Premium Park Development Sdn Bhd v Rightbase Trading Sdn. Bhd (JB-22NCvC-32-04/2018)

This case concerns a claim for arrears of rental for an access road and a piece of vacant land under a Tenancy Agreement entered into by the tenant with the previous landlord. 04/03/2024 15:39:53 JB-22NCvC-32-04/2018 Kand. 105 January 31, 2024 2

The facts become complicated when the landlord sells the land to a new proprietor without notifying the tenant.

Thereafter it became even more complicated when the access road was acquired by the Government.

Kang Hai Holdings Sdn. Bhd. [“KHHSB”] was formerly the registered proprietor of two plots of land known as HSD 18771 Lot PT 567 and HSD 18772 Lot PT 568, Mukim Minyak Beku, District of Batu Pahat, Johor (“Lots PT 567 and PT 568” or “the Lands”).

Under a Tenancy Agreement dated 4.7.2010, KHHSB agreed to let to the Defendant an access road running through Lots PT 567 and PT 568 and 3 acres of land on Lot PT 567 at a monthly rental of RM10,000.00 per month for 2 years from 1.7.2010 till 30.6.2012.

The monthly rental was stipulated in the Tenancy Agreement as a lump sum payment of RM10,000.00 without apportioning how much the rental is for the access road and how much the rental is for the 3 acres of the land.

The Tenancy Agreement also did not have a plan indicating the location of the access road and 3 acres of land.

The Tenancy Agreement had the usual standard clause that binds the successors in title and permitted assigns of the parties. January 31, 2024 3

Subsequently, the Tenancy was extended verbally twice. Initially for one year from 1.7.2012 until 30.6.2013 at the rental of RM12,000.00 per month. Thereafter for another year from 1.7.2013 till 30.6.2014 at the rental of RM15,000.00 per month.

On 11.2.2014, Defendant sent a notice through their solicitors to KHHSB’s solicitors to terminate the tenancy by giving one month’s notice that is to take effect on 11.3.2014 citing the reason a portion of the Lands has been gazetted for access road.

Defendant issued the notice of termination upon knowing the Lands would be acquired by the Land Administrator for purposes of a road reserve for the Defendant’s associate company Super Piles Sdn Bhd.

KHHSB accepted the Defendant’s termination of the tenancy vide their solicitors’ reply dated 27.2.2014 and at the same time demanded the arrears of rental in the sum of RM10,540.00 as of 11.3.2014 and vacant possession of the Lands to be delivered by 11.3.2014.

However, the Defendant subsequently changed their mind and sent another letter through their solicitors dated 6.3.2014 retracting the termination.

KHHSB vide their solicitors' reply dated 11.3.2014 rejected the Defendant’s request to continue with the Tenancy and demanded vacant possession to be surrendered since they had accepted the termination and made further arrangements for the property. January 31, 2024 4

In the meantime, the access road was in the process of being acquired by the Land Administrator.

The Defendant also sent another letter on 12.3.2014 to retract the termination but it was once again rejected by KHHSB through their solicitor’s reply dated 13.3.2014.

This prompted the Defendant to reply through their solicitor’s letter dated 14.3.2014 to KHHSB to state that since the compensation sum for the acquisition has already been deposited with the Land Office, KHHSB no longer has any locus to deal with the access road and the Defendant is prepared to continue to pay rental until an order for acquisition made by the Land Administrator.

Sometime on 12.3.2014, KHHSB carried out digging works on the access road that prevented Defendant from using the access road.

This prompted the Defendant to lodge a police report against KHHSB and to obtain an interim injunction on 17.03.2014 vide Muar High Court Originating Summons No. 24NCVC-92-03/2014 (“Originating Summons proceeding”) to restrain KHHSB from doing acts to prevent the Defendant from using the access roads.

Whereas Plaintiff became the registered owner of the Land on 20.12.2013 pursuant to a Sale and Purchase Agreement entered into between Plaintiff and KHHSB on 15.10.2012.

The Defendant was never notified of the change in ownership and KHHSB continued to represent the Defendant that they were still the owners of the Land. January 31, 2024 5

Defendant came to know of the change in ownership from the Originating Summons proceeding and their solicitors wrote to the KHHSB’s solicitors on 1.4.2014 to notify that since Lots PT 567 and PT 568 were transferred to Plaintiff, a related company with KHHSB, therefore the interim injunction against KHHSB would be binding on the Plaintiff also.

