SIN HEE YANG PROPERTY MANAGEMENT SDN BHD v Lembaga Lebuhraya Malaysia (B-01(A)-249-05/2023)

PENTADBIR TANAH DAERAH KELANG ... RESPONDENTS [In the matter of High Court of Malaya at Shah Alam Land Reference No.: BA-15-86-12/2020 Between Lembaga Lebuhraya Malaysia ... Applicant And Pentadbir Tanah Daerah Klang ... Respondent And Sin Hee Yang Property Management Sdn. Bhd. (Co. No.: 230946-H) ... Intervener (Consolidated with) In the matter of High Court of Malaya at Shah Alam Land Reference No.: BA-15-88-12/2020 Between Sin Hee Yang Property Management Sdn. Bhd. (Co. No.: 230946-H) And Applicant Pentadbir Tanah Daerah Klang CORAM: Respondent] AZIMAH BINTI OMAR, FCJ WONG KIAN KHEONG, JCA ISMAIL BIN BRAHIM, JCA

The appellant company (Appellant) in this appeal (This Appeal), owns land held under Lot 916, GM 869, Mukim Klang, Klang District. Selangor Darul Ehsan (Land). The area of the Land was 1.8337 hectares (4.531 acres).

The Appellant intended to develop the Land by obtaining the first "Kebenaran Merancang" （ $ 1^{\mathrm{st}} $ KM) from Majlis Bandaraya Shah Alam (MBSA) to build 74 units of two-storey terrace houses with a value between RM500,000.00 to RM630,000.00 for each house [Appellant's 1 $ ^{st} $ Proposed Development (Land)]. Pursuant to the Appellant's 1 $ ^{st} $ Proposed Development (Land) -

the Appellant sub-divided the Land into 74 lots (74 Lots);

approximately 1.996 acres of the Land was surrendered to the State Authority for the use as road, drainage and public amenities for the Appellant's $ 1^{\mathrm{st}} $ Proposed Development (Land); and

the Appellant obtained a loan of RM3,250,000.00 from Hap Seng Credit Sdn. Bhd. (Loan).

The first respondent, "Lembaga Lebuhraya Malaysia" (LLM), is established under the Highway Authority of Malaysia (Incorporation) Act 1980, to, among others, supervise and execute the design, construction and maintenance of highways. LLM is responsible for the supervision and execution of the construction of the West Coast Expressway (WCE).

The Selangor State Authority (SA) acquired six out of the 74 Lots (Acquired Land) pursuant to the Land Acquisition Act 1960 (LAA) for the construction of WCE (Acquisition). The area of the Acquired Land was 252 square metres (sm).

As a result of the Acquisition-

the Appellant could not proceed with the Appellant's $ 1^{\mathrm{st}} $ Proposed Development (Land) and $ 1^{\mathrm{st}} $ KM;

the Appellant had to apply for a second "Kebenaran Merancang" from MBSA $ (2^{n d} $ KM) to develop the remaining part of the Land which had not been acquired by SA (Remaining Land); and

due to the area and shape of the Remaining Land, the Appellant could only build 55 smaller and lower-priced houses [Appellant's Development (Remaining Land)]. B. Award of land compensation by the second respondent. Pentadbir Tanah Daerah Kelang (PTD)

The PTD conducted an enquiry to assess the amount of compensation (Compensation Sum) to be paid to the Appellant for the Acquisition (Enquiry).

After the Enquiry, the PTD awarded a total sum of RM6,129,342.00 as the Compensation Sum for the Appellant (Award). The Award consisted of the following items:

the market value of the Acquired Land [Market Value (Acquired Land)] was RM1,500 per sm (psm). Accordingly, compensation for the Market Value (Acquired Land) was RM378,000.00 (RM1,500.00 X 252 psm) [Compensation (Market Value of Acquired Land)];

a sum of RM21,680.00 was awarded as cost for the Appellant to find another site for the Appellant's Development (Remaining Land) [Appellant's Cost (New Development Site)];

the PTD awarded an amount of RM641,822.00 as cost for the Appellant to obtain the $ 2^{nd} $ KM [Appellant's Cost ( $ 2^{nd} $ KM)];

a sum of RM4,987,840.00 was awarded as loss of profit and/or business disturbance (kacau ganggu perniagaan) (Appellant's Loss of Profit/Business Disturbance); and

an amount of RM100,000.00 was awarded for the interest on the Loan which had been incurred by the Appellant [Appellant's Interest Payment (Loan)].

The PTD did not award the following claims by the Appellant:

a sum of RM281,499.00 as fees payable to MBSA [Appellant's Fees (MBSA)]; and

the Appellant's claim for RM160,000.00 as cost to appoint a contractor to do earthworks on the Acquired Land [Appellant's Cost (Earthworks)]. C. Proceedings in the High Court

Both the Appellant and LLM had applied to PTD in "Form N" (in the Second Schedule to the LAA) to refer the Award to the High Court. Consequently, the PTD made the following two land references to the High Court (2 Land References):

Land Reference no. BA-15-88-12/2020 by the Appellant (Appellant's Land Reference); and

Land Reference no. BA-15-86-12/2020 by LLM (LLM's Land Reference).

In LLM's Land Reference -

the Appellant had applied for and obtained leave of the High Court to intervene in LLM's Reference; and

the Appellant had applied to strike out LLM's Land Reference on the ground that by virtue of s 38(3)(a) LAA, LLM's Land Reference had been filed seven days out of time [Appellant's Striking Out Application (LLM's Land Reference)]. The High Court had dismissed the Appellant's Striking Out Application (LLM's Land Reference) [High Court's Dismissal (Appellant's Striking Out Application)]. The Appellant did not appeal to the Court of Appeal against the High Court's Dismissal (Appellant's Striking Out Application).

LLM applied to the High Court to consolidate the 2 Land References (LLM's Consolidation Application).

Neither the Appellant nor PTD objected to LLM's Consolidation Application. Hence, the High Court ordered a consolidation of the 2 Land References [High Court's Consolidation Order (2 Land References)].

The consolidated 2 Land References were heard before the learned High Court Judge (as she then was) with two assessors (2 Assessors), namely-

Encik Tan Eng Peik (Government Assessor), a valuer employed at "Jabatan Pernilaian dan Perkhidmatan Harta"; and

Encik Azman bin Mamat (Private Assessor), a private valuer registered with the Board of Valuers, Appraisers, Estate Agents and Property Managers.

After hearing the 2 Land References, the High Court decided as follows on 13.4.2023 (High Court's Order):

the Market Value (Acquired Land) was affirmed at RM1,500.00 psm. Accordingly, the PTD's award of Compensation (Market Value of Acquired Land) (RM378,000.00), was maintained;

with regard to the Appellant's Cost $ (2^{\mathrm{nd}} $ KM) (RM641,822.00), the learned High Court Judge only allowed the following two claims by the Appellant (totaling RM 28,000.00) -

the submission fee of RM3,000.00 [Submission Fee (Appellant's $ 2 ^{n d} $ KM Application)] for the Appellant's application for the $ 2 ^{n d} $ KM (Appellant's $ 2 ^{n d} $ KM Application); and

a professional consultant's fee of RM25,000.00 for the Appellant's $ 2^{nd} $ KM Application [Professional Consultant's Fee (Appellant's $ 2^{nd} $ KM Application)]. As the High Court only allowed the Submission Fee (Appellant's $ 2 ^{n d} $ KM Application) and Professional Consultant's Fee (Appellant's $ 2 ^{n d} $ KM Application), the learned High Court Judge ordered the Appellant to refund a sum of RM613,822.00 to LLM within one month from the date of the High Court's Order;

the Appellant's Cost (New Development Site) (RM21,680.00), Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00) and Appellant's Interest Payment (Loan) (RM100,000.00) were not allowed and all these sums were to be refunded by the Appellant to LLM within one month from the date of the High Court's Order;

the Appellant was not entitled to claim for -

the Appellant's Fees (MBSA) (RM281,499.00); and

the Appellant's Cost (Earthworks) (RM160,000.00);

the deposit for the 2 Land References were refunded to the Appellant and LLM;

LLM shall pay RM500.00 to each of the 2 Assessors; and

the Appellant shall pay RM500.00 to each of the 2 Assessors.

