View Esteem Sdn Bhd v 1. ) Ooi Tse Lye (WA-22C-19-03/2016)

OOI TSE LYE (NRIC: 570222-08-5471) (Practicing under the name and style of JO Architects)

JULAIHI BIN ZAINUDDIN (Practicing under the name and style of JO Architects)

BINA PURI HOLDINGS BHD (Company No: 207184-X) ... DEFENDANTS

LOW GAY TECK

RAHMAT BIN DAHALAN

ASIA PACIFIC ENGINEERING CONSORTIUM SDN BHD (Company No: 344846-P) ... THIRD PARTIES 2 THE JUDGMENT OF Y.A. LEE SWEE SENG [1] This case underscores once again the aphorism that a professional cannot be too careful in the discharge of his duties even when a client has some preconceived and often misconceived notion as to what the professional can or cannot do. Often times a mistake is made not for failure to appreciate the finer point at hand or in issue but for acting on some assumptions or presumptions that are later found to be untrue. [2] There is a price to pay for being a professional and in this case, it is that of being an architect for a development project where the flyover and the metalled road had encroached on to a neighboring land. [3] At first blush, it appears something so patently plain and certainly clear that no architect, irrespective of his experience, would be making such a mistake and a negligent one at that. How the mistake had arisen and whether there are any redeeming factors under the rubric of contributory negligence on the part of the client is the subject matter of this judgment. Project [4] The plaintiff had bought a piece of land (Lot 48) for its previous owner. This piece of land was part of a contiguous three lots of land, each 3 held under a separate title. The previous owner had developed way back in 1991 the other two lots into condominiums blocks known as Villa Putera (Lot 70) and Villa Puteri (Lot 46) under a Comprehensive Development Order (“CDO”) involving all 3 contiguous lots. [5] The plaintiff made this purchase in 2005 and then commenced in 2006 its project to build another block of service apartments on this third lot of land to be called Regalia. The plaintiff engaged JO Architects on 5.1.2006 as the Architect and the Superintending Officer (“SO”) for the project. The first defendant D1 was the architect that drew the plans and came up with the drawings and revised drawings for submission to the authorities including that of the flyover and the metalled road. D1 has 30 years experience as an architect. The second defendant D2, Encik Julaihi Bin Zainuddin, said he was only a salaried partner after D1’s appointment by the plaintiff though he did attend the meetings with the plaintiff concerning the project. Problem [6] As part of the CDO, there was supposed to be a flyover from Jalan Sultan Ismail/Jalan Kuching into the development. This was built in part by the previous owner but not completed because the third lot was sold to the plaintiff. 4 [7] If the development of the 3 lots had continued under one single previous owner, then we would not have the problem that is the subject matter of this suit. It does not however mean that the current problem discussed herein could not have been avoided with greater care and diligence by the parties concerned. [8] This much cannot be seriously disputed that under the CDO, there would be no issue of the flyover encroaching onto the neighboring lands as the whole development was under a single owner. There was also no issue over the metalled road that was the subject matter of another set of drawings prepared by the defendants. [9] As it transpired the flyover that was drawn within the boundary of the Regalia had to be widened to accommodate a ramp that the plaintiff wanted to have from the ground floor to the fourth floor joining the flyover that would lead to the fourth floor of the Regalia where the reception would be. [10] According to D1 part of Bomba’s requirement was that the widening be done and that the plaintiff through its Managing Director PW 2, Mr. G T Low, had represented to him that the land below the widened flyover is government reserved land or that otherwise is meant for common or public access under the CDO. 5 [11] The revised drawings were submitted and approved and construction of the flyover had begun when the residents of the adjoining land complained of encroachment onto their land. Dewan Bandaraya Kuala Lumpur (“DBKL”) issued a Stop work Order (“SWO”) and work on the flyover was halted for about a year. [12] There was no turning back where the flyover construction was concerned and so the plaintiff entered into negotiation with the management corporation (“MC”) of Villa Puteri of the adjoining land. The problem was resolved with the payment of RM2,775,000.00 to the MC of Villa Puteri for a right of way in a consent judgment recorded in the suit brought by the MC of Villa Puteri against the plaintiff. [13] For completeness it should also be stated here that the proceedings against the 3rd defendant, Bina Puri Holdings Bhd as the main contractor of the project, had been stayed as both the parties had proceeded with arbitration instead. As for the 1st and 2nd third parties, who incidentally were PW 2 and PW 1 in this suit, the defendants claim against them had been struck out and there is only the 3rd third party left i.e. Asia Pacific Engineering Consortium Sdn Bhd (“APEC”). [14] This judgment does not concern the 3rd third party as there is no appeal from the decision of this Court to dismiss the defendants’ claim against the 3rd third party. 