In the same letter, the Defendant again proposed to pay rental pending the decision of the Land Administrator on the compensation for the acquisition.

On or about 14.5.2014, the Land Office issued Form H which is the Notice of Award and Offer of Compensation.

On 15.6.2014, a Consent Order was recorded in the Originating Summons proceeding wherein KHHSB was substituted by Plaintiff herein as the Defendant in that proceeding and Plaintiff herein was restrained from doing any acts to prevent Defendant from using the access road pending formal acquisition of the access road by the Land Administrator.

Next, Form K which is the Notice That Possession Has Been Taken of Land was issued on 25.09.2014.

After a long period of silence, Plaintiff sent a notice of demand dated 21.9.2017 to Defendant demanding vacant possession of the Lands and outstanding double rental for the period from 12.3.2014 until 11.9.2017 in the sum of RM1,270,450.00 failing which legal proceedings will be commenced. January 31, 2024 6

Defendant disputed the Plaintiff’s demand vide their solicitors’ reply dated 10.10.2017 by stating that the Plaintiff’s claim for vacant possession and outstanding rental is misconceived since “Borang D” for the intended acquisition was registered with the Land Office on 4.12.2013 and followed by the issuance of “Borang K” which is the notification of the Land acquisition on 25.9.2014.

However, Defendant makes no mention in this letter of the handing over of vacant possession of the access road and the 3 acres of land.

Hence, Plaintiff contends that Defendant failed to deliver vacant possession and claims for double rental with effect from 12.3.2014 and vacant possession.

In the alternative, Plaintiff claims Defendant have trespassed onto their Lands and claims for damages and vacant possession.

Upon perusing the pleadings and submissions of both parties, the following issues need to be determined: -

Whether Plaintiff’s cause of action against Defendant lies in breach of tenancy or trespass;

Whether Defendant is occupying and or trespassing onto the Lands; January 31, 2024 7

Or whether vacant possession delivered by Defendant to

Whether Defendant is liable for any arrears of rental, double rental or damages to Plaintiff. ANALYSIS AND FINDING

Whether Plaintiff’s cause of action lies in breach of tenancy or trespass. [33] It is not disputed that the Tenancy Agreement for the access road and 3 acres of land is only between KHHSB and the Defendant. The Plaintiff was never a party to this Tenancy Agreement. [34] There is no evidence of any assignment of the Tenancy to the Plaintiff by KHHSB when the Plaintiff became the registered proprietor on 20.12.2013. The Sale and Purchase Agreement entered into between KHHSB and Plaintiff on 15.10.2012 makes no mention of this Tenancy. This fact is not disputed. [35] At all material times, Defendant continued to make rental payments to KHHSB and KHHSB continued to represent Defendant as their Landlord although the Lands had already been transferred to Plaintiff. [36] Defendant’s notice of termination of the Tenancy was forwarded to KHHSB and accepted by KHHSB. January 31, 2024 8 [37] In addition, there is no notice of change of ownership forwarded to Defendant notifying that Plaintiff as the new owner is taking over the tenancy under the succession clause. [38] In the foregoing, it is my finding that there is no tenancy or a landlord and tenant relationship between Plaintiff and Defendant. [39] In the circumstance, Plaintiff’s right as the newly registered proprietor of the Lands against Defendant vests only in a claim to recover vacant possession of the Lands and damages. [40] Henceforth, Plaintiff’s cause of action against Defendant lies in trespass of the Lands. [41] Therefore, Plaintiff is not entitled to claim against Defendant based on the determination of the Tenancy for holding over the access road and 3 acres of land and double rental. [42] Whereas the right to claim for arrears of rental as of the date of termination of the Tenancy i.e. 11.3.2014 lies with KKHSB. [43] Even if Plaintiff is correct in contending that the Tenancy between KKHSB and Defendant is binding upon Plaintiff as successor in title, it is pertinent to note that the Tenancy ceases upon commencement of the acquisition as stipulated in clause 6 of the Tenancy Agreement. For easy reference, clause 6 is reproduced below:- “6. ACQUISITION BY THE GOVERNMENT January 31, 2024 9 If at any time during the continuance of this Tenancy the Malaysian Government or State Government shall acquire the said Land under the provisions of the Land Acquisition Act, 1960 or the Local Authority shall condemn the said Land as a dangerous structure or for other reasons and the said Land is required to be pulled down or the Local Authority shall make a demolition order which shall become operative in respect of the said Land or any part thereof or a closing order in respect of a part of the said Land or s clearance order affecting the whole or any part of the said Land or a clearance order affecting the whole or any part thereof or if by reason of any other order made pursuant to statute or statutory instrument the Tenant shall be permanently prevented from using the Land for any purposes permitted under the terms of this Agreement and the Tenancy hereby created shall cease in relation to the land acquired as from the commencement of such acquisition or the pulling down of the said Land or from the time when such demolition or closing thereof shall become operative and all deposits paid herein shall be refundable to the Tenant provided there are no outstanding tenancy rental.” [44] According to clause 6, the Tenancy will cease on the date when Form D, the intended acquisition was registered with the Land office on 4.12.2013. [45] This means the Tenancy ceased even before Defendant issued the notice of termination on 11.2.2014 to terminate the Tenancy. January 31, 2024 10 [46] In the circumstance, Plaintiff’s cause of action against Defendant lies in trespass and for damages.

