Spektra Segmen Sdn. Bhd. v Tc Autoworld Sdn. Bhd. (22-1552-2006)

Lot No. 330 Section 14 which is held under Title No. PN 4483, measuring approximately 4,046.724 meter per square or 43,560 square feet formerly known as QTR 935, Lot 8, Road 223, District of Kuala Lumpur, State of Selangor Darul Ehsan (hereinafter referred as ‘the Plaintiff’s land’). The Plaintiff’s land is located between Jalan 223/51A in the North West and the Federal Highway in the South East of Petaling Jaya. Further, the area of the Plaintiff’s land is Page 4 of 46 located within a region of commercial assets, inter alia office blocks, industrial blocks and private colleges. The Defendant is the registered proprietor of a leasehold land known as Lot 331 Section 14 which is held under Title No PN 4483, located in the City of Petaling Jaya and in the District of Petaling Jaya and in the State of Selangor Darul Ehsan, measuring approximately 4,046.724 meter per square or 43,560 square feet formerly known as QTR 936, Lot 10, Road 223, District of Kuala Lumpur, State of Selangor Darul Ehsan (hereinafter referred as ‘the Defendant’s Land’). The Defendant’s Land is located beside the Plaintiff’s Land, that is in between Jalan 223/51A in the North West and the Federal Highway in the South East of Petaling Jaya. At the material time there was on the Defendant’s Land a 2 storey commercial building and it was occupied. Through a letter dated 29.08.2006, the Plaintiff’s Project Manager Messrs Zaman Land Sdn. Bhd. issued a letter to the Defendant informing inter alia that the construction on the Plaintiff’s Land will commence on 01.09.2006. Page 5 of 46 The Plaintiff filed an application for an interlocutory injunction order against the Defendant seeking inter alia for an order against the Defendant for the removal of the impugned structures on the Plaintiff’s Land, costs for the rectification works etc. On 08.02.2007, the Shah Alam High Court granted an Order for the appointment of an independent Civil and Structural Engineer (‘CSE’), an Architect and a Land Surveyor to submit their respective expert reports for the purpose of the Plaintiff’s interlocutory injunction application. On 15.10.2009, the Shah Alam High Court granted an Order in terms (Enclosure 3). On 12.05.2011, the Court of Appeal has rejected the Defendant’s appeal with costs against the Shah Alam High Court Order dated 15.10.2009. On 15.07.2015, the Shah Alam High Court has ordered that the Plaintiff’s Claim proceed to a full trial in order to determine the issue of liability. Page 6 of 46 Summary of Plaintiff’s Claim [3] The following are some of the main events that led to the Plaintiff commencing this Writ action as per their submission: “The Plaintiff obtained approval for the construction on its land, a six-storey (6) building consisting of a mezzanine floor and a two (2) storey underground car park in accordance with the necessary approved plans. Sometime on or about September 2006 whilst the Plaintiff’s building contractors began construction of the said project including earth works on the Plaintiff’s land, they discovered that the Defendant’s building had encroached into the Plaintiff’s land, both underground and above ground. The Plaintiff engaged the services of:

Messrs Jurukur Hashim Serantau;

Messrs Jurukur Terramodel, both chartered and licensed land surveyors; and

Messrs Khairi Consult, Structural Consultancy Engineers Page 7 of 46 to immediately conduct a study on the area affected on the Plaintiff’s land and to prepare a written report. The Finding of Encroachment.

That the Defendant’s ground floor building wall had encroached into the Plaintiff’s land by 0.16m to 0.19m in width from the boundary of the Plaintiff’s and Defendant’s land and 9.44 in length.

(ii) That the Defendant’s 1st floor building wall had encroached in to the Plaintiff’s air space by 0.63m to 0.79m from the boundary of the Plaintiff’s land and 10.65m in length.

(iii) That an apron and a drain of the Defendant’s building had encroached into the Plaintiff’s land by 1.29 to 2.395m from the boundary of the Plaintiff’s land and the Defendants land and 54.82m in length.

(iv) That ten (10) concrete blocks (pad footings) with pillars attached and one (1) strip footing had encroached under the Page 8 of 46 Plaintiff’s land by 0.465m to 0.929m from the boundary of the Plaintiff’s land and the Defendant’s land. Plaintiff Commenced Writ Action and Injunction Against The Defendant At The Shah Alam High Court. The Defendant failed and refused to remove the encroachments. In the circumstances, the Plaintiff was left with no option but to commence action in the Shah Alam High Court. Court Order Dated 8.2.2007 – Appointment of 3 Experts.

(i)

IBR Ukur Consultant.

DRSA Consulting Sdn. Bhd.