According to the "Grounds of Judgment" of the learned High Court Judge (GOJ), the High Court's Order was premised on the following grounds:

the Compensation (Market Value of Acquired Land) (RM378,000.00) was derived as follows-

the High Court accepted Lot PT85536, Mukim Klang, Klang District, Selangor Darul Ehsan, as the "common comparable" to the Land [Common Comparable (Lot PT85536)]- paragraph 33 GOJ; and

the learned High Court Judge relied on the Common Comparable (Lot PT85536) because-

the Common Comparable (Lot PT85536) was proposed by the Private Assessor. The Private Assessor made overall adjustments (10% adjustment) and proposed a market value for the Acquired Land of RM1,520.15 psm - paragraph 30 GOJ; and

(ii) in five previous land references (5 Previous Land References) stated in paragraph 32 GOJ, the High Court had decided that the market value of the five lots in the 5 Previous Land References was RM1,500.00 psm [Market Value (5 Previous Land References)]. In view of the Market Value (5 Previous Land References), the learned High Court Judge maintained PTD's Market Value (Acquired Land) and PTD's award of Compensation (Market Value of Acquired Land) (RM378,000.00) - paragraph 33 GOJ;

in paragraphs 34 to 41 GOJ, the High Court relied on the following reasons to order the Appellant's refund of the Appellant's Cost (New Development Site) (RM21,680.00) to LLM-

sub-paragraph 2(e) of the First Schedule to the LAA $ (1^{st} $ Schedule);

the judgment of KC Vohrah J (as he then was) in the High Court in Koh Keat @ Kok Lup & Anor v Pentadbir Tanah & Daerah Petaling [1994] 4 CLJ 718; and

the Privy Council's decision in Director of Buildings and Lands v Shun Fung Ironworks [1995] 1 All ER 846;

the learned High Court Judge rejected the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00) because-

the PTD did not provide any justification or reason for the award of the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00) - paragraph 51 GOJ;

there was no development on the Land. In fact the Land was vacant and overgrown with bushes and shrubs. There was no building or business operations on the Land for the High Court to consider a claim for the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00) (please refer to paragraph 52 GOJ); and

the 2 Assessors opined that the PTD had "wrongly awarded the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00) in this case - paragraph 53 GOJ; and

in paragraphs 54 and 55 GOJ, the Appellant's Interest Payment (Loan) (RM100,000.00) was rejected due to the following reasons-

the PTD did not give any reason for the award of the Appellant's Interest Payment (Loan) (RM100,000.00);

the Appellant's own valuer did not propose a claim for the Appellant's Interest Payment (Loan) (RM100,000.00); and

the LAA does not provide for compensation to be awarded for the Appellant's Interest Payment (Loan) (RM100,000.00). D. This Appeal

The Appellant's notice of appeal against the High Court's Decision stated that the Appellant only appealed against the following part of the High Court's Decision:

save for a sum of RM28,000.00, the Appellant's Cost $ (2^{\mathrm{nd}} $ KM) （RM641,822.00） was not allowed by the learned High Court Judge;

the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00) was rejected by the High Court;

the Appellant's Interest Payment (Loan) (RM100,000.00) was ordered to be refunded to LLM; and

the learned High Court Judge dismissed all other claims by the Appellant. E. Issues to be decided in This Appeal

This Appeal raises the following questions:

was LLM's Land Reference filed within the six-week time period from the date of the Award as stipulated in s 38(1) read with (3)(a) LAA? In this regard, whether the Appellant could challenge the validity of LLM's Reference when-

the Appellant did not appeal to the Court of Appeal against the High Court's Dismissal (Appellant's Striking Out Application);

the Appellant did not object to LLM's Consolidation Application; and

the Appellant did not appeal to the Court of Appeal against the High Court's Consolidation Order (2 Land References);

did the High Court breach s 40C LAA regarding the opinions of the 2 Assessors [Opinions (2 Assessors)]? In this regard, what is the effect of the judgment of the Federal Court delivered by Mary Lim Thiam Suan FCJ in Tegas Sejati Sdn Bhd v Pentadbir Tanah dan Daerah Hulu Langat & Anor and another appeal [2024] 3 MLJ 329?;

did This Appeal raise any "question of law" regarding -

the Market Value (Acquired Land);

the Appellant's Cost (New Development Site) (RM21,680.00);

the Appellant's Cost $ ( 2 ^{n d} $ KM) (RM641,822.00);

the Submission Fee (Appellant's $ 2 ^{n d} $ KM Application);

the Professional Consultant's Fee (Appellant's $ 2 ^{n d} $ KM Application);

the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00);

the Appellant's Interest Payment (Loan) (RM100,000.00);

the Appellant's Fees (MBSA); and

the Appellant's Cost (Earthworks) - which was not barred by the proviso to s 49(1) LAA {Proviso [Section 49(1) LAA]}?; and

if the matters stated in the above sub-paragraphs (4)(a) to (i) had raised one or more question(s) of law-

how should the question(s) of law be answered {Answer(s) [Question(s) of Law]}?; and

in view of the Answer(s) [Question(s) of Law], did the learned High Court Judge commit any error of law which would justify appellate intervention with regard to the High Court's Order? OUR DECISION F. Could the Appellant object to LLM's Land Reference?

We reproduce below the relevant part of s 38 LAA: "s 38. Form and content of application, etc.

Any objection made under section 37 shall be made by a written application in Form N to the Land Administrator requiring that he refer the matter to the Court for its determination.

Every application under subsection (1) shall be made -

if the person making it was present or represented before the Land Administrator at the time when the Land Administrator made his award, within six weeks from the date of the Land Administrator's award under section 14 or compensation made under section 35 or Part VII; ..." (emphasis added).

The Award was made by PTD on 29.9.2017 in the presence of, among others, LLM's representative. As such, the six-week period for LLM to file Form N under s 38(1) read with (3)(a) LAA would expire on 10.11.2017. In this case, LLM had filed Form N on 8.11.2017. Consequently, LLM had complied with s 38(1) read with (3)(a) LAA. This constitutes the first reason why we cannot accept the Appellant's submission that LLM's Reference had been filed out of time.

There is another reason why we cannot accede to the Appellant's contention that LLM's Reference is time-barred by s 38(1) read with (3)(a) LAA. The following circumstances show that the Appellant is now estopped from challenging the validity of LLM's Reference:

when the Appellant did not appeal to the Court of Appeal against the High Court's Dismissal (Appellant's Striking Out Application), the Appellant is deemed to have accepted the validity of LLM's Reference. In this regard, we rely on the following two judgments of the Federal Court-

Zulkefli Makinuddin CJ (Malaya) (as he then was) delivered the following decision in Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461, at 473- "We also find that the plaintiff did not appeal against the decision of the learned judge striking out the first suit. The failure to appeal meant that the plaintiff accepted the correctness of the decision to dismiss its suit."; (emphasis added); and

the above judgment in Syed Omar had been adopted by Hasnah Mohammed Hashim FCJ (as she then was) in Yap Kim Hin & Anor v Chua Boon Hock & Ors [2025] MLJU 176, at [20], as follows- [20] With respect the COA [Court of Appeal] was plainly wrong in varying the COA Order in Appeal 1556. The COA in Appeal 682 must take cognizance of the COA Order in Appeal 1556 and not make any order inconsistent and/or contrary to it and more importantly there was no application for leave to appeal filed against that COA Order in Appeal 1556." (emphasis added);

the Appellant did not object to LLM's Consolidation Application; and

the Appellant did not appeal to the Court of Appeal against the High Court's Consolidation Order (2 Land References). G. What is the effect of Tegas Sejati?

Sections 40A(1), (2), 40C, 40D, 45 and paragraphs 2 to 6 ["Paragraph 2 (3 $ ^{rd} $ Schedule) " to "Paragraph 6 (3 $ ^{rd} $ Schedule) "] of the Third Schedule to the LAA (3 $ ^{rd} $ Schedule) provide as follows: "s 40A. Constitution of the Court.

Except as provided in this section the Court shall consist of a Judge sitting alone.

Where the objection before the Court is in regard to the amount of the compensation, the Court shall appoint two assessors (one of whom shall be the valuation officer employed by the Government) for the purpose of aiding the Judge in determining the objection and in arriving at a fair and reasonable amount of compensation. s 40C. Opinion of assessors. The opinion of each assessor on the various heads of compensation claimed by all persons interested shall be given in writing and shall be recorded by the Judge. s 40D. Decision of the Court on compensation

In a case before the Court as to the amount of compensation or as to the amount of any of its items the amount of compensation to be awarded shall be the amount decided upon by the two assessors.

Where the assessors have each arrived at a decision which differs from each other then the Judge, having regard to the opinion of each assessor, shall elect to concur with the decision of one of the assessors and the amount of compensation to be awarded shall be the amount decided upon by that assessor.

Any decision made under this section is final and there shall be no further appeal to a higher Court on the matter. s 45. Proceedings to be in open Court.

Every proceeding under this Part shall take place in open Court.

The provisions of the Third Schedule shall apply to every proceeding under this Part.

The Rules Committee appointed under the Courts of Judicature Act 1964 may amend the provisions of the Third Schedule relating to the procedure to be followed by the Court in all proceedings under this Act.

Save in so far as they may be inconsistent with anything contained in this Act, the law for the time being in force relating to civil procedure shall apply to all proceedings before the Court under this Act. 3rd Schedule Paragraph 2. Valuer's report and oral evidence

The applicant's valuer's report alone must establish a prima facie case for the applicant.

Oral evidence by the applicant's valuer shall only be adduced during cross-examination and re-examination, if any.

The respondent's valuer's report must be sufficient to rebut the applicant's valuer's report.

Subparagraph (2) shall apply to the respondent's valuer as it applies to the applicant's valuer. Paragraph 3. Filing and service of valuer's report

Each party to the proceeding shall, not less than seven days before the date of hearing, file in Court four copies of his valuer's report.

Each party to the proceeding shall, not less than twenty-one days before the date of hearing, serve on the other party a copy of his valuer's report.

Each party to the proceeding shall, not less than seven days before the date of hearing, serve on the other party and file in Court his valuer's reply to the other party's valuer's report. Paragraph 4. Common plan

Where the reports of both the applicant's and the respondent's valuers contain comparable sales plans, the applicant's valuer shall prepare a plan, to be known as the "common plan", incorporating the comparable sales plans in both such reports.

The common plan shall be served on the respondent not less than seven days before the date of hearing.

The common plan shall be filed in Court not less than four days before the date of hearing. Paragraph 5. Evidence to be by way of affidavit except for valuer's report

Except in the case of a valuer, the evidence of any other person shall be adduced by way of affidavits.

Except for any statement in writing made or delivered by the applicant and included in or attached to Form O by which the matter is referred to the Court, subparagraph (1) shall also apply to the applicant.

