earth filled 420 embankment with slopes on the Plaintiff’s land; and this happened because the 2nd Defendant failed to comply with the Earthwork Drawing as agreed.

The Plaintiff claims that the moment the 2nd Defendant had departed 425 from the agreed plan, any actions by the 2nd Defendant on the said land became unlawful and can be considered to have been done without the Plaintiff’s approval. Thus, the Plaintiff declares that despite the consent letter, the 2nd Defendant’s entrance on the Plaintiff’s land is no longer an authorized one.

This brings the court to next issue; the Plaintiff insisted that the earth filling works were to be in compliance with the Earthwork Drawing, whereas on the Defendants’ side, they seem to rely on the Consent Letter. Thus, the Court is of the opinion that it is important for the Court 435 to decide which document which the parties have agreed to use as guidelines or parameters for the earth filling works on the Plaintiff’s land.

The Plaintiff is adamant in its statement that the document to be used as the basis for the earth filling work is the Earthwork Drawing prepared 440 by the 3rd Defendant. In order to corroborate its claim, the Plaintiff among others, had relied on an earlier oral discussion which took place between the Plaintiff and the Defendants during their site visit to the Plaintiff’s land on 15.5.2019. it is the Plaintiff’s case that during the said discussion, it was agreed that the earth filling work was to be done in 445 accordance with the Earthwork Drawing.

However, during the said discussion, it was also mentioned that their oral agreement is subject to further proposal/information/ or drawing about the demarcation area of the proposed earth filling as well as the 450 amount of volume of earth to be deposited.

On 17.5.2019, a consent letter adopting the details of the earlier discussions between the parties were issued to the 2nd Defendant, authorizing the 2nd Defendant to enter into the Plaintiff’s land to begin 455 the earth filling work. Nonetheless, there was no mention of the Earth Drawing in the said consent letter.

Having scrutinized the evidences put forward by the parties, the Court finds that the only document relevant to the conduct of earth filling work 460 is the consent letter dated 17.5.2019. The Plaintiff strongly argued that the earth filling work was to be done in accordance with the Earthwork Drawing, but the Plaintiff has failed to produce any documents to prove such a claim.

The court finds that in holding on to that position, the Plaintiff is merely relying on oral negotiations which have never been properly concluded. In fact, from the evidence presented, it seems that the said consent letter is the conclusion to the earlier oral discussions between the parties.

The legal principle is clear in that any arrangement which is made subject to another proposal or a formal agreement is not binding on anyone. In the General Principles of Contract Law in Malaysia, page 36, it is stated :- 475 “The general law is that when an arrangement is made subject to contract or subject to the preparation and approval of a formal contract” and similar expressions, it is generally construed to mean that the parties are still in a state of negotiations and do not intend 480 to be bound until and unless a formal contract is exchanged”

If the Plaintiff had intended for the earth filling work to be carried out in accordance with the Earthwork Darwing, the said term should have been included in the Consent Letter in clear and unequivocal manner. 485 The fact that the term was left out simply means that it is not part of the consent letter and hence, is not a term which the 2nd Defendant need to abide by in conducting the earth filling work and neither was he bound by the said term. 490

Hence, the Court finds that the Plaintiff’s allegation that 2nd Defendant was trespassing on the Plaintiff’s land for his failure to conduct the earthwork in accordance with the Earthwork Drawing is a baseless one which is unsupported with any sufficient proof. Since the court has found that the 2nd Defendant’s entrance on the Plaintiff’s land is lawful, 495 the Court further rules that the same finding applies to the 1st and 3rd Defendants.

The Court also finds that since the Plaintiff’s expert witness had used 500 the said Earthwork Drawing as one of the basis for his expert opinion, it is fair to say that the said opinion is based on an irrelevant document and hence, the said opinion ought to be disregarded.

On the other hands, the court relies on the expert report of the 1st 505 Defendant’s expert witness (Bundle F PDF -18). Part of the findings is produced below :-

By way of the Letter of Consent, Plaintiff allows the 1st Defendant to transfer the earth from Lot 832 to Lot 689. Based documents 510 provided to me, it is my opinion that the 1st Defendant has not breached any of the terms as stated in the Letter of Consent.

