Sri (Pontian) Impian Sdn Bhd v 1. ) Era Grand Development Sdn Bhd (JA-22C-7-09/2020)

SRI (PONTIAN) IMPIAN SDN BHD (COMPANY NO.: 1056623-V) … PLAINTIFF

ERA GRAND DEVELOPMENT SDN BHD

TETUAN HAIKAL JURUTERA PERUNDING SDN BHD

MAJLIS DAERAH PONTIAN … DEFENDANTS  GROUNDS OF JUDGMENT  Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 2 JUDGMENT [ENCLOSURE 25 — STRIKE OUT] INTRODUCTION [1] This is the Third Defendant’s (“D3”) application to strike out the Plaintiff’s claim against D3 under Order 18 rule 19(1)(a), (b) and (d) of the Rules of Court 2012 (“ROC”). BACKGROUND FACTS [2] The Plaintiff is the registered owner of the property held under Lot 6875 (formerly known as Lot 354) Mukim Rimba Terjun, Daerah Pontian, Johor (“the Plaintiff’s Lot”), whereas the First Defendant (“D1”) is the registered owner of the adjacent property known as Lot 6874 Mukim Rimba Terjun, Daerah Pontian, Johor (“D1’s Lot”). [3] D1 was a licensed developer who had sub-divided his property into individual lots. A total of sixteen (16) individual lots were divided from D1’s Lot, with factory units constructed and built on the lots known as Lot 10365 to 10380, Mukim Rimba Terjun, Daerah Pontian, Johor. [4] In the present suit, the Plaintiff alleges that D1, as the developer, had constructed a back-lane in regard to all the sixteen (16) units of factories and by so doing, had trespassed and encroached onto the Plaintiff’s Lot. [5] The Second Defendant (“D2”) was the engineer appointed by D1 to supervise and handle the entire construction of D1’s development. [6] D3, as the local council, was authorised to and did provide its approval to D1 to construct streets, drainage and buildings for the entire development, including for the construction of a public road and back-lane. [7] The Plaintiff has produced in evidence a surveyor’s report together with photographs, which allegedly show that a back-lane/back alley, which was built and constructed by D1 based on a plan approved by D3, had encroached onto the Plaintiff’s Lot. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 3 [8] D3, in the affidavit in support (“AIS”) of its application, did not deny that it had approved the layout plan for the construction of D1’s development, including for the back-lane allegedly constructed on the Plaintiff’s Lot. THE APPLICABLE LAW [9] The law on striking out under Order 18 rule 19(1) of the ROC is well settled and fully explained in Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd [1993] 1 MLRA 611. In Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur [2016] 2 MLRA 263, the Federal Court further elaborated on the obviously unsustainable test adopted in Bandar Builder by holding that “the court should not strike out an action purely or for the simple reason that it was ‘unsustainable’. The degree of unsustainability must be higher, i.e. it must be ‘obviously unsustainable’ before the action could be struck out summarily...”. [10] The Court of Appeal in the case of Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473, held that:: “[14] A striking out application is not a trial on affidavits. It is not an application where the parties have to adduce evidence to establish the merits of their case. The court should not conduct a minute examination of the documents and the facts of the case. So long as the claim on the face of it discloses some cause of action or raises some question fit to be tried it should not be struck out. The mere fact the case is weak and not likely to succeed is no ground for the pleadings to be struck out. [15] A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial.” [11] The Plaintiff alleged that D1 had encroached onto the Plaintiff’s Lot by building the back-lane of the factories on the Plaintiff’s Lot according to the Plan approved by D3. This averment is supported by the surveyor’s report and photogrpahs produced by the Plaintiff and annexed in the Affidavit Jawapan. [12] The issue before this Court with regard to the Plaintiff’s cause of action against D3 is whether the construction of the back-lane was carried out in accordance with the approved plan. If so, then the Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 4 question which arises is whether D3 was under a duty to ascertain that the back-lane proposed to be built was within the land and boundaries of D1’s property before approving the plan submitted by D1. [13] The Street, Drainage and Building Act 1974 provides as follows: “Section 9