Arkitek Berjasa.” [4] It was alleged by the Plaintiff that the Defendant had despite notice from the Plaintiff failed and refused to remove the alleged encroachment Page 9 of 46 from Lot 330 which left them with no choice but to commence the instant action to order the Defendant to do so. The Defendant’s Case [5] The material facts as below constitute the gist of the Defendant’s case: “…The Plaintiff’s and Defendant’s respective Lands are adjoining lots, and were previously owned by a common landowner. The previous, common landowner had jointly developed the said Lands from 1964 to 1969, and had obtained the approval of the local municipal council for the development of a semi-detached building constructed on both the Plaintiff’s and Defendant’s respective Lands. The common, previous landowner had constructed structures which were intended for the support and benefit of any present, or future, semi-detached building built on the Plaintiff’s and Defendant’s respective Lands. Page 10 of 46 The alleged impugned structures discovered by the Plaintiff were not built by the Defendant, but were part of a building constructed on the Plaintiff’s Land by the common, previous landowner. The Defendant did not construct or place any of the alleged impugned structures on the Plaintiff’s Land. The Civil Structural Engineer and the Architect, who were appointed pursuant to the Shah Alam High Court Order dated 08.02.2007 had concluded that the impugned structures were constructed or placed on the Plaintiff’s Land between 1964 and 1969 according to the approved development plans, which were submitted to the authorities by the previous landowner of the Plaintiff’s Land. The Plaintiff had not taken any steps to mitigate any loses or damages suffered due to the presence of the impugned structures on the Plaintiff’s Land. In any event, the Defendant is not liable for any losses or damages suffered by the Plaintiff.”

Whether there was an intrusion/encroachment of the Defendant’s building to the Plaintiff’s Land. Defendant’s Issues To Be Tried

Whether the Plaintiff had constructed the impugned structures on the Plaintiff’s Land?

Whether the impugned structures were constructed in order to support a semi-detached building on the adjoining Land?

Whether the semi-detached building constructed with the approval of the local development authority, e.g. Majlis Perbandaran Petaling Jaya?

Given the circumstances of the construction of the impugned structures, whether the Defendant had caused the encroachment on the Plaintiff’s Land? Page 12 of 46

Whether the Plaintiff had suffered any losses as a result of the Defendant’s actions?

If indeed the answer to No. 5 is in the affirmative, whether the Plaintiff took any steps to mitigate its losses (if any, if at all)? The Law on Trespass To And Encroachment of Land [6] It is trite law that the tort of trespass involves the violation of the possessory right of another to his land. [7] Halsbury’s Laws of England Vol 45 para 1384 defines trespass as “…every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespass for which as action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession or pulls down or destroys anything permanently fixed to it wrongfully takes minerals from it or places or fixes anything on it or in it or if he erects or suffers to continue his own land anything which invades the airspace of another or if he discharges water upon another’s land or sends Page 13 of 46 filth or any injuries substance which has been collected by him or his own land onto another’s land…” [8] In Karuppannan v Balakrishnen (Chong Lee Chin & Ors., third parties [1994] 3 MLJ 584) the Federal Court held: “… The Code provides that any person or body to whom land has been alienated, reserved land has been leased or temporary occupation license has been granted in respect of any land 'shall be entitled to the exclusive use and enjoyment of so much of the column of airspace above the surface of the land, and so much of the land below that surface, as is reasonably necessary to the lawful use and enjoyment of the land’ [s 44(a)]. In clear terms, the law has spelt the right of an individual over his land. He is given the 'exclusive use and enjoyment' of the airspace above the surface of his land though not right to heaven above. The owner of Lot 26 has no legal right to encroach into the airspace of Lot 25 unless of course the owner of Lot 25 allows it. (p. 590) Add page 593 of the said authority the Federal Court held: … As we have said, in the case of a trespass to land and airspace committed by the owner of an adjacent lot as serious as in this Page 14 of 46 case, the aggrieved owner of the lot upon which trespass is committed is entitled to an interlocutory mandatory injunction by which to have the source of the trespass removed notwithstanding that the source of the trespass had already been in existence before the new owner came to own the land and whether or not he knew or had notice of it.” [9] The Defendant cited the Canadian case of Todd Newhook v City of St. John’s 2015 NLOC 0113C00322, where the case of Mann v Saulnier [1959] N.B.J. No. 12 (N.B. C.A) on the definition of ‘trespass’ was quoted:- “[11] In Mann v Saulnier, [1959] N.B.J No. 12 (N.B.C.A.) at para 8, it is stated that: Trespass to land is the act of entering upon land, in the possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so. In Salmond on Torts, 12th ed., pp. 160-1, there is the following statement: “In all such cases, in order to be actionable as a trespass, the injury must be direct, within the meaning of the distinction between direct and consequential injuries. … It is a trespass, and therefore Page 15 of 46 actionable per se, directly to place material objects upon another’s land; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. To throw stones upon one’s neighbour’s premises is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.” [10] In the Singapore High Court case, of King’s Tanglin Shopping Pte. Ltd. v Chee Kim Neo [1991] 4 CLJ (Rep.) 909, a concise definition of trespass was expressed as follows: “…The tort of trespass to land consists in the act of:-