6 Prayers and Pleadings [15] The plaintiff brought this suit against the defendants for what it alleged is the negligence of the defendants in not ensuring that the flyover drawings and the construction of it emanating from the drawings does not encroach onto Villa Puteri’s land. The plaintiff also alleged negligence on the part of the metalled road drawings where the metalled road had encroached onto Villa Putera’s land. [16] The plaintiff sued for damages to be assessed for the loss arising from the negligence of the defendants. [17] The defendants alleged that it was the plaintiff that had represented to them that there was no encroachment as the adjoining lands are part of government reserve lands or that they are lands designated for common access or public access. As such the defendants said the plaintiff are estopped from making such a claim. [18] Alternatively the defendants alleged contributory negligence on the plaintiff’s part in the representation so made. [19] D2 also denied liability on ground that he was not a partner at the material time when the impugned drawings were first submitted and that he was not the partner in charged of the project and further that he was only a salaried partner at all material times. 7 Principles Whether the plaintiff had represented to the defendants that there would be no encroachment as the land in question is either government reserve land or that it was designated for common or public access [20] It would be natural before purchasing a piece of land that had been part of a previous CDO, to inquire into the terms and conditions of approval so that perhaps whatever that had been earlier approved may be harnessed by the plaintiff for its current development. [21] The plaintiff had also engaged PW 1 En Rahmat Dahlan as its Project Director and he brought along with him his experience and the background of having worked in and retired from the Planning Unit of DBKL as its Deputy Director. [22] Parts of the Submission Drawings prepared by JO Architects were the drawings on the flyover and also on the metalled road. There was a meeting in September 2006 where instructions were given by the plaintiff through its Managing Director PW 2 to D1 that there should be included a ramp from the ground floor to the 4th floor which will join with the flyover such that there could be an additional ingress at the 4th floor reception from Jalan Kuching. 8 [23] It must be noted that the first two drawings of the flyover were well within the boundary of the plaintiff’s land. In fact D1 was given the CDO of 1991 of the previous owner by the Managing Director of the plaintiff as it would provide JO Architects with a “useful reference or guide in preparing the preliminary design proposal.” [24] When it came to the revised Submission Drawing to incorporate the ramp, it was pointed out by D1 that there is a need to comply with Bomba’s requirement in that the flyover had to be widened to 6m from 4.5m. PW 2 as the plaintiff’s Managing Director said his response was to widen it to comply with Bomba’s requirement. That was at a meeting in September 2006 between JO Architects and the plaintiff. [25] Here then is where there are divergent narration of what happened. The plaintiff’s version is that JO Architects must still submit a revised drawing where the widening to 6m does not encroach onto neighboring land. [26] D1’s version is that he informed the plaintiff’s representatives at the meeting and the Project Director and Managing Director were present, of the possibility of encroaching onto the neighboring land. His evidence was corroborated by his Assistant Architect Ng Chee Hin, DW3, who was present in the September 2006 meetings. 9 [27] D1 said that the representation given to him by the Managing Director PW 2 was that the flyover was over land that was supposed to be part of government reserved land or that it was land meant for public access and common use. According to D1, the Project Director also assured him of this. Both PW 1 the Project Manager and PW 2 the Managing Director of the plaintiff now denied this in Court. [28] As events transpired JO Architects then prepared the revised 4th Floor Plan which together with other drawings (“the Submission Drawings”) were submitted to DBKL on 12.10.2006 and DBKL issued a Development Order on 16.1.2007 (“2007 DO”). [29] The Court has to ask itself the question of why would an architect draw a plan for the revised flyover in such a manner as to encroach onto neighboring land. [30] It is something so obtrusively obvious that even a non-architect would know that there should not be any encroachment with respect to any drawings for any structure to be built unless there is consent of the owner of that land or that someone had represented that there was nothing to worry as the CDO had envisaged a common access via the flyover and that the flyover, having to be surrendered to the authorities, the question of encroachment does not arise. 