Whether Defendant is occupying and or trespassing onto the Lands.

Or whether vacant possession delivered by Defendant to Plaintiff.

Access Road [47] According to the Plaintiff’s witness (PW1), the access road is indicated by her highlighting in pink a long line identified as “F1” on the location plan (Exhibit D2). The Defendant does not dispute that this is the access road that was let out to them by KHHSB. [48] The Tenancy between Defendant and KHHSB continued until 11.3.2014, the date on which Defendant was asked to deliver vacant possession although Plaintiff became the registered owner of the Lands on 20.12.2013, [49] In this circumstance, it's my finding there cannot be any trespass up until 11.3.2014. [50] The Land Administrator eventually acquired the access road on Lots PT 567 and Lot PT 568. [51] The chronology of the acquisition by the Land Administrator is as follows:- January 31, 2024 11 No.

Gazette notification of the Intended Acquisition.

29.8.2013

(ii)

Notice of Inquiry – (Form E)

10.2013

(iii)

Intended acquisition registered with the land office – (Form D)

12.2013

(iv)

Publication of Award – (Form H)

5.2014

(v)

Issuance of notice that land has already been acquired – (Form K)

9.2014 [52] The evidence led at the trial shows that Defendant needed to use the access road on the Lands to reach their building and office situated on Lot 11481 which is the adjoining lot since this was the only access to and from the main road. [53] This explains why the Defendant upon knowing the subject land was gazetted for a road reserve, terminated the tenancy and thereafter upon realizing the acquisition process would take some time to be completed, retracted their termination and wanted to continue with the tenancy. [54] According to Defendant, formal possession of the access road on the Lands is deemed to have been taken with the issuance of Form K. [55] In support of their contention, the Defendant relies on the Federal Court’s decision in Amitabha Guha & Anor v Pentadbir Tanah Daerah Hulu Langat [2021] 3 CLJ 1 wherein it was held:- January 31, 2024 12 “[63] Notwithstanding that SILK took physical possession of the Subject Lands on 19 September 1999, the computation of time in s 48 must be interpreted to mean the date on which the LA took formal possession of the Subject Lands upon service or posting of a Form K notice (Notice That Possession Has Been Taken Of Land) under s 22. In this case, the LA is deemed to have taken formal possession on the date the Form K was issued, ie on 31 May 2000. To hold that the computation starts from the date SILK took physical possession would do violence to the plain wordings of s 48.” [56] In addition, the Defendant also relies on the Court of Appeal’s decision in Ishmael Lim bin Abdullah @ Lim Keng Chew v Pesuruhjaya Tanah Persekutuan & Anor [2015] 2 MLJ 126, held:- “[39] We are of the view that upon the issuance of Borang K on 11 March 1974, the land had vested in the state authority notwithstanding that there was an omission to endorse the memorial on the title, a requirement under s 23 of the Act. We agree with the conclusion of the learned trial judge that the requirement for an endorsement of the memorial was a formality and the omission to do so did not invalidate the acquisition process. As such, the purported transfer of the land in 1975 to the appellant's father and in 1992 to the appellant were void and ineffective. The acquisition process had ended in 1974.” January 31, 2024 13 [57] Whereas Plaintiff submits that until there was an endorsement of Form K as envisaged under Sections 23 and 66 of the Land Acquisition Act 1960, the subject land under acquisition would still belong to the land owner by relying on the Court of Appeal’s decision in United Allied Empire Sdn Bhd v Pengarah Tanah dan Galian Selangor & ors [2018] 1 MLJ 661 which held as follows:- “[22] As regards the issue on Form K, we were also in agreement with the appellant’s contention that such mere issuance of Form K, without the required endorsement of the memorial under ss 23 and 66 of the LAA 1960, would not be sufficient, in order to effectively or conclusively vest the title of the said land to the State Authority. The position that was taken by the learned JC had been that the title of the acquired land would vest in the State Authority the moment the Form K was issued. She had relied on the decision of this court in the case of Ishmael Lim Abdullah v. Pesuruhjaya Tanah Persekutuan & Anor [2014] 4 MLRA 652; [2015] 2 MLJ 126; [2014] 7 CLJ 882 (“the Ishmael Lim case”) to support that proposition. [35] As was alluded to by us in the previous paragraphs above, we found it rather strange that the respondents had not acted according to their own standard operating procedure as per the Circular No 27/2009 which