entering upon land in the possession of the Plaintiff; or

remaining on such land; or

placing or projecting any object upon it - in each case without lawful justification. See Salmon & Heuston on the Law of Torts, 19th Edn at p.46.” – Page 911” Page 16 of 46 [11] As regards the issue of encroachment of land, the Plaintiff referred to Butterworths’ Australian Legal Dictionary which defines encroachment as: “The action of a person who intrudes upon land or rights to which he or she has no title, or the intrusion by some inanimate thing on an area broader than the area properly or previously occupied by it: Amatek Ltd v Googootewon Pty Ltd (199) 176 CLR 471;112 ALR 1. Where a building traverses the boundary between contiguous parcels of land, the owner of the land encroached upon may apply to a court relied in the form of compensation, transfer, lease of the land encroached upon, or removal of the encroachment…” [12] KJ Aiyer’s Judicial Dictionary, 14th Edition defines the word as: “An unlawful extension of a right to the prejudice of another property e.g. by taking in adjoining land. It is the unlawful invasion on or infringement of the right or possession of a neighbour.” [13] In MBT Property Services Sdn. Bhd. v Madihill Development Sdn. Bhd. (No. 2) [1998] 4 CLJ p. 136 where Abdul Malik Ishak, J (as he then was) cited several authorities, inter alia, Ellis v Loftus Iron Co. [1874] LR 10 CP10 where Colevidge, CJ defined the word trespass strictly: Page 17 of 46 “Coleridge CJ in Ellis v. Loftus Iron Co [1874] LR 10 CP 10 defined the word “trespass” strictly: If the defendant place a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. It appears that the slightest crossing of the boundary is sufficient to constitute trespass. Examples of trespass are abound in the law books and they grow by the day. It is trespass to place anything on or in the land which is in possession of another, and it is also trespass if a person drives a nail into the wall of his neighbour (Lawrence v. Obee [1815] 1 Stark 22; and Simpson v. Weber [1925] 41 TLR 302). It is also trespass if one places rubbish against the wall of his neighbour (Gregory v. Piper [1829] 9B & C 591; and Kynoch, Ltd v. Rowlands [1912] 1 Ch. 527). Trespass is also said to occur if one grows creeper up his neighbour's wall (Simpson v. Weber (supra)) or even to prop a ladder against the wall of his neighbour (Westripp v. Baldock [1938] 2 All ER 779 which was subsequently affirmed on appeal vide [1939] 1 All ER 279). It is wrong to assume that no one can be liable for trespass unless he has notice that he is trespassing. The trespasser is liable Page 18 of 46 whether he knows that he is trespassing or that he does not know that he has no right in law to be there. The notice is relevant in so far as it may aggravate damages and it is an intergral part of the defendant's line of defence. It is a correct statement of the law to say that trespass is actionable per se without any proof of special damage. An old classical case lays down the proposition that: Every invasion of property, be it ever so minute, is a trepass. and that classical case is non other than Entick v. Carrington [1765] 19 St. Tr. 1030, 1066.” Analysis of Evidence [14] It is important in the context of the dispute arising in this case to bear in mind the historical background of the subject-matter of the case, i.e., the impugned lots. [15] Both Lots 330 and 331 were first alienated on 08.12.1966 as Qualified Titles (QTs’), QTR 935 and 936 respectively in the District of Kuala Lumpur in the State of Selangor then. Subsequently, upon conversion to final titles, the affected lands became known as PN4482, Lot 330 and PN4481, Lot 331 in Section 14, Petaling Jaya. District of Petaling, Page 19 of 46 Selangor Darul Ehsan. The neighbouring lands were initially gazette ‘for industrial use only’ by the authorities concerned. [16] On 14.12.1971, a survey exercise was conducted by the Jabatan Ukur dan Pemetaan Malaysia (‘JUPEM’), leading to the preparation of the Certified Survey Plan No 28241 for the area of Lots 301-319, Section 14, Town of Petaling Jaya, District of Kuala Lumpur (‘the 1971 Survey’). [17] It was followed by a resurvey conducted specifically for QTR935/Lot 330 and QTR936/Lot 331 on 04.12.1976 by JUPEM, leading to the preparation and issuance of Certified Survey Plan No. PA29366 and approved on 07.07.1977 (‘the 1977 Survey’). [18] A comparison of the Certified Plans (‘CPs’) prepared in 1971 and 1977 reveals a shift in the common boundary separating the 2 lots whereby the boundary was shifted further from Lot 331 into Lot 330. Accordingly,