Except in the case of a valuer's report, any document to be tendered in evidence shall be tendered by way of an affidavit.

The provisions in paragraph 3 as regards the manner and time of service and filing in Court of a valuer's report and reply shall apply to affidavits and affidavits in reply.

The deponent may be called to be cross-examined.

The party wishing to cross-examine a deponent shall give at least seven days' notice of his intention to do so. Paragraph 6. Paragraphs 2,3,4 and 5 must be complied with No report, affidavit or other document shall be admitted in evidence unless the provisions of paragraphs 2,3,4 and 5 are complied with." (emphasis added).

Sections 40A to 40D LAA had been introduced by the Land Acquisition (Amendment) Act 1997 (Act A999) with effect from 1.2.1998.

Section 40D had been held to be unconstitutional and invalid in the Federal Court case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561. We reproduce below the judgment of Zainun Ali FCJ in Semenyih Jaya, at [95], [98] and [115]: [95] However in our view, s 40D [LAA] has a wider reach. The implications of the language of s 40D(1) and (2) [LAA] is that the assessors in effect take over the judicial power of the court enshrined under art 121(1) of the Federal Constitution [FC] in deciding on a reasonable amount of compensation in land reference matters. The judicial power to award compensation has been whittled away from the High Court judge to the assessors in breach of art 121 [FC]. [98] In view of the foregoing, by virtue of art 121(1) [FC], the power to award compensation in land reference proceedings is a judicial power that is vested in the High Court judge sitting in the land reference court. This argument is fortified by the provisions of sub-s 36(4) and s 2 [LAA]. It imposes on the land administrator the right to refer to the High Court judge who is seised with judicial power to adjudicate. [115] For all the reasons above, we find s 40D [LAA] to be ultra vires the [FC] and that it should be struck down." (emphasis added).

The Appellant's learned counsel had submitted as follows:

the High Court had breached s 40C LAA when -

the learned High Court Judge did not record the Opinions (2 Assessors); and

the High Court did not provide the Opinions (2 Assessors) to the Appellant-

before the hearing of the land reference; and

(ii) after the High Court's Order for the purpose of This Appeal; and

reliance was placed on the judgment of the Federal Court in Tegas Sejati.

Before the Federal Court's decision in Tegas Sejati on 29.2.2024, in the Court of Appeal case of Persatuan Pemandu-pemandu Perempuan Malaysia v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2022] 5 MLJ 21, at [9] to [15], Che Muhd. Ruzima JCA (as he then was) had delivered the following judgment (in our National Language): [9] Di awal penghujahan secara lisan di hadapan kami, peguam perayu telah membangkitkan satu isu undang-undang berhubung dengan pendapat pengapit-pengapit mahkamah yang tidak dibekalkan salinannya kepada pihak perayu untuk dimasukkan sebagai sebahagian daripada rekod rayuan. Alasan yang diberikan adalah, HMT tidak memberikan sebarang arahan untuk membenarkan laporan pengapit diberikan kepada peguam memandangkan laporan tersebut adalah untuk rujukan mahkamah sahaja. [10] Dengan merujuk kepada keputusan Mahkamah Persekutuan dalam kes Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 3 MLJ 561 (kes Semenyih Jaya), peguam perayu berhujah bahawa peruntukan s 40C APT 1960 berhubung dengan pendapat pengapit perlulah dipatuhi. Nasihat yang telah diberikan pengapit di Mahkamah Tinggi perlulah sediakan bagi pertimbangan Mahkamah Rayuan. Oleh itu, permohonan perayu untuk mendapatkan salinan pendapat bertulis pengapit-pengapit bagi tujuan penyediaan rekod rayuan wajar dibenarkan. Dihujahkan bahawa HMT telah khilaf di sisi undang-undang yang mewajarkan campur tangan mahkamah ini apabila gagal membenarkan permohonan perayu untuk mendapatkan sesalinan pendapat-pendapat bertulis pengapit tersebut. [11] Setelah mendengar hujahan awalan peguam perayu tersebut, kami sebulat suara bersetuju untuk menangguhkan perbicaraan rayuan ke tarikh lain bagi menyelesaikan isu berhubung dengan pendapat yang diberikan pengapit di hadapan HMT. Pada masa yang sama, kami telah memberikan arahan kepada timbalan pendaftar mahkamah ini untuk mendapatkan sesalinan pendapat kedua-dua pengapit mahkamah daripada Mahkamah Tinggi. Pendapat bertulis pengapit-pengapit tersebut telah pun kami terima daripada Mahkamah Tinggi sebelum perbicaraan bersambung. [12] Berhubung dengan pematuhan kehendak s 40C APT 1960, kami telah meneliti alasan penghakiman ('AP') HMT. Di bawah tajuk 'ANALISIS DAN KEPUTUSAN MAHKAMAH' di perenggan 27 AP, HMT telah secara jelas menyatakan bahawa kedua-dua pengapit telah mengemukakan pendapat masing-masing secara bertulis dan HMT telah pun merekodkan secara bertulis pandangan kedua-dua pengapit tersebut. Selain itu, HMT telah secara jelas merujuk kepada keputusan Mahkamah Persekutuan dalam kes Semenyih Jaya berhubung dengan pematuhan peruntukan s 40C APT 1960 dalam penghakimannya seperti yang dinyatakan di perenggan 28 AP. Lihat ms 281-282 Rekod Rayuan Tambahan di Kandungan 7. [13] Bagi permohonan peguam perayu supaya dibekalkan pendapat pengapit pula, kami berpandangan bahawa tidak ada mana-mana peruntukan undang-undang yang boleh disandarkan bagi memenuhi permohonan tersebut. Kami selanjutnya berpandangan bahawa pendapat pengapit hanyalah untuk tatapan dan pertimbangan HMT sahaja dalam prosiding rujukan tanah. Pihak-pihak dalam prosiding rujukan tanah tidak pada sebarang masa diberikan akses kepada pendapat bertulis pengapit tersebut. Jadinya, pendapat pengapit bukanlah sebahagian daripada rekod prosiding. Apa yang perlu dilakukan HMT adalah untuk merekodkan pendapat pengapit sepertimana yang dikehendaki di bawah s 40C APT 1960. Hanya apa yang direkodkan HMT dalam prosiding rujukan tanah yang akan menjadi sebahagian daripada rekod prosiding yang mana pihak-pihak ada akses. [14] Persoalannya, bagaimanakah pendapat pengapit tersebut dapat dipanjangkan ke Mahkamah Rayuan? Pada pendapat kami setelah mengambil kira segala perkara yang berbangkit, pendapat bertulis pengapit yang diperlukan di peringkat rayuan hendaklah diserahkan secara pentadbiran daripada Mahkamah Tinggi kepada Mahkamah Rayuan dan seterusnya ke Mahkamah Persekutuan jika diperlukan. Ini kerana, di peringkat Mahkamah Tinggi, hanya HMT sahaja yang dapat melihat serta menilai pendapat pengapit semasa prosiding perbicaraan. Dengan kata lain, pendapat bertulis pengapit adalah satu dokumen terkelas yang hanya dapat dilihat serta dinilai oleh hakim bicara sahaja. Begitulah seterusnya, jika ada rayuan yang dikemukakan maka hanya hakim di peringkat rayuan sahaja yang dapat melihat serta menilai pendapat bertulis pengapit tersebut. [15] Lagi pun, pandangan di antara pengapit yang dilantik mungkin sama atau mungkin berbeza di antara satu sama lain terutama berhubung dengan isu penilaian sesuatu harta. Ini kerana penilaian yang dibuat adalah bersifat subjektif bergantung kepada banyak faktor dan yang terpenting adalah berkait keterangan yang diperoleh dan digunakan semasa membuat penilaian. Pendapat pengapit inilah yang akan membantu HMT yang bukannya pakar dalam bidang penilaian membuat keputusan dalam prosiding rujukan tanah. Semasa membuat keputusan, HMT berhak untuk menerima atau mempunyai pandangan yang berbeza daripada pengapit. Di akhir prosiding rujukan tanah, HMT mempunyai kuasa mutlak untuk membuat keputusan dan perlulah menyatakan alasan bagi keputusan tersebut selaras dengan apa yang telah diputuskan Mahkamah Persekutuan dalam kes Semenyih Jaya. Dengan kata lain, keputusan muktamad terletak di tangan HMT. Oleh itu, tidaklah wajar pendapat pengapit dijadikan sebagai sebahagian daripada pertikaian yang mana akan pasti melengahkan pelupusan bantahan dalam kes rujukan tanah.” (emphasis added).

Premised on the Court of Appeal's judgment in Persatuan Pemandu-pemandu Perempuan Malaysia-

s 40C LAA does not state that the Opinions (2 Assessors) are to be provided to the parties in the land reference in the High Court [Parties (High Court)]. The Opinions (2 Assessors) could only be provided to the learned High Court Judge or Judicial Commissioner (J/JC) hearing the land reference;

the Opinions (2 Assessors) did not form part of the record of the land reference proceedings in the High Court. Hence, the Opinions (2 Assessors) should not be included in the record of appeal (RA) for the purpose of subsequent appeals to the Court of Appeal and Federal Court [Appeals (Court of Appeal/Federal Court)]; and

in the Appeals (Court of Appeal/Federal Court), the Court of Appeal and Federal Court may make an administrative request for the Opinions (2 Assessors) from the High Court. Upon the High Court's supply of the Opinions (2 Assessors), only the learned judges of the Court of Appeal and Federal Court [not the parties to the Appeals (Court of Appeal/Federal Court)] can have access to the Opinions (2 Assessors). Hence, the Opinions (2 Assessors) cannot form part of the RA in the Appeals (Court of Appeal/Federal Court).