Any person who intends to make any new street shall apply to the local authority, accompanied by a plan in duplicate, showing the intended level and construction of such street and the level of the houses to be built on the land abutting upon it and the proposed manner of draining it and by a statement specifying the use for which such street is intended: Provided that the local authority shall not approve the detailed plans of any new street unless the use of the land for this purpose has been approved by the competent authority under any law relating to town and country planning.” [14] Section 75 of the Street, Drainage and Building Act 1974 also provides that the local authority shall not approve any building or development plan when there is insufficient land set apart for the construction of a back-lane. The Act states as follows: “Section 75: Land to be set apart for back-lane

The local authority shall not approve any plan submitted pursuant to section 70 relating to a building unless—

a back-lane if required by the local authority of such width not exceeding forty feet as may at the discretion of the local authority be required, is shown on the plan, or vacant land is shown on the plan to be set apart or acquired for a back-lane of such width as aforesaid, and the owner reimburses the local authority for any moneys at any time paid for the acquisition by any means of the portion of such back-lane or such vacant land to the center thereof which abuts on the holding in respect of which the plan is submitted to the extent to which it so abuts; or

the owner sets apart a vacant strip of his land sufficient, with or without other land previously so set apart or acquired, to form a back-lane or part of a back-lane of such width not exceeding forty feet as is required by the local authority: Provided that where the owner sets apart a vacant strip of his land sufficient to form not less than one-half the width Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 5 of that part of the back-lane which abuts on his land, the local authority may in its discretion in a particular case approve such plan.” [16] In the case of Inter Heritage (M) Sdn Bhd v Asa Sports Sdn Bhd (No.2) [2003] 5 MLRH 357, the Court held as follows: “The Building (Federal Territory Of Kuala Lumpur) By-Laws 1985 and the Street, Drainage And Building Act 1974 (Act 133) are laws that were passed by Parliament for the protection of the general public at large and, at the same time, to ensure that developers and builders construct buildings in accordance with the approved plans and thus, these legislations must be strictly enforced to the letter.” [17] The Plaintiff submits that D3 had failed to determine before approving the plan submitted by D1 that there was sufficient land set apart for the construction of the back-lane. In such a situation, D3 ought to have rejected D1’s layout plan but instead, had approved and allowed D1 to continue with its development. [18] Therefore, the Plaintiff submits that it has raised a prima facie case for a cause of action based on tort against D3 for approving the plan when the back-lane was not proposed to be built within the land belonging to D1, and that D1 had failed to set apart sufficient land for the construction of the back-lane. [19] In fact, D1, in its Amended Statement of Defence (“SOD”) at paragraph 32, had admitted to having constructed the back-lane on Lot 6875, which is the Plaintiff’s land. The Amended SOD states as follows: “[32] Walaupun pembinaan lorong belakang di atas Bahagian Lot 6875 tersebut bukanlah sebahagian skop Projek Pendirian Kilang tersebut, atas niat baik untuk membina lorong belakang selebar 30 kaki demi manfaat orang awam, Defendan Pertama telah membuat permohonan kepada Pentadbir Tanah Pontian untuk mengambil alih Bahagian Lot 6875 tersebut pada sekitar awal tahun 2018 (“Permohonan Pengambilan Tanah tersebut”). [33] Pada sekitar 16.4.2018, nilaian awal ke atasa Bahagian Lot 6875 tersebut yang dibuat oleh Jabatan Penilaian dan Perkhidmatan Harta Johor Bahru ialah RM126,000.00 (Nilaian Awal tersebut”). [36] Defendan Pertama masih menunggu keputusan Permohonan Pengambilan Tanah tersebut. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 6 [37] Defendan Pertama menafikan Perenggan 10 Pernyataan Tuntutan dan Plaintif diletakkan beban bukti yang kukuh. Kelebaran lorong belakang yang dibina oleh Defendan Pertama telah memenuhi kelebaran di dalam pelan-pelan yang diluluskan oleh Defendan Ketiga.” Therefore, D1 is saying that in anticipation of the proposed acquisition of the Plaintiff’s land, D1 had already commenced building the back-lane on the Plaintiff’s land. [20] D1 further states, in its Amended SOD, that planning approval for the back-lane had been given by the state authority. Paragraphs 39 and 40 of the Amended SOD state: “[39] Pihak Berkuasa Negeri Johor telah memberi persetujuan kepada Rancangan Tempatan Daerah Pontian 2002-2015 (Pengubahan). Zon perancangan bagi Bahagian Lot 6875 tersebut ialah Pengangkutan. Kebenaran merancang berkenaan pembinaan lorong belakang di sebahagian Lot 6874 dan Bahagian Lot 6875 tersebut telah diwartakan oleh pihak berkuasa tempatan. [40] Dalam apa jua keadaan, Bahagian Lot 6875 tersebut pasti akan dibina sebagai lorong belakang menurut Pelan tersebut dan zon perancangan yang diwartakan.” D3, in its pleaded Defence, admits to approving the plans for the development on Lot 6874 by D1. The relevant portions of the Defence of D3 are as follows: “[8] Defendan ketiga manfikan sekeras-kerasnya dakwaan Plaintif di Perenggan 20 Pernyataan Tuntutan Terpinda tersebut. Defendan Ketiga ingin menegaskan bahawa Defendan telah menjalankan kewajipan berhati-hati dan tanggungjawab munasabah dalam melakukan pemerhatian dan/atau tinjauan fizikal pada 11.03.2019 di tapak pembinaan tersebut. Hasil pemerhatian dan/atau tinjauan fizikal jelas menunjukkan pembinaan telah mengikut pelan-pelan Kebenaran Merancang, Pelan Bangunan dan Pelan Jalan & Parit yang telah diluluskan pada mesyuarat OSC bertarikh 21.06.2016, Penyata Bil 12/2016. [9] Defendan Ketiga juga menegaskan bahawa Defendan Ketiga bergantung kepada penilaian professional oleh kerja-kerja arkitek, jurutera struktur dan sivil, jurutera mekanikal dan elektrikal, dan perunding-perunding lain yang terlibat termasuklah Defendan Kedua. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 7 [16] Defendan Ketiga mengulangi pendirian bahawa Defendan Ketiga akan bergantung kepada butiran-butiran didalam borang G1-G2 dan Borang F di bawah Undang-Undang Kecil Bangunan Seragam 1984 yang diisi oleh arkitek, jurutera struktur dan sivil, jurutera mekanikal dan elektrikal, dan perunding-perunding lain yang terlibat termasuklah Defendan Kedua.” [21] The pivotal issue in this application is whether there was any negligence on the part of D3 in approving the plans submitted by D1, which resulted in the encroachment onto the Plaintiff’s Land. The Yang diPertua of D3 chaired the committee which approved the plans submitted by D2 on behalf of D1. (Mesyuarat OSC dated 21.06.2016). Although D3 has pleaded in the above paragraphs of its SOD that “Defendan telah menjalankan kewajipan berhati-hati dan tanggungjawab munasabah dalam melakukan pemerhatian dan tinjauan fizikal pada 11.03.2019 di tapak pembinaan tersebut”, nonetheless, this is a question of fact which can only be determined at a full trial. The issue of any possible negligence on the part of D3 is not a matter to be decided purely on affidavit evidence as enunciated by the court in the case of Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [supra]. [22] Therefore, I find that the Plaintiff’s claim against D3 is not obviously unsustainable and should not struck off summarily without going for trial. CONCLUSION [23] For the above reasons, I dismiss D3’s application in Enclosure 25 with costs in cause. Dated 19th May 2022 Signed, ………………………….. Ahmad Murad Bin Abdul Aziz Judicial Commissioner High Court of Malaya Johor Bahru Johor Darul Ta’zim Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 8 Counsel / Solicitors : For the Plaintiffs : R Vasanthan Messrs Julie Lim, Vasanthan & Co. Lot 21-02, Level 21 Public Bank Tower No.19, Jalan Wong Ah Fook 80000 Johor Bahru Johor Darul Ta’zim. (Ref:JLV/7984/20/LIT/RV/F) For the Defendants : Fakhrul Anwar Ramli & Lau Seow Mui Messrs Akmal Saufi & Co. Suite 8.01, Jalan Padi Emas 1/5 Uda Business Centre Bandar Baru Uda 81200 Johor Bahru Johor Darul Ta’zim (Ref:ASCO/LIT/20212850/MDP/SG(NB)) Cases Referred to:  Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd [1993] 1 MLRA 611  Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur [2016] 2 MLRA 263  Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473  Inter Heritage (M) Sdn Bhd v Asa Sports Sdn Bhd (No.2) [2003] 5 MLRH 357 Legislation Referred to:  Order 18 rule 19(1)(a), (b) and (d) of the Rules of Court 2012  Section 9 of the Street, Drainage and Building Act 1974  Section 75 of the Street, Drainage and Building Act 1974 