Tan Lian Hor v Honhub Sdn Bhd (BA-22NCvC-289-07/2019)

HSM 11905, PT 35, Seksyen 2, Mukim Tanjung Karang, Daerah Kuala Selangor, Negeri Selangor with the postal address at No. 05, Jalan Padi Ria 2 Zon IKS Sungai Gulang-Gulang, 45500 Tanjung Karang, Selangor Darul

HSM 11906, PT 36, Seksyen 2, Mukim Tanjung Karang, Daerah Kuala Selangor, Negeri Selangor with the postal address at No. 07, Jalan Padi Ria 2 Zon IKS Sungai Gulang-Gulang, 45500 Tanjung Karang, Selangor Darul

HSM 11900, PT 30, Seksyen 2, Mukim Tanjung Karang, Daerah Kuala Selangor, Negeri Selangor with the postal address at No. 05, Jalan Padi Ria 1 Zon IKS Sungai Gulang-Gulang, 45500 Tanjung Karang, Selangor Darul

HSM 11901, PT 31, Seksyen 2, Mukim Tanjung Karang, Daerah Kuala Selangor, Negeri Selangor with the postal address at No. 07, Jalan Padi Ria 1 Zon IKS Sungai Gulang-Gulang, 45500 Tanjung Karang, Selangor Darul Ehsan (“Premise 4”); [5] The defendant had delivered vacant possession of all four Landowner’s Lots to the plaintiff. The plaintiff took vacant possession of Premise 3 and Premise 4 in August 2014. As regards Premise 1 and Premise 2, the defendant claims that the plaintiff had taken vacant possession of both these premises, together with Premise 3 and Premise 4 in August 2014. Whereas the plaintiff contends that he took vacant possession of Premise 1 and Premise 2 in May 2015. Plaintiff’s Claim [6] The plaintiff’s action is based on two incidents that allegedly occurred in April 2017 to the common wall between Premise 1 and Premise 2 — approximately 2 years after he had taken vacant possession of the said premises. According to the plaintiff, on 27 April 2017 “the wall of Premise 1 broke with a loud noise” and on 30 April 2017 “the wall of Premise 1 broke again with a loud noise” (“the April 2017 incidents”). [7] The plaintiff contends that the defects in Premise 1 and Premise 2 resulted from substandard construction quality and settlement of the building foundation. He asserts that this constitutes a total failure of consideration by the defendant, thereby entitling him to rescind the transfer and seek damages from the defendant based on the current market value of Premise 1 and Premise 2. Defendant’s Defence and Counterclaim [8] The defendant denies the plaintiff’s claim. It maintains that it did not breach the JVA or its duty of care. It is the defendant’s case that the issuance of the CCC and all the evidence and documents show that the buildings were constructed in good and workmanlike manner in accordance with the relevant laws and regulations. [9] The defendant contends that it was the conduct of the plaintiff’s tenant, Go Kian Tiong (“PW2”), in demolishing the common wall between Premise 1 and Premise 2 that had caused substantial damage on the structure and foundation of the building. The defendant pleaded in its Defence and Counterclaim that the PW2 had demolished the common wall between Premise 1 and Premise 2 without the defendant’s knowledge and without the relevant authority’s approval. [10] The defendant counterclaims against the plaintiff to indemnify it for the loss and damage from the unlawful demolition of the common wall. [11] Additionally, the defendant pleads that the plaintiff’s claim is statutorily time-barred under the Limitation Act 1953. Trial [12] The trial was held over nine non-consecutive days. The plaintiff called six witnesses, and the defendant called two witnesses. Plaintiff’s Witnesses Choo Kok Woi “PW1” Go Kian Tiong “PW2” Tan Lian Hor “PW3” Saleha Bt Mohd Ariff (Subpeona witness) “PW4” Tan Kuang Leong (Expert witness) “PW5” Abdul Mutalib bin Aman Shah (Expert witness) “PW6” Defendant’s Witnesses Teoh Sin Hoe “DW1” Ter Leong Keat (Expert witness) “DW2” [13] After full trial, this Court dismissed the plaintiff’s claim and the defendant’s counterclaim. [14] The full grounds for this Court’s decision are set out in this judgment. Issues to be tried [15] The issues for this Court’s determination in the claim and counterclaim are:

Is the plaintiff’s claim against the defendant statutorily time-barred under the Limitation Act 1953?

Whether the plaintiff has proven that the defendant had breached the JVA or its duty of care pursuant to the particulars pleaded in the statement of claim?