It was decided in Tegas Sejati, at [1], [6] to [11], [13], [15] to [18], [24], [25], [28] to [30] and [34] to [39] as follows: [1] Although eight issues were identified for determination by this court, we allowed the appeals and remitted the matter to the High Court for a re-hearing after finding on the single issue of non-compliance of s 40C [LAA]. We found the noncompliance to be serious warranting us to intervene under the principles of appellate intervention. [6] On 16 May 2017, the first respondent handed down an award for compensation to which both LLM and the appellant, objected. The first respondent awarded compensation for market value, costs of preliminary works, costs of termination of the contractor and consultant agreements, costs of site replacement and loss of profit amounting to RM59,706,236.85. [7] Both LLM and the appellant filed their respective objections vide Form N and this led to two land reference proceedings before the High Court, as prescribed under s 36 [LAA]. Both land reference proceedings were rightly consolidated and heard together. [8] On 22 September 2020, the appellant filed an application seeking to strike out the first respondent's land reference proceedings under O 18 r 19 of the Rules of Court 2012 (encl 48). This application was heard together with the merits of the land reference proceedings; the latter involved the assistance of two assessors, as provided under s 40A [LAA]. [9] On 14 December 2020, the High Court delivered its decisions for both the striking out application as well as the land references (first written grounds). Full grounds were later released on 4 February 2021 (second written grounds). By these decisions, the High Court dismissed encl 48, dismissed the appellant's land reference and allowed LLM's land reference. [10] The appellant appealed against both decisions on 22 December 2020. LLM cross-appealed, seeking to vary part of the High Court's decision and a return or repayment of an excess sum of over RM31m together with interest. [11] On 4 October 2022, the Court of Appeal dismissed the appellant's appeals, allowed LLM's cross-appeal and directed a refund of the excess sum together with interest. [13] On 18 August 2023, we heard submissions but had to adjourn proceedings for the single purpose of ascertaining if there was compliance of s 40C [LAA] as this was not clear from the records of appeal. ... [15] We were of the opinion that until the actual status of s 40C was established one way or another, we would be hampered in hearing and dealing with the issues posed. We therefore directed the registry of the Federal Court to request from the registry of the High Court for sight of the written opinions of the two assessors. This direction was duly carried out and as soon as the written opinions were procured, the registry of the Federal Court sent them to the parties vide email dated 7 September 2023. On 5 October 2023, the appellant filed a supplementary record of appeal containing these opinions. On 6 October 2023, soft copies of the written opinions were filed by the appellant vide a second supplemental record of appeal. [16] Further submissions were then filed by the respective parties, addressing these written opinions. [17] The appellant questioned the validity of these written opinions, going as far as to suggest that these opinions may not have been prepared at the material time or even authored by the assessor who attended the land reference proceedings as a different name appeared on the opinion that was made available. According to the appellant, the copies which were made available were also not scanned copies of a physical copy but were in fact conversions from word format to PDF format, suggesting that soft copies instead of physical copies were prepared. [18] In any case, there were contradictions between the views expressed in these opinions and what was attributed to the assessors in the grounds of decision of the learned judge, especially in the matter of costs of preliminary works. It was also argued that these written opinions ought to have been available to the parties, at the very least, for subsequent inclusion in the records of appeal. [24] We start our deliberations from art 13(1) of the Federal Constitution. It guarantees that no person shall be deprived of property save in accordance with law. In Spicon Products Sdn Bhd v Tenaga Nasional Bhd & Anor [2022] 2 MLJ 721 where the principal issue was whether the legal proprietor of land which had been acquired was entitled to attend and participate in reference proceedings even though the compensation awarded had been accepted without protest, this court held that in relation to art 13, 'the reading and application of this guarantee, there must be a propensity to safeguard as opposed to denying that guarantee. Unless and until there are clear provisions restricting a right of participation in any exercise to deprive property, any relevant law must be read to allow if not encourage such participation. The adequacy of any compensation paid for the deprivation may otherwise be compromised'. [25] Specifically, and in relation to compulsory acquisition, art 13(2) provides that 'No law shall provide for the compulsory acquisition or use of property without adequate compensation'. In the interpretation and construction of s 40Cand the attendant provisions here, the same approach must be adopted. While these provisions may not provide for every detail of how a land reference proceeding is to be conducted, a construction which serves to preserve and realise that guarantee must be adopted and applied. The courts, the judges, must give real meaning and sense to these provisions through a purposive approach so that these rights are not rendered illusory, as repeatedly cautioned by this court. See PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60. [28] The question that arises is where there is an objection over the award of compensation and assessors are appointed, and the law requires them to give written opinions which are then to be recorded by the judge hearing the land reference, are these opinions necessarily for the eyes of that judge alone? That even the Court of Appeal which may hear an appeal emanating from the decision of the High Court over that matter of compensation will have to request administratively for sight of such opinions? That, again, when furnished, these written reports are only for the eyes of the three judges at the Court of Appeal whilst the parties are left entirely in the dark? [29] Repeating that process finally at the Federal Court, assuming that there is some question of law arising from that compensation, is the Federal Court expected to request for those opinions 'internally and administratively' and once again, when secured from the High Court, the opinions are for the eyes of the panel of the Federal Court only and not the parties? [30] Going back to where we started, that it is the constitutional right to property which is under scrutiny, the answers to these posers should become quite obvious. While s 40C may not spell out in detail how the written opinions of the two assessors are to be handled other than to require the opinions to be written and to be recorded by the learned judge, it cannot be denied that the written opinions form part of the proceedings. [34] If judges are required to provide their reasons for arriving at any decision, all the more, the opinion of the assessors, which the law mandates must be in writing must be made available to the parties. Although these opinions are intended to assist the court in arriving at a decision on the amount of compensation, it is imperative that parties have the opportunity to consider them and to respond, if necessary. At its most basic level, these opinions form and must be part of the records of the land reference proceedings, aside from the learned judge recording the fact that the written opinions were provided. [35] As part of the records of the proceedings, these opinions become part of the records of appeal, should there be an appeal. The parties can then adequately prepare their appeals and the appellate courts will similarly be able to properly scrutinise these opinions and evaluate the complaints and concerns of the parties and how the same were addressed by the learned judge. See for instance Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487. If these written opinions are not made available, worse not form part of the records of appeal until and unless specifically sought for by any party, how is the question of adequacy of compensation to be properly addressed. How is the right enshrined in art 13(2) to be upheld? [36] Under art 13 of the Federal Constitution, the High Court in assessing the complaint of adequacy of compensation is bound to balance competing interests of the appellant, the landowner and the second respondent, the acquiring authority or paying master under [LAA]. It is therefore necessary that all relevant material is placed before the court for that assessment and determination. Otherwise, the rights of the appellant, as landowner, will not be properly redressed. [37] Further, the question of adequacy of compensation can only be properly determined according to law if all concerned have had the opportunity to address the reasons, factors or circumstances which are relevant and necessary when computing or calculating that compensation. The opinions of the assessors who attend court and assist the High Court judge in determining the matter of compensation so as to ensure that it is at the end of the day, adequate must thus be made known to the owners and those affected by the compulsory acquisition. The obligation to make known the reasons or factors extends to everyone who has any role to play in that decision, be it the judge or the assessors. Thus, the availability of these written opinions of the assessors can never be a matter of internal administrative arrangement. Land reference proceedings are open court proceedings and it is integral to the rule of law that there is transparency and fairness not just in the conduct of those proceedings but in the manner any evidence, including opinion evidence is received and treated by the court. The presence of these written opinions must be recorded by the judge hearing the land reference and should the judge see fit, even incorporate the entire or parts of those opinions into the determination. It may even be attached to the learned judge's grounds, should that be seen as appropriate. But, once available, the written opinions must be provided to the parties. These opinions must be included into any record of appeal, in the event there is one. Otherwise, these written opinions are part of the records of the land reference proceedings at the High Court. [39] Since it is obvious that there was non-compliance of s 40C in these appeals, that the written opinions were never made available to the parties or even called for by the Court of Appeal, the appeals must be allowed and the orders of the courts below are set aside. The matter is remitted to the High Court for a rehearing before another judge." (emphasis added).