had been issued under statutory provisions with approval of the Attorney General’s Chambers. Be that as it may, the effect of that failure to comply with ss 23 and 66 of the LAA 1960 and the Circular No 27/2009 must suffer the January 31, 2024 14 consequences. It is this. To our minds, the nett effect of this failure to observe the statutory requirements of ss 23 and 66 of the LAA 1960 and of its own Circular 27/2009 must necessarily be that the said land has not vested in the State Authority although Form K may have been issued and gazetted. As such, the appellant was still competent to stake and pursue its challenge against the purported acquisition of said land. This scenario had revealed an instance of the decision-maker not comprehending the exercise of legal power that it was performing, to wit, the express statutory provisions under the LAA 1960. And that is a recognised head for quashing such a decision by way of JR. Form K may well be the last form to be issued in an acquisition exercise, but unless and until there was an endorsement as envisaged under ss 23 and 66 of the LAA 1960, the subject land under acquisition would still belong to the land owner, not the State Authority, as it would not have become a state land. The Remaining Issues eLaw Citation: [2018] 4 MLRA 400.” [58] In addition, Plaintiff also relies on the testimony of their witness (PW1) that there was no reduction in the size of the Lands despite the issuance of Form K as evidenced by the land searches as of 25.9.2016 and Plaintiff continued to pay the same quit rent. [59] Although Plaintiff produced the land searches, no quit rent receipt was produced by Plaintiff in support of their contention. January 31, 2024 15 [60] These land searches show that as of 25.9.2016, Form K has yet to be registered and this explains why the size of the Lands stated in the land searches remains the same. [61] Be that as it may, this Court is bound by the principle of stare decisis to follow the decision by the Federal Court in Amitabha Guha (supra) being the apex Court which decided that the Land Administrator is deemed to have taken possession upon issuance of Form K than the decision of the Court of Appeal in United Allied Empire (supra). [62] Please also see CSL Technologies (M) Sdn Bhd & Ors v. Pengarah Tanah Dan Galian Selangor, Pejabat Tanah Daerah Klang [2023] 1 LNS 1131 and Lim Hoe@Lim Cheng Geok & Anor v. Syarikat Bekalan Air Selangor Sdn Bhd & Anor [2021] 1 LNS 546 where the Courts adopted a similar approach as the Federal Court that formal possession was deemed to have been taken with the issuance of Form K. [63] Hence Plaintiff no longer had any right on the portion of their Lands acquired for the road reserve. [64] In the foregoing, Plaintiff’s contention that up until 25.9.2016, the size of the Lands remained the same and they were still paying the same quit rent has no merit. [65] Furthermore, the Award for Compensation (Form H) for the road reserve acquired on Lots 567 and 568 was published on 14.5.2014. Defendant’s associate company Super Piles Sdn Bhd had already deposited the compensation sum of RM424,800.00 with the Land Office for this sum to be released to the Plaintiff. January 31, 2024 16 [66] In this circumstance, Plaintiff is deemed to have been compensated for the access road which was acquired by the Land Administrator and therefore they cannot demand any rentals from Defendant. [67] Next on the issue of handing over vacant possession of the access road, Defendant contends that since the access road had been acquired by the Land Administrator, therefore they are not liable to pay any rental or damages to Plaintiff. [68] Whereas Plaintiff contends that Defendant failed to produce any notices evidencing the handing over of vacant possession of the access road to Plaintiff. [69] Upon analyzing the evidence adduced by both parties, in my judgement, Plaintiff has succeeded in proving on the balance of probabilities that Defendant has trespassed onto the access roads situated on Plaintiff’s Lands for the period from 12.3.2014 until the date of issuance of Form K on 25.9.2014. [70] However, Defendant’s use of the access road thereafter can no longer amount to trespass because the access road was acquired by the land Administrator and no longer belongs to Plaintiff. [71] Defendant is therefore liable to pay damages to Plaintiff for the period from 12.3.2014 until the date of issuance of Form K on 25.9.2014. [72] The Consent Order recorded on 15.6.2014 in the Originating Summons proceeding between Plaintiff and Defendant did not January 31, 2024 17 address the issue of any sums payable to Plaintiff in respect of the use of the access road by Defendant. [73] I will address the assessment of damages for this trespass by the Defendant later on in this judgement.