10 [31] On the balance of probabilities, I find that there was no reason for the architect to take on himself this very obvious violation of even the very basic notion of professional conduct and skill. There was no good reason for him to want to personally expose himself to possible misconduct and suits by client to knowingly revise the Submission Drawings so as to cause encroachment. [32] The only reasonable and probable conclusion is that the representations pleaded by the defendants are true. This is a case where a little knowledge is a dangerous thing. In coming to the above conclusion I had borne in mind the guidance provided by the Court of Appeal in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin [2003] 2 MLJ 97 as follows at pp 116-117: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the 11 evidence of a particular witness against the probabilities of the case.” (emphasis added) [33] The plaintiff through its Project Director PW 1 and its Managing Director PW 2, had some knowledge of the previous CDO which they believed would help them as there is also no good reason why a developer would want to consciously encroach onto neighboring land. It is a belief that had stemmed from the knowledge that the flyover access was supposed to be public access or land ultimately to be surrendered to the government authorities for common access or that these lands were to be government reserved land or intended to be such. The same would apply to the part where the metalled road had encroached onto Villa Putera’s land. With respect to the flyover, it was encroachment onto Villa Puteri’s land. [34] With the benefit of hindsight we can now say that it was rather presumptuous of the plaintiff to have thought that what applied to the CDO when the 3 pieces of land were under one developer would well continue into the single and separate development of the lot that the plaintiff had bought from the previous developer and now being developed by the plaintiff themselves. [35] The Managing Director himself had signed off the revised Submission Drawings for both the flyover and the metalled road and surely if his version of the story is that he had asked the Architect to ensure that a revision 12 especially of the widening of the flyover has to be on the plaintiff’s land, then one would have expected him to check the drawings before signing off. [36] From the drawing of the revised flyover in CBD B1 p 25A with respect to the enlarged revised drawings received by DBKL on 21.11.2006, one can see that there was clear encroachment onto the neighboring as indicated by the dashed black lines. [37] The Managing Director is a man of considerable experience in development and it would be difficult to believe that this encroachment had escaped his notice and attention. [38] This is a case where the plaintiff through both its Project Director and Managing Director had expressed their understanding of the CDO to D1 where the flyover and metalled road would be encroaching onto the Villa Puteri’s and Villa Putera’s lands respectively in that there is no encroachment as ultimately the lands affected both of Villa Puteri and Villa Putera would be surrendered to DBKL together with the affected part of the plaintiff’s Regalia land to make way for the public or common access. [39] I would say that the plaintiff had acted on their own understanding of what is public access or common access or government reserved land without fully realizing its ramifications or restrictions in the light of the fact that there is now no longer 3 pieces of land in one owner’s name but rather 13 2 pieces of land whose development had been completed by a single separate owner and the third piece now purchased by the plaintiff from the previous owner being developed as a single separate development. [40] Even if a comprehensive development is still possible, the parameters and paradigms have changed as the lands to be surrendered for public access or common access would involve Villa Puteri’s and Villa Putera’s lands and their consent as in this case that of the Management Corporation of Villa Puteri and Villa Putera would have to be obtained and they might well not agree without compensation for the encroachment. [41] The issue with respect to the metalled road that had encroached onto Villa Putera’s land is less convoluted. The testimony of DW 2 as D1 is that the plaintiff’s Project Director had informed him that the stretch of land was government reserved land. Ordinarily no architect would draw his plans to encroach onto neighboring land and I would say that it is more probable that PW1 had informed him what PW1 knew then of the CDO as PW 1 was previously in the Planning Division of DBKL. PW 2 the plaintiff’s Managing Director had instructed D1 to work closely with its Project Director on the Regalia Project. It is true that there are no minutes or correspondence kept on this issue of government reserved land where the metalled road is concerned. Based on the fact that ordinarily an architect of some 30 years experience would not have assumed without any representation that the 14 land was government reserved land, I would on the balance of probabilities hold that such a representation had been made. [42] In arriving at the above conclusion I had kept in the forefront of my mind the dicta of Chang Min Tat FJ in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 at p 234: “For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.” (emphasis added.) [43] Having found that there was such a representation made by the plaintiff to JO Architects, the question is whether JO Architects can absolve themselves from liabilities as the Architects and SO for the project. Whether the defendants are liable in negligence when the construction drawings showed encroachment and the flyover and 15 metalled road constructed had encroached onto the neighboring lands in question [44] JO Architects have the duty of care to its client the plaintiff here, to ensure that the designs and drawings that it prepared shall conform with all the necessary by-laws and DBKL’s requirements or conditions as well as assessing whether the project would have any encroachment issues with neighboring lands and more so when the present Submission Drawings and Construction Drawings are with respect to a project that had been