With respect, we are of the following view regarding s 40C LAA and Tegas Sejati:

our Federal Court had decided in Semenyih Jaya that-

the learned High Court J/JC has the judicial power under Article 121(1) of the Federal Constitution to decide on the Compensation Sum without being bound in any manner by the Opinions (2 Assessors); and

s 40D(1) to (3) LAA are void for being unconstitutional. Premised on Semenyih Jaya, the learned High Court J/JC has the sole judicial power to decide on the Compensation Sum without being fettered in any manner by the Opinions (2 Assessors);

it is clear from s 40A(1) LAA that the land reference High Court "shall consist of a Judge sitting alone". Even though the 2 Assessors sit together with the learned J/JC in the hearing of a land reference in open court [s 45(1) LAA], the 2 Assessors are not part of the land reference High Court;

where there is an objection regarding the Compensation Sum awarded by the PTD, the High Court shall appoint the 2 Assessors "for the purpose of aiding the Judge in determining the objection and in arriving at a fair and reasonable" Compensation Sum within the meaning of s 40A(2) LAA. In other words, the sole purpose for the appointment of the 2 Assessors is to aid the learned High Court J/JC to decide on the Compensation Sum;

s 40C LAA only provides for the following two requirements-

the Opinions (2 Assessors) "shall" be in writing $ [ 1^{st} $ Requirement (Section 40C LAA)]. The $ 1^{st} $ Requirement (Section 40C LAA) is mandatory because the written Opinions (2 Assessors) should be forwarded to the learned J/JC before the hearing of the land reference. In this manner, as provided in s 40A(2) LAA, the written Opinions (2 Assessors) can aid the learned J/JC to decide on the Compensation Sum; and

the High Court "shall" record the Opinions (2 Assessors) $ [2^{nd} $ Requirement (Section 40C LAA)]. Section 40C LAA does not state where the Opinions (2 Assessors) should be recorded by the learned High Court J/JC. In our opinion, the $ 2^{\mathrm{nd}} $ Requirement (Section 40C LAA) is merely directory. This is because in view of -

the invalidity of s 40D(1) to (3) LAA (as decided in Semenyih Jaya); and

(ii) s 40A(1) and (2) LAA - the significance of s 40C LAA and the Opinions (2 Assessors) has diminished substantially. If the $ 2^{\mathrm{nd}} $ Requirement (Section 40C LAA) is mandatory, the mandatory $ 2^{\mathrm{nd}} $ Requirement (Section 40C LAA) would constitute an unlawful fetter on the constitutional judicial power of the learned High Court J/JC to decide on the Compensation Sum;

there is nothing in s 40C LAA or any other provision in the LAA which confers a right on the Parties (High Court) to be provided with a copy of the Opinions (2 Assessors) before the hearing of the land reference. This view is supported by the following provisions in the LAA-

by virtue of s 45(1A) LAA, the provisions of the $ 3^{rd} $ Schedule "shall" apply to land references in the High Court. According to the $ 3^{rd} $ Schedule, prior to the hearing of the land reference, a party in the land reference (X) is only entitled to the following documents and not the Opinions (2 Assessors) -

the valuer's report of X's opposing party (Y)-please refer to Sub-Paragraph 3(2) $ (3^{rd} $ Schedule);

(ii) the reply by Y's valuer to the valuation report prepared by X's valuer - please refer to Sub-Paragraph 3(3) $ (3^{rd} $ Schedule);

(iii) the "common plan" - please refer to Sub-Paragraphs 4(1) and (2) $ (3^{\mathrm{rd}} $ Schedule); and

(iv) affidavit(s) affirmed by Y's witness (who is not Y's valuer) - please refer to Sub-Paragraphs 5(1) and (4) $ (3^{rd} $ Schedule); and

Paragraph 6 has expressly provided that no "report, affidavit or other document shall be admitted in evidence" unless the provisions of Paragraphs 2,3,4 and 5 $ (3^{\mathrm{rd}} $ Schedule) are complied with;

according to s 45(2) LAA, the "law for the time being in force relating to civil procedure shall apply to all proceedings" before the court under the LAA unless the law in question "may be inconsistent with anything" contained in the LAA. It is thus clear that Parliament's intention in s 45(2) LAA is to exclude the law relating to civil procedure to land references which "may' be contrary to LAA, including s 45(1A) LAA read with Paragraphs 3(2), 3(3), 4(1), 4(2), 5(1), 5(4) and 6 $ (3 ^{rd}$ Schedule) (regarding the documents to which X is entitled to obtain for the purpose of the hearing of a land reference);

s 40C LAA does not require the High Court to provide the Opinions (2 Assessors) to the Parties (High Court) after-

the High Court's decision on the Compensation Sum; and

the Parties (High Court) have filed the Appeals (Court of Appeal/Federal Court). The reasons stated in the above sub-paragraphs (1) to (5), offer support for the above opinion;

s 40C LAA does not provide for the Opinions (2 Assessors) to form part of the record of the land reference proceedings in the High Court, let alone the RA for the Appeals (Court of Appeal/Federal Court);

in Tegas Sejati-

when the Federal Court obtained the Opinions (2 Assessors) from the High Court, the Federal Court discovered that there were contradictions between the Opinions (2 Assessors) and "what was attributed to the assessors in the grounds of decision of the learned judge" {please refer to [18]}; and

the Federal Court decided as follows-

for the purpose of the hearing of land references in the High Court, the Parties (High Court) should have access to the Opinions (2 Assessors);

(ii) in the event the Appeals (Court of Appeal/Federal Court) are filed, the Opinions (2 Assessors) should form part of the RA for the purpose of the hearing of the Appeals (Court of Appeal/Federal Court);

(iii) there was non-compliance of s 40C LAA because -

(iii)(a) the Opinions (2 Assessors) "were never made available" to the Parties (High Court); and

(iii)(b) the Court of Appeal did not call for the Opinions (2 Assessors); and

(iv) due to the reasons stated in the above subparagraphs (b)(i) to (iii), the Federal Court-

(iv)(a) set aside the orders of the High Court and Court of Appeal; and

(iv)(b) ordered a re-hearing of the land reference before another learned J/JC (assisted by different assessors); and

before the delivery of the Federal Court's judgment in Tegas Sejati on 29.2.2024, with regard to s 40C LAA, the Court of Appeal's decision in Persatuan Pemandu-pemandu Perempuan Malaysia constituted the prevailing case law. Based on Persatuan Pemandu-pemandu Perempuan Malaysia-

the Parties (High Court) were not provided with the Opinions (2 Assessors) before and after the land reference;

the Opinions (2 Assessors) were not included in the RA for the Appeals (Court of Appeal/Federal Court);

the hearing of land reference cases had been completed; and

the Compensation Sums had been paid to the land owners. In view of the above exceptional reasons, the Federal Court's judgment in Tegas Sejati should only have prospective effect, namely, Tegas Sejati can only apply to land reference cases which had not been decided in the High Court. In this regard, we rely on the following two Federal Court judgments-

in Tekun Nasional v Plenitude Drive (M) Sdn Bhd & another appeal [2021] 6 MLJ 619, at [37] and [38], Hasnah Hashim FCJ (as she then was) decided as follows [37] Learned counsel for Plenitude relied on the case Cubic and submitted that there is no necessity for the plaintiff to prove of actual loss or damages as the innocent party of the breach it seeks to enforce a damages clause. Cubic introduced a new burden, shifting the onus to the defendant, in this case, Tekun to prove that the damages claimed by Plenitude is unreasonable and unconscionable. This, according to learned counsel for Plenitude, Tekun failed to do. Learned counsel for Tekun in response argued that Tekun had presented and argued its case in the High Court based on burden of proof applicable at the material time where Plenitude bears the onus to prove the actual loss. If Cubic is applicable, Tekun must adduce evidence to prove that the damages claimed by Plenitude is unreasonable. The onus of proof in relation to s 75 of the [Contracts Act 1950] at that material time lies on Plenitude, following Selva Kumar and Johor Coastal. Cubic should not be applicable retrospectively to cases where full trial has completed and decided by the court of first instance. The Court of Appeal had decided based on the law applicable at that material time. In this case, the retrospectivity of Cubic will cause manifest injustice to Tekun. Therefore, it stands to reason that Cubic will only apply prospectively. That is, to cases where trials have not been completed." (emphasis added); and

(ii) the above judgment in Tekun Nasional had been followed by Ahmad Terrirudin FCJ in Lim Swee Choo & Anor v Ong Koh Hou @ Won Kok Fong & another appeal [2025] 6 MLJ 327, at [173]. We cite the following passages in Lim Swee Choo, at [169] and [174] - [169] For completeness, to borrow the words of Lord Denning in British Movietonews Ltd v London and District Cinemas Ltd [1952] AC 166 (HL), we wish to add that it does not take a genius with the 'foresight of a prophet' to recognise that the change of law on the test for the doctrine of total failure of consideration, brought about following this judgment applies to these appeals and will affect all pending litigations which have yet been finally determined currently proceeding on the basis of Berjaya Times Square. In that course, however, we think that uncertainties abound and that significant unfairness may arise to the parties involved if the law were to be applied retrospectively. [174] Thus elucidated, it is our view that Malaysia's position on the test for the common law restitutionary doctrine of total failure of consideration, as clarified in this judgment, should apply prospectively. (emphasis added).

In This Appeal, we decide that the Appellant cannot rely on the Federal Court's judgment in Tegas Sejati. Our reasons are as follows:

the land reference in this case was concluded on 13.4.2023, way before the delivery of the Federal Court's judgment in Tegas Sejati (on 29.2.2024) - please refer to the above subparagraph 28(9);

the Appellant did not apply to the High Court for a copy of the Opinions (2 Assessors) [so as to include the Opinions (2 Assessors in the RA for This Appeal];

before and during the hearing of This Appeal, the Appellant did not apply for the Court of Appeal to request a copy of the Opinions (2 Assessors) from the High Court;

in Tegas Sejati, the Federal Court ordered a re-hearing of the land reference before another learned J/JC (assisted by different assessors). By way of This Appeal, the Appellant sought an order of the Court of Appeal to increase the Compensation Sum;

the learned High Court Judge had referred to the Opinions (2 Assessors) in paragraphs 30, 31 and 53 GOJ; and

as explained in Parts H, I and J(1) to J(4) below, there is no merit in This Appeal. Accordingly, even if Tegas Sejati had applied retrospectively to this case, no injustice is occasioned to the Appellant. H. What amounts to a "question of law" which can be appealed to the Court of Appeal?

Section 49(1) LAA states as follows: "s 49. Appeal from decision as to compensation.

Any person interested, including the Land Administrator and any person or corporation on whose behalf the proceedings were instituted may appeal from a decision of the Court to the Court of Appeal and to the Federal Court: Provided that where the decision comprises an award of compensation there shall be no appeal therefrom." (emphasis added).

