TEH SIOK YEN v 1. ) Loke Wai Kuen (BA-12BC-2-04/2021)

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… CIVIL APPEAL NO: BA-12BC-2-04/2021 TEH SIOK YEN (NRIC. No.: 901008-10-5084) …

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… CIVIL APPEAL NO: BA-12BC-3-04/2021 TEH GUAN CHUAN (NRIC. No.: 790707-10-5279) …

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… CIVIL APPEAL NO: BA-12BC-4-04/2021 TEH SIOK LEE (NRIC. No.: 810505-10-5516) …

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… JUDGMENT (Four appeals to High Court against Sessions Court’s decision after trial)

In this judgment, I will refer to parties as they were in the Sessions Court

The fourth defendant company (4th Defendant) is a developer of “Tropicana Golf and Country Resort” (Gated Community), a mixed development project which provides for residence, golf facilities and recreation.

By way of a Sale and Purchase Agreement (SPA) dated 23.5.2007, the first and second plaintiffs (“1st Plaintiff” and “2nd Plaintiff”) had jointly purchased from the 4th Defendant a double storey terrace house in the Gated Community with the postal address of no. 15, Jalan TR 2/4, Tropicana Golf and Country Resort, 47410 Petaling Jaya, Selangor Darul Ehsan (Plaintiffs’ Property).

The 4th Defendant had sent a letter dated 12.10.2007 to the Plaintiffs [4th Defendant’s Letter (12.10.2007)] which requested the Plaintiffs to enter into a Deed of Mutual Covenants (DMC) with the 4th Defendant in respect of the Plaintiffs’ Property and Gated Community. Consequently, the Plaintiffs and 4th Defendant executed a DMC on 26.5.2008.

The Plaintiffs’ Property share a common party wall (Common Party Wall) with a double storey terrace house in the Gated Community with the postal address of no. 17, Jalan TR 2/4, Tropicana Golf and Country Resort, 47410 Petaling Jaya, Selangor Darul Ehsan (Adjoining Property).

The Adjoining Property was jointly purchased from the 4th Defendant by Mr. Lee Cheng Chuan and Ms. Ng Wee Kean [1st Co-Owners (Adjoining Property)]. The 1st Co-Owners (Adjoining Property) sold the Adjoining Property to the first to third defendants (“1st Defendant”, “2nd Defendant” and “3rd Defendant”) by way of a SPA dated 15.6.2009.

The 1st to 3rd Defendants did not sign the DMC with the 4th Defendant regarding the Adjoining Property and Gated Community.

The 1st and 2nd Plaintiffs (referred collectively in this judgment as the “Plaintiffs”) have filed this suit against the 1st to 4th Defendants (referred collectively as the “Defendants”) in SC (This Suit). According to the Re-Reamended Statement of Claim in This Suit (RRSOC), among others:

as against the 1st to 3rd Defendants -

around 2011, the 1st to 3rd Defendants had conducted massive renovations of the Adjoining Property [Renovation Works (1st to 3rd Defendants)];

the Renovation Works (1st to 3rd Defendants) had caused water to seep through the Common Party Wall into the ground floor and first floor of the Plaintiffs’ Property (Water Seepages);

the Water Seepages usually occurred when there was rain and had caused the following damage -

there would be puddles of water on the floors of the ground floor and first floors of the Plaintiffs’ Property, especially on parts of the floors near the Common Party Wall;

(ii) the Plaintiffs’ furniture, built-in cabinets and parquet floors were damaged; and

(iii) the interior walls of the Plaintiffs’ Property “bubbled”, became mouldy and malodorous;

the Plaintiffs had suffered emotional distress and health problems due to the Water Seepages (Plaintiffs’ Emotional

the Plaintiffs’ children would frequently fall sick due to the damp environment in the Plaintiffs’ Property;

the Plaintiffs could not carry out ordinary daily family activities in the Plaintiffs’ Property, especially during rainy days when there would be puddles of water in the Plaintiffs’ Property; and

the 1st to 3rd Defendants had committed the following two torts against the Plaintiffs -

the 1st to 3rd Defendants were negligent in carrying out the Renovation Works (1st to 3rd Defendants); and

(ii) by way of the Renovation Works (1st to 3rd Defendants), the 1st to 3rd Defendants had committed a nuisance which interfered with the Plaintiffs’ enjoyment of the Plaintiffs’ Property;

as against the 4th Defendant -

the 4th Defendant had breached the DMC as follows -

the 4th Defendant had breached representations made by the 4th Defendant to the Plaintiffs in the DMC;

(ii) the 4th Defendant had failed to ensure that the 1st to 3rd Defendants execute the DMC with the 4th Defendant;

(iii) the 4th Defendant had approved the application by the 1st to 3rd Defendants for the Renovation Works (1st to 3rd Defendants) although the 4th Defendant’s approval was contrary to the 4th Defendant’s own “Rules and Regulations for Renovation/Alteration/Extension” (Renovation Rules);

(iv) the 4th Defendant had allowed the Renovation Works to proceed notwithstanding the fact that the 1st to 3rd Defendants had not obtained the approval from Majlis Bandaraya Petaling Jaya (MBPJ) for the Renovation Works (1st to 3rd Defendants); and

the above breaches of the DMC by the 4th Defendant had negated the Plaintiffs’ right to sue the 1st to 3rd Defendants (regarding the Water Seepages) based on the DMC; and

the 4th Defendant was negligent in not ensuring the compliance of the DMC and Renovation Rules by the 1st to 3rd Defendants (which had caused the Water Seepages and nuisance to the

the Plaintiffs claimed against the Defendants as follows, among others -

damages totalling RM305,682.92 [Total Claim (Damages)]. The Total Claim (Damages) consisted of the following claims -

fees of the architect (appointed by the Plaintiffs to ascertain the cause of the Water Seepages) in a sum of RM24,518.00 [Fees (Plaintiff’s Architect)]. The Plaintiff’s Architect was Ar. Chan Seong Aun;

(ii) cost to restore the Plaintiffs’ Property (Restoration Works) which amounted to RM72,764.92 [Cost (Restoration Works)];

(iii) a sum of RM8,400.00 [Rent (Temporary Accommodation)] as rent of temporary accommodation for the Plaintiffs and their family during the performance of the Restoration Works (Temporary Accommodation); and

(iv) RM200,000.00 as general damages for the Plaintiffs’ Emotional Distress/Adverse Health Consequences [General Damages (Emotional Distress/Adverse Health Consequences)]; and

as an alternative to the Plaintiffs’ prayer for Total Claim (Damages), the Plaintiffs prayed for SC to order an assessment of general damages to be paid by the Defendants to the

interest at the rate of 5% per annum on the amount of damages adjudged by SC from the date of SC’s judgment until full payment of the same.

The Defendants had opposed This Suit.

The following witnesses testified at the trial of This Suit (Trial) -

three witnesses gave evidence for the Plaintiffs, namely -

the 1st Plaintiff;

the Plaintiff’s Architect; and

Ms. Low Lai Yoong, a resident in the Gated Community who is the “Parcel Representative” to “Tropicana Residents Association” for all residents who stay in Jalan TR2/1 to Jalan

the 1st to 3rd Defendants have called the following witnesses to testify at the Trial -

Ar. Kuan You Wai [Architect (1st to 3rd Defendants)];

Mr. Lee Kar Fai; and

the 1st to 3rd Defendants gave evidence to resist This Suit; and

the following two witnesses testified on behalf of the 4th Defendant -

Mr. Albert Lim Soon Mun (SD6); and

Mr. Yew Kong Chee.

After the Trial, at 12.16 pm, 9.4.2021, SC’s interpreter, Puan Teeba A/P Tarumalingam (Court Interpreter), emailed the decision (SC’s Decision) of the learned Sessions Court Judge, Puan Azian Bt. Othman (SCJ) to all the learned counsel in This Suit (Court Interpreter’s 1st Email). According to the Court Interpreter’s 1st Email -

SC’s Decision was as follows -

This Suit was allowed by SC against all the Defendants;

SC adjudged the Defendants to pay the Total Claim (Damages) to the Plaintiffs with interest at the rate of 5% per annum on the Total Claim (Damages) from the date of SC’s judgment until full payment of the Claim (Damages) (SC’s

the Plaintiffs’ Prayer (Assessment of Damages) was refused by the SC; and

the Court Interpreter’s 1st Email inquired from all learned counsel regarding the amount of costs to be ordered by SC for this case [Costs Sum (SC)];

all learned counsel had emailed to the Court Interpreter regarding their proposals in respect of the Costs Sum (SC); and

at 3.38 pm, 9.4.202, the Court Interpreter had emailed to all learned counsel that the learned SCJ had assessed Costs Sum (SC) to be RM30,000.00 (Court Interpreter’s 2nd Email). C.

Four appeals against SC’s Decision The following four appeals have been filed against SC’s Decision (4

Civil Appeal no. BA-12BC-1-04/2021 has been filed by the 4th Defendant (4th Defendant’s Appeal); and

the 1st, 2nd and 3rd Defendants have filed Civil Appeal no. BA-12BC- 3-04/2021, Civil Appeal no. BA-12BC-2-04/2021 and Civil Appeal no. BA-12BC-4-04/2021 respectively [3 Appeals (1st to 3rd Defendants)].

All the learned counsel for the Plaintiffs and Defendants had consented to a joint hearing of the 4 Appeals.

Whether SC’s Decision could be emailed to learned counsel The following two originating summonses had been filed to invalidate SC’s Decision which was emailed by the Court Interpreter to all learned counsel:

the 1st to 3rd Defendants had filed Shah Alam High Court Originating Summons no. BA-24NCVC-522-04/2021 against the Plaintiffs [OS (1st to 3rd Defendants)]; and

Shah Alam High Court Originating Summons no. BA-24NCVC-519- 04/2021 was filed by the 4th Defendant against the Plaintiffs [OS (4th Defendant)].

On 24,8.2021, Tee Geok Hock JC had dismissed OS (1st to 3rd Defendants) with costs.

In the OS (4th Defendant), the Plaintiffs had applied to strike out the OS (4th Defendant) [Plaintiffs’ Striking Out Application (4th Defendant’s OS)]. On 9.2.2022, I had given oral grounds regarding why the Plaintiffs’ Striking Out Application (4th Defendant’s OS) was allowed with costs [Striking Out Order (4th Defendant’s OS)]. The 4th Defendant did not appeal to the Court of Appeal against the Striking Out Order (4th Defendant’s OS).