JUPEM had redrawn the common boundary line separating Lots 330 and The shift was 1.116 meters from Lot 331 towards Lot 330, a fact which was admitted by the Plaintiff’s own land surveyor and confirmed by the Defendant’s expert (‘DW3’). DW3’s calculations were not disputed by the Plaintiff. Page 20 of 46 [19] As to the chain of ownership of Lots 330 and 331 between 1970 to 2003, reference could be made to the undisputed Land Office documents, the expert report prepared by the Independent Architect and the testimony of the witness representing the Defendant (DW1). [20] Sometime in 1964, one M/S Yew Lee & Company, for and on behalf of Lee Wah Bank Berhad to the Lembaga Bandaran Petaling Jaya, sought for approval for a development labelled as “Proposed Factory on Lots 8 and 10, Road 223, Petaling Jaya for Messrs Yew Lee & Co. [21] The plans submitted were approved by the Petaling Jaya Town Board (‘PJTB’) on 18.06.1964. [22] It was undisputed that Lots 8 and 10 were actually the subsequent/eventual Lots 330 and 331 respectively where the common owner of both lots proposed to put up the building on and along the common boundary separating the two lots. [23] Lot 330 at that time appeared to be mainly vacant with temporary road access to and from Lot 331 for the proposed development. From the drawing plans for the proposed factory, it should be noted that its footings were to be built spanning the length of the factory the common boundary of the 2 lots. Page 21 of 46 [24] Subsequently, in 1969, there was further development of Lots 330 and 331 where the development plans were submitted by M/S Yew Lee & Co on behalf of Lee Wah Bank Bhd. The proposed development was approved by the PJTB on 25.08.1969. [25] The 1969 Development Plans show that:

The proposed extension was to be constructed on Lot 8 (Lot 330); and

The proposed extension was to utilize the existing footings and metal columns from the existing factory on Lot 10 (Lot 331). [26] From both the 1964 and 1969 Development Plans, it was clear that the construction of the structures on Lot 8 and 10, Road 223 (later on known as Lot 330 and Lot 331 respectively) were commissioned by a common owner, Lee Wah Bank Limited. [27] Notably, there were several other approved developments in 1981 and 1986 by Sanyo Industries (M) Sdn. Bhd. on Lot 330 which were described as adjoining the existing structure on Lot 331 with a mutual/ common boundary carried over from the previous common owner’s developments in 1964 and 1969. Page 22 of 46 [28] The Defendant became the owner of Lot 331 on 12.03.2003 through a purchase from the then owner whereas the Plaintiff became the owner of Lot 330 through a similar purchase on the basis of the ‘condition, nature and character’ of the property at the time of delivery of vacant possession. [29] Thereafter, the Plaintiff proceeded to appoint a Consultant Engineer, Khairi Consult Sdn. Bhd. (‘Khairi’) and a Land Surveyor, Jurukur Hashim Serantau (‘JHS’) with a view to developing Lot 330. The proposed development was a six-storey Office Block with 2 underground floors for car parks. [30] The sequence of events and exchange of correspondence between the two above owners following the purchase of Lots 330 and 331 as listed out by the Plaintiff through counsel are as below. “Vide the Plaintiff’s letter dated 12.09.2006:

It was alleged that the Defendant’s building is encroaching into the Plaintiff’s Land, and a “major part of the (Defendant’s) building are right at the boundary line” and “without any proper setback according to the building by-law; and

The Plaintiff demanded that the Defendant demolish the alleged encroachments, including drains, by 15.09.2006. The exact particulars of the “Ground Survey and Demarcation Plan” were not identified in the Plaintiff’s Letter. Vide the Defendant’s letter dated 18.09.2006, the Defendant denied the Plaintiff’s demand dated 12.9.2006. Vide the Plaintiff’s letter dated 26.9.2006, the Plaintiff responded to the Defendant’s Letter dated 18.9.2006 and enclosed certain documents purportedly identifying the encroachments allegedly committed by the Defendant on the Plaintiff’s Land. Vide the Plaintiff’s solicitors’ letter dated 16.10.2006, the Plaintiff alleged that the Defendant “have caused the construction of the existing building” on Lot 331 “to encroach into” the Plaintiff’s Land and provided the particulars of the alleged encroachment by the Defendant. Subsequently on 09.11.2006, the Plaintiff’s Land Surveyors, Messrs Jurukur Hashim Serantau and Messrs Jurukur Terramodel, Page 24 of 46 produced their respective Survey Reports on the alleged encroachments on the Plaintiff’s Land:

JHS Survey Report titled “Laporan Jurukur Berhubung Pencerobohan Sebahagian Bangunan TC Autoworld Sdn. Bhd. Lot 331 ke dalam 331” (“Hashim Serantau Survey Report’); and