carved out from a previous CDO when there was a common ownership of all 3 pieces of land. If at all this issue, which would not be an issue for other single development with no history or antecedents, would be more delicate and difficult such that nothing must be left to chance or assumptions or presumptions. [45] After the 2007 DO was issued, JO Architects issued Construction Drawing 1, described as “Pelan Tingkat 4” on 1.10.2009 to the Third Party, APEC. APEC in turn issued its Structural Drawings of the flyover based on Construction Drawing 1 and the main contractor began construction of the flyover sometime between June and September 2010. [46] The plaintiff’s claim for negligence is not based on the Submission Drawings duly signed by both JO Architects and the plaintiff but rather on the issuance of Construction Drawing 1 which was issued by JO Architects 16 on 1.10.2009 direct to APEC. This, the plaintiff emphasized, does not require their signature and in fact was the direct cause of the flyover encroaching and trespassing onto Villa Puteri’s Land which includes its airspace. Be that as it may, it cannot be denied that Construction Drawing 1 had emanated from the Submission Drawings that had been the subject matter of the representation and assurance given by the plaintiff that there is no encroachment and trespass as they understood it, laboring under the concept of the CDO. [47] Learned counsel for the Plaintiff referred to the classic statement of principle in respect of an Architect’s duty of care provided by Windeyer J in the Australian High decision in Voli v Inglewood Shire Council [1963] 110 CLR 74 at 84, 85: “An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practicing their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This 17 liability can be said to arise either from a breach of his contract or in tort. … And what an architect must do to avoid liability for negligence cannot be more precisely defined that by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes.” (emphasis added) [48] I would agree with the above proposition. In a matter as basic as not encroaching onto neighboring lands it is a given that an architect shall exercise due care, skill and diligence to ensure that the drawings show the structure to be constructed to be on one’s land and not trespassing onto a neighboring land for that would be causing a client to commit an illegal act and it would be against all tenets of professional practice of an architect and certainly in breach of the by-laws and requirements of DBKL. [49] Clients may have their own understanding of terms like public access, common access or government reserved land but being non-professionals in this field, the Architects here must correct the client if their understanding is wrong, in error or misplaced or that if there is risk involved in proceeding on such a preconceived if not often misconceived notion. [50] It is not enough for D1 to say that he had cautioned and advised the plaintiff that with the widening of the flyover “there is a possibility that the flyover would encroach into the neighboring Lot 70 (Villa Puteri Lot) and its 18 airspace.”, see section 44(1)(a) of the National Land Code 1965 on exclusive ease and enjoyment of airspace and land below the surface. This is a case where professionally JO Architects have to advise the client whether it is black or white and not possible shades of grey. It is a matter as serious as trespassing into somebody else’s land and with grave consequences at that. In fact in the August 2011 letter from JO Architects to the plaintiff after the SWO, the Architects had stated that “we opined that based on the 1991 DO, there should not be any issue of encroachment.” [51] An Architect’s duty of care is not abrogated merely because the client or its representatives are people with extensive development experience or even having some “inside knowledge” by virtue of being privy to the CDO when the person in PW1 here was previously with the Planning Division of DBKL. [52] The Architects cannot completely absolve themselves from liability in serving a more experienced and enlightened client where knowledge of the previous CDO and its ramifications are concerned. In the light of his client’s understanding as communicated to them, it is still incumbent on them as Architects to satisfy themselves that the terms of the previous CDO would apply to the present development and if not, to caution the plaintiff as their client here, that it would involve getting the consent of the current owner of Villa Puteri and also Villa Putera where the flyover and metalled road are 19 concerned, respectively. Otherwise there would be a need to apply for a Right of Way (“ROW”) as well as a need to pay compensation or license fees to the owners of the land that had been encroached. [53] I agree with learned counsel for the plaintiff that the notion that a professional is entitled to exercise a lesser standard of care when advising a client who has special skills has been debunked in Gloucestershire Health Authority and others v M A Torpy & Partners Ltd (t/a TORPY And Partners) and Another (1997) 55 Con LR 124 where the defendant mechanical service engineers argued that the fact that their client was experienced and knowledgeable in the area of incinerator technology meant their obligations to him were reduced. Judge Bowsher QC gave short shrift to this argument, saying at p 146: “I cannot see how it can possibly be right to suggest that, for example, conveyancing counsel should accept from a solicitor engaged to convey his house a lower than usual standard of care. I reject that submission made on behalf of the defendants.” [54] If upon so advising the plaintiff’s instruction is still to proceed, then it behooves the Architects to put their advice in writing or have it minuted the advice and caution given and to exempt themselves from liability as well as to safeguard their professional conduct and integrity. 