Subsequent to the Striking Out Order (4th Defendant’s OS), in Rexallent Construction Sdn Bhd v MSIG Insurance (M) Bhd and other appeals, Shah Alam High Court Civil Appeal No. BA-12BC-5-05/2021, the appellant companies had contended that a draft judgment of SC (after trial) could not be emailed by SC’s interpreter to all the learned counsel in that case. I had rejected this submission based on the same grounds as those given for the Striking Out Order (4th Defendant’s OS). It is decided in Rexallent Construction, at [26] and [28], as follows: “[26] My grounds for the Dismissal (D4’s OS) are the same for deciding that SC’s Draft Judgment had been lawfully sent to all learned counsel in this case by way of the Court Interpreter’s Email. These grounds are as follows:

the words “any other electronic means of communication” in the definition of “remote communication technology” in s 2(1) SCA include emails. The definition of “remote communication technology” in s 2(1) SCA is identical to the meaning of “remote communication technology” in s 3 of the Courts of Judicature Act 1964 (CJA);

by virtue of s 101B(1) SCA [similar to s 15A(1) CJA], the court may, in the interest of justice, “conduct” any “proceedings” through a remote communication technology. O 1 r 4(1) RC has defined “proceedings” as “any proceeding whatsoever of a civil or criminal nature”. The court’s power to conduct proceedings through a remote communication technology pursuant to s 101B(1) SCA includes the court’s power to email the court’s decision, judgment or order to all learned counsel and/or solicitors of the parties. The Court Interpreter is an “officer” of the court within the meaning of O 1 r 4(1) RC. The learned SCJ in this case was empowered under s 101B(1) SCA to direct the Court Interpreter (officer of SC) to send SC’s Draft Judgment by way of the Court Interpreter’s Email. It is to be noted that according to s 109 SCA, if there is a conflict between any provision in SCA [such as s 101B(1) SCA] and any other written law, the former shall prevail over the latter;

O 42 r 1(1) RC provides that “Every judgment, after the hearing of a cause or matter in open Court, shall, …, be pronounced in open Court either on the conclusion of the hearing or on a subsequent day of which notice shall be given to the parties”. According to O 42 r 1(5) RC, O 42 r 1(1) RC shall apply to every judgment “pronounced or delivered in the proceeding held through a remote communication technology”. When SC’s Draft Judgment had been sent in the Court Interpreter’s Email, there was no breach of O 42 r 1(1) and (5) RC because SC’s Draft Judgment had been “pronounced” in the Court Interpreter’s Email to all the parties (through their learned counsel);

if I have accepted Mr. Gabriel Daniel’s submission that every judgment shall be delivered in open court in accordance with O 42 r 1(1) RC, this will render redundant the court’s discretionary power to email judgments as provided in ss 101B(1) and 109 SCA read with O 42 r 1(5) RC; … … [28] Notwithstanding my decision in the above paragraph 26, if a court is ready to deliver a decision, judgment or order in a case (Court’s Decision/Judgment/Order), especially after a trial, the court should deliver the Court’s Decision/Judgment/Order to all the parties, their learned counsel and/or solicitors through “Zoom”, the remote communication technology subscribed by our courts (Zoom Online Decision). I am of the view that a Zoom Online Decision is to be preferred to the delivery of the Court’s Decision/Judgment/Order by way of an email due to the following reasons:

by way of a Zoom Online Decision, any party may instantly raise any query or matter regarding the Court’s Decision/Judgment/Order;

the court may resolve all queries and matters with regard to the Court’s Decision/Judgment/Order during the Zoom Online Decision;

a Zoom Online Decision may avoid a time-consuming exchange of emails between the court and learned counsel (Email Exchange); and

confusion and miscommunication may arise from an Email Exchange.” (emphasis added). E.

Issues The 4 Appeals raise the following questions:

with regard to the 3 Appeals (1st to 3rd Defendants) -

whether the learned SCJ had made “plain” errors of fact in -

accepting the Architect (Plaintiffs) as an expert under s 45(1) of the Evidence Act 1950 (EA) who could give an expert opinion on the cause of the Water Seepages [Cause (Water Seepages)];

(ii) relying on the expert view of the Architect (Plaintiffs);

(iii) deciding that the Architect (1st to 3rd Defendants) was not competent pursuant to s 45(1) EA to give expert evidence regarding the Cause (Water Seepages); and

(iv) rejecting the expert evidence of the Architect (1st to 3rd Defendants);

did SC err in finding the 1st to 3rd Defendants to be liable to the Plaintiffs for the torts of negligence and private nuisance [2 Torts (1st to 3rd Defendants)]?;

regarding SC’s award of damages (SC’s Damages Award), whether there is any basis for appellate intervention by the High Court concerning General Damages (Emotional Distress/Adverse Health Consequences). In this regard -

whether sub-paragraph 31(d) RRSOC [Sub-Paragraph 31(d) RRSOC] had breached O18 r 12(1A) of the Rules of Court 2012 (RC) by quantifying General Damages (Emotional Distress/Adverse Health Consequences) as RM200,000.00;

(ii) was there any medical evidence to prove that the Plaintiffs’ health had been adversely affected by the effect of the Water Seepages [Effect (Water Seepages)]?;

(iii) had the Plaintiffs taken reasonable steps to mitigate their mental distress due to the 2 Torts (1st to 3rd Defendants)?; and

(iv) is the sum of RM200,000.00 for the Plaintiffs’ mental distress “so extremely high” so as to justify appellate intervention?; and

should this court sitting in an appellate capacity, vary SC’s Post-Judgment Interest Order and order pre-judgment interest under s 11 of the Civil Law Act 1956 (CLA) in favour of the Plaintiffs (Pre-Judgment Interest Order), especially when the Plaintiffs did not file a notice of cross appeal to the High Court pursuant to O 55 r 8 RC to vary SC’s Post-Judgment Interest Order?. This entails a discussion on O 55 r 8 RC, r 8 of the Rules of the Court of Appeal 1994 (RCA) and r 49 of the Rules of the Federal Court 1995 (RFC);

in respect of the 4th Defendant’s Appeal -

whether the 4th Defendant was liable to the Plaintiffs for -

breach of representations contained in the 4th Defendant’s

(ii) breach of DMC. In this regard, can the court imply terms in DMC by way of a cumulative application of two tests laid down by the Federal Court in Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151, at 169- 170, namely, the “business efficacy” test and the “officious bystander” test;

even if it is assumed that the 4th Defendant has breached the DMC [Alleged 4th Defendant’s Breach (DMC)] -

can the 4th Defendant rely on an exclusion of liability provision in the proviso to clause 9 DMC [Proviso (Clause 9 DMC)]?;

(ii) was the “causa causans” of the Plaintiffs’ loss and damage (Plaintiffs’ Loss/Damage) the Alleged 4th Defendant’s Breach (DMC) or the 2 Torts (1st to 3rd Defendants)?;

(iii) can the Plaintiffs claim for the Plaintiffs’ Loss/Damage against the 4th Defendant under the first limb and/or second limb of s 74(1) of the Contracts Act 1950 (CA)? This issue discusses whether the Plaintiffs’ Loss/Damage were too remote to be recovered in law from the 4th Defendant pursuant to s 74(2) CA; and

(iv) whether the Plaintiffs had taken all reasonable steps to mitigate the Plaintiffs’ Loss/Damage as required by the Explanation to s 74 CA; and

regarding the Plaintiffs’ averment that the 4th Defendant had committed tort of negligence -

whether the 4th Defendant owed a duty of care to the Plaintiffs - (ia) to ensure that the 1st to 3rd Defendants execute the DMC with the 4th Defendant; (ib) when the 4th Defendant considered three applications made by the 1st to 3rd Defendants (3 Renovation Applications) for the 4th Defendant’s consent to perform Renovation Works (1st to 3rd Defendants);

(ic) to ensure that the Renovation Works (1st to 3rd Defendants) were carried out by the 1st to 3rd Defendants with MBPJ’s approval;

(id) to supervise the Renovation Works (1st to 3rd Defendants) carried out by the 1st to 3rd Defendants so as to prevent the Cause (Water Seepages) and Effect (Water Seepages); (ie) to ensure that the 1st to 3rd Defendants comply with the Renovation Rules in carrying out the Renovation Works (1st to 3rd Defendants); (if) to ensure that the Plaintiffs’ Loss/Damage do not occur due to the Renovation Works (1st to 3rd Defendants); and (ig) to ensure that the Plaintiffs are able to have quiet enjoyment of the Plaintiffs’ Property without any interference from the other property owners in the Gated Community;

(ii) if the 4th Defendant owed a duty of care to the Plaintiffs and had breached such a duty of care [Alleged 4th Defendant’s Breach (Duty of Care)] - (iia) was the Alleged 4th Defendant’s Breach (Duty of Care) the causa causans of the Plaintiffs’ Loss/Damage?; and (iib) if the causa causans of the Plaintiffs’ Loss/Damage was the Alleged 4th Defendant’s Breach (Duty of Care), whether the Plaintiffs’ Loss/Damage was too remote to be recovered in law from the 4th Defendant; and

regarding the 4 Appeals, did the learned SCJ err in assessing Costs Sum (SC) by not applying O 59 r 23(1) RC and the scale of costs prescribed therein [Scale (Subordinate Court Trials)]? I am not able find any previous case which has decided on the questions raised in the above sub-paragraphs (2)(a)(i), (ii) (regarding implication of terms in a DMC), (b), (c) and (3). F.

Nature of appellate court’s duty regarding factual findings of trial court There is a general rule that an appellate court should not intervene regarding a trial court’s findings of fact, especially in respect of findings on credibility of witnesses [General Rule (Trial Court’s Factual Finding)], unless there is a “plain” error of fact by the trial court which has caused an injustice and warrants appellate intervention - please refer to the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321. The General Rule (Trial Court’s Factual Finding) is premised on the trial judge’s audio-visual advantages (vis-à- vis the appellate court) of listening to the oral testimonies of witnesses and assessing their demeanour.

The General Rule (Trial Court’s Factual Finding) applies to a trial court’s finding of fact regarding the expertise and weight of an expert witness’ opinion - please refer to EONTAT Sdn Bhd v Budget Kitchen Sdn Bhd [2021] 3 MLRH 304, at [13(6)]. G. What was Cause (Water Seepages)?

Learned counsel for the 1st to 3rd Defendants had submitted that the SC should have found as a fact that the Cause (Water Seepages) was due to “extensive” renovation works carried out by the Plaintiffs in the Plaintiffs’ Property in 2011, 2012, 2013 and 2015 [Renovation Works (Plaintiffs)]. According to learned counsel for the 1st to 3rd Defendants -

the Renovation Works (Plaintiffs) included the addition of a new section in the Plaintiffs’ Property;

the Renovation Works (Plaintiffs) involved structural alterations to the roof of the Plaintiffs’ Property; and

the Renovation Works (1st to 3rd Defendants) did not concern any structural change to the Adjoining Property.

I reproduce below s 45(1) EA: “Opinions of experts 45(1) 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.” (emphasis added).

Firstly, as provided in s 45(1) EA, the court may refer to an opinion of a “specially skilled” person on a question to be decided by the court when the resolution of the question requires expertise, skill or knowledge which is beyond the competence of the court. When the court can decide an issue without the assistance of experts (Issue Z) -

there is no need for the court to refer to the testimonies of experts on Issue Z - please refer to Motordata Research Consortium Sdn Bhd v Ahmad Shahril Bin Abdullah & Ors [2017] 7 AMR 560, at [30(2)]; and

as explained in Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd [2022] 1 MLRH 208, at [36], the adduction of expert evidence on Issue Z unnecessarily prolongs the trial and unjustifiably increases costs of the suit in question. Needless to say, precious judicial time and resources are not effectively utilised in the disposal of Issue Z.

The Cause (Water Seepages) was a relevant issue at the Trial which was beyond the competence of SC. Hence, the need for the learned SCJ to rely on expert’s evidence under s 45(1) EA to ascertain the Cause (Water Seepages).

In respect of the Causes (Water Seepages), the learned SCJ had accepted the expert opinion of the Architect (Plaintiffs) and had rejected the expert testimony of the Architect (1st to 3rd Defendants) [SC’s Factual Findings (Expert Evidence)] - please refer to paragraphs 42 to 50 and 58 to 60 of the written grounds for SC’s Decision (GOJ).