(ii) The 3 acres of land on Lot 567 [74] Neither the Tenancy Agreement nor the pleadings make any mention of the purpose for which the 3 acres on Lot 567 were let out by KHHSB to the Defendant. [75] According to the Defendant’s witness (DW1), it was meant to store their stockpiles but the Defendant never used it. In other words, Defendant says the 3 acres were for standby only. [76] The photographs marked as Exhibit D3 (3, 5 & 6) and the location plan marked as Exhibit D2, reveal a road running through between Lot PT 567 and Lot PT11481 and heading towards the back of these lots. [77] It is not disputed that this is a road leading to the “Orang Asli Settlement”. [78] It can be seen from the photographs marked as Exhibit P3 (3 – 8) that this access road is an established road that has been in use for some time and is not merely a makeshift one. January 31, 2024 18 [79] Concerning the location of 3 acres of land that was let out by KHHSB to the Defendant, both parties differ as to the location of these 3 acres on Lot 567. [80] According to the Plaintiff’s witness (PW1), the location of the 3 acres is indicated by her highlighting in pink identified as “D1” on the location plan (Exhibit D2). [81] This location is also shown as a red line drawn by PW1 on the road leading to the “Orang Asli Settlement” and marked as “D2” in the photograph Exhibit D3 (6). [82] Whereas according to the Defendant’s witness (DW1), the 3 acres are not located on the road leading to the “Orang Asli Settlement” but are located inside Lot 567. [83] DW1 marked the 3 acres on the location plan (Exhibit D2) by drawing a rectangular shape in green with an “X” inside. [84] Next, according to Plaintiff’s witness (PW1), sometime in 2016, Lot 567 was let out to a new tenant and a building was constructed by the new tenant on this lot but not sure when the construction was completed. PW1 also testified that before the construction of the building, Lot 567 was fenced up by the tenant. [85] The new tenant’s building and the fence can be seen in the photograph marked as Exhibit P3 (6). This building was marked “H” by PW1. January 31, 2024 19 [86] On the other hand, according to the Defendant’s witness (DW1), the new tenant’s building on Lot 567 was constructed on the 3 acres of land which was earlier let out to the Defendant. [87] Plaintiff contends that the reason why “D1” on the location plan (Exhibit D2) was not fenced up is because Defendant failed to deliver vacant possession to Plaintiff. This was denied by DW1 in his testimony when it was put to him. [88] It is my finding that Plaintiff has failed to produce any evidence to show Defendant occupying the 3 acres highlighted in pink identified as “D1” on the location plan (Exhibit D2) and also shown as a red line on the road leading to the “Orang Asli Settlement” marked as “D2” in the photograph Exhibit D3 (6). [89] Plaintiff produced a photograph marked as P1(3) to show the presence of a tractor, motorcar and a skip on the road leading to the “Orang Asli Settlement” purportedly belonging to Defendant to prove Defendant’s occupation of the 3 acres of land. [90] However, Defendant denied that the tractor, motorcar and skip belong to them. [91] No evidence was led by Plaintiff to prove that the tractor, motorcar and skip belong to Defendant. [92] In addition, Plaintiff also submits that the back entrance for Defendant’s building located on Lot 11481 opens to the road leading to “Orang Asli Settlement” and is used by Defendant’s workers. January 31, 2024 20 Plaintiff relies on PW1’s testimony that she saw Defendant’s workers using the back entrance of Defendant’s building by accessing through the 3 acres of land highlighted in pink and identified as “D1” on the location plan (Exhibit D2). [93] The Defendant’s building on Lot 11481 is marked “E” and its back entrance is marked “J” in the photograph Exhibit P3 (6). [94] According to Plaintiff, this proves Defendant were occupying the 3 acres. [95] I am not convinced by the Plaintiff’s argument. Both Lots 357 and Lot 11481 are adjoining lots. Without a proper survey plan, the boundaries of these lots cannot be known. Plaintiff failed to produce a survey plan and the location plan marked as D2 is not a proper survey plan that shows the exact boundaries of these lots. [96] Plaintiff is relying on the location plan (Exhibit D2) and the photographs Exhibit D3 (1-8) which is produced by Defendant to prove their claim instead of producing a survey plan showing that Defendant had trespassed onto the 3 acres of land on Lot 567. [97] Without knowing where the exact boundaries are and in the absence of other evidence showing the Defendants were using Lot 567 to access the back entrance of their building, the Court is unable to determine whether Defendant used the 3 acres of land to access and exit the back entrance of their building. [98] PW1 in her testimony seems to be unsure as to the exact location of the 3 acres that was let out to the Defendant. Her testimony January 31, 2024 21 seems to indicate the 3 acres are also on Lot 568 and include the access road. [99] Furthermore, the road leading to “Orang Asli Settlement” is an open area that can be accessed by anyone. There is no barrier or fencing to indicate the Defendant’s occupation of these 3 acres of land. [100] In the circumstances, it is hard to imagine how Defendant could have made use of this access road for purposes of storage of their stockpiles. There is also no evidence of storage of stockpiles on the 3 acres of land. [101] In addition, when Lot 567 was fenced by the new tenant, Defendant will no longer have access to the area which was rented by the new tenant. [102] Next, parties also differ as to the location of the Defendant’s sign board. According to the Plaintiff’s witness PW1, the signboard is located on Lot 568. Whereas according to the Defendant’s witnesses, the signboard is on the Government’s road reserve beside the lamp post, by the side of the road and outside the fence. [103] As I have mentioned above, no survey plan was produced by Plaintiff and as such, the exact location of this signboard which is in dispute cannot be ascertained. [104] In any event, Plaintiff is not able to show the relevance of this signboard on Lot 568 because the 3 acres are on Lot 567 whereas the access road on both the lots was acquired. January 31, 2024 22 [105] Plaintiff’s case is that the Defendant had failed to deliver vacant possession of these 3 acres of the land. Whereas Defendant says they never used the 3 acres of land. [106] In my judgement, Plaintiff has failed to prove on the balance of probabilities where exactly the 3 acres of land which was let out by KHHSB to Plaintiff is located and that Defendant is continuing to trespass on these 3 acres of land. [107] Plaintiff merely relies on the fact that there is no evidence from Defendant surrendering vacant possession of the 3 acres of the land to Plaintiff without proving actual occupation by Defendant. [108] But the evidence before the Court does not show any occupancy or holding over of the 3 acres of land by the Defendant. Neither does it show that the Plaintiff has been denied the use of their 3 acres of land. [109] What can be seen from the photographs marked as P3 (5 & 6) is only a road leading to the “Orang Asli Settlement” and not some trespass. [110] Neither is there any notice sent by Plaintiff to Defendant in the years 2015 and 2016 demanding Defendant to deliver back vacant possession of the land marked as “D1” on the location plan (Exhibit D2) when the area highlighted in green and marked “X” on this plan was fenced up and construction of a building commenced by the new tenant. January 31, 2024 23 [111] In the foregoing, Plaintiff has failed to prove that Defendant had trespassed and is continuing to trespass onto these 3 acres of land in Lot 567. [112] In the circumstance, the question of Defendant failed to deliver vacant possession to Plaintiff does not arise