Jurukur Terramodel Survey Work Report (‘Terramodel Survey Report’). On 14.11.2006, the Plaintiff’s Consultant Engineer, Messrs Khairi Consult Sdn. Bhd. prepared a Report titled “Engineer’s Report on Encroachment of TC Autoworld Sdn. Bhd. building into Spektra Segmen Sdn. Bhd. Land” (Engineering Report”). [31] It was brought to my attention that the Plaintiff did not plead, nor disclose to the Court at the trial, that the Plaintiff had sold Lot 330 to a third party, one U.C.I Education Sdn. Bhd. on 05.08.2010, according to the Land Office Search dated 20.08.2015. The Plaintiff, thus, no longer has henceforth any interest on Lot 330. Page 25 of 46 [32] The Defendant, vide DW1, gave evidence during evidence-in-chief that the impugned structures on the boundary had already been demolished in compliance with the SAHC Order dated 15.10.2009. [33] Based on the Plaintiff’s SOC, their cause of action for trespass and encroachment stems from the following material facts:

That the Defendant, or their agents, had illegally entered the

That the Defendant, on their agents, had illegally conducted earthworks on the Plaintiff’s Land to construct certain underground and aboveground structures thus encroaching on the Plaintiff’s Land; and

The Plaintiff discovered the structures allegedly built by the Defendant upon commencement of construction works for the Plaintiff’s Project in September 2006. [34] The material particulars of the impugned structures, namely, ground wall, 1st floor of the Defendant’s building, its apron and drain and 10 underground concrete pad footings are as pleaded. Page 26 of 46 [35] Vide this action, the Plaintiff have sought against the Defendant, inter alia, for an order for the removal of the impugned structures, damages and costs. [36] A summary of the Defendant’s Defence as in their Defence is that:

The Defendant did not trespass or encroach on the Plaintiff’s

The alleged impugned Structures were not built by the

The alleged Impugned Structures were previously for the mutual use, support and benefit of the adjoining semi-detached building on the Plaintiff’s land. [37] In the context of this dispute, the findings and evidence of the independent architect, Ar. Lim Peng Keang (‘PW5’) are of utmost importance. In preparing his report, the methodology that PW5 adopted was to trace the historical development of the lands in question by reviewing the approved plans and development drawings for both Lots 330 and 331, which were submitted to the local municipal council, Majlis Perbandaran Petaling Jaya (‘MPPJ’) since 1964 onwards. Page 27 of 46 [38] PW5 relied, amongst others on the approved drawings and structural plans, along with the Certificates of Fitness for the development on Lots 330 and 331. [39] In arriving at his conclusion, PW5 placed emphasis on the historical development of Lots 330 and 331 to determine why there were buildings and structures along the common boundary of the neighbouring lots. PW5, however admitted that he was not furnished with any certified survey plans in respect of Lots 330 and 331. In this regard, he was unaware that the common boundary of the Lots had been shifted or redrawn in 1977 based on JUPEM’s Certified Survey Plan No. PA29366. Accordingly, PW5 did not take into account the shift of 1.116 meters of the common boundary line from Lot 331 towards Lot 330 in preparing the Independent Architect’s Report. [40] From the contemporaneous documents and undisputed evidence, it appeared that both Lots 330 and 331 underwent changes of ownership after the construction and development on both Lots starting from March 1971. [41] After adopting the above process and viewing the documents adverted to, PW5 made his findings which can be summarised as these.

In 1964, both Lots 330 and 331 actually belonged to the same, common owner;

The common owner of Lots 330 and 331 had obtained approval from the local authorities and built a factory on Lot 331, with a wall built along the common boundary separating Lots 330 and 331 in 1964;

In 1969, the common owner of Lots 330 and 331 further obtained approval from MPPJ to build an extension to the existing factory on Lot 331. The extension to the existing factory was then built on Lot 330 in the form of a semi-detached building, adjoining the existing factory on Lot 331;

For the extension to the factory on Lot 330, the original wall for the existing factory on Lot 331 became a ‘party wall’, which sat on the common boundary of the 2 lots;

The ‘party wall’ shared the same foundations and columns in order to support both the factory on Lot 330 and the extension on Lot 331;

Since it was the original owner of both Lots 330 and 331 who had built the factory (on Lot 330) and the extension (on Lot 331), there was no concern of any trespass or encroachment at that material time;

The Town Planner, not MPPJ, did not impose any requirement on the original owner to amalgamate Lots 330 and 331 to prevent any issues of encroachment from arising; and

The issue of alleged encroachment along the common boundary of Lots 330 and 331 was inherited by the two innocent parties who subsequently purchased the said Lots individually. [42] To support his conclusion that the Defendant themselves did not by any act on their part cause any encroachment on Lot 330, PW5 testified as follows:

That for the purpose of the extension on the adjoining structure built on Lot 330, the footings and columns from Lot 331 were used as a supporting structure. The supporting structures therefore became the common wall and common footings;

For the common wall and common footings, half of the shared common wall and common footings would be located on either side of Lots 330 and 331; and