I am not able to accept the submission of learned counsel for the 1st to 3rd Defendants regarding SC’s Factual Findings (Expert Evidence). This is because firstly, I am not satisfied that SC’s Factual Findings (Expert Evidence) constitute plain factual errors which require appellate intervention. Secondly, SC’s Factual Findings (Expert Evidence) can be supported by the following evidence and reasons:

the Architect (Plaintiffs) has sufficient expertise regarding leakages in buildings (Building Leakages) because he has given professional services regarding Building Leakages for about 20 years. This case concerned a leakage in the Plaintiff’s Property by way of Water Seepages. Hence, the Architect (Plaintiffs) is an expert within the meaning of s 45(1) EA who could assist SC regarding the Cause (Water Seepages);

the resume of the Architect (1st to 3rd Defendants) does not show that the Architect (1st to 3rd Defendants) has any experience regarding Building Leakages. Accordingly -

the Architect (1st to 3rd Defendants) is not a person who is “specially skilled” in respect of Building Leakages as understood in s 45(1) EA; and

no weight should be attached to the expert opinion of the Architect (1st to 3rd Defendants) with regard to the Cause (Water

the learned SCJ had correctly attached weight to the expert evidence of the Architect (Plaintiffs) that the Cause (Water Seepages) was the Renovation Works (1st to 3rd Defendants) and not the Renovation Works (Plaintiffs). Such a decision is premised on the following evidence and reasons -

the Architect (Plaintiffs) had inspected the Plaintiffs’ Property on 22.12.2017 when the Renovation Works (1st to 3rd Defendants) were carried out. This inspection was significant because it enabled the Architect (Plaintiffs) to ascertain the contemporaneous effect of the Renovation Works (1st to 3rd

after the completion of the Renovation Works (1st to 3rd Defendants), the Architect (Plaintiffs) carried out another inspection of the Plaintiffs’ Property on 10.7.2018. By comparing the results of inspections conducted during and after the Renovation Works (1st to 3rd Defendants), the Architect (Plaintiffs) was able to provide a credible explanation that the Cause (Water Seepages) was the Renovation Works (1st to 3rd

at the Trial, learned counsel for the 1st to 3rd Defendants did not challenge the reliability of the expert opinion of the Architect (Plaintiffs); and

the Plaintiffs did not seek directly the professional services of the Architect (Plaintiffs). The Plaintiffs approached “Persatuan Arkitek Malaysia” (PAM) for PAM’s professional services with regard to the Cause (Water Seepages). PAM then referred the Plaintiffs to PAM Architect Centre Sdn. Bhd. (ACSB). ACSB is set up by PAM to provide property inspection and building advisory services to the public. ACSB then appointed the Architect (Plaintiffs) to provide an expert opinion regarding the Cause (Water Seepages). It is therefore clear that the Architect (Plaintiffs) is an independent expert in this case; and

no weight should be given to the expert view of the Architect (1st to 3rd Defendants) because -

the Architect (1st to 3rd Defendants) only inspected the Adjoining Property after the completion of the Renovation Works (1st to 3rd Defendants). As such, the Architect (1st to 3rd Defendants) was not in a position to provide credible expert evidence regarding the contemporaneous effect of the Renovation Works (1st to 3rd

the Plaintiffs had handed to the 1st to 3rd Defendants a copy of the report dated 18.1.2017 by the Architect (Plaintiffs). However, the 1st to 3rd Defendants did not give this report to the Architect (1st to 3rd Defendants) when the Architect (1st to 3rd Defendants) inspected the Adjoining Property;

the Architect (1st to 3rd Defendants) did not take into account the extent of the Renovation Works (1st to 3rd Defendants); and

the Renovation Works (1st to 3rd Defendants) had stopped when -

the 4th Defendant issued a “Stop Work Order” to the 1st to 3rd Defendants on 10.9.2013 (4th Defendant’s Stop Work

(ii) MBPJ issued a Stop Work Order to the 1st to 3rd Defendants on 30.9.2013 (MBPJ’s Stop Work Order). With the cessation of the Renovation Works (1st to 3rd Defendants) due to the 4th Defendant’s Stop Work Order and MBPJ’s Stop Work Order, any inspection of the Adjoining Property by the Architect (1st to 3rd Defendants) would not have revealed the true effect of the Renovation Works (1st to 3rd Defendants) on the Plaintiffs’ Property. The failure of the Architect (1st to 3rd Defendants) to consider the effect of the 4th Defendant’s Stop Work Order and MBPJ’s Stop Work Order, undermines the reliability of his expert view in this case. H.

Whether 1st to 3rd Defendants were liable in negligence to Plaintiffs It is not disputed that the 1st to 3rd Defendants can only be liable for the tort of negligence in respect of the Renovation Works (1st to 3rd Defendants) if the following three matters are proven by the Plaintiffs:

the 1st to 3rd Defendants owed a duty under Malaysian case law to the Plaintiffs to take reasonable care regarding the Renovation Works (1st to 3rd Defendants) so as to prevent the Effect (Water Seepages) [1st Element (Negligence)];

the 1st to 3rd Defendants had breached the above duty of care [2nd Element (Negligence)]; and

the breach of the above duty of care had caused the Effect (Water Seepages), including the Plaintiffs’ Emotional Distress/Adverse Health Consequences, which was reasonably foreseeable and which was not too remote to be recoverable in law by the Plaintiffs from the 1st to 3rd Defendants [3rd Element (Negligence)]. H(1). Did Plaintiffs prove 1st Element (Negligence)?

Regarding the 1st Element (Negligence), in De Tebrau Makmur Sdn Bhd & Anor v Bank Kerjasama Rakyat Malaysia Bhd [2017] MLJU 201, at [50], I have followed the judgment of the Federal Court delivered by Zainun Ali FCJ in Lok Kok Beng & Anor v Loh Chiak Eong & Anor [2015] 7 CLJ 1008: “[50] My understanding of Lok Kok Beng is as follows:

liability for negligent misstatement is based on the tort of negligence. In other words, there is no distinction between liability for negligent misstatement and liability for negligent acts/omission; and

in deciding whether a party (X) owes a duty of care to another party (Y), the Court shall consider the following -

whether there is “sufficient legal proximity” between X and Y. It is to be noted that Courts have also applied the test of whether it is reasonably foreseeable that Y will suffer loss or damage arising from X’s misstatement. In this respect, the following considerations are relevant -

the nature of relationship between X and Y;

(ii) whether X has voluntarily assumed responsibility to Y regarding X’s misstatement;

(iii) whether Y has relied on X’s misstatement;

(iv) whether there is physical proximity;

whether there is circumstantial proximity; and

(vi) whether there is causal proximity;

if there is “sufficient legal proximity” between X and Y, X owes a prima facie duty of care to Y. The next question is whether X’s prima facie duty of care is negated by policy consideration. The following matters are pertinent -

the factual matrix of the case;

(ii) whether there is a contract between X and Y; and

(iii) the relative bargaining positions of X and Y;

the Court should adopt an incremental approach by considering the facts of previously decided cases (which have recognized or rejected the existence of duty of care). However, the absence of a similar factual precedent, does not preclude the Court from recognizing the existence of a duty of care when it is just to do so; and

whether there exists a duty of care in a particular case depends on the facts of that case.” (emphasis added).

In paragraphs 51 to 54 GOJ, SC had decided that the 1st to 3rd Defendants owed a duty of care regarding the Renovation Works (1st to 3rd Defendants). I agree due to the following evidence and reasons:

there is “sufficient legal proximity” between the Plaintiffs and the 1st to 3rd Defendants because the Plaintiffs’ Property and Adjoining Property share a Common Party Wall. Hence, it was reasonably foreseeable that if the 1st to 3rd Defendants did not take reasonable care regarding the Renovation Works (1st to 3rd Defendants), the Water Seepages would occur in the Plaintiffs’ Property. There is also physical proximity, circumstantial proximity and causal proximity between the Plaintiffs and 1st to 3rd Defendants. Consequently, there was a prima facie duty of care owed by the 1st to 3rd Defendants to the Plaintiffs [Prima Facie Duty of Care (1st to 3rd Defendants)]; and

the existence of the Prima Facie Duty of Care (1st to 3rd Defendants) is not negated by any public policy consideration. I rely on the following judgment by Lee Swee Seng J (as he then was) in the High Court in Shabiru (1990) Sdn Bhd v Goh Aik Chin & Anor and another appeal [2019] MLJU 1023, at [20] and [22]: “[20] It cannot be seriously disputed nor disputable that any works done on one’s property must be done in such a manner as not to cause damage to neighbouring properties. The proximity of one’s property to that of one’s neighbour would attract the application of the proximity principle in Donoghue v Stevenson [1932] AC 562. … [22] I have no difficulty in holding, as the trial court had held, that D3 owed a duty of care in carrying out the construction works to the property of the defendants owners in such a manner as not to cause damage to the plaintiffs’ adjacent and adjoining property.” (emphasis added). H(2).

Whether Plaintiffs had proven 2nd Element (Negligence) The learned SCJ had decided in paragraph 55 GOJ that there was a breach of the duty of care owed by the 1st to 3rd Defendants to the Plaintiffs regarding the Renovation Works (1st to 3rd Defendants). This factual finding is not plainly wrong in view of the expert opinion of the Architect (Plaintiffs) - please refer to the above sub-paragraphs 26(1) and (3). H(3). Did Plaintiffs prove 3rd Element (Negligence)?

I am satisfied that the 3rd Element (Negligence) has been proven by the Plaintiffs in this case. This is clear from the damage to the Plaintiffs’ Property due to the Water Seepages. Hence, the need for the Restoration Works to be undertaken by the Plaintiffs and for the Plaintiffs to stay in Temporary Accommodation during the performance of the Restoration Works. I. Were 1st to 3rd Defendants liable to Plaintiffs for tort of private nuisance?

In the Court of Appeal case of Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360, at [124] to [128], Abdul Malik Ishak JCA has explained the three elements of a tort of private nuisance as follows:

a person (X) has interfered with the use and/or enjoyment of land occupied by another person (Y) [1st Element (Private Nuisance)]. In Chai Yon Len & Anor v Kamarul Jaman Bin Mydin & Anor [2020] 4 AMR 568, at [31] and [32], it is decided that the 1st Element (Private Nuisance) may be proven by a single act of interference by X with Y’s use and/or enjoyment of land;

X’s interference was unreasonable [2nd Element (Private Nuisance)]; and

X’s interference had caused damage to Y [3rd Element (Private Nuisance)].

There is an overlapping between the tort of negligence and tort of nuisance (both torts of public nuisance and private nuisance). This has been explained by Raja Azlan Shah FJ (as His Majesty then was) in the Federal Court case of Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109, at 116, as follows: “As a starting point it is trite law that an alternative claim in negligence and nuisance is permissible (see, for example, Crane v South Suburban Gas Co [1916] 1 KB 33 and Dymond v Pearce [1972] 1 QB 496; [1972] 1 All ER 1142). But the differences between cases of nuisance and cases of negligence must never be lost sight of (per Lord Summer in Latham v R Johnson & Nephew Ltd [1931] 1 KB 398, 413). The differences are these: first, that negligence is not an element in nuisance, and, secondly, that where the nuisance, in respect of which a private person sues, is a public nuisance, he must prove special damage. It is also well to remember how far from its former scope and meaning nuisance has strayed, largely, by reason of the impact of the law of public nuisance upon the original concept of that tort.” (emphasis added).

I am of the view that the 1st to 3rd Defendants had committed a tort of private nuisance against the Plaintiffs. This is clear from the following evidence and reasons:

the 1st Element (Private Nuisance) is proven on a balance of probabilities because the Renovation Works (1st to 3rd Defendants) had interfered with the Plaintiffs’ use and/or enjoyment of the Plaintiffs’ Property [Interference (1st to 3rd Defendants)];

the Interference (1st to 3rd Defendants) was unreasonable. Hence, the fulfilment of the 2nd Element (Private Nuisance) in this case; and

the 3rd Element (Private Nuisance) is satisfied because the Interference (1st to 3rd Defendants) had caused damage to the Plaintiffs’ Property for which the Plaintiffs had to expend money for -

the Restoration Works; and

the Temporary Accommodation (while the Restoration Works are undertaken). J.