Whether Defendant is liable to pay damages or double rental to Plaintiff. [113] In the foregoing, the Court finds that Defendant is only liable for trespass of the access road for the period from 12.3.2014 until 24.9.2019 which is approximately 6½ months. [114] Hence the question of the Defendant being liable for double rental does not arise. The authorities cited by Plaintiff in respect of a claim for a double rental are irrelevant. [115] Plaintiff did not adduce any specific evidence as to the loss they suffered due to Defendant’s trespass onto this access road during that period. [116] The Plaintiff relies on the monthly rental sum of RM15,000.00 stated in the Tenancy Agreement to compute the damages suffered. [117] However, there is no breakdown in the Tenancy Agreement on this sum as to how much rental is for the access road and how much is for the 3 acres of land. January 31, 2024 24 [118] The only inference that can be drawn by considering the Tenancy Agreement as a whole which did not make any distinction as to how much rental is for the access roads and how much is for the 3 acres of the land is that so long the Defendant pays a lump sum of RM15,000.00 towards the monthly rental, they are entitled to use the access roads and or the 3 acres of land without any disturbance or hindrance. In other words, whether Defendant uses or not the access roads and the 3 acres, they must pay a lump sum of RM15,000.00 monthly to the KHHSB. [119] In respect of the measure of damages in a claim for trespass, in Othman Bin Ali & 290 Ors v Bukit Lenang Development Sdn Bhd. [2016] 3 MLJ 708, Varghese George JCA held: “[31] It was undeniable that in a normal case where once a trespass to land or a deprivation of use of land had been established, the normal measure of damages to be applied would be the actual proof of ‘loss of rental’ or a reasonable estimation of such a ‘rental return’ that was directly attributable and flowing from a lawful use of the land but denied by that wrongful action. This was consistent with the two underlying basic principles in law which required that any damages awarded would, so far as money can, put the affected or deprived party in the same position as he would have been if the tort had not occurred subject to the further overriding consideration that such damages to be awarded was in any event not too remote or speculative in nature.” January 31, 2024 25 [120] Further in Amm a/l Joy (suing as Chairman committee members of Wat Boonyaram) v Chuan Seng Sdn Bhd [2018] 5 MLJ 255, the Court of Appeal speaking through Her Ladyship Mary Lim JCA (as Her Ladyship then was) held as follows:- “[21] Since trespass is actionable per se, once trespass has been proved, whether the claimant can show he could have let out the property to another person, or whether he would have used the property himself, is in fact, immaterial. The claimant is entitled to damages for the trespass without bringing evidence of such intentions. In the absence of anything special, it would be the “ordinary letting value of the property that would determine the amount of damages” as held by Megaw LJ in Swordheath Properties Ltd v. Tabet.” [121] In the circumstances, the monthly rental sum of RM15,000.00 relied on by the Plaintiff can be accepted as the actual loss of rental and a fair rental. [122] In arriving at the sum of RM15,000.00, I have also considered that Defendant had earlier agreed vide their solicitor's letter dated 1.4 2014 to Plaintiff’s solicitors to pay rental when their use of the access roads was blocked by the digging works carried out on the road. [123] Therefore, the computation of damages for the access road based on loss of rental per month is RM15,000.00 per month x 6.5 months = RM97,500.00. January 31, 2024 26