The PEW’s adoption of Earthwork Construction Drawing’s specification as the earth filing works (under the Letter of Consent) is fallacious. The Earthwork Construction Drawing is purely for the 515 earthwork construction of Lot 832. The Millenia Project.

Apart from the terms stated in the Letter of Consent, there is no specific technical specification for the earth-filling works under the Letter of Consent.

Based on the survey drawings, it is clear that the original condition 520 pf Lot 689 is hilly terrain. It is evident that the non-usable area, as declared by the PEW, is not caused by the earth-filling works under the Letter of Consent.

The court agrees that the only terms that the 2nd Defendant needs to 525 comply with are the terms as stated in the Letter of Consent. In other words, the 2nd Defendant may be held liable for any tortious action if he had been found to be in breach of any terms in the letter of consent.

However, the Plaintiff’s claim against the Defendants is for the 2nd 530 Defendant’s alleged breach of some technical specifications contained in the earthwork Drawing and the Court finds that those specifications are not listed under the Letter of Consent.

The Plaintiff had attempted to say that the 2nd Defendant’s works which 535 were done outside the scope of the Earthwork Drawing had resulted in the formation of a slope embankment on the Plaintiff’s land; Nonetheless, the Court finds that allegation had been rebutted by the opinion of the 1st Defendant’s expert when he said :- 540 “Based on the survey drawings, it is clear that the original condition pf Lot 689 is hilly terrain. It is evident that the non-usable area, as declared by the PEW, is not caused by the earth-filling works under the Letter of Consent.”

The Plaintiff also raised the issue of trespass and nuisance which had arisen from the 2nd Defendant’s conducts in installing culvert pipe at the boundary of the Plaintiff’s land. However, it is the court’s finding that the installation of the culvert pipe was consistent with one of the terms of the Consent Letter which states :- 550 “You shall provide suitable temporary and permanent drainage system to drain out the water upon completion of the backfiling works.” 555

Based on the above reasonings, the Court finds that there are no merits in the Plaintiff’s allegation of trespass against the Defendants. The law is clear in that once the court has found that the Plaintiff has failed to establish trespass against the Defendants, there will no longer be any basis for the Plaintiff’s claim against them for nuisance.

The court relies on one authority provided by the 1st Defendant’s counsel, NBC Land Sdn Bhd v Majlis Perbandaran Kelang [2021] 5 MLJ 717,( Court of Appeal) which states :- 565 “[36] The appellant’s claim in nuisance hinges on proof of trespass being established as referred in para 6 (c) above. Since we have found that the appellant’s claim for trespass has not been established, the appellant’s claim in nuisance must necessarily fall”

It is a well-established legal principle that in civil cases, the burden of proof lies on the party making the claim, which is the Plaintiff. (section 101 Evidence Act 1950). This means that the Plaintiff bears the responsibility to prove that it is more probable than not that the Defendants have illegally entered into the Plaintiff’s land and caused 575 damage to the said land. Based on the above reasons, the Court finds that the Plaintiff has failed to discharge the said burden and therefore, the Plaintiff’s case is dismissed with costs. Dated : 19 September 2024 580 -sgd-WAN FADHILAH NOR BINTI WAN IDRIS JUDICIAL COMMISIONER HIGH COURT 1 585 SEREMBAN Counsel for the Plaintiff : Tetuan ChongSoo Partners S-11-13, Wisma YNH, Kiara 163, No. 8 Jalan Kiara, 50480 Mont Kiara, 590 Kuala Lumpur Counsel for the 1st Defendant : Tetuan Shook Lin & Bok 20th Floor, Ambank Group Bulding, 55 Jalan Raja Chulan, 50200 Kuala Lumpur. 595 Counsel for the 2nd Defendant : Tetuan Zubin, Tao & Partners D-31-01, Millerz Square, No. 357, Jalan Klang Lama, 58000 Kuala Lumpur. 600 Counsel for the 3rd Defendant : Tetuan Kesavan 29-7, Menara 1MK, No.1, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur. 605