Tort - factual causation, remoteness of damage and assessment of damages Firstly, a plaintiff can only claim for damages from a defendant for a tort if the causa causans of the plaintiff’s injury, loss and/or damage [Loss/Injury/Damage] is the commission of a tort by the defendant. This is a question regarding “causation in fact” of the Loss/Injury/Damage (Factual Causation Issue). Besides the term causa causans, case law has used various terms, ie., “effective” cause, “real” cause, “proximate” cause, “immediate” cause, “operative” cause, “dominant” cause, “true” cause and “substantial” cause as the factual cause of the Loss/Injury/Damage which is enforceable in law. In this judgment, I will employ the term causa causans as the factual cause of the Loss/Injury/Damage which is enforceable in law. This is because of the following judgment by Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389, at [4]: “[4] … The expression 'causa causans' merely means a cause that causes (see Smith, Hogg & Company Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] AC 997 at p 1003). There may be more than one cause that causes a particular injury. From the passage cited above, it would appear that Mr Abraham was of the view that causa causans merely meant an effective cause. It has been held that such an expression should be avoided as the issue of causation does not necessarily turn upon it (see Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 23 at p 29). Causation is a matter to be determined by common sense and what the law regards as fair, just and reasonable in the circumstances of a particular case (see Fairchild (suing on her own behalf) etc v Glenhaven Funeral Services Ltd & Ors, etc [2002] 3 WLR 89, March v E & MH Stramare Pty Ltd & Anor (1991) 99 ALR 423 at p 429). The relevant question is whether the acts and/or omissions of a particular defendant made a material contribution to the harm suffered by the plaintiff (see Bonnington Castings v Wardlaw [1956] AC 613 at pp 620, 623; Nicholsons & Ors v Atlas Steel Foundary & Engineering Co Ltd [1957] 1 WLR 631 at p 624; Fairchild (suing on her own behalf) etc v Glenhaven Funeral Services; Chappel v Hart (1998) 156 ALR 517 at pp 524–524).” (emphasis added).

I am of the following view regarding the Factual Causation Issue:

cases have not spoken with one voice regarding the Factual Causation Issue. Each written judgment on the Factual Causation Issue depends on the particular facts of the case in question. Hence, previous decisions concerning the Factual Causation Issue cannot constitute binding legal precedents from the view point of the doctrine of stare decisis;

a plaintiff bears the evidential onus to satisfy the court on a balance of probabilities regarding the Factual Causation Issue, namely, the commission of a tort by the defendant is the causa causans of the Loss/Injury/Damage; and

the following considerations are relevant in the determination of the Factual Causation Issue -

the most important consideration is common sense - Majlis

what is fair, just and reasonable in the circumstances of the case in question - Majlis Perbandaran Ampang Jaya;

policy considerations are relevant according to the following joint judgment of Mason CJ, Deane and Toohey JJ in the High Court of Australia (the highest court in Australia) in Bennett v Minister of Community Welfare (1992) 107 ALR 617, at 619 - “In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the “but for” test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude.” (emphasis added); and

the court may apply the “but for” test, ie., would the plaintiff have suffered the Loss/Injury/Damage “but for” the commission of a tort by the defendant? - please refer to Ravi A/L Ratnam v Ghandi Rajan A/L Arjunan & Ors [2020] 7 MLJ 591, at [23] and [24].

This judgment does not concern the following scenarios which may arise in a Factual Causation Issue:

whether a superseding event amounts to a “novus actus interveniens” which breaks the chain of causation of the Loss/Injury/Damage (which would have otherwise resulted from a prior commission of a tort by the defendant);

a plaintiff’s Loss/Injury/Damage may have been caused by successive events;

there may be multiple causes for a plaintiff’s Loss/Injury/Damage; and

a plaintiff’s Loss/Injury/Damage may be caused by simultaneous events.

Secondly, if the causa causans of a plaintiff’s Loss/Injury/Damage is the defendant’s breach of duty of care, the plaintiff has to satisfy the court that the Loss/Injury/Damage is not too remote in law and can be recovered as damages by the plaintiff from the defendant (Remoteness of Damage Issue). The Remoteness of Damage Issue is decided based on the “reasonable foresight” test as laid down by Viscount Simonds in the Privy Council in an appeal from Australia, Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No. 1) [1961] 1 All ER 404, at 413. The reasonable foresight test in The Wagon Mound No. 1 has been adopted by Gill J (as he then was) in the High Court case of Jaswant Singh v Central Electricity Board [1967] 1 MLJ 272, at 275.

If a plaintiff is able to prove that the defendant’s breach of duty of care is the causa causans of the plaintiff’s Loss/Injury/Damage and the Loss/Injury/Damage is not too remote, the plaintiff has to prove the quantum of the Loss/Injury/Damage (Assessment Issue).

With regard to the Assessment Issue, I have decided in Schwan-Stabilo Marketing Sdn Bhd & Anor v S&Y Stationery & Ors 2018] 9 CLJ 384, at [16] and [17], as follows: “[16] Regarding reliance on previous cases on compensatory damages, I remind myself of the following:

assessment of compensatory damages is not provided by written law. Hence, reference is made to case law. I must confess that I cannot reconcile all the cases regarding assessment of compensatory damages. Each case has its own peculiar facts and may be explained as such. In the Federal Court case of Taiping Poly (M) Sdn Bhd v Wong Fook Toh & Ors [2011] 3 CLJ 837, at paragraph 19 (regarding assessment of damages for trade mark infringement and tort of passing off), Richard Malanjum CJ (Sabah & Sarawak) held as follows - “And while it is quite easy to state the general principle the mechanics of ascertaining damages actually sustained by the plaintiff are not simple to determine. There is no hard and fast rule to follow which is foolproof and universally accepted. (See: AG. Spalding & Bros v A.W Gamage Ltd. [supra]; Juggi Lal-Kamlapat & Juggilal-Kamplapat Mills of Cawnpore v Swadeshi Company Ltd (1929) 46 RPC 74; Re Prince Manufacturing Inc and Tennisport Pty Limited v Abac Corporation Australia Pty Limited and the Liquidator Management Australia Pty Limited Trading as the Liquidator [supra]). It depends on the facts of each case. It is basically facts driven.” (emphasis added); and

cases on assessment of damages should only be referred to as the court’s previous approach (not as a rule of law) in a similar factual situation. I cite Lord Wilberforce’s judgment in the House of Lords case of General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1975] 2 All ER 173, at 177, as follows - “Reported authorities, many of which were cited in argument, may be useful as illustrations of judicial reasoning, but are capable of misleading if decisions on a particular set of facts and observations in judgments leading up to such decisions are later relied on as establishing a rule of law. Nevertheless I think it useful to refer to some of the main groups of reported cases which exemplify the approaches of courts to typical situations.” (emphasis added). General Tire & Rubber Co is a patent infringement case which has been applied in Taiping Poly, at paragraph 19. [17] The general principle of restitutio in integrum applies in all assessments of compensatory damages, namely the amount of compensatory damages should as nearly as possible put the injured plaintiff in the same position as the plaintiff would have been in if the wrong has not been committed by the defendant - please see Taiping Poly, at paragraphs 8 and 19. The court must ensure that a plaintiff is not unjustly enriched or overcompensated and at the same time the court should prevent a defendant from being financially ruined in an unjust manner - please see Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors [2017] 7 AMR 560, at sub-paragraph 75(2) (concerning among others, assessment of damages for tort of unlawful interference with trade). The object of compensatory damages is to compensate a plaintiff and not to punish a defendant - General Tire & Rubber Co, at p. 177.” (emphasis added). The above judgment in Schwan-Stabilo Marketing has been affirmed on appeal to the Court of Appeal.

Case law has distinguished “special damages” from “general damages”. I rely on the following judgment of Lord Goddard in United Kingdom’s (UK) House of Lords in British Transport Commission v Gourley [1956] AC 185, at 206: “First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded.” (emphasis added). K. Should there be appellate intervention for SC’s Damages Award against 1st to 3rd Defendants? K(1). Did SC err in awarding Fees (Plaintiff’s Architect), Cost (Renovation Works) and Rent (Temporary Accommodation)?

For the 2 Torts (1st to 3rd Defendants), I am firmly of the view that the Plaintiffs could lawfully claim the following three sums as special damages from the 1st to 3rd Defendants:

the Fees (Plaintiff’s Architect);

the Cost (Restoration Works); and

the Rent (Temporary Accommodation) (3 Sums). This following evidence and reasons support the award of the 3 Sums in favour of the Plaintiffs against the 1st to 3rd Defendants in this case:

the causa causans of the 3 Sums was the commission of the 2 Torts (1st to 3rd Defendants);

the 3 Sums concerned losses which were reasonably foreseeable to have been sustained by the Plaintiffs as a result of the commission of the 2 Torts (1st to 3rd Defendants). In other words, the losses regarding the 3 Sums were not too remote to be recovered by the Plaintiffs from the 1st to 3rd Defendants;

in accordance with the restitutio in integrum principle, the 3 Sums should compensate the Plaintiffs and should as nearly as possible put the Plaintiffs in the same position as the Plaintiffs would have been in if the 2 Torts (1st to 3rd Defendants) had not been committed; and

the 3 Sums do not unjustly enriched the Plaintiffs. In other words, the Plaintiffs are not over-compensated by the 3 Sums. Nor do the 3 Sums unjustly punish the 1st to 3rd Defendants. K(2). Whether Sub-Paragraph 31(d) RRSOC had breached O 18 r 12(A)

RC O 1A, O 2 rr 1(1), (2), (3) and O 18 r 12(1A) RC state as follows: “Regard shall be to justice O 1A In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. Non-compliance with Rules O 2 r 1(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective.

The Court or Judge may, on the ground that there has been such non-compliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity. O 18 r 12(1A) No party shall quantify any claim or counterclaim for general damages.” (emphasis added).

According to learned counsel for the 1st to 3rd Defendants, O18 r 12(1A) RC was breached because Sub-Paragraph 31(d) RRCC had quantified General Damages (Emotional Distress/Adverse Health Consequences) as RM200,000.00.

The Plaintiffs’ learned counsel had cited the following two Court of Appeal cases to contend that Sub-Paragraph 31(d) RRCC did not breach O18 r 12(1A) RC:

the decision of Gopal Sri Ram JCA in Skrine & Co v MBF Capital Bhd & Anor [1998] 3 MLJ 649, at 660-661; and

the judgment of Low Hop Bing JCA in Dr Mohd Yusof bin Ismail v Hj Ismail bin Mohd Nor [2011] 5 MLJ 900, at [10] and [11].

Firstly, the two Court of Appeal judgments relied on by the Plaintiffs’ learned counsel concerned O 18 of the Rules of the High Court 1980 which had no provision equivalent to O18 r 12(1A) RC. Paragraph (1A) has been inserted by the Rules Committee in O 18 r 12 RC.

Secondly, Sub-Paragraph 31(d) RRCC has breached O18 r 12(1A) RC {Plaintiffs’ Breach [O 18 r 12(1A) RC]}. Having said that, I am of the following opinion:

by virtue of O 2 r 1(1) RC, the Plaintiffs’ Breach [O 18 r 12(1A) RC] “shall be treated as an irregularity and shall not nullify” the Trial and SC’s Decision; and

according to O 2 r 1(3) RC, the court should bear in mind the “overriding objective” of RC, ie., attainment of justice as mandated by O 1A and O 2 r 1(2) RC. Accordingly, the Plaintiffs’ Breach [O 18 r 12(1A) RC] can be cured pursuant to O 2 r 1(3) RC because the Plaintiffs’ Breach [O 18 r 12(1A) RC] has not prejudiced the 1st to 3rd Defendants in any manner. This is clear from the following reasons -

the 1st to 3rd Defendants had called five witnesses, including the 1st to 3rd Defendants, to give evidence so as to resist This Suit; and

two detailed written submission had been filed by the 1st to 3rd Defendants to oppose This Suit. K(3). Was there medical evidence regarding adverse health consequences to Plaintiffs?