It was decided by our Federal Court in Semenyih Jaya, at [144] to [151] and [155], as follows: "[144] A literal reading of the {Proviso [Section 49(1) [LAA]] would mean that there is a complete bar on all appeals to the Court of Appeal from the High Court on a question of compensation. [145] On behalf of the respondent, the senior federal counsel submitted that the language of the {Proviso [Section 49(1) [LAA]} is clear and unequivocal in that where the High Court's decision is grounded on compensation, no appeal can be brought against that decision. The courts must give effect to the clear provisions of the law. [146] The above contention finds support in two decisions of the Federal Court. In Calamas Sdn Bhd v Pentadbir Tanah Batang Padang [2011] MLJU 1528; [2011] 5 CLJ 125, the Federal Court, inter alia, held that: ... In the instant appeal I do not see anything ambiguous in ss 40D and 49(1) of the Act. In view of this, I am of the view that the Appellant is precluded from appealing against the order of compensation issued by the learned judge. [147] A similar pronouncement was made in the case of Syed Hussain where His Lordship Raus Sharif PCA said: With the introduction of s 40D and the amendment to the proviso of s 49(1) the intention of Parliament is very clear, ie., to preclude any party from appealing against the order of compensation made by the High Court ... (Emphasis added.) [148] We are of the view that this purported ouster of the right of appeal in respect of compensation ought to be narrowly and strictly construed. One has to revert to the tangible weight of the wording of art 13(1) [Federal Constitution] where the safeguards are that an acquisition must be 'in accordance with law' and that the compensation should be 'adequate compensation'. The {Proviso [Section 49(1) [LAA]]} must be strictly interpreted in favour of the person who has been deprived of its property so as to give meaning to the constitutional protection of a person's right to his property. [149] It is axiomatic that a right of appeal is statutory. What then is the effect of this? First, it simply means that when conferred by statute, the right of appeal becomes a vested right. Correspondingly the jurisdiction of the court to hear appeals is also conferred by statute (see Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549; Wan Sagar bin Wan Embong v Harun bin Taib & Ors [2008] 4 MLJ 473). [150] A fortiori, the nature of the appeal depends on the terms of the statute conferring that right. It is a matter of construction to be given to the provisions conferring the right to appeal. Legislative intention can also be found by examining the legislation as a whole. Limiting the right to bring an appeal is a way of encouraging finality. If an examination of the language and policy of the [LAA] granting the right of appeal concludes that Parliament intends to limit an appeal, the court must give effect to it. [151] We have perused the facts and the decisions of this court in Calamas and Syed Hussain. The cases do not represent a bar to appeal against any decision of the High Court on compensation. Even if Calamas and Syed Hussain represent a bar to appeal against any decision which comprises compensation, the Federal Court in these two cases were not invited to consider issues of constitutionality or the restrictive dimension of the {Proviso [Section 49(1) [LAA]} in the face of art 13 [Federal Constitution], since it was never raised there. Instead the issues in these two cases merely revolved around the construction of sub-s 40D(3) and sub-s 49(1) [LAA]. [155] To sum up, the {Proviso [Section 49(1) [LAA]]} does not represent a complete bar on all appeals to the Court of Appeal from the High Court on all questions of compensation. Instead the bar to appeal in sub-s 49(1) of the Act is limited to issues of fact on ground of quantum of compensation. Therefore an aggrieved party has the right to appeal against the decision of the High Court on questions of law." (emphasis added). It is clear from Semenyih Jaya, that an appeal to the Court of Appeal can only be filed against a decision of the High Court in a land reference if the appeal concerns a "question of law".

Subsequent to Semenyih Jaya, the following two Federal Court decisions have explained the meaning of a "question of law" wherein Appeals (Court of Appeal/Federal Court) can be lodged:

according to the decision of Vernon Ong Kiat Lam FCJ in Amitabha Guha (as beneficiary for the estate of Madhabendra Mohan Guha) & Anor v Pentadbir Tanah Daerah Hulu Langat [2021] 4 MLJ 1, at [46] and [76] - [46] It follows from the preceding paragraph that appeals to the Court of Appeal and to the Federal Court may only be mounted on questions of law. In a general sense, a question of law is an issue involving the interpretation of law (statutes or legal principles) and the application of the law to the facts of each individual case. What is a question of law has also been discussed and formulated in a line of cases:

questions of law are questions about what the correct legal test is. Questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research, Competition Act) v Southam Inc [1997] 1 SCR 748);

a question of law is a question concerning the legal effect to be given to a set of undisputed facts. This includes an issue which involves the application or interpretation of a law (Carrier Lumber Ltd v Joe Martin & Sons Ltd [2003] BCJ No 1602);

the question of whether a decision-maker has jurisdiction to determine a particular matter is usually considered a question of law reviewable by a court on a standard or correctness (Premium Brands Operating GP Inc v Turner Distribution Systems Limited [2010] BCJ No 349);

questions of law involve errors of law committed by a decision-maker. Errors of law includes the application of the wrong law, or a finding of fact in complete absence of any evidence (Southam, at [39]; I-Ntelink Inc v Broadband Communications North Inc [2017] MBQB 146);

questions where there is real doubt as to the law on a particular point (Datuk Syed Kechik bin Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors and another application [1999] 1 MLJ 257; [1999] 1 CLJ 325 (FC)); and

questions of law include the correctness of:

pure statements of law (eg, as to correct interpretation of a statutory provision); and

the inferring of a conclusion from the primary facts (where the process of inference involves assumptions as to the legal effect of consequences of the primary facts) (D-G of Inland Revenue v Rakyat Berjaya Sdn Bhd [1984] 1 MLJ 248 at p 252 (FC)). To recap, we decline to answer question 1 on the comparable acquisition issue and question 3 on the injurious affection issue as they are not questions of law. Firstly, the weight to be given to the acquisition and sale comparables by the learned judge and on the other evidence relating to the claim for injurious affection were essentially findings of fact on the evidence. Secondly, the questions relate to a decision of the High Court on compensation which decision is final and non-appealable under ss 40D and 49(1) respectively." (emphasis added); and