20 [55] Here is a case where the Architects had taken the client at their word for the client had knowledge of previous development on the adjacent lands. [56] The fact is the Architects did not so caution the plaintiff or at least minute the advice or exempt themselves from any liability arising out of the client’s representation that there was no issue of encroachment. [57] In Baird Textile Holdings Ltd. v Marks and Spencer plc [2001] EWCA 274, the Court of Appeal held that commercial parties who know full well their legal rights and decide not to protect themselves by a contract accept the risks of not doing so and an estoppel will not intervene to fill the void. [58] I hold that estoppel against the plaintiff does not apply in the circumstances and context of this particular factual matrix. It is not unlike a case where a patient consents to be operated on by the doctor but that does not exempt the doctor from exercising due care, skill and diligence in carrying out the surgery. Neither is it a case of volenti non fit injuria where the plaintiff had consented to the damage or injury to be suffered in the light of the encroachment. [59] That Defence of volenti non fit injuria was not pleaded anyway. There is no evidence that the plaintiff consented to the breach or that the plaintiff consented to waive their right to sue for negligence. 21 [60] When D1 signed the Submissions Drawings, it is subject to the following acceptance of responsibility as stated in the Submission Drawings in accordance with By-Law 4(1)(c) of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 in Form A of the By-Laws: “Saya memperakui bahawa detail-detail dalam pelan-pelan ini adalah menurut kehendak Undang-undang Kecil Bangunan (Wilayah Persekutuan Kuala Lumpur) 1985 dan saya setuju terima tanggungjawab sepenuhnya.” (emphasis added) which being translated reads:- “I certify that the details of the plans are in accordance with the requirements of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 and I accept full responsibility accordingly.” (emphasis added) [61] A similar acceptance of responsibility is found in Construction Drawings 1 and 2. [62] It would not be unfair to say that PW 2 had subsequent to D1 having signed the Submission Drawings, signed on the same as Owner with the assurance that the Architect has undertaken to DBKL that the drawings are in compliance with the Building (Federal Territory of Kuala Lumpur) By-laws 1985 and that the Architect accepted full responsibility for it. 22 [63] Learned counsel for the defendants had referred to a host of cases where the equitable doctrine of estoppel has been held to apply. However one exception has not been highlighted. It is that estoppel has no application against the provision of a statute or a clear statutory provision of the law and in this case the Street, Drainage and Building Act 1974 under which the above By-Laws were made. In the Federal Court case of Silver Corridor Sdn Bhd v Gallant Acres Sdn Bhd & Anor [2016] 5 MLJ 1 it was observed as follows: “[58] Our view is that the plaintiffs’ claim is based on statutory provisions of s 293 of the CA read together with s 52 of the BA. These statutory provisions, as we have discussed earlier, are clear and unambiguous. Estoppel, being an equitable principle cannot operate to defeat clear statutory provisions of law. This settled principle of law was adopted by Edgar Joseph Jr. in United Malayan Banking Corporation Bhd v Syarikat Perumahan Luas Sdn Bhd (No 2) [1988] 3 MLJ 352b when His Lordship ruled that: ‘The defence of estoppel accordingly fails since there cannot be an estoppel to evade the plain provisions of a statute.... particularly when the non-compliance goes to the root of the thing’.”(emphasis added) 23 [64] It is not in dispute that it is a clear provision of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 that the Submission Drawings must not encroach onto neighboring lands unless a ROW had been obtained with the consent of the owners of the neighboring lands. [65] Neither can the Architects shift the blame to DBKL in that it was DBKL that had approved the Submission Drawings for the flyover and the metalled road. At any rate the CDO had already expired and DBKL is at liberty to impose new conditions including that the flyover upon completion is to be opened for public use. [66] Learned counsel for the plaintiff helpfully referred the Court’s attention to Voli’s case (supra), where an attempt was made to assign the responsibility to the approving authority. Lockwood, the Architect, was sued when the stage in the hall he designed collapsed and caused injuries to the plaintiff. Lockwood tried to assign the responsibility to the relevant approving authority. This is how Windeyer J dealt with his contention, at p 83: “… But he apparently never seriously considered what weight the stage should bear, nor did he calculate what weight it would, as designed by him, in fact bear. He said ‘I felt there was another authority over me which would tell me if I was wrong’. There is no doubt that the fact that his plans were going to the Public Works 24 Department did operate on his mind. But what should have operated on his