The Defendant did not cause any encroachment on Lot 330. Conclusion [43] It is, first and foremost, important to bear in mind the established principle of evidence that in any civil proceeding, the Plaintiff (‘P’) bears the burden of proving its pleaded claim on a balance of probabilities. If P fails to adduce sufficient evidence that is credible to prove its claim based on particulars pleaded on a prima facie basis, no evidential burden or onus shifts to the Defendant (‘D’) to prove or make out its Defence in order to be absolved from liability. [44] Apart from section 101, Evidence Act, 1950, reference need only made to two important authorities on this principle. [45] In the Court of Appeal case of Sevaduray v Chinniah [1939] MLJ 253, in deliberating on the scope and effect of the burden of proof not being discharged, it was held: Page 31 of 46 “The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the plaintiff must establish his case. If he fails to do so, it will not avail him to turn round and say that the defendant has not established his. The defendant can say ‘It is wholly immaterial whether I prove my case or not. You have not proved yours.’ …it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial the learned Judge has found that the position was exactly even, i.e. that any preponderance in the plaintiff's favour had disappeared. That being the case the plaintiff must necessarily fail, as he has not discharged the onus which is upon him… It is quite sufficient for (the defendant’s) purpose if (the defendant) can satisfy the Court that the plaintiff has not established his case…” Page 32 of 46 [46] In the Court of Appeal case of Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627, the duty of a party alleging a material fact it was held: “He who alleges must prove such allegation and the onus is on the appellant to do so. See s 103 of the (Evidence) Act …. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case.” [47] P’s claim is based specifically on the tort of trespass and encroachment. In the context of the instant case, the essential and necessary ingredients that P have to prove to establish their cause of action for trespass and encroachment are these:

Illegal entry by D or their agents into P’s land;

D or their agent had illegally conducted earthworks on P’s land to construct the impugned structures – both above and below ground – that encroached into P’s land; and

The structures allegedly built by D were discovered by P in 09/2006 when they commenced construction work. Page 33 of 46 [48] I have duly scrutinised the evidence of both parties as a whole with particular emphasis on the evidence/opinions of the Independent Court Appointed Experts, the undisputed facts and the contentions of counsel for both sides as well as the law governing the tort of trespass. [49] This issue has to be resolved against the backdrop of established principles on the law of trespass enunciated in leading authorities as adverted to. As correctly summed up in P’s submission, a cause of action premised in trespass would only succeed if these essential elements are established:

There is an entry and/or intrusion into the claimant’s legal property by the respondent; and

That the said entry and/or intrusion must be unlawful, unjustifiable, unwarranted and/or without any legal right for the respondent to do so. [50] To make out their case, P sought to rely, amongst others, on their consultants’ reports from M/S JHS, M/S Terramodal and M/S Khairi which were adduced as evidence via their experts’ affidavits. D, however, contended in my view, rightly that the reports are fatally flawed in the sense that the Consultants failed or omitted to consider that the impugned Page 34 of 46 structures along the common boundary of Lots 330 and 331 were shown to have been erected by the predecessor in title of both the lots way back in