the above judgment in Amitabha Guha, had been affirmed by Mary Lim Thiam Suan FCJ in Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn Bhd [2021] 4 MLJ 570 (Nusantara Daya), at [48], [51], [70], [103] and [104]. It was further decided in Nusantara Daya, at [1], [34], [35], [51] to [53], [57] to [59], [61], [62], [82], [83], [93], [94], [105] and [111], as follows- [1] This appeal brings to sharp focus, once again, the meaning, intent and ambit of s 49 [LAA], in particular the {Proviso [Section 49(1) [LAA]]}, whether the appeal to the Court of Appeal and thence to this court, is barred by reason of the proviso. This issue was raised as a threshold issue at the Court of Appeal which went on to rule in the negative before deciding the appeal on its merits. This threshold issue forms the core issue in this appeal. [34] What then is a question of law properly and validly falling within the terms of the {Proviso [Section 49(1) [LAA]}? What is the meaning and ambit of 'question of law'; should this term be ascribed a largess or generous interpretation; or should it be a stricter narrower construction. [35] It is material to decide whether any question posed to the Court of Appeal is indeed a question of law as envisaged in Semenyih Jaya. We say this because the right of appeal to the Court of Appeal and thence to the Federal Court under [LAA] is governed by s 49 [LAA]. This issue impacts on the jurisdiction of the court, be it the Court of Appeal or the Federal Court. [51] As a starting point, we would adopt the general proposition as set down in Amitabha Guha No 2, that 'In a general sense, a question of law is an issue involving the interpretation of law (statutes or legal principles) and the application of the law to the facts of each individual case', but with a strong rider and only to that extent. This general proposition must be appreciated, understood and applied in the context of the {Proviso [Section 49(1) [LAA]]}, ruled by this court in Semenyih Jaya to be a valid provision of law, that s 49(1) limiting the right of appeal does not violate arts 13 and 121(1B) of the Federal Constitution - see paras [165]-[173]. [52] This general proposition also is not to be taken as suggesting, even for the slightest moment, that s 49(1) is to be given a liberal reading so as to render nugatory the clear intent of precluding appeals from decisions of the High Court on compensation. This proposition is not to be read as allowing in any way, what in pith and substance, are appeals on compensation. ... [53] There are several reasons why we advocate for such an approach. [57] A further reason is this - considering that this 'carve-out' exclusion to the express prohibition of appeal is judge-made and is as interpreted by the Federal Court in Semenyih Jaya (even then it was really as per the question framed), we would strongly caution against giving the phrase 'question of law' a wide or flexible understanding and construct. See UKM v Attorney General [2018] SGHCF 18. This qualifier does not appear at all in the plain and unambiguous terms of s 49(1); neither does it exist in the now invalidated s 40D. A narrow and strict construction of s 49(1) was adopted in order to 'give meaning to the constitutional protection of a person's right to his property' - see para [148]. [58] Consistent with that approach, the circumstances and meaning of what may amount to a 'question of law' under the proviso to s 49(1) must also be 'narrowly and strictly construed'; that the definition must not be extensive as it would undermine the clear intent of the proviso to s 49(1) - that there is no right of appeal in respect of decisions comprising an award on compensation. Next, while according s 49(1) a narrow and strict construction to bring it in line with art 13 of the Federal Constitution and ensure that acquisitions are in accordance with law and that compensation is adequate, in our view, this court in Semenyih Jaya had nevertheless expressly recognized and endorsed the approach earlier adopted in Calamas - that the amendment to the {Proviso [Section 49(1) [LAA]} is very clear, it is to preclude any party from appealing against the final order of compensation made by the High Court. At para [149], this court expressed the view that 'limiting the right to bring an appeal is a way of encouraging finality. If an examination of the language and policy of the [LAA] granting the right of appeal concludes that Parliament intends to limit an appeal, the Court must give effect to it'. The fact that the Federal Court in Calamas did not discuss the constitutionality of s 49 makes no difference to this conclusion. [61] Yet another reason why a narrow construction must be given to the phrase 'question of law' is that in Semenyih Jaya, the specific question of law posed in respect of s 49(1) itself was directed at whether there could nevertheless be an appeal on compensation where it involves a question of law. To this, the Federal Court answered in the affirmative. [62] Over and above these reasons is the existence of another material aspect to s 49 which may have been overlooked thus far - that there is actually a right to appeal where the decision of the High Court does not comprise an award of compensation. The decision of the High Court may well not comprise an award of compensation but may be in respect of measurement of the scheduled land, the persons to whom compensation is to be paid, or the apportionment of compensation; or the matters set out in s 36(2). [82] We are of the firm view that the complaints of the respondent essentially concerned issues of fact and/or application of valuation principles when computing the amount of compensation to be awarded for the acquisition. Such issues of fact as well as the application of valuation principles as we have said repeatedly, are not questions of law; certainly not within the narrow and limited remit of what or how such a question of law may be properly and validly taken on appeal under the amended s 49(1). [83] We agree with the submissions of the appellant that the respondent's complaints relate solely and ultimately to the amount or inadequacy of compensation by reason of the deductions and adjustments made by the learned judge, a methodology and exercise that a High Court judge, sitting as the land reference court is perfectly entitled to undertake in order to determine the market value of the scheduled land. In fact, that is precisely the exercise required of the High Court under [LAA]. The market value of any land is not a matter of say so but is subject to proof by evidence and according to the principles for determining compensation as statutorily provided in the First Schedule to [LAA]. Those principles have been carefully prescribed so that adequate compensation under art 13 of the Federal Constitution may be determined. [93] With the introduction of assessors who are professional valuers to ensure that proper determination of adequate compensation under art 13 of the Federal Constitution, and in view of the {Proviso [Section 49(1) [LAA]}, we would say that a re-hearing in the terms as described in Collector of Land Revenue v Alagappa Chettiar is no longer a necessary feature to appeals on compensation. Allowing questions of law to be posed in appeals on compensation (Semenyih Jaya), in our regard, should not mean or entail the same process of re-hearing where the Court of Appeal or the Federal Court 'review the inferences and conclusions of the High Court and to draw its own inferences and conclusions' in relation to valuation; otherwise it would undermine the plain intent of the {Proviso [Section 49(1) [LAA]]}, render the intent of Parliament meaningless and the courts be accused of rewriting the law. [94] We note that the complaints are not about the process of assessment or how the assessors had assisted the High Court in determining the compensation to be awarded. The complaints are in substance, about the computation of the award, how deductions were said to be erroneously made or certain factors not taken into account. In our view, all these complaints posed ostensibly as questions of law are really allegations on nothing more but the amount awarded as compensation by the High Court. Such deductions or increases are adjustments generally made in the course of the evaluation exercise for a fair market value for the scheduled land. This is in accordance with s 1(1A) of the First Schedule of [LAA] which the High Court, as the Land Reference Court, must undertake after identifying Comparable 1 of the government valuer's comparables as the 'best comparable to be used for the scheduled land'. The complaints posed through the questions posed at the Court of Appeal are not questions of law. [105] In this appeal, the questions posed at the Court of Appeal cannot pass the litmus test of being proper questions of law; hence ought not to have been allowed by the Court of Appeal. [111] None of the questions posed by the respondent at the Court of Appeal were real questions of law. We thus unanimously allow the appeal and set aside the decision of the Court of Appeal and restore the decision of the High Court dated 9 August 2018." (emphasis added)

It is clear from the Federal Court's judgment in Nusantara Daya that-

in view of the Proviso [Section 49(1) LAA], what amounts to a "question of law", "must" be "narrowly and strictly construed";

the Court of Appeal should identify the "question of law" which is appealable (Appealable Question of Law);

after the Court of Appeal had identified the Appealable Question of Law-

the Court of Appeal shall answer the Appealable Question of Law; and

based on the Court of Appeal's answer to the Appealable Question of Law, whether there should be appellate intervention regarding the High Court's decision on the land reference; and

the hearing of the Appeals (Court of Appeal/Federal Court) is not a "re-hearing" as understood in s 69(1) of the Courts of Judicature Act 1964 (CJA). Reproduced below is s 69(1) CJA- "s 69(1) Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner." (emphasis added). As a hearing of the Appeals (Court of Appeal/Federal Court) is not a "re-hearing", the appellate courts cannot review, let alone decide-

the finding(s) of fact of the High Court in the land reference; and

the inference(s) made by the learned High Court Judge in the land reference. I. What matters can be considered in determining the Compensation Sum?

We reproduce below s 12(1) and paragraph 2 of the $ 1^{\mathrm{st}} $ Schedule (Paragraph 2): "s 12. Enquiry by the Land Administrator

On the date appointed under of subsection 10(1) the Land Administrator shall make full enquiry into the value of all scheduled lands and shall as soon as possible thereafter assess the amount of compensation which in his opinion is appropriate in each case, according to the consideration set out in the $ [ 1^{st} $ Schedule]: Provided that the Land Administrator may obtain a written opinion on the value of all scheduled lands from a valuer prior to making an award under section 14. 1st Schedule Paragraph 2. Matters to be considered in determining compensation 2. In determining the amount of compensation to be awarded for any scheduled land acquired under [the LAA] there shall be taken into consideration the following matters and no others:

the market value as determined in accordance with section 1 of this Schedule;

any increase, which shall be deducted from the total compensation, in the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put;

the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of severing such land from his other land;

the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner;

if, in consequence of the acquisition, he is or will be compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change; and

where only part of the land is to be acquired, any undertaking by the State Authority, or by the Government, person or corporation on whose behalf the land is to be acquired, for the construction or erection of roads, drains, walls, fences or other facilities benefiting any part of the land left unacquired, provided that the undertaking is clear and enforceable." (emphasis added).

By virtue of s 12(1) LAA, PTD "shall make full enquiry into the value of all scheduled lands and shall as soon as possible thereafter assess the amount of compensation which in his opinion is appropriate in each case, according to the consideration set out in the $ [ 1^{st} $ Schedule]". In determining the Compensation Sum, the court can only consider matters enumerated in sub-paragraphs 2(a) to (f) of the $ 1^{\mathrm{st}} $ Schedule ["Sub-Paragraph 2(a)] to "Sub-Paragraph 2(f)] . Our reasons for this view are as follows:

it is expressly stated in Paragraph 2 that "In determining the amount of compensation to be awarded for any scheduled land acquired under [the LAA] there shall be taken into consideration the following matters and no others" (emphasis added). The phrase "no others" in Paragraph 2 makes it clear that Parliament has intended only for the matters expressly provided in Sub-Paragraph 2(a) to Sub-Paragraph 2(f) (and no others), to be considered by the court in deciding the Compensation Sum;

the matters expressly stated in Sub-Paragraph 2(a) to Sub-Paragraph 2(f) are exhaustive because -

a punctuation mark (semi-colon) has been placed at the end of each of Sub-Paragraph 2(a) to Sub-Paragraph 2(e). The court may rely on a punctuation mark in the interpretation of a statutory provision - please refer to the majority judgment of Abdoolcader SCJ in the Supreme Court case of Dato Mohamed Hashim Shamsuddin v Attorney-General, Hong Kong [1986] 2 MLJ 112, at 122; and

the word "and" has been placed between Sub-Paragraph 2(e) and Sub-Paragraph 2(f); and

the LAA had been revised under the Revision of Laws Act 1968. As such, Part I of the Interpretation Acts 1948 and 1967 (IA) applies to the LAA. According to s 15 IA, the $ 1^{\mathrm{st}} $ Schedule "shall be construed and have effect as part of' the LAA. We reproduce below s 15 IA- "s 15. Long title, preamble and schedules The long title and preamble and every schedule (together with any note or table annexed to the schedules) to an Act or to any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation." (emphasis added). J. Did This Appeal raise any Appealable Question of Law which should be resolved in favour of the Appellant? J(1). Market Value (Acquired Land)

We are of the view that the contentions of the Appellant's learned counsel regarding the Market Value (Acquired Land) did not raise any Appealable Question of Law. This is because the Appellant's learned counsel did not allude to any provision in paragraph 1 of the $ 1^{\mathrm{st}} $ Schedule (Paragraph 1) read with Sub-Paragraph 2(a) which had been breached by the learned High Court Judge in determining the Market Value (Acquired Land). Furthermore, the High Court's acceptance of the Common Comparable (Lot PT85536) was a finding of fact which could not be appealed to the Court of Appeal please refer to Amitabha Guha, at [76].