Whether the plaintiff has proven that the defects to Premise 1 and 2 were caused by poor construction quality or settlement of the foundation? and

Did the demolition of the common wall between Premise 1 and Premise 2 cause the damage to the building? Issue (a): Is the plaintiff’s claim against the defendant statutorily time-barred under the Limitation Act 1953? [16] The plaintiff’s case is that the cause of action of its claim accrued from the date of delivery of vacant possession of Premise 1 and Premise 2, which he claims is May 2015. [17] Whereas the defendant’s case is that the cause of action accrued in 2011 i.e. the date of the commencement of the construction work of the buildings in the Project. It pleaded that the plaintiff’s claim is time-barred since this writ action was filed in July 2019. [18] Section 6(1) of the Limitation Act 1953 stipulates that actions founded in contract and tort shall not be brought after six years of the date on which the cause of action accrued. Although the defendant’s alleged negligence does not involve personal injuries, the new section 7 6A of the Limitation Act 1953, which was introduced by the Limitation (Amendment) Act 2018 does not apply to this instant case. This is because section 6A came into force on 01.09.2019 after the alleged cause of action accrued. [19] The plaintiff pleaded that he discovered damages to Premise 1 and Premise 2 in May 2014, during a joint inspection of the Premise 1, 2, 3 and 4 for purposes of delivery of vacant possession. In his statement of claim, the plaintiff termed the damages discovered during the joint inspection as kerosakan awalan (“initial damages”). He pleaded that he took delivery of vacant possession of Premise 1 and Premise 2 in May 2015, after the defendant had repaired the initial damages. Para. 12 of the statement of claim is reproduced below:

Selanjutnya, pada sekitar bulan Ogos 2014 Plaintif telah mengambil milikan kosong Premis 3 tersebut dan Premis 4 tersebut. Namun demikian, milikan kosong bagi Premis 1 tersebut dan Premis 2 tersebut hanya diserahkan kepada Plaintif pada sekitar bulan Mei 2015 setelah Defendan memperbaiki kerosakan awalan tersebut. [Emphasis added] [20] In Bounty Dynamics Sdn Bhd v Chow Tat Ming & Ors 2016] 1 MLJ 507; [2015] 9 CLJ 422; [2015] AMEJ 1469[, the Court of Appeal held that in a claim for breach of contract in respect of the sale and purchase of property in a development, the date on which the cause of action accrues is the date of delivery of vacant possession; hence, the cut-off date for purposes of limitation is six years after the contractual date of delivery of vacant possession. Umi Kalthum Abdul Majid JCA delivering the judgment of the Court said: [26] Being a claim founded on contract, the principle of law is that a claim for breach of contract has to be commenced at the earliest possible time when the innocent party becomes aware of the breach. In the context of a sale and purchase of property in a development, the critical date will be the date of delivery of vacant possession, as defined in the relevant sale and purchase contract. On the facts of this case, it would have become apparent to the purchasers at the date of delivery of vacant possession whether or not the food court and/or the theme park had been constructed. The date of delivery of vacant possession was 31 December 1997. The SPAs had been signed variously between 16 December 1994 to 22 March 1996. For purposes of limitation, the cut-off date would be 31 December 2003. [Emphasis added] [21] In this present case, the JVA is dated 28.10.2009. Clause 5(e) of the JVA states that the defendant is to deliver to the plaintiff the “Landowner’s Lots” within 4 years from the date of the JVA i.e. by 27.10.2013. Premises 1, 2, 3 and 4 which were delivered to the plaintiff are the “Landowner’s Lots”. [22] Therefore, the cause of action under the JVA accrued on 27.10.2013. Accordingly, limitation will set on 27.10.2019. The plaintiff filed its writ of summons on 10.07.2019 — before the expiry of six-year period. Findings on Issue (a) [23] As the plaintiff had filed this writ action prior to the expiry of six years from the date the cause of action accrued, this Court finds that the plaintiff’s claim against the defendant is not time-barred under the Limitation Act 1953 Issue (b): Did the plaintiff prove that the defendant had breached the JVA or the duty of care pursuant to the particulars pleaded in the statement of claim? [24] The plaintiff’s case is that the defendant had fundamentally breached the JVA and/or the implied terms in the JVA, and in the alternative, the defendant had breached its duty of care to the plaintiff. [25] The plaintiff pleaded the particulars of the defendant’s alleged breach of the JVA and breach of duty of care is the defendant’s failure to construct Premise 1 and Premise 2 in a good workmanlike manner; in generally accepted standards/specifications; using good and proper materials; and/or in a reasonable manner fit for human habitation. [26] Learned counsel for the plaintiff submits that based on the case of Teh Khem On & Anor v Yeoh & Wu Development Sdn Bhd & Ors [1995] 2 MLJ 663; [1996] 2 CLJ 1105; [1995] 2 AMR 1558 the following terms are implied in construction contracts, namely the contractor is to build the property in a good and workmanlike manner; use good and proper materials; and the property will be reasonably fit for human habitation. [27] In this instant case, there is no dispute between the parties that the defendant as the developer of Premise 1 and Premise 2, is contractually required under the JVA and the law to build the buildings in a good workmanlike manner; in generally accepted standards/specifications; using good and proper materials; and/or in a reasonable manner fit for human habitation. [28] Under clause 5(b) of the JVA, the defendant agreed and covenanted with the plaintiff to construct the buildings upon the Landowner’s Lots in “good workmanlike manner” in accordance with generally accepted standards with the building plans and specification to be approved by the Relevant Authorities. Clause 5(b) of the JVA reads:

DEVELOPER’S AGREEMENT AND COVENANTS The Developer hereby agreed and covenants with the Landowner as follows:

CONSTRUCTION OF BUILDING to construct upon the Landowner’s Lot such buildings as are approved by the Relevant Authorities in good workmanlike manner in accordance with generally accepted standards with the building plans and specifications to be approved by the Relevant Authorities. [29] The issue before this Court is whether the plaintiff had discharged his burden of proving that the defendant had breached the terms of JVA (both direct and implied) and/or its duty of care to the plaintiff. [30] Pursuant to sections 101 and 102 of the Evidence Act 1950, the burden is on the plaintiff to prove on a balance of probabilities his pleaded case, i.e., the defendant had failed to construct Premise 1 and Premise 2 in a good workmanlike manner; in generally accepted standards /specifications; using good and proper materials; and/or in a reasonable manner fit for human habitation.

Did the plaintiff establish that the cracking and settlement of the foundation at Premise 1 and Premise 2 have existed since the delivery of vacant possession? [31] The plaintiff claims that his case — that Premise 1 and Premise 2 had experienced cracking and severe settlement since the date of delivery of vacant possession — is proven through the photographs submitted by the plaintiff, Mr. Tan Lian Hor (“PW3”) in bundle B3/pp.436–453 and exhibit “P1” in bundle C1/pp. 15-19. [32] The photographs in bundle B3 were first introduced by the plaintiff through Mr. Choo Kok Wei (“PW1”), the owner of a neighbouring premises. [33] During the cross-examination of PW1, I noted that the Court’s copy of the photographs of in bundle B3/pp. 436–453 had the words “April/Mei 2015” handwritten in pencil under some of the photographs and under some others “Mac & April 2017”. [34] As reflected in the Notes of Proceedings of the trial, after I enquired about the dates handwritten under the photographs in the Court’s bundle, it was discovered that only the Court’s copy of bundle B3 had the dates written under the photographs. At the request of counsel, the trial was stood down for the counsel to look into the matter. [35] When the trial resumed, I was informed that the witness’s copy of bundle B3 also had handwritten notations under every single photograph in pp. 436–453 of the said bundle. But unlike the Court’s copy, the notations in the witness’s copy of bundle B3 were written in Chinese. [36] I then asked counsel for the plaintiff, Ms. Olivia Chin, to explain why the Court’s copy and the witness’s copy of the bundle B3 had the handwritten notations under all the photographs in pp. 436–453 of bundle B3. Ms. Chin said that she did not know anything about the tampering of the evidence. The plaintiff’s instructing solicitor, Mr. KB Ou Yong, also said that he did not know anything about the written notations—he said the copies of bundle B3 were passed to the plaintiff and it was the plaintiff brought who had brought the copies of the bundle to Court. [37] Because the photographs in bundle B3 in the Court’s copy and the witness’s copy were tampered with and PW1’s testimony were based on these tampered photographs, I made the ruling during trial to expunge PW1’s testimony. [38] After PW1’s testimony I instructed that both the Court’s copy and the witnesses’ copy of bundle B3 be replaced with untampered copies of the bundle. However, when PW3 gave his testimony, I noted that the Court’s copy of bundle B3 was still not changed and that some of the photographs still had notations under the photographs. The Court’s copy of bundle B3 was changed before the start of PW3’s cross-examination. [39] The photograph marked as exhibit “P1” in bundle C1/pp. 15-19 are a series of photographs of cracks outside some buildings. There is nothing in the photographs to show the dates on which the photographs were taken and what were the buildings. There is nothing in the photographs to show that they are of the outside of Premise 1 and Premise 2. [40] The plaintiff did not produce metadata/EXIF information of any of the photographs in pp. 436–453 of bundle B3 and exhibit C1 showing the date on which the photographs were taken. Without the dates, the plaintiff could not prove that the photographs were taken during the delivery of vacant possession of the premises, and whether the photographs were that of Premise 1 and Premise 2. [41] PW3 claimed that the photographs in exhibit “P1” were the photographs that he had attached in his letter of complaint to Majlis Daerah Kuala Selangor (“MDKS”) dated 21.05.2014. However, PW3 did not produce the copy of the photographs which were attached to his letter of 21.05.2014 to MDKS. No evidence was adduced during the trial that the photographs in exhibit “P1” were indeed the photographs that were attached to PW3’s letter to MDKS. [42] Additionally, even if the plaintiff discharged his burden of proof that photographs in exhibit “P1” were taken before or on 21.05.2014 and they were of the outside of Premise 1 and Premise 2, the plaintiff had pleaded:

that he took vacant possession of Premise 1 and Premise 2 in May 2015 — a year after the purported date the photographs were taken; and

the defendant had repaired the damage to the Premise 1 and Premise 2 when he took vacant possession of both properties in May 2015. [43] Paragraphs 11 and 12 of the statement of claim is reproduce below:

Plaintif selanjutnya melalui surat bertarikh 21 Mei 2014 telah melaporkan kerosakan awalan tersebut kepada Majlis Daerah Kuala Selangor supaya tindakan sewajarnya dapat diambil.