Hence, the expert reports and the findings thereof would be incomplete and most likely lead to an incorrect conclusion. It is noteworthy that the common wall with supporting structures was constructed by P’s own predecessor –in-title in 1969. The 4 Plaintiffs’ own experts when confronted with contemporaneous evidence relating to the historical development along the common boundary of Lots 330 and 331 had no credible explanation for the failure to address this fact that was vital to the truth or otherwise of the alleged encroachment of structures from Lot 331 into Lot 330. [51] In support of their defence, D highlighted the failure of P throughout the proceedings to dispute, challenge of contradict “Independent Architect’s or the Independent Engineer’s respective findings on the fact that the wall which was constructed along the boundary was a common shared party wall, supported by shared footings located on either side constructed sometime in 1969 by the then common owner of Lots 330 and Lot 331;…” [52] Neither was there any challenge or dispute by D against the independent findings that both the common wall and shared footings were Page 35 of 46 constructed based on approved drawings submitted to the MBPJ. PW4, P’s own consultant engineer, admitted that the construction which was done in accordance with approved drawings was properly carried out. Apart from the construction having been duly approved, the evidence pointed unmistakably to the fact that the structures complained of constructed along the common boundary were intended specifically to support the adjoining buildings on Lots 330 and 331. [53] PW6 from JHS and PW3 from Terramodal, who were surveyors appointed by P gave evidence that did not give much support to P’s case on the critical issue of trespass by D or its structures. For instance, when PW5 was requested to prepare his Surveyor’s Report, the report was not regarding any alleged encroachment. The request for a report regarding the alleged encroachment was made only about 2 years later before the commencement of this action. [54] Hence, PW6 made no reference to the documents of title and Certified Survey Plans from JUPEM for Lots 330 and 331 which were, thus, not considered. PW6 was also unaware that the common boundary between the two Lots was redrawn resulting in a shift of about 1.1 meters of the boundary line towards Lot 330, making Lot 331 bigger. Page 36 of 46 [55] In regard to PW3, he admitted that the actual Survey Plan on which 2006 Survey Report (‘SR’) was based was not produced in Court and thus, that there was no evidence before the Court to support the findings in the 2006 SR that there were in fact encroachments into Lot 330 as alleged. PW3 merely relied on the ‘as built’ survey conducted. Most crucial was that PW3 admitted that he did not consider 2 important factors: that there were 2 adjoining buildings on Lots 330 and 331 separated by a common wall as at 1977; and that the common boundary wall would have had common/shared footings, parts of which were embedded on each lot. [56] Therefore, based on the evidence and admissions of PW3 and PW6 as to their failure to take into account essential material facts, their survey reports and conclusion arrived at on the issue primary and contentions issue of encroachment into P’s land must be regarded as unacceptable and unreliable. [57] As for the other experts called by P particularly PW4, their evidence too lacked credibility and value as they had failed to trace the historical development of and review, the building plans which were submitted for Lots 330 and 331 from 1964 to 2006 as was done by the Independent Engineer [PW8] and Independent Architect [PW5] who were Page 37 of 46 Court appointed. Merely dismissing the methodology as irrelevant to them without convincing / compelling reasons would not suffice to justify the failure. [58] It is also crucial to take note of the evidence of PW8, who, having considered the actual measurements of the shared footings and the shift of the common boundary, concluded that there could be no encroachment on the location of the shared pad footings. [59] The defence case was supported by P’s own consultant engineer [PW4] who admitted that while the previous owner of Lot 330 may have demolished a part of the adjoining structure, but he (the previous owner of Lot 330) had left the shared footing which supported the common wall at the common boundary possibly due to the fear that any removal of the common footing may affect the integrity of the building on Lot 331. [60] Based on the factors as elaborated above and the admissions alluded to, particularly that by PW4, the defence contention that the previous joint owner of both Lots 330 and 331 had constructed the common boundary wall with shared footing along the boundary in 1969 was correct. [61] The evidence pointed to the probability that subsequently, when part of the adjoining structure on Lot 330 was demolished, the shared Page 38 of 46 footing was not removed for fear of affecting the integrity of D’s building which was still standing on Lot 331. This supported the finding made by the Independent Architect, Ar Lim Peng Keang (PW5), that the Impugned Structures along the boundary were in fact inherited from the previous owner. [62] Importantly, D as the subsequent and present owner of Lot 331 cannot be held responsible for these impugned structures, contrary to what P alleged. PW8 the Independent Engineer, thus, correctly concluded that there would be no encroachment arising out of the location of the pad footings. [63] P’s responsibility to maintain the structural integrity of D’s building along the common boundary was supported by the evidence of their own witness, the Senior Assistant Director of Jabatan Kawalan Bangunan (PW10) who in testifying on behalf of Majlis Bandaraya Petaling Jaya stated that at the material time there was no requirement imposed on P for a setback from the boundary for the construction of the basement car park but there was a general condition imposed on P for the development not to cause damage to the neighbouring lot. Page 39 of 46 [64] It would appear that while P was allowed to construct the basement car park right to the common boundary of Lots 330 and 331, it was also the corresponding duty of P who undertook development on Lot 330 to safeguard the structural integrity of the common structures and D’s building which had been in existence along the common boundary since the 1960s. [65] Reverting to the important evidence given by PW8 during the trial, his calculation and conclusions in the Independent Engineer’s Report cannot be used as a prima facie basis to establish P’s allegation of encroachment since PW8 had admitted:

That the Independent Engineer’s Report did not consider that there had been a shift in the common boundary of Lots 330 and 331 arising from a re-survey conducted in 1977; and