I accept the submission by learned counsel for the 1st to 3rd Defendants that the Plaintiffs have failed to adduce any medical evidence to prove that the health, both physical and mental, of the Plaintiffs, their children and the 1st Plaintiff’s mother-in-law had been adversely affected by the Water Seepages [Alleged Adverse Health Consequences (Plaintiffs)]. As explained in the above paragraph 23, it is beyond the competence of SC to decide on the Alleged Adverse Health Consequences (Plaintiffs). Furthermore, the Plaintiffs had the evidential burden to satisfy the learned SCJ regarding the Alleged Adverse Health Consequences (Plaintiffs).

SC has committed an error of law in not considering the Plaintiffs’ failure to call a doctor to testify regarding the Alleged Adverse Health Consequences (Plaintiffs) (SC’s 1st Legal Error). K(4). Did Plaintiffs mitigate mental distress caused by 2 Torts (1st to 3rd Defendants)?

Regarding the mental distress, anguish and anxiety (Mental Distress) which has been suffered by a victim of a tort (S) -

the court may consider S’s Mental Distress in the computation of general damages to be awarded for the tort committed against S - please refer to the judgment of Gopal Sri Ram JCA (as he then was) in the Federal Court case of MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun and other appeals [1995] 2 CLJ 912, at 932-933; and

S has a duty imposed by case law to take reasonable steps to mitigate S’s Loss/Injury/Damage, including Mental Distress, which has been caused by the tort committed against S. This is clear from the following appellate decisions -

in the Federal Court case of Yoong Leok Kee Corporation Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21, at 23, Abdul Hamid FJ (as he then was) has decided as follows - “It is the appellant's contention that if the respondent had not left the hospital against medical advice and if he had the leg amputated and fitted with an artificial leg there would then be no future loss. The respondent, however, contended that even if the respondent had his leg amputated it is doubtful he could get $150 p.m. and assuming he could, the loss would still be around $450 p.m. and given 27 years' purchase he should be awarded a sum of $79,072.38 future loss of earnings. The law is clear in that as enunciated by Viscount Haldane L.C. in British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London Limited (House of Lords) [1912] AC 673, 689 "The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps." Thus the onus falls upon the respondent to take all reasonable steps to mitigate the amount of damage. It is evident that the respondent acted unreasonably when he left the hospital against medical advice. If he had remained in the hospital to continue with the treatment even if it should become necessary to have the leg amputated, it was clear that he would be able to lead a normal healthy life.” (emphasis added); and

in Goh Ah Ba v Mohamed Zain bin Sudin [1987] 1 MLJ 119, at 120, Syed Agil Barakbah SCJ has delivered the following judgment of the Supreme Court - “The trial Judge also took into consideration the respondent's failure to mitigate the damages by leaving the General Hospital on his own accord when he deducted 25% from respondent's monthly earning of $418 and his award of $41,617.05 under loss of future earnings calculated on the basis of $320 monthly earnings multiplied by sixteen years purchase. We are satisfied that he had not erred.” (emphasis added).

The learned SCJ had failed to consider the question of whether the Plaintiffs had taken reasonable steps to mitigate their Mental Distress (SC’s 2nd Legal Error).

I am of the view that if the 2 Torts (1st to 3rd Defendants) had caused Mental Distress to the Plaintiffs, the Plaintiffs should have taken reasonable steps to mitigate the Mental Distress by seeking therapy or counselling from a psychiatrist, clinical psychologist or counsellor (who is a qualified mental health practitioner and is registered with “Lembaga Kaunselor Malaysia”). The Plaintiffs had however failed to mitigate the Mental Distress due to the 2 Torts (1st to 3rd Defendants) (Plaintiffs’ Failure to Mitigate Mental Distress). K(5). Should High Court intervene regarding General Damages (Emotional Distress/Adverse Health Consequences)

When there is an appeal against a trial court’s assessment of damages, the duties of the appellate court have been explained in Asia File Products Sdn Bhd v Brilliant Achievement Sdn Bhd & Ors [2019] 2 AMR 908, at [14], as follows: “[14] As an appellate court hearing This Appeal under O 56 r 1(1) RC, I adopt the following approach:

as a general rule, an appellate court is reluctant to intervene in respect of a lower court’s assessment of compensatory damages - please see Mohamad Ariff J’s (as he then was) judgment in the Court of Appeal in Goo Sing Kar v Dato’ Lim Ah Chap & Ors [2013] 3 MLJ 374, at paragraphs 29-31 (assessment based on an undertaking to pay damages regarding ex parte injunctions); and

exceptionally, an appellate court may only set aside a subordinate court’s quantification of compensatory damages if -

the lower court has acted on a wrong principle of law; or

the subordinate court has awarded an amount of compensatory damages which is so extremely high or so extremely low and this sum constitutes an entirely erroneous estimate of compensation to which a plaintiff is entitled - please see Edgar Joseph Jr FCJ’s judgment in the Federal Court case of Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777, at 799 (assessment of damages for breach of contract).” (emphasis added).

With regard to SC’s award of RM200,000.00 as General Damages (Emotional Distress/Adverse Health Consequences), I am constrained to intervene due to the following reasons:

SC’s 1st Legal Error (please refer to the above paragraphs 48 and 49) and SC’s 2nd Legal Error (please see the above paragraphs 50 and 51) had been committed in this case;

there was the Plaintiffs’ Failure to Mitigate Mental Distress - please refer to the above paragraph 52;

SC’s award of RM200,000.00 as General Damages (Emotional Distress/Adverse Health Consequences) is “so extremely high” as explained by Edgar Joseph Jr FCJ in the Federal Court case of Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777, at 799; and

if I have upheld SC’s award of RM200,000.00 as General Damages (Emotional Distress/Adverse Health Consequences), this will be tantamount to an over-compensation and unjust enrichment of the Plaintiffs at the expense of the 1st to 3rd Defendants.

The Plaintiffs’ learned counsel had cited a host of cases to support SC’s award of RM200,000.00 as General Damages (Emotional Distress/Adverse Health Consequences). With respect, all these cases can be easily distinguished from this case on any one of the grounds which have been stated in the above paragraph 54.

I do acknowledge that Mental Distress had been caused by the 2 Torts (1st to 3rd Defendants) to the Plaintiffs. In the interest of justice, I substitute a sum of RM10,000.00 in place of RM200,000.00 as general damages for the Mental Distress suffered by the Plaintiffs as a result of the 2 Torts (1st to 3rd Defendants).

In view of my decision in the above paragraphs 42 and 56, the 1st to 3rd Defendants shall pay a total sum of RM115,682.92 as damages to the Plaintiffs. L. Should SC’s Post-Judgment Interest Order be substituted with Pre-Judgment Interest Order?

I reproduce below s 11 CLA: “s 11 CLA Power of Courts to award interest on debts and damages In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section -

shall authorize the giving of interest upon interest;

shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

shall affect the damages recoverable for the dishonour of a bill of exchange.” (emphasis added).

By virtue of s 11 CLA, the court has a discretion to award pre-judgment interest “at such rate as it thinks fit on the whole or any part of the damages for the whole or any part of the period … between the date when the cause of action arose and the date of judgment” - please refer to the Federal Court’s judgment in Lim Kar Bee, at p. 120.

When I delivered my oral grounds for the 4 Appeals on 9.2.2022 (High Court’s Oral Decision), I invited submission from learned counsel for the Plaintiffs and 1st to 3rd Defendants on whether this court should substitute SC’s Post-Judgment Interest Order with a Pre-Judgment Interest Order.

In the additional written submission of the Plaintiffs’ learned counsel (upon the court’s invitation), the Plaintiffs have applied for this court to substitute SC’s Post-Judgment Interest Order with a Pre-Judgment Interest Order. I am unable to accede to this submission. My reasons are as follows:

sub-paragraph 32(c) RRSOC had expressly prayed for SC’s Post-Judgment Interest Order [Sub-Paragraph 32(c) RRSOC]. The Plaintiffs were legally represented in SC. The RRSOC had been amended three times and yet the Plaintiffs did not apply to SC for leave to amend Sub-Paragraph 32(c) RRSOC so as to include a Pre-Judgment Interest Order; and

O 55 r 8 RC, r 8 RCA and r 49 RFC provide as follows - “Notice of cross appeal O 55 r 8 RC A respondent to an appeal may, within fourteen days from the date of service on him of the record of appeal, file a notice of cross appeal in the High Court and serve upon the appellant a duplicate copy of the notice in Form 113 that he intends to contend on the hearing of the appeal that the decision of the Court below should be varied. r 8 RCA Notice of cross-appeal.

It shall not be necessary for a respondent to give notice of appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the High Court should be varied, he may, at any time after entry of the appeal and not more than ten days after the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant and any other party who may be affected by such notice, and shall file within the like period a copy of such notice, accompanied by copies thereof for the use of each of the Judges of the Court.

Notice of cross-appeal shall be substantially in Form 2 in the First Schedule.

If the respondent fails to give such notice within the time prescribed, he shall not be allowed, except by leave of the Court, to contend on the hearing of the appeal that the decision of the High Court should be varied; but the Court may in its discretion hear any such contention and may, if it thinks fit, impose terms as to costs, adjournment or otherwise.” (emphasis added). “r 49 RFC Notice of cross-appeal. Form 4.

Notice of cross-appeal shall be substantially in Form 4 in the First Schedule to these Rules, and must be filed at the Registry within fourteen days from the date on which the notice of appeal was served on the respondent or within such further time as the Court may allow under rule 108.

If the respondent fails to give such notice within the time limited, his cross-appeal may be dismissed.” In the 3 Appeals (1st to 3rd Defendants), the Plaintiffs did not file a notice of cross appeal to the High Court under O 55 r 8 RC to vary SC’s Decision so as to substitute SC’s Post-Judgment Interest Order with a Pre-Judgment Interest Order. It is to be noted that O 55 r 8 RC and r 49 RFC do not have any provision which is similar to r 8(3) RCA (which allows the Court of Appeal to grant leave for a respondent to persuade the Court of Appeal to vary the High Court’s decision notwithstanding the respondent’s failure to file a notice of cross appeal to the Court of Appeal). Hence, it is clear that in an appeal to the High Court against a subordinate court’s decision, if the respondent fails to file a notice of cross appeal to the High Court pursuant to O 55 r 8 RC, the respondent is barred from inviting the High Court to vary the lower court’s decision. In the 3 Appeals (1st to 3rd Defendants), the Plaintiffs should have applied to the High Court under O 3 r 5(1) RC for an extension of time to file a notice of cross appeal against SC’s Decision pursuant to O 55 r 8 RC [Application (Extension of Time)]. Needless to say, the Application (Extension of Time) should be made before the hearing of the 3 Appeals (1st to 3rd Defendants). M. 4th Defendant’s Appeal M(1). Whether Plaintiffs could rely on representations made to

Plaintiffs in 4th Defendant’s Letter (12.10.2007) The 4th Defendant’s Letter (12.10.2007) stated as follows: “Welcome to Tropicana … where life is truly to be enjoyed! First of all, allow us to congratulate you your purchase of a Tropicana Golf & Country Resort’s property. As the developer and manager of this beautiful Resort, which has become a model community of responsible and happy residents, we are continuously working towards improving the image and value of all your respective properties. In this connection, it is the practice of all new and existing owners of properties within the Resort to enter into a [DMC] with us to ensure the continuous smooth running and management of the Resort. The necessary copies of the same are enclosed herewith for your kind execution and thereafter, kindly return it to us for our signatory’s execution together with a cheque of RM180.00 in favour of [4th Defendant], being payment for the printing and preparation costs of the aforesaid documents. The DMC, among other things, covers what is already in the authorities’ Building Bye-laws, and is necessary to safeguard the interests of a responsible, orderly and harmonious community within the secure environment provided by our dedicated security personnel. Kindly forward to us a copy of the sub-sale agreement signed between the previous owner and your goodself and a copy of title duly registered in favour of you for our safe-keeping. Please also complete and return to us the attached data sheet in order to update their particulars for our records. We look forward to your early signing of the DMC so that we can of further service to you.” (emphasis added).