We have no hesitation to uphold the learned High Court Judge's rejection of the claim for the Appellant's Cost (New Development Site) (RM21,680.00). The reason for this decision is that Sub-Paragraph 2(e) could not be relied on by the Appellant's learned counsel because the Appellant's Cost (New Development Site) did not constitute "reasonable expenses" due to the Appellant's change of its "place of business" as a consequence of the Acquisition. J(3). Submission Fee (Appellant's $ 2 ^{n d} $ KM Application), Professional Consultant's Fee ( $ 2 ^{n d} $ KM Application), Appellant's Cost ( $ 2 ^{n d} $ KM), Appellant's Interest Payment (Loan), Appellant's Fees (MBSA) and Appellant's Cost (Earthworks)

Firstly, the High Court upheld PTD's Award with regard to the Submission Fee (Appellant's $ 2 ^{n d} $ KM Application) and Professional Consultant's Fee ( $ 2 ^{n d} $ KM Application). By virtue of Sub-Paragraph 2(e), we express our reservation on whether the Submission Fee (Appellant's $ 2 ^{n d} $ KM Application) and Professional Consultant's Fee (Appellant's $ 2 ^{n d} $ KM Application) could constitute "reasonable expenses" due to the Appellant's change of its "place of business" as a consequence of the Acquisition. In this regard, we rely on the following three cases:

in Harrisons & Crossfields (M) Sdn Bhd v Pemungut Hasil Tanah, Wilayah Persekutuan [1988] 2 MLJ 299, at 300, Hashim Yeop Sani SCJ (as he then was) delivered the following judgment of the Supreme Court- "As regards the appellant's dissatisfaction on the learned judge's refusal to award the surveyor's fee, we are unable to agree with the appellant as we find nothing in the provisions of the [LAA] and the Schedule thereto to justify the making of an award to include the surveyor's fee. Consolidated Plantation Bhd. v. Pemungut Hasil Tanah Kelang is not an authority for allowing the surveyor's fee as the Federal Court judgment clearly states that it was confined only to the question of adequacy of the award of 'RM231,000 as the cost of turfing as compensation for the loss of water supply to the mill'." (emphasis added);

the above judgment in Harrisons & Crossfields had been followed by Harun Hashim SCJ in the Supreme Court case of Pemungut Hasil Tanah, Seberang Perai Utara, Butterworth v Bertam Consolidated Rubber Co. Ltd. [1990] 1 CLJ (Rep) 229, at 235; and

the High Court had adopted the above two judgments of the Supreme Court in Koh Keat, at p. 722. We do note that neither LLM nor PTD had appealed to the Court of Appeal against the part of the High Court's Order which maintained the Submission Fee (Appellant's 2 $ ^{nd} $ KM Application) and Professional Consultant's Fee (Appellant's 2 $ ^{nd} $ KM Application) (as awarded by the PTD).

Secondly, we have no hesitation to decide that the Appellant's Cost (2 $ ^{nd} $ KM), Appellant's Interest Payment (Loan), Appellant's Fees (MBSA) and Appellant's Cost (Earthworks) do not fall within Sub-Paragraphs 2(a) to 2(f). On this ground alone, we are not able to accede to the above claims by the Appellant's learned counsel.

The Appellant's learned counsel relied on Semenyih Jaya and submitted that a part of the Award regarding the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00), should have been maintained by the High Court.

In Semenyih Jaya -

part of the land owned by the appellant company (Land Owner) was acquired pursuant to the LAA;

before the land acquisition-

the Land Owner had commenced construction works on the land for the purpose of building individual factory lots for sale as industrial plots (Project)- at [10];

the Land Owner had entered into 42 Sale and Purchase Agreements (42 SPAs) for the sale of factory lots to third party purchasers (Purchasers) - at [13];

pursuant to the 42 SPAs, the Land Owner had collected a deposit of 10% of the purchase price from the Purchasers at [13]; and

the Land Owner had expended funds for the development of the Project - at [13];

the Land Owner claimed for the loss of profits and expenses incurred by the Land Owner due to the termination of the Project as a result of the land acquisition - at [13]; and

the Federal Court decided as follows, at [209] to [216] - [209] It is our finding that the principle of equivalence requires that the appellant is compensated for his true loss. This must include compensation for loss of its business. Applying the principle laid down in Shun Fung Ironworks Ltd, such claim falls under the heading 'market value' of the land as stated in para 2(a) and para 1 of the First Schedule. [210] We are of the view that the value of the land in its actual condition together with its profit value should be considered in determining market value of the acquired land. This was also decided by the Federal Court in Ng Tiou Hong v Collector of Land Revenue, Gombak [1984] 2 MLJ 35 where Syed Agil Barakbah FJ held that: ... its potentialities must be taken into account. The nature of the land and the use to which it is being put at the time of acquisition have to be taken into account together with the likelihood to which it is reasonably capable of being put to use in the future e.g. the possibility of it being used for building or other developments. [211] It needs emphasis that the market value rule in [Paragraph 1] must not be construed rigidly. It is noteworthy that [Paragraph 1] itself does not define the term market value. Instead it enumerates the process of determining market value of the land. Apart from the price of comparable sales of the acquired land in the vicinity, the conditions of the land forms a basis in the computation of market value. Thus any restrictions in title, any specification and category in the land use ought to be considered in determining the market value of the land. Similarly, any improvement made by the owner to the land (subject to the restriction imposed in [Paragraph 1]) and the existence of any building on the subject land are also to be considered. [212] In the present case, what was the actual condition of the appellant's land at the time of acquisition? Clearly, the appellant had already embarked on commercially developing the land into an industrial area. Thus the appellant's loss of business is to be incorporated in the development value or profit value of the land forming part of the market value of the acquired land. In determining market value of the land as stated in [SubParagraph 2(a)], the land administrator and the court must give consideration to the profit value of the land at the time of acquisition. [213] It can be seen that the [LAA] is sufficiently flexible to allow for the determination of equivalent compensation in the circumstances of the present case. Compensation should be for loss of any land acquired, for buildings and other improvements to the land acquired, for the reduction in value of any land retained as a result of acquisition and for any consequential losses to the livelihoods of the owners and occupants. A rigid application of detailed provisions may result in landowners and occupants not being compensated for losses that are not expressly identified in the legislation. [214] A pertinent observation is that para 1(1A) in the $ [1^{\mathrm{st}} $ Schedule] was inserted by Act A999 so as to allow flexibility when assessing the amount of market value of a land acquired. Paragraph 1(1A) reads: In assessing the market value of any scheduled land, the valuer may use any suitable method of valuation to arrive at the market value provided that regard may be had to the prices paid for the recent sales of lands with similar characteristics as the scheduled land which are situated within the vicinity of the scheduled land and with particular consideration being given to the last transaction on the scheduled land within two years from the date with reference to which the scheduled land is to be assessed under subparagraph (1). [215] In view of the above, although comparable sales in the vicinity of the acquired land is an important component in the computation of market value of an acquired land, 'any suitable method of valuation' is also allowed. Therefore any appropriate method that serves to provide equivalent compensation to affected persons can be applied. Such methods may include compensation paid on the basis of replacement costs. [216] Thus a judicious approach is called for in dealing with the development of the law on property rights as compared to other Commonwealth jurisdictions. Business compensation consequent to acquisition has received recognition in some jurisdictions including the United Kingdom, Australia and New Zealand. We find that the principles on business compensation as explained earlier are to be applied persuasively so as to arrive at a decision that is consonant with the development of our constitutional law rights to property and one which would sit well with international standards and expectations." (emphasis added). Based on the factual matrix of Semenyih Jaya [as stated in the above sub-paragraphs (2)(a) to (d)], the Federal Court allowed the Land Owner's loss of business and profit to be incorporated into the "market value" of the acquired land as understood in sub-paragraph 1(1A) of the $ 1^{\mathrm{st}} $ Schedule [Sub-Paragraph 1(1A)] read with Sub-Paragraph 2(a).

We are of the following view regarding the Appellant's Loss of Profit/Business Disturbance (RM4,987,840.00):

unlike Semenyih Jaya, at the time of the Acquisition, the Appellant had not commenced any construction works on the Land. Accordingly, the Appellant's Loss of Profit/Business Disturbance could not be incorporated into the Market Value (Acquired Land) within the meaning of Sub-Paragraph 1(1A) read with Sub-Paragraph 2(a);

the Appellant's Loss of Profit/Business Disturbance could not be claimed as "injurious affection" as understood in Sub Paragraph 2(d). This is because the Appellant's Loss of Profit/Business Disturbance did not constitute "damage" which had injuriously affected the Remaining Land; and

the Appellant's Loss of Profit/Business Disturbance could not be claimed pursuant to Sub-Paragraphs 2(b), (c), (e) and (f). Premised on the above reasons, the learned High Court Judge had rightly rejected the claim for the Appellant's Loss of Profit/Business Disturbance. K. Conclusion

As explained in the above Parts H, I and J(1) to J(4), This Appeal did not raise any Appealable Question of Law, let alone the Appealable Question of Law should be answered in favour of the Appellant. Consequently-

This Appeal is dismissed;

the High Court's Order is affirmed;

the Appellant shall pay a sum of RM30,000.00 to LLM as costs for This Appeal (subject to allocatur fee); and

the Appellant is liable to PTD for costs of This Appeal in a sum of RM30,000.00.

A draft copy of this judgment (Draft) had been previously forwarded by me to Azimah bt. Omar FCJ and Ismail bin Brahim JCA. Both my learned sister and brother had agreed with the Draft. DATE: 29 JANUARY 2026 WONG KIAN KHEONG Judge Court of Appeal Counsel for the Appellant:Mr. Cheah Sin Chin & Ms. Gan Yu Lin (Messrs Azwar & Associates)Counsel for the 1st Respondent:Mr. Koh Yew Chong, Mr. Justin Leong Chee C’Jun & Puan Amila Huda bt. Ahmad (Messrs Lee & Koh)Counsel for the 2nd Respondent:Puan Etty Eliany Tesno & Puan Norfariza bt. Ridzuan (Selangor Legal Advisor’s Office)