Selanjutnya, pada sekitar Ogos 2014 Plaintif telah mengambil milikan kosong Premis 3 tersebut dan Premise 4 tersebut. Namun demikian, milikan kosong bagi Premis 1 tersebut dan Premis 2 tersebut hanya diserahkan kepada Plaintif pada sekitar Mei 2015 setelah Defendan memperbaiki kerosakan awalan tersebut. [Emphasis added] [44] Parties are bound by their pleadings: see Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1; [2015] 8 CLJ 944; [2018] 3 AMR 259, FC; Iftikar Ahmad Khan (as executor of the estate of Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2017] 8 AMR 517; [2018] 2 MLJ 292; [2018] 1 CLJ 415, FC. [45] In this context, since the plaintiff had specifically pleaded that the defendant had repaired the initial damage to Premise 1 and Premise 2 before the he took vacant possession of both premises in May 2015, the plaintiff is not permitted to deviate from these pleadings. Finding on sub-issue (b)(i) [46] For all these reasons, I find that the plaintiff had failed to prove that the cracking and settlement to the foundation to Premise 1 and Premise 2 had existed at the time of delivery of vacant possession.

(ii) Were the buildings constructed in a good and workmanlike manner in accordance with the building plans and specifications approved by the relevant authorities? [47] The CCC — Perakuan Siap dan Pematuhan (Borang F) — for the buildings constructed on the 11 subdivided lots of the land was issued by the consultant architect of the Project on 17.04.2014. [48] In the CCC, the architect certified that the buildings were constructed in accordance with the approved plans, the Act and the Undang-Undang Kecil Bangunan Seragam Selangor 1986. He also certified that the buildings were safe and fit for habitation. An excerpt of the architect’s certification on the CCC is reproduced below: Setelah berpuas hati bahawa bangunan/bangunan-bangunan itu telah siap menurut pelan yang diluluskan No. MDKS 280/3/11/2011-216 (42/2011) bertarikh 9 MEI 2011. Saya telah mengawai pembinaan dan penyiapan bangunan/bangunan-bangunan itu dan sepanjang pengetahuan dan keperpercayaan saya kerja / kerja-kerja itu adalah mengikut Akta, Undang-Undang Kecil Bangunan Seragam Selangor 1986 dan pelan-pelan yang diluluskan. Saya dengan ini memperakui bahawa bangunan/bangunan-bangunan itu adalah selamat dan layak untuk diduduki. [Emphasis added] [49] In Allan Kinsey & Anor v Sunway Rahman Putra Sdn Bhd & Anor, Dekon Sdn Bhd (Third Party) [2015] 4 CLJ 624; [2015] AMEJ 722 (“Allan Kinsey”), the first defendant had delivered vacant possession of the property the plaintiff with, inter alia, the support of a certificate of fitness and occupation (“CFO”) signed by the first defendant's architect certifying that the said property had been duly constructed and completed in accordance with all relevant acts, by-laws and regulations and all conditions imposed by the appropriate authority in respect of the issuance of the certificate of fitness for occupation had been duly complied with. Prasad Abraham J (as he then was) held that the issuance of the CFO points that the said property had been constructed in a good and workman-like manner in accordance with the relevant laws and regulations. He cited the case of Pentadel Sdn Bhd v. TPPT Sdn Bhd [2011] CLJU 1283; [2011] AMEJ 0524, where Hadhariah Syed Ismail J (as she then was) held: Under a construction contract, a certificate issued by the relevant authorities certifying the works had been completed prima facie proof that that the works had been completed. [50] The High Court in Pua Yu Len v Bandar Eco Setia Sdn Bhd [2018] MLJU 761; [2018] CLJU 821; [2018] AMEJ 0640 (“Pua Yu Len”), citing with approval the decision in Allan Kinsey, held that the CCC issued for a property is prima facie evidence that the property was in built in a good and workmanlike manner; that it had conformed with the approved building plans and that the property in safe for occupation. See Mee Chun J (as she then was) said in Pua Yu Len: [58] The meaning of the term 'good and workmanlike manner' in clause 13 was explained in the case of Hancock and others v. B W Brazier (Anerley) Ltd [1966] 2 All ER 1 at page 8 where it relates to "the way in which the work was carried out rather than to the materials, and that clause requires that the work shall be carried out with due skill, care and judgment." Hence the clause deals specifically with workmanship. [59] In Kiing Teck Hoon v. T-Phoon Aluminium Sdn Bhd & Ors [2007] CLJU 281; [2007] 1 LNS 281; [2007] MLJU 37, it was held that to establish a case under this clause, it must be shown that the building was not constructed in a workmanlike manner in accordance with the building plans, drawings and specifications. …………….. [61] CCC issued for the property on 22.5.2013 is prima facie evidence that the property was built in a good and workmanlike manner and has conformed with the approved building plans and the property is safe for occupation. In Allan Kinsey & Anor v. Sunway Rahman Putra Sdn Bhd & Anor, Dekon Sdn Bhd (Third