Having been informed and reviewed the evidence in the light of the shift of common boundary, the findings of encroachment based on the calculations, which did not take into account the shift of the common boundary, would not be correct. [66] In essence, PW8, as an independent expert, who gave credible evidence was unequivocal and unqualified in his admission that his calculation contained in his report on the alleged encroachment would not Page 40 of 46 be correct for his failure to consider the shift of the common boundary line in 1977. [67] The evidence of PW11, the co-counsel for P, who came on board to testify to purportedly rectify certain perceived misstatements given by PW8 that he took instructions wholly from PW11 in preparing his report and making his findings did not, in my view, make any difference as PW8 was clear and uncontradicted on his admission and conclusion on the issue of encroachment. [68] P have raised only one issue for determination: whether D’s building encroached into P’s land?; whereas D has raised several issues, inter alia: whether D had erected/constructed the impugned structures on P’s land; whether the structures were constructed to support a semi-D building on the adjoining land with the approval of the local authority (‘MBPJ’); and whether D had caused the encroachment on Lot 330. [69] Firstly, on the facts and scrutiny of the evidence, P’s contention that the independent experts’ evidence supported P’s case and allegation against D is clearly erroneous and flawed. [70] The evidence was unequivocal that any encroachment, if any, was minimal and within acceptable/reasonable limits. Importantly, that it was not Page 41 of 46 caused by D but the previous common owners of both lots intended to support a common boundary or party wall. The development plans then were duly approved by the relevant local authorities. The ground wall built along the boundary of Lots 330 and 331 was attached to adjoining structures constructed on both lots. Hence, the question of unlawful entry or illegal construction which P rely on to sustain their cause of action for trespass and encroachment by D does not arise. [71] Secondly, the overall evidence establishes that the boundary wall was a common wall with common shared footings, which were within the allowable margins from the common boundary. As a result, the owners of both lots would have co-ownership of the said structures and the right in law to maintain the same along the said boundary as a mutual support for adjoining buildings. The principle applicable to a situation of this kind can be found in Ratanlal & Dhirajlal’s The Law of Torts, 26th Edition, 2010, page 414: “The right of support for one building from an adjoining building is not a natural right. It may, however, arise in different ways, e.g., grant, prescription, or both houses having been built by the same owner” Page 42 of 46 [72] Pollock CB in the Court of Exchequer case, Richard v Rose (1853) 9 Exch 218 remarked: “…where a number of houses are built on a spot of ground, all belonging to the same person, being all built together and obviously requiring the mutual support of each of the others for the purpose of their common protection and security, whether the owner first parts with one and then another, or parts with two together, which he afterwards subdivides either by mortgage, or sale, or devise, or any other way, still the mutual support should seem necessary-it is a matter of common sense; and the circumstances whether the house were separated by one act at one time, or at different times, never could make any difference as to what ought to be the result, in as much as the house where originally built depending on each other, and each required the assistance of the others. As I said before, it seems a matter of plain common sense that the support must continue, and that no man who should become possessed of any one of the houses should be in a situation to say, “You were not entitled to the protection of my house, and I will pull the house down and let the houses on each side collapse and fall into ruin.” It seems impossible not to come to Page 43 of 46 the conclusion that the law must be, in strictness, in accordance with what is so plain and sensible.” [73] Thirdly, several of the structures alleged to have encroached onto Lot 330, whether above or below ground, were not even shown to be connected to D’s building on Lot 331. Neither was any evidence adduced that D had allegedly entered into P’s land and constructed these structures when they came to own Lot 331. Instead what the evidence disclosed was that the structures were constructed by the then common owner of both lots. [74] Fourthly, there was no issue of trespass having been committed by a previous joint owner of Lots 330 and 331 who had constructed the original structure along the common boundary. Consequently, as there was no initial trespass or encroachment by the then owners, D, as the subsequent purchasers of Lot 331 cannot be held liable for trespass in the absence of evidence of illegal entry or encroachment into P’s land upon assuming ownership of the neighbouring lot. There was, in essence, absolutely no evidence of unjustifiable entry by D. [75] The correct position in law applicable to the instant factual matrix was well summarised by D in their submission as follows: Page 44 of 46 “Since the ground wall and other structures attached to it (i.e. the underground pad footings) were undisputedly a party wall separating Lots 330 and 331 legally constructed by the common predecessor-in-title, ownership of the common wall and the land upon which the said wall stood, formed a separate title which belonged equally to the two parties. As common owners of this title, they each had the necessary legal rights to safeguard their respective interests in the said wall. The Plaintiff was not entitled to dispossess (or oust) the Defendant from the common wall, for example by permanently demolishing the common wall. However, the Plaintiff was entitled to undertake construction works on any part of the common wall facing their Land, provided that such works did not have the effect of dispossessing the Defendant from it. As such, the only conclusion would be that there could not have been any acts of trespass or encroachment caused by the Defendant over the party wall built along the common boundary as claimed by the Plaintiff.” Page 45 of 46 [76] Lastly, the credibility of P’s main witness (PW1) was in serious doubt and called into question. Despite maintaining that she was conversant with all the facts and particulars of the claim as pleaded against D, including the technical aspects, she was blatantly unable and refused to testify on the same under cross-examination. PW1 was not only evasive and deliberately uncooperative but exhibited a negative demeanour in inexplicably refusing to answer simple and basic questions on the serious allegations made against D. These questions related to facts that were crucial and material to the thrust of P’s own pleaded case. Thus, by reason of not offering evidence on these facts, PW1 had caused serious prejudice to the defence and jeopardized P’s own claim. [77] By reason primarily of the matters and factors aforesaid, I had no doubt that P have failed to discharge the burden of proof borne by them under the Evidence Act to establish the central and material allegation on which their pleaded case against D is grounded, namely, that D had illegally and wrongfully entered into their land without justification and constructed the alleged impugned structures causing them loss and damage as alleged. P’s claim, therefore, is dismissed with costs. Page 46 of 46 Dated : 8 May 2018 (GUNALAN A/L MUNIANDY) Judge High Court of Malaya Shah Alam COUNSEL: For the Plaintiff : Mr. N. Subramaniyan together with Mr. Awtar Singh Messrs. Faisyal Grewal & Co. Kuala Lumpur For the Defendant : Mr. S. Murthi together with Mr. Ahmad Hanafi Messrs. S Murthi & Associates Petaling Jaya, Selangor