According to the Plaintiffs’ learned counsel, among others -

the 4th Defendant’s Letter (12.10.2007) made the following representations to the Plaintiffs -

the Gated Community is intended and planned by the 4th Defendant to be an exclusive golfing, recreational, residential and commercial development;

all purchasers of properties in the Gated Community (Purchasers) are required to execute the DMC regarding the use and enjoyment of the Purchasers’ properties for the benefit of all the Purchasers;

the purpose of the DMC is to support the 4th Defendant’s vision to -

maintain the exclusivity and well-planned development of the Gated Community; and

(ii) create and preserve the aesthetic value and beauty of the Gated Community;

the DMC forms a contract between -

a purchaser of property in the Gated Community and the 4th Defendant; and

(ii) all the purchasers of properties in the Gated Community; and

the 4th Defendant shall enforce the DMC against any Purchaser who fails to comply with the DMC [4th Defendant’s Representations (Letter dated 12.10.2007)];

the Plaintiffs had been induced by the 4th Defendant’s Representations (Letter dated 12.10.2007) to sign the DMC; and

the 4th Defendant’s Representations (Letter dated 12.10.2007) were breached when the 4th Defendant -

failed to ensure that the 1st to 3rd Defendants execute the DMC; and

could have compelled the 1st to 3rd Defendants execute the DMC when the 1st to 3rd Defendants made 3 Renovation Applications for the 4th Defendant’s approval for the Renovation Works (1st to 3rd Defendants).

Firstly, I am not able to find any breach of the 4th Defendant’s Representations (Letter dated 12.10.2007). Even if there was a breach of the 4th Defendant’s Representations (Letter dated 12.10.2007), the Plaintiffs had not pleaded in RRSOC that the 4th Defendant’s Representations (Letter dated 12.10.2007) were fraudulent or negligent. In any event, there was no evidence at the Trial to prove that a tort of fraudulent misrepresentation or tort of negligent misstatement had been committed by way of a breach of the 4th Defendant’s Representations (Letter dated 12.10.2007).

Secondly, a representation by a person (T) to another person (U) which has induced U to enter into a contract with T [Contract (T-U)], may render the Contract (T-U) voidable at the option of U according to s 19(1) CA if T’s representation to U constitutes a “misrepresentation” as understood in s 18(a) to (c) CA. I reproduce below ss 18 and 19 CA: “ "Misrepresentation". s 18 "Misrepresentation" includes -

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement. Voidability of agreements without free consent. 19(1) When consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.” (emphasis added).

The 4th Defendant’s Representations (Letter dated 12.10.2007), in my view, do not fall within s 18(a) to (c) CA. Even if it was assumed that the 4th Defendant’s Representations (Letter dated 12.10.2007) constituted misrepresentations within any one of the paragraphs in s 18(a) to (c) CA, the Plaintiffs had not elected to terminate the DMC pursuant to s 19(1) CA. In fact, in This Suit, the Plaintiffs had relied on the validity of the DMC and had alleged that the DMC was breached by the 4th Defendant.

I have not overlooked s 19(2) CA. As explained in paragraph 74 below, the 4th Defendant had not breached the DMC in this case. Hence, there is no room for the Plaintiffs to invoke s 19(2) CA. M(2). Who is bound by DMC?

Clause 9 DMC provide as follows: “9. EFFECT OF [DMC]

This [DMC] has the effect of a contract under seal:- 1 between the [4th Defendant] and the Purchaser(s); and 9.2 between the Purchaser(s) and each of the Other Purchasers [defined in paragraph V of the Recital to DMC] under which each of them agrees to observe and perform the provisions of this [DMC] and other deeds similar to this [DMC] entered into by each of the Other Purchasers with the [4th Defendant] as in force for the time being so far as these provisions are applicable to them. PROVIDED ALWAYS THAT nothing herein contained shall be construed as rendering the [4th Defendant] liable in any manner whatsoever to the Purchaser(s) [Plaintiffs] or the Purchaser(s)’ family members, lessees, tenants, servants, agents, licensees or other persons in respect of or in relation to or arising from or as a consequence of any breach by any of the Other Purchasers or their respective families, lessees, tenants, servants, agents, licensees, invitees or other persons of the Deeds similar to this [DMC] entered into by the Other Purchasers respectively with the [4th Defendant].” (emphasis added).

It is clear that the DMC constitutes -

a contract between the 4th Defendant and all Purchasers who have signed the DMC [Purchasers (Parties to DMC)] - please refer to clause 9.1 DMC; and

a contract between and among all the Purchasers (Parties to DMC), ie., a contract inter se which binds all the Purchasers (Parties to DMC) - please refer to clause 9.2 DMC. It is to be noted that the DMC cannot be enforced by the Plaintiffs and 4th Defendant against Purchasers who have not signed the DMC [Purchasers (Non-Parties to DMC)], including the 1st to 3rd Defendants. This is understandable in view of the application of the doctrine of privity of contract.

M(3). Whether there are implied terms in DMC The Plaintiffs’ learned counsel has contended that there are implied terms in the DMC [Alleged Implied Terms (DMC)], namely -

the Plaintiffs as co-purchasers of the Plaintiffs’ Property in the Gated Community, have an implied right to quiet enjoyment of the Plaintiffs’ Property without interference from any party [Purchaser’s Implied DMC Right (Quiet Enjoyment of Property)];

the 4th Defendant has an implied obligation to ensure that the Plaintiffs are able to exercise their implied right of quiet enjoyment of the Plaintiffs’ Property without any interference [4th Defendant’s Implied DMC Obligation (Quiet Enjoyment of Property)]; and

the 4th Defendant has an implied obligation to ensure compliance with the DMC by all Purchasers, including Purchasers (Non-Parties to DMC) [4th Defendant’s Implied DMC Obligation (Compliance with DMC)]. According to the Plaintiffs’ learned counsel, the Alleged Implied Terms

had been breached by the 4th Defendant.

According to the judgment of Peh Swee Chin FCJ in the Federal Court case of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151, at 169-170, a term can only be implied in a contract if the following two tests are fulfilled cumulatively -

the “business efficacy” test; and

the “officious bystander” test (Cumulative Approach). The Cumulative Approach as laid down in Sababumi has been affirmed by Zulkefli Ahmad Makinudin PCA in the Federal Court in See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank Bhd & another appeal [2019] 1 MLJ 25, at [74] to [76].

Applying the Cumulative Approach, I am not satisfied that the Alleged Implied Terms (DMC) have fulfilled both the business efficacy test and officious bystander test because -

it is not necessary to give business efficacy to the DMC by implying the Alleged Implied Terms (DMC) in the DMC. This is due to the following reasons -

if a Purchaser (Party to DMC) has breached DMC, the 4th Defendant can institute an action against the Purchaser (Party to DMC) for breach of DMC. Hence, the implication of the 4th Defendant’s Implied DMC Obligation (Compliance with DMC) is not necessary to give business efficacy to the DMC. Furthermore, by reason of clauses 9.1 and 9.2 DMC, the DMC does not bind Purchasers (Non-Parties to DMC). The court cannot imply an obligation in the DMC for the 4th Defendant to ensure compliance with the DMC by Purchasers (Non-Parties to DMC). This is because a term cannot be implied in a contract which is contrary to an express term of the contract. It is decided by our Federal Court in Sababumi, at p. 169 - “Implied terms are of three types. The first and most important type is an implied term which the court infers from evidence that the parties to a contract must have intended to include it in the contract though it has not been expressly set out in the contact.” (emphasis added);

if there is any interference with the quiet enjoyment of a Purchaser’s property in the Gated Community, the Purchaser may file a suit based on a tort of private nuisance regarding the interference in question. Such a right is vested in all Purchasers, irrespective of the fact that the Purchasers have not executed the DMC. It is thus clear that it is not necessary to give business efficacy to the DMC by implying the Purchaser’s Implied DMC Right (Quiet Enjoyment of Property) in the DMC; and

as explained in the above sub-paragraph (b), if there is no necessity to imply the Purchaser’s Implied DMC Right (Quiet Enjoyment of Property) in the DMC, by parity of reasoning, it is also not necessary to give business efficacy to the DMC by implying the 4th Defendant’s Implied DMC Obligation (Quiet

if an officious bystander is asked whether the Alleged Implied Terms

would have been included in the DMC at the time of the preparation of the DMC, for the reasons expressed in the above sub-paragraphs (1)(a) to (c) the officious bystander would not have answered in the affirmative.

M(4). Whether 4th Defendant has breached DMC in this case According to the Plaintiffs, the 4th Defendant had breached the following provisions in the DMC: “WHEREAS … V. The Purchaser(s) acknowledges that the [Gated Community] is intended and planned by the [4th Defendant] to be an exclusive golfing, recreational, residential and commercial resort development, and that in connection with the objectives referred to in Clause 1 below, the [4th Defendant] had required purchasers of the properties comprised in the [Gated Community] to enter into a deed of covenants in respect of the use and enjoyment of, and matters relating to, the said Property and the [Gated Community], for the benefit of the First Purchaser(s) (and subsequent purchaser(s) of the said Property, including the Purchaser(s) and other purchasers of properties comprised in the [Gated Community] (collectively the “Other Purchasers”). [Recital V (DMC)] …

OBJECTIVES The Purchaser(s) acknowledge(s) that the [Gated Community] is intended and planned by the [4th Defendant] to be an exclusive golfing, recreational, residential and commercial resort development, and that the provisions of this [DMC] are meant to support this vision of maintaining such exclusivity and well-planned development and to create and preserve the aesthetic value and beauty of the [Gated Community] as an exclusive golfing, recreational, residential and commercial resort development. Accordingly, the Purchaser(s) hereby agree(s) to perform and comply with the Purchaser(s)’ covenants, agreements and obligations under this [DMC], and to be bound by this [DMC]. [Clause 1 (DMC)]” (emphasis added).

With respect to the Plaintiffs’ learned counsel, I am not able to accede to the contention that the 4th Defendant had breached Recital V (DMC) and Clause 1 (DMC). My reasons are as follows:

Recital V (DMC) and Clause 1 (DMC) do not impose any obligation on the 4th Defendant to ensure that Purchasers (Non-Parties to DMC), including the 1st to 3rd Defendants, execute the DMC. Nor can the court imply such an obligation in the DMC - please refer to the above sub-paragraphs 72(1)(a) and (2);

if a Purchaser (P) has sold, transferred or assigned P’s property in the Gated Community to another person (Q), P (not the 4th Defendant) is bound by clause 5.1 DMC [Clause 5.1 (DMC)] to ensure that Q signs the DMC. This is understandable because in law, the 4th Defendant cannot compel Q to execute the DMC. Only P as the vendor, transferor or assignor of the property to Q, can lawfully compeI Q to sign the DMC by virtue of the sale, transfer or assignment. I reproduce below Clause 5.1 (DMC) - “5 SALE/DISPOSAL OF THE SAID PROPERTY - SUBSEQUENT

PURCHASER(S) TO EXECUTE SIMILAR DEED 1 The Purchaser(s) hereby agree(s) and undertake(s) with the [4th Defendant] that if the Purchaser(s) shall sell, transfer, assign or otherwise dispose of or deal with the said Property, the Purchaser(s) shall cause the Purchaser(s)’ purchaser, assignee or transferee to execute and deliver to the [4th Defendant] a deed containing substantially similar terms and conditions as provided in this [DMC], all costs and expenses in respect of, arising from or incidental to the foregoing matters (including legal fees on a full indemnity basis incurred, expended or payable by the [4th Defendant]) incurred by each party to be borne by itself/himself.” (emphasis added); and

if I have accepted the above submission by the Plaintiffs’ learned counsel based on Recital V (DMC) and Clause 1 (DMC), this will render redundant the express provision in Clause 5.1 (DMC). M(5). Can 4th Defendant rely on Proviso (Clause 9 DMC)?