Party) [2015] 4 CLJ 624, it was held at page 630 that the issuance of the certificate of fitness for occupation will point to compliance and satisfaction that the property is built in a good and workmanlike manner in accordance with the fourth schedule and approved plans. [Emphasis added] [51] Hence, in this instant case, for the plaintiff to prove its case that the defendant had failed to construct Premise 1 and Premise 2 in a good and workmanlike manner, it must show that both premises were not constructed in a good and workmanlike manner in accordance with the building plans and specifications approved by the relevant authorities. [52] However, there is nothing the evidence adduced before this Court that showed that the defendant’s workmanship in constructing the premises was not in accordance with the building plans and/or the specifications approved by the relevant authorities and the applicable laws and regulations. [53] The plaintiff also did not adduce any evidence to prove that at the time delivery of vacant possession, Premise 1 and Premise 2 were not safe for occupation. In fact, the plaintiff in QA17 of his witness statement stated that since the delivery of vacant possession of the premises, he had rented both Premise 1 and Premise 2. The ground floor of Premise 1 and both floors of Premise 2 were rented to PW2. [54] Furthermore, the plaintiff pleaded in paragraph 15(a) of his Amended Reply and Defence to Counterclaim, that PW2 had demolished the common wall between Premise 1 and Premise 2 in August 2015. [55] As held in Allan Kinsey and Pua Yu Len, the CCC issued is prima facie evidence that the buildings were built in compliance with clause 5 of the JVA; that they were constructed in a good and workmanlike manner in accordance with laws; and the property is safe for occupation. [56] The prima facie evidence provided by the CCC was supported by DW1’s testimony and the documents produced by the defendant during the trial. [57] The evidence showed that the defendant commenced the construction of the premises commence after the building plan was approved by MDKS. The defendant’s architect received the “Kelulusan Pelan Bangunan” from MDKS on 09.05.2011 and the architect gave the Notice to Commence Construction to MDKS on 22.06.2011. [58] The evidence further showed that after the earth works were completed, the defendant had appointed a licensed land surveyor to prepare the “as built filled up earth plan”. Also, that the defendant had engaged a full-time site supervisor on site during the entire construction period. [59] As regards the piling works, the evidence showed that the piling works were carried out on the pile points marked by the surveyor, that a pile dynamic load test was conducted to confirm the pile length and capacity and that during the piling works, a blow count record was recorded for every pile. In addition, an as built pile survey was done to verify the pile position after the completion of the piling works. [60] The plaintiff, on the other hand, did not provide any evidence to disprove the prima facie evidence provided by the CCC that the premises were built in a good and workmanlike manner. He also did not adduce any evidence to show that either Premise 1 or Premise 2 was not constructed in accordance with the building plans and specifications approved by the relevant authorities. Findings on sub-issue (b)(ii) [61] This Court finds that, for the above reasons, the plaintiff failed to disprove and/or rebut the prima facie evidence in the CCC that the buildings and Premise 1 and Premise 2 had been (i) duly constructed and completed (a) in a good and workmanlike manner; (b) in accordance with all relevant acts, by-laws and regulations and all conditions imposed by the appropriate authority; and (ii) is safe for occupation. Finding on issue (b): [62] Based on the findings in sub-issues (b)(i) and (ii), this Court finds that the plaintiff had failed to discharge his burden of proof that the defendant had breached the JVA or its duty of care to the plaintiff as particularised in the statement of claim. Issue (c): Whether the Plaintiff has proven that the defects to Premise 1 and 2 were caused by poor construction quality or settlement of the foundation? Plaintiff’s Case [63] The plaintiff’s case is that the settlement of the foundation had occurred since the joint inspection in May 2014. He claims that the defects in Premise 1 and Premise 2 were caused by the poor construction quality and the settlement on the building foundation, which amounted to a total failure of consideration by the defendant, and that entitles him to rescind the transfer of both Premise 1 and Premise 2 to him and claim damages based on the current price of both premises from the defendant. [64] The plaintiff appointed AMAS FM Consultant Sdn Bhd (“AMAS”) to inspect Premise 1 and Premise 2. AMAS inspected both properties twice: the first time from 12 to 20 September 2017 and the second time on 2 October 2017. [65] The plaintiff pleaded in para. 21 of