[124] In the foregoing, Plaintiff’s claim for damages for trespass on the access road is allowed for the sum of RM97,500.00. [125] Whereas Plaintiff’s claim for trespass of the 3 acres of land in Lot 567 is dismissed. [126] The Plaintiff’s claim for arrears of rental, double rental is dismissed. [127] The Plaintiff’s claim for vacant possession is also dismissed. [128] Interest 5% per annum from the date filing of Writ on the sum RM97,500.00 until full settlement and costs. Dated this 31st January 2024 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Plaintiff : Shahareen Begum Binti Abdul Subhan For the Defendant : Shanker Sivapragasam with Siti Hasmah January 31, 2024 27 Solicitors: For the Plaintiff Messrs Shahareen Begum Advocates & Solicitors No. 6A, Tingkat 1, Jalan Maju Barat Taman Maju, Bukit Pasir 83000 Batu Pahat Johor [Ref. No. : 10668/SB/PLF] For the Defendant Messrs K. Siladass & Partners Advocates & Solicitors Wisma K.S. Dass & Gana No. 24 & 26, Jalan Lambak 86000 Kluang Johor [Ref. No. : KSD/KLG/34-283/2018] Hearing Date : 17th October 2022, 7th December 2022, 11th December 2022, 10th January 2023, 21st March 2023, 22nd March 2023, 5th July 2023, 2nd August 2023, 3rd October 2023, 21st December 2023, 3rd January 2024, 22nd January 2024 Decision Date : 31st January 2024