Even if it is assumed that the 4th Defendant had breached Recital V

and/or Clause 1 (DMC) [4th Defendant’s Breaches (DMC)], the 4th Defendant would not be liable for the 4th Defendant’s Breaches

(DMC). This is because the Proviso (Clause 9 DMC) has expressly provided that nothing contained in DMC “shall be construed as rendering the [4th Defendant] liable in any manner whatsoever to the Purchaser(s) or the Purchaser(s)’ family members … in respect of or in relation to or arising from or as a consequence of any breach by any of the Other Purchasers or their respective families”.

It is to be noted that our Parliament has not passed any law similar to UK’s Unfair Contract Terms Act 1977. In other words, the Proviso (Clause 9 DMC) is valid in Malaysia.

In the GOJ, the learned SCJ had failed to consider the effect of the Proviso (Clause 9 DMC) (SC’s 3rd Legal Error). M(6). Whether causa causans of Plaintiffs’ Loss/Damage was 4th

Defendant’s Breaches (DMC) I will now proceed on the assumption that notwithstanding the application of the Proviso (Clause 9 DMC), the 4th Defendant is liable for the 4th Defendant’s Breaches (DMC).

When a contract is breached, the innocent party to the contract has the burden to prove that the causa causans of the innocent party’s loss and/or damage, is the breach of contract. I rely on the following judgment of Glidewell LJ in UK’s Court of Appeal case of Galoo Ltd (in liquidation) v Bright Grahame Murra [1994] 1 WLR 1360, at 1369- “This argument depends upon the nature of the causation necessary to establish liability for breach of duty, whether in contract or in tort. There is no doubt that this is one of the most difficult areas of the law. Both counsel are agreed that, at least in the context of this case, the principles applicable to liability in either contract or tort are the same. Mr. Hunter, for the defendants, submits that the plaintiff's case depends upon the adoption of the "but for” test of causation which, at least in contract, is not the proper test in English law. This is causation of the kind which has sometimes been referred to as a "causa sine qua non.” In Chitty on Contracts, 26th ed. (1989), vol. 2, pp. 1128–1129, para. 1785, the editors say: "The important issue in remoteness of damage in the law of contract is whether a particular loss was within the reasonable contemplation of the parties, but causation must also be proved: there must be a causal connection between the defendant's breach of contract and the plaintiff's loss. The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the plaintiff's loss. (It need not be the sole cause).” ” (emphasis added).

Premised on Galoo Ltd, the test for causation for torts and breaches of contract is the same. I accept this legal position as there is nothing in principle which justifies a test for deciding the causa causans for a plaintiff’s Loss/Injury/Damage due to the commission of a tort which is different from a test used to decide the issue of causation for breaches of agreements. Nor is such a difference supported by any policy consideration. Accordingly, the cases discussed in the above paragraphs 35 and 36 regarding causation for torts, apply in deciding whether the causa causans for a plaintiff’s loss and/or damage arises from a breach of contract.

I am firmly of the view that the causa causans for the Plaintiffs’ Loss/Damage in this case is the 2 Torts (1st to 3rd Defendants) and not the 4th Defendant’s Breaches (DMC). This decision is premised on the following reasons:

as decided in Majlis Perbandaran Ampang Jaya, as a matter of common sense, the Plaintiffs’ Loss/Damage had been caused by the 2 Torts (1st to 3rd Defendants). If this court has decided that the causa causans for the Plaintiffs’ Loss/Damage is the 4th Defendant’s Breaches (DMC), such a decision is contrary to common sense;

premised on all the facts and circumstances of this case, it is only fair, just and reasonable that the causa causans for the Plaintiffs’ Loss/Damage is the 2 Torts (1st to 3rd Defendants) - please refer to Majlis Perbandaran Ampang Jaya; and

by applying the “but for” test -

it cannot be said that the Plaintiffs’ Loss/Damage would not have occurred “but for” the 4th Defendant’s Breaches (DMC); and

it is clear that the Plaintiffs’ Loss/Damage would not have occurred “but for” the commission of the 2 Torts (1st to 3rd Defendants). M(7). Whether Plaintiffs’ Loss/Damage can be recovered from 4th

Defendant under s 74(1) CA I will now assume that the causa causans for the Plaintiffs’ Loss/Damage was the 4th Defendant’s Breaches (DMC).

I reproduce below the relevant part of s 74 CA: “Compensation for loss or damage caused by breach of contract 74(1) CA When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. … Explanation - In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.” (emphasis added).

For the Plaintiffs to recover damages for the Plaintiffs’ Loss/Damage which allegedly arose from the 4th Defendant’s Breaches (DMC), the Plaintiffs have the onus to satisfy the court that the Plaintiffs’ Loss/Damage falls within either one of the two limbs of s 74(1) CA [“1st Limb (Section 74 CA)” and “2nd Limb (Section 74 CA)”]. It is decided in Jambatan Merah Sdn Bhd (in liquidation) v Public Bank Bhd [2016] 1 CLJ 811, at [46], as follows: “[46] Even if the Plaintiff has suffered any loss or damage due to the Defendant’s Breach (Alleged Loss), the Plaintiff must prove that the Alleged Loss is claimable and is not too remote under either one or both the limbs of s 74(1) CA (1950) as follows:

the Alleged Loss “naturally arose in the usual course of things” from the Defendant’s Breach within the meaning of the first limb of s 74(1) CA (1950); and/or

both the Plaintiff and Defendant “knew, when they made the contract” that the Alleged Loss was “likely to result from the breach” of the Defendant’s Breach as understood in the second limb of s 74(1) CA (1950).” (emphasis added).

I decide that the Plaintiffs’ Loss/Damage does not fall within the meaning of the 1st Limb (Section 74 CA) and 2nd Limb (Section 74 CA). My reasons are as follows:

the Plaintiffs’ Loss/Damage did not naturally arise in the usual course of things from the 4th Defendant’s Breaches (DMC) as understood in the 1st Limb (Section 74 CA); and/or

both the Plaintiffs and 4th Defendant did not know at the time of the execution of the DMC that the Plaintiffs’ Loss/Damage was likely to result from the 4th Defendant’s Breaches (DMC) within the meaning of the 2nd Limb (Section 74 CA). In view of the above reasons, the Plaintiffs’ Loss/Damage was too remote to be recovered from the 4th Defendant pursuant to s 74(2) CA.

The learned SCJ did not consider in the GOJ the application of the 1st Limb (Section 74 CA) and 2nd Limb (Section 74 CA). Such an omission constitutes an appealable error of law (SC’s 4th Legal Error). M(8). Did Plaintiffs mitigate Mental Distress caused by 4th Defendant’s Breaches (DMC)?

I will now proceed on the assumption that the Plaintiffs’ Loss/Damage falls within the 1st Limb (Section 74 CA) and/or 2nd Limb (Section 74 CA).

It is clear from the Explanation to s 74 CA that the Plaintiffs have the burden to satisfy the court that the Plaintiffs have taken all reasonable steps to mitigate the Plaintiffs’ Loss/Damage which arise from the 4th Defendant’s Breaches (DMC). I cite the following judgment of the Supreme Court delivered by Mohd. Dzaiddin SCJ (as he then was) in Malaysian Rubber Development Corp Bhd v Glove Seal Sdn Bhd [1994] 3 MLJ 569, at 578: “It is settled principle that the plaintiff is under a duty to take reasonable steps to mitigate the loss consequent to the defendant's wrong and he will not get damages in respect of any part of the loss which is due to his neglect to take such steps (British Westinghouse Co v Underground Electric Rys [1912] AC 673; Pasuma Pharmacal Corp v McAlister & Co Ltd [1965] 1 MLJ 221, FC at p 227).” (emphasis added).

I have explained in the above paragraphs 50(2), 51 and 52 regarding the Plaintiffs’ Failure to Mitigate Mental Distress. Due to the Plaintiffs’ Failure to Mitigate Mental Distress, the Plaintiffs cannot claim any damages for Mental Distress which arises from the 4th Defendant’s Breaches (DMC).

M(9). Whether Plaintiffs could claim for 4th Defendant’s Breaches (DMC) In view of the evidence and reasons explained in the above Parts M(3) to M(8), I have no hesitation to decide that the Plaintiffs cannot recover any damages from the 4th Defendant for any breach of the DMC.

Whether 4th Defendant owed duty of care to Plaintiffs The Plaintiffs’ learned counsel had made a lengthy submission that the 4th Defendant owed a duty of care to the Plaintiffs with regard to matters stated in the above sub-paragraphs 18(2)(c)(i)(ia) to (ig) (Alleged 4th Defendant’s Duty of Care).

Premised on Lok Kok Beng, this court cannot recognise the existence of the Alleged 4th Defendant’s Duty of Care due to the following evidence and reasons:

there is no prima facie duty of care which is owed by the 4th Defendant to the Plaintiffs because -

there is no “sufficient legal proximity” between the Plaintiffs and the 4th Defendant as it is not reasonably foreseeable that the Plaintiff’s Loss/Damage would occur due to the 4th Defendant’s acts or omission in this case. This decision is fortified by the following evidence and reasons -

the 4th Defendant is only the developer of the Gated Community who has sold the Plaintiffs’ Property to the

(ii) the Plaintiffs’ Property and Adjoining Property are terrace houses in the Gated Community (Terrace Houses). Tropicana Management Services Sdn. Bhd. (TMS) (not the 4th Defendant) - (iia) manages the roads, traffic and road safety regarding the Terrace Houses; (iib) maintains cleanliness in respect of the Terrace Houses;

(iic) is in charge of landscaping with regard to the Terrace Houses; and

(iid) is responsible for the security concerning the Terrace Houses. In fact, owners or residents of the Terrace Houses pay fees to TMS regarding the security in respect of the Terrace Houses. It is trite law that the 4th Defendant is a legal entity which is distinct from TMS - please refer to the judgment of Zakaria Yatim J (as he then was) in the High Court case of People’s Insurance Co