the statement of claim that the inspection by AMAS identified that the cause of damages and the defects is poor construction quality. [66] In October 2018, the plaintiff appointed Greenex Consultant (“Greenex”), a consultant engineering firm, to investigate Premise 1 and Premise 2. In its report dated 29.10.2018, Greenex stated that based on its visual inspection on 27.11.2018 of seven units of the double-storey building in Jalan Ria 2, Tanjong Karang, Kuala Selangor concluded that the cracks on the building were due to the settlement of the foundation of the building. [67] The plaintiff pleaded in para. 26 of the statement of claim that the investigation by Greenex confirmed that the settlement in the foundation of Premise 1 and 2 is substantial and that the cracks in the building was caused by settlement in the foundation. [68] He also pleaded in para. 27 of the statement of claim that on 29.01.2019 the Jabatan Kawalan Bangunan Majlis Daerah Kuala Selangor had issued a Notis Mengosongkan Bangunan (Notice to Vacate) for Premise 1 and Premise 2 because the building was unsafe. Defendant’s Case [69] The defendant’s case is that the AMAS inspection was conducted three years after the delivery of vacant possession. And that it was a visual inspection only. [70] As regards the inspection by Greenex, the defendant submits that it was conducted four years after delivery of vacant possession. Also, the inspection was limited to a visual inspection only and had relied mainly on the earlier report by AMAS. [71] Tan Kuan Leong (PW5) the principal of Greenex, had conducted the inspection and prepared Greenex’s expert report (marked as “P4”). PW5 concluded in the said report that the excessive cracks to the buildings were due to the settlement of the foundation: see para. 8.0 of P4. [72] During the trial PW5 confirmed that his conclusion was reached based on his visual inspection of the shop lots. PW5 said that he conducted a visual inspection only. [73] Additionally, PW5 confirmed that he did not determine the root cause of the foundation failure. This is because another investigation needs to be to be done to find out why the foundation failed. PW5 said that he did not conduct the further investigation to determine the cause of the foundation failure because it was not within his scope of work. [74] In fact, PW5 stated that his report was not to find out what was the root cause of the foundation failure: Enc. 105 / NOP / p.186 lines 1-7 But we don’t know why the ….. as what you asked, why the ….. what cause the foundation failed, we need to do another investigation. Defendant’s Counsel: Exactly. That’s what I want to hear. This, this is not my scope of work. Enc. 105 / NOP / p.216 lines 29-34; p. 217 lines 2-8 I’m finding root cause for the excessive cracking and the settlement for the building, why the building so excessively cracked. This is my term and reference for my report. My report is not find out what are the root cause of the foundation failure. Defendant’s Counsel: So …. Because the …. they engaged me to get why the building crack, so excessive cracked. So, I find the root cause of the excessive cracked not the root cause of the foundation failure. That one is second stage. It’s good as what you say … advisable to go further to investigate the foundation failure. [75] Learned counsel for the defendant submits that on this basis alone, i.e. the fact that PW5 did not investigate the cause of the foundation failure, PW5’s expert opinion is not necessary and is of no evidential value at all. He cites the case of Sim Ah Song & Anor v R [1951] 1 MLJ 150; [1951] CLJU 83, where Brown Ag CJ said the following with respect to expert evidence: The business of an expert witness is to draw upon the store of his knowledge and experience in order to explain some matter which his experience should qualify him to understand. He is quite entitled to express his opinion, which indeed is the natural corollary of his explanation. But a bare expression of his opinion has no evidential value at all. Unless he gives an explanation which supplies the understanding of the subject which the Court lacks, the Court is in no better position than it was before to determine the question which it is its duty to determine, and if the Court acts upon a bare expression of the expert's opinion the determination of the question becomes that of the expert and not of the Court. [Emphasis added] [76] Here, PW5 did not investigate the cause of the foundation failure in the building because “it was not in his scope of work”. Also, his expert report was a bare expression of his opinion — as he told this Court he did not conduct any test to determine the cause of the failure of the foundation. He made his determination based solely on his visual inspection of the building. [77] The defendant further submits that Greenex’s expert report (P4) also does not comply with the procedural requirements of expert’s report in Order 40A rule 3(2) of the Rules of Court 2012 (“ROC 2012”), which states:

Requirements of expert’s evidence (O.40A r.3)

An expert’s report shall – a) give details of the expert's qualifications;

give details of any literature or other material which the expert witness has relied on in making the report;

contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given;

if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert's supervision;

where there is a range of opinion on the matters dealt with in the report-

summarise the range of opinion; and

(ii) give reasons for his opinion;

contain a summary of the conclusions reached;

contain a statement of belief of correctness of the expert's opinion; and

contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty. [78] This is because the report does not contain a statement of belief and correctness of the expert’s opinion and a statement that the expert understands that in giving his report, his overriding duty is to the court and that he complies with his duty. Instead, the report was prepared subject to limitation on use and liability. [79] The report also does not contain (i) any details of the literature or other material relied on in making the report (required by O.40 r.3(2)(b)); (ii) no statement on the basis upon which the evidence is given (required by O.40 r.3(2)(d)); (iii) no test or experiment which PW5 had used for the report or carried out (required by O.40 r.3(2)(d)); and (iv) no reasons were given for PW5’s opinion (required by O.40 r.3(2)(e)(ii)). [80] Learned counsel for the defendant contends that it was sufficiently proved during cross-examination that PW5’s visual inspection is an insufficient test, and he was unable to establish reinforced concrete structure on the wall of the buildings or the severity of the cracks and/or the quality of the cement used. This was because he did not do any test. PW5 was asked during cross-examination whether he did any material testing for the building. PW5 answered “I no need to. No”: see NOP (Enc. 105 / p.209/ lines 30-34 [81] As for the Building Inspection Report for Premise 1 and Premise 2 (marked as exhibit “P6”) prepared by AMAS, the defendant contends that it also does not contain the details required in an expert report under Order 40A rule 3(2) of the ROC 2012. Learned counsel for the defendant submits that the AMAS report also does not have any evidential value since it was a bare expression of opinion by Encik Abdul Mutalib bin Aman Shah’s (“PW6”). PW6 is another of the plaintiff’s expert witness. [82] Under cross-examination PW6 said that before he conducted the inspections at the premises, he was not informed that Premise 1 and Premise 2 had been renovated and the common wall between Premise 1 and Premise 2 had been demolished. [83] Additionally, PW6 testified that the report was prepared based on his and his team members’ visual inspection of the premises. They did not conduct any scientific tests before arriving at the conclusion in the report that “The problem which occurs from the results of poor construction quality by the contractor”. [84] PW6 also confirmed that he did not have the benefit of the construction drawing or the “as-built” plan before or when he conducted the inspections of the premises. He said as he was not given the plan by the plaintiff, he had drawn the floor plan himself. Analysis [85] It is trite that expert opinion is only relevant fact to provide the Court information on “a point of foreign law or of science or art” or the genuineness of handwriting or finger impressions. Section 45(1) of the Evidence Act 1950 (“EA 1950”) states:

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts. [86] The Federal Court in Syed Abu Bakar Bin Ahmad v PP [1984] 2 MLJ 19; [1984] 1 CLJ 80, referring to the commentary on section 45 of the EA 1950 in Sarkar on Evidence, 12th ed. said that while recognising that opinion in so far as it may be founded on legal evidence shall be the function of the Court alone, in situations where the Court is not in a position to form a correct opinion without the help of an expert in a particular subject, which is outside the experience and knowledge of the Judge, the rule is relaxed and expert evidence is admitted to enable the Court to come to a proper decision. [87] In Wong Swee Chin v PP [1981] 1 MLJ 212; [1980] CLJU 138, FC Raja Azlan Shah CJ explained who experts in section 45 of the EA 1950 are, and said: But, except on purely scientific issues, expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments. In the ultimate analysis it is the tribunal of fact, whether it be a judge or jury, which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness, the court must come to its own opinion.” [88] In this case, neither expert PW5 or PW6 conducted any scientific test to determine what was the cause of the damage to the buildings and the settlement of the foundation. Both only conducted visual inspections. PW5 informed this Court that he did not conduct any test to determine what was the root cause of the buildings’ foundation failure because “it was not within his work scope”. [89] PW5 (i) did not carry out any scientific tests to establish the root cause of the foundation failure; and (ii) his conclusions pertain only to the cause of cracks in the buildings, which were based exclusively on visual inspection. Accordingly, his expert report in P4 did not provide any scientific based information or findings to assist the Court in identifying the root cause of the building's foundation failure. [90] Similarly, PW6 did not carry any test to determine whether there was ground settlement or poor construction. PW6 said that the ground settlement was “andaian” and “anggaran sahaja”. [91] As for his conclusion of poor construction quality, PW6 said that he arrived at the conclusion based on his observation only. He did not compare the construction plans with the as-built plans to ascertain whether there had been compliance with the construction plans in the construction of the premises. He also did not conduct any cement coring test to determine poor quality. [92] As the conclusions reached by PW5 and PW6 in their expert reports, were based on visual inspections only, and not any scientific tests, the said reports do not fulfill the requirements of an expert report as set out in section 45 of the EA 1950 and that in Order 40A rule 3(2) of the ROC 2012. [93] The Supreme Court in United Asian Bank Ltd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182; [1993] 2 CLJ 31; [1993] 1 AMR 612, said: In a civil case and more so in a criminal case, the evidence of an expert on handwriting unsupported by cogent data showing the process by which he came to his conclusion is not worth the paper on which it is written and any reliance upon such evidence would, in our judgment, constitute a serious misdirection warranting interference by an appellate tribunal. [Emphasis added] [94] Both PW5 and PW6 did not provide any cogent data in their respective expert reports, as to how they arrived at their conclusions. Their conclusions were based on their visual inspections only unsupported by any scientific tests or experiments. To borrow the words of the Supreme Court in United Asian Bank Ltd, the conclusions arrived by PW5 and PW6 in their respective expert reports “are not worth the paper on which it is written on” and if this Court is to rely on the said expert reports, it would constitute a serious misdirection which would warrant appellate intervention. [95] Accordingly, in line with the Federal Court decision is in Syed Abu Bakar Bin Ahmad v PP and Wong Swee Chin v PP, this Court is unable to rely on the expert reports in P4 and P6 to determine what was cause of the foundation failure and damage to Premises 1 and Premises 2. Findings on issue (c) [96] For these reasons, this Court finds that the plaintiff failed to discharge his burden of proof that the defects to Premise 1 and Premise 2 were caused by the defendant’s poor construction quality or settlement of the foundation. Issue (d): Did the demolition of the common wall between Premise 1 and Premise 2 cause the damage to the building? [97] The defendant’s case in its counterclaim is that the conduct by the plaintiff’s tenant, PW2, in demolishing the common wall between Premise 1 and Premise 2, was the cause of the damage to the structure and foundation of the building. [98] The defendant commissioned Mr. Ter Leong Keat (DW2), a civil and structural engineer to carry on on-site inspection and provide his expert opinion in relation to the renovation and demolition of the common wall between Premise 1 and Premise 2. DW2 was engaged by the defendant as the civil & structural engineer in relation to the development of the Project. [99] DW2 prepared the Building Assessment Report (Arising from Renovation/Demolition) dated 23.02.2021 (marked as exhibit “C2”). [100] As the civil & structural engineer for the Project, DW2 confirmed that neither the plaintiff or PW2, consulted his office — either to request for the original designed layout or advice on the existing structure — before carrying out the renovation and the demolition of the common wall between Premise 1 and Premise 2. [101] DW2 also found that based on his investigation that the plaintiff and/or PW2 did not make any application to the local authority, MDKS, prior to renovation of the premises and the demolition of the common wall. MDKS confirmed in a letter dated 01.06.2020 that no application for the renovation and demolition was made by PW2. [102] DW2 found that there were various alterations to layout of Premise 1 and Premise 2 based on his comparison between the original interior drawing plan and his on-site observation of the premises post renovation. He detailed in his expert report the various changes and photos of the alterations made to Premise 1 (referred to in the report as Shop-Office Unit No. 5). [103] DW2 concluded in his expert report that “it is highly likely that the renovation and demolition of [the] party wall caused [a] level of disturbance to key structure elements because (a) no prior approval from MDKS was obtained; and (b) there was no consultation with the design engineer (i.e. DW2 himself), prior to the renovation and demolition. Analysis [104] Whilst the renovation to Premise 1 and the demolition of the common/party wall between Premise 1 and Premise 2 was without the approval of the local authority — MDKS, and without consultation with the design engineer on key structure elements, the defendant did not provide any proof that the renovation and/or demolition of the common/party wall had affected the structure of the building and had caused damage to the building and its foundation. [105] The defendant’s expert, DW2, in his expert report did not conclusively state based on scientific tests that the renovation and demolition of the common/party wall between Premise 1 and Premise 2 did cause damage to the building. He only made a bare statement that because the approval of the local authority was not obtained and he was not consulted prior to the renovation and demolition, “it is highly likely” that the renovation and demolition caused a “level of disturbance to the key structure elements”. He did not state that the “level of disturbance” was the cause of the damage to the building or its foundation. Findings on Issue (d) [106] Accordingly, for these reasons, I find that the defendant failed to discharge its burden of proof that the renovation and the demolition of the common/party wall between Premise 1 and Premise 2 by the plaintiff’s tenant was the cause of the damage to the buildings. Conclusion [107] After considering all the evidence before this Court including the reports and the testimonies of the plaintiff’s and the defendant’s expert witnesses, this Court finds that the plaintiff failed to prove on a balance of probabilities that the damage to Premise 1 and Premise 2 was caused by the defendant’s poor construction quality of the building or settlement of the building’s foundation. [108] For this reason, this Court finds that the plaintiff failed to prove that the defendant had breached the JVA and/or its duty of care. [109] As regards the counterclaim, this Court finds that the defendant failed to prove on a balance of probabilities that the damage to the building was caused by the renovation and/or demolition of the common/party wall between Premise 1 and Premise 2 by PW2. Decision [110] For the reasons above, the plaintiff’s claim against the defendant is dismissed. [111] The defendant’s counterclaim against the plaintiff is dismissed. [112] Costs of RM10,000.00 against the plaintiff, subject to allocatur. Dated: September 2, 2025 -sgd- (FAIZAH JAMALUDIN) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM COUNSELS: For the Appellant: Olivia Chin KB Ou Yong [Messrs K B Ou Yong & Co.] For the Respondent: RK Sharma Lilly Chua Chew Jia Ying [Messrs Lily Chua & Associates]