(M) Sdn Bhd v People’s Insurance Co Ltd & Ors [1986] 1 MLJ 68, at 69-70. It is to be noted that the Plaintiffs did not sue TMS in This Suit. Nor did RRSOC apply to court to pierce or lift the corporate veils of the 4th Defendant and TMS to reveal that both the 4th Defendant and TMS is a single corporate entity; and

there is no physical proximity, circumstantial proximity and causal proximity between the Plaintiffs and 4th Defendant. On the contrary, there is sufficient legal proximity, physical proximity, circumstantial proximity and causal proximity between the Plaintiffs and 1st to 3rd Defendants because the Plaintiff’s Property shares a common party wall with the

the DMC and Renovation Rules do not support the existence of the Alleged 4th Defendant’s Duty of Care because the 4th Defendant has no duty, right or power to enter and inspect the Plaintiffs’ Property;

the 4th Defendant has no duty, right or power to -

enter the Adjoining Property; and

control, direct or supervise the Renovation Works (1st to 3rd Defendants), especially when the 1st to 3rd Defendants have not executed the DMC;

the 4th Defendant does not have the resources and expertise to control, direct or supervise any renovation works. Furthermore, the 4th Defendant has not hold itself out to the Plaintiffs or other Purchasers that the 4th Defendant posseses the resources and expertise to control, direct or supervise any renovation works;

if the 4th Defendant enters the Plaintiffs’ Property and Adjoining Property without any permission from the Plaintiffs and 1st to 3rd Defendants respectively, the 4th Defendant may be sued for a tort of trespass to land by the Plaintiffs and 1st to 3rd Defendants. A tort of trespass to land is actionable per se, namely, it is not required for a plaintiff in an action for trespass to land, to prove that the plaintiff has suffered actual damage due to the trespass - please refer to the judgment of Peh Swee Chin J (as he then was) in the High Court case of Cheah Kim Tong v Taro Kaur [1989] 3 MLJ 252, at 253- 254; and

even if it is assumed that the 4th Defendant owes a prima facie duty of care to the Plaintiffs, policy considerations would negate the existence of such a prima facie duty of care. This is because if this court has recognised the existence of a duty of care owed by a developer of a gated community to an owner or resident in the gated community (V) regarding the renovation works performed by another owner or resident in the gated community (W), this will open the floodgates of litigation whereby all owners or residents in the gated community (other than W) may claim against the developer based on a tort of negligence for any Loss/Injury/Damage which arises from W’s renovation works. My refusal to recognise the existence of a duty of care owed by a developer to V regarding W’s renovation works, does not cause any injustice to V because V has a right to sue W for tort of nuisance and/or negligence regarding W’s renovation works. I should emphasise that this court’s refusal to recognise the existence of a duty of care owed by the 4th Defendant to the Plaintiffs is based solely on the peculiar facts of this case. I acknowledge that there may be an appropriate case in the future where a developer of a gated community may owe a duty of care to the purchaser, owner or resident in the gated community.

I have not overlooked the following contentions by the Plaintiffs’ learned counsel:

the 1st to 3rd Defendants did not obtain MBPJ’s approval for the Renovation Works (1st to 3rd Defendants) in respect of the first two renovation applications;

MBSA’s Stop Work Order had been issued in respect of the Renovation Works (1st to 3rd Defendants);

the 1st to 3rd Defendants were required to sign the DMC before making the 3 Renovation Applications to the 4th Defendant;

the 1st to 3rd Defendants had breached the Renovation Rules regarding the Renovation Works (1st to 3rd Defendants);

no documents in support of the 3 Renovation Applications were given by the 1st to 3rd Defendants to the 4th Defendant;

the 3 Renovation Applications did not disclose the fact that substantial renovations of the Adjoining Property were actually undertaken by the 1st to 3rd Defendants; and

notwithstanding the fact that the 1st to 3rd Defendants had not signed the DMC, the 4th Defendant had granted consent for the first two renovation applications and allowed contractors of the 1st to 3rd Defendants to enter the Gated Community to renovate the Adjoining Property. The above submission by the Plaintiffs’ learned counsel, in my view, cannot establish sufficient legal proximity, physical proximity, circumstantial proximity and causal proximity between the Plaintiffs and 4th Defendant - please refer to the above sub-paragraph 92(1). In any event, based on policy considerations as explained in the above sub-paragraph 92(6), this court would still have refused to recognise the existence of a duty of care owed by the 4th Defendant to the Plaintiffs.

I am of the view that SC had committed the following legal errors with regard to the Alleged 4th Defendant’s Duty of Care:

in paragraph 72 GOJ, the learned SCJ merely stated that the 4th Defendant owed a duty of care to the Plaintiffs. The learned SCJ did not consider the Federal Court’s judgment in Lok Kok Beng on how SC should have considered the issue regarding the existence of the Alleged 4th Defendant’s Duty of Care (SC’s 5th Legal Error). Needless to say, from the view point of the doctrine of stare decisis, the judgment of our highest court in Lok Kok Beng binds all lower courts until the Federal Court overrules Lok Kok Beng; and

the learned SCJ had relied on an “admission” by SD6 that the 4th Defendant owed a duty of care to the Plaintiffs to ensure that the Renovation Works (1st to 3rd Defendants) did not cause any nuisance to the Plaintiffs - please refer to in paragraph 70 GOJ. This is an error of law because the existence of a duty of care is not dependent on the opinion of a witness (SC’s 6th Legal Error). M(11). What was causa causans of Plaintiffs’ Loss/Damage?

I will now assume that the 4th Defendant owed a duty of care to the Plaintiffs and had breached such a duty of care [4th Defendant’s Breach (Duty of Care)].

As explained in the above paragraph 81, I have no hesitation to decide that the causa causans of the Plaintiff’s Loss/Damage was the 2 Torts (1st to 3rd Defendants) and not the 4th Defendant’s Breach (Duty of Care).

In the GOJ, the learned SCJ had decided that the 2 Torts (1st to 3rd Defendants) had been committed against the Plaintiffs but the SC did not consider whether the 2 Torts (1st to 3rd Defendants) was the causa causans of the Plaintiff’s Loss/Damage (SC’s 7th Legal Error).

Loss/Damage was too remote to be recoverable from 4th Defendant Even if it is assumed that -

the 4th Defendant owed a duty of care to the Plaintiffs;

the 4th Defendant’s Breach (Duty of Care) had been committed; and

the causa causans of the Plaintiff’s Loss/Damage was the 4th Defendant’s Breach (Duty of Care) - premised on The Wagon Mound No. 1 (please refer to the above paragraph 38), it was not reasonably foreseeable that the Plaintiff’s Loss/Damage would have occurred due to the 4th Defendant’s Breach (Duty of Care). On the contrary, it was reasonably foreseeable that the Plaintiff’s Loss/Damage would have been caused by the 2 Torts (1st to 3rd Defendants). M(13).

Outcome of 4th Defendant’s Appeal I am constrained to allow the 4th Defendant’s Appeal with costs -

based on the evidence and reasons stated in the above Parts M(1) to M(12); and

SC’s 3rd Legal Error (please refer to the above paragraph 77), SC’s 4th Legal Error (please see the above paragraph 86), SC’s 5th Legal Error [please refer to the above sub-paragraph 94(1)], SC’s 6th Legal Error [please see to the above sub-paragraph 94(2)] and SC’s 7th Legal Error (please refer to the above paragraph 97) had been committed in this case. N.

Costs O 59 r 23(1) RC provides as follows: “Scale of costs for trial in the Subordinate Courts O 59 r 23(1) Subject to the provisions hereunder, upon the conclusion and determination of any trial in the Subordinate Courts, the party entitled to costs shall, unless the Court otherwise orders, be paid fixed costs in accordance with the following scale: [Scale (Subordinate Court Trials)]” (emphasis added).

After the delivery of the High Court’s Oral Decision, I referred all learned counsel to O 59 r 23(1) RC and the Scale (Subordinate Court Trials). The learned SCJ had allowed the Total Claim (Damages) in a sum of RM305,682.92. For this judgment sum, according to the Scale (Subordinate Court Trials), the Costs Sum (SC) should be RM11,950.00 [RM2,400 (Suing) + RM9,550.00 (Advocacy)]. However, the Costs Sum (SC) was determined by SC to be RM30,000.00. I then inquired from learned counsel on whether the learned SCJ could fix the Costs Sum (SC) which departed from the Scale (Subordinate Court Trials).

I am of the following view regarding the lower court’s power to order costs after a trial [Costs Sum (After Trial)]:

as a general rule, the Costs Sum (After Trial) should be based on the Scale (Subordinate Court Trials) (General Rule). The application of the General Rule is clear from the words in O 59 r 23(1) RC, “the party entitled to costs shall, unless the Court otherwise orders, be paid fixed costs in accordance with the following scale”. The General Rule ensures that the Costs Sum (After Trial) is not excessive. If the Costs Sum (After Trial) is excessive, this may impede litigants’ fundamental right of access to justice as enshrined in Article 5(1) of the Federal Constitution - please refer to Singham Sulaiman Sdn Bhd v Appraisal Property Management Sdn Bhd & Anor and another case [2018] 10 MLJ 187, at [115(3)]; and

the words “unless the Court otherwise orders” in O 59 r 23(1) RC provide for an exception to the General Rule wherein the subordinate court may order Costs Sum (After Trial) which is higher or lower than that provided in the Scale (Subordinate Court Trials) (Exception). If a lower court does invoke the Exception, it is incumbent on the lower court to give reason(s) why the lower court does not follow the Scale (Subordinate Court Trials).

In this case, regrettably, no reason was given in the GOJ on why the Costs Sum (SC) was higher than that stipulated in the Scale (Subordinate Court Trials). I am of the opinion that SC was justified to order the Costs Sum (SC) in excess of that provided in the Scale (Subordinate Court Trials) because of the following reasons:

novel issues (highlighted in the above paragraph 18) arose in this case;

the Trial was lengthy; and

many documents had been adduced as evidence in this case.

I have decided to order the following sums of costs for the 4 Appeals:

the 3 Appeals (1st to 3rd Defendants) are heard together. Hence, one set of costs is awarded for the 3 Appeals (1st to 3rd Defendants). I have exercised my discretion to -

reduce the Costs Sum (SC) (to be paid by the 1st to 3rd Defendants to the Plaintiffs) from RM30,000.00 to RM20,000.00. This is because the learned SCJ should have only awarded RM115,682.90 as total damages and not RM305,682.92; and

award a sum of RM10,000.00 as costs for the 3 Appeals (1st to 3rd Defendants) to be paid by 1st to 3rd Defendants to the Plaintiffs. This is because vis-à-vis the 1st to 3rd Defendants, the Plaintiffs have resisted successfully the 3 Appeals (1st to 3rd

a sum of RM30,000.00 was ordered as costs to be paid by the Plaintiffs to the 4th Defendant in respect of the Trial and 4th Defendant’s Appeal. O.

Outcome of 4 Appeals Premised on the above evidence and reasons -

the 3 Appeals (1st to 3rd Defendants) is partially allowed with the following orders -

SC’s Decision regarding the total damages (to be paid by the 1st to 3rd Defendants to the Plaintiffs) is reduced to RM115,682.90;

Costs Sum (SC) is reduced to RM20,000.00 (to be paid by the 1st to 3rd Defendants to the Plaintiffs); and

the 1st to 3rd Defendants shall pay RM10,000.00 to the Plaintiffs as costs for the 3 Appeals (1st to 3rd Defendants); and

the 4th Defendant’s Appeal is allowed with costs of RM30,000.00 (for proceedings in SC and this court) to be paid by the Plaintiffs to the 4th Defendant.

I end this judgment with my gratitude to all learned counsel for their able assistance rendered to me in these 4 Appeals. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 19 AUGUST 2022 Counsel for appellant in Datuk Harpal Singh Grewal & 3 Appeals (1st to 3rd Defendants): Ms. Yasutha-Reny A/P Apparao (Messrs A.J. Ariffin, Yeo & Harpal) Counsel for appellant in Datuk Nicholas Kow Eng Chuan, 4th Defendant’s Appeal: Encik Emile Ezra Bin Md. Hussain & Mr. Ricky Lim Yee Jiun (Messrs Kow, Lau & Ezra) Counsel for respondents Mr. Murthi A/L L Suppan, in 4 Appeals: Mr. Siew Jun Sheng & Encik Ahmad Hanafi Bin Lop Ahmad (Messrs S.Murthi & Associates)