mind was not that his plans would be revised. It was the need to bring his own professional skill and competence to the task he had undertaken. His obligation was not limited to satisfying the Department so that it would approve a loan. It was to use due care and skill as an architect so that the hall would be soundly designed, secure and safe. Unfortunately the persons who examined the plans in the Public Works Department, although they made comments on other matters, did not notice the insufficiency of the structure of the stage.” (emphasis added) [67] Windeyer J held that Lockwood was not excused for his lack of care, at p 88: “The facts of the present case really do not admit of the conclusion that the architect was freed of liability to persons in the position of the appellant when his plans were approved by the Public Works Department. No doubt the fact that his plans were approved by a public authority may, in some cases, be relevant in considering whether or not an architect was in fact negligent; but that is a very different thing from saying that by obtaining approval in this case the architect shed all liability for negligence. The approval of the 25 Public Works Department was required because the building of the hall was to be financed in part by a subsidy from the State. The State Treasury required that the plans be approved before it would advance the money. But that does not mean that the officers who examined the plans undertook to correct the architect’s errors. In his evidence he said ‘as these plans had to go to a final authority I thought that they should find anything that was untoward and that would be pointed out’. It was a not unnatural expectation. But it did not excuse a lack of care.” (emphasis added) [68] The buck need not be pushed further for where DBKL is concerned the defendants had not brought them in as a third party. The defendants did bring in APEC, the Civil and Structural Engineers that drew the structural drawings based on the JO Architects’ Construction Drawings, as a Third Party. The defendants had sought to claim an indemnity against them but that action had been dismissed with costs and there has been no appeal filed against that decision. [69] It was also raised by learned counsel for the defendants that negligence of the Architects could only be established through expert evidence and that the plaintiff had not called any expert witness to testify. Here I would follow what had been referred to by learned counsel for the 26 plaintiff in Jackson & Powell on Professional Liability (7th Edition, 2012) at paras [9-141] – [9-143]. “Furthermore, the Bolam test will not be applied to determine whether a professional is in breach of a duty to exercise reasonable skill and care in every case in which such an allegation is made. There are three categories of case in which the court is entitled not to apply the Bolam test and, therefore, to make a finding of negligence notwithstanding expert evidence that a body of professional opinion supports the course, which the defendant took:

Cases in which the court considers that there is no logical basis for the body of opinion in accordance with which the defendant acted.

(ii) Cases in which the expert evidence called by the defendant is in reality no more than the personal opinion of an expert witness as to what he would have done in the position of the defendant.

(iii) Cases in which it is not necessary to apply any particular expertise in, for example, the field of architectural practice, in order to decide whether the defendant has failed to 27 exercise the skill and care expected of an ordinary member of his profession.” [70] I would agree with the plaintiff that this particular case of encroachment arising from the architectural drawings in the Submission Drawings and Construction Drawings fall within the third category. The learned authors had provided the following example: “For example, in Worboys v Acme Investments Ltd Sachs L.J. recognized that there were cases where an omission on a plan was so glaring as to require no evidence of general practice and instanced a house without provision for a staircase.” (emphasis added) [71] I agree that in this 3rd category, one does not have to “get under the skin of a different profession” in order to assess whether or not the defendants had failed to use reasonable skill and care. See the UK Court of Appeal case of JD Williams & Co Ltd v Michael Hyde & Associates Ltd [2000] All ER (D) 930. [72] The problem was one that was waiting to implode and it came when the residents through their MC protested and a meeting was held. There was subsequently a SWO issued by DBKL on 18.3.2011. At that time the construction of the flyover had proceeded to about 75% completion and there was no turning back. The problem was resolved by the plaintiff 28 entering into a consent judgment with the MC of Villa Puteri by payment of about RM 2,775,000.00 as compensation for a ROW in a suit for trespass brought by the MC of Villa Puteri against the plaintiff. [73] With that payment the SWO was lifted and work on the flyover was then resumed. [74] With respect to the metalled road based on Construction Drawing 2 issued by JO Architects, the problem was relatively less intractable as it involved removing the encroachment of the metalled road onto Villa Putera’s land and damages would be confined to the period of time when there was encroachment. Upon discovery, the metalled road which serves no purpose to the resident of the Regalia, has since been barricaded. [75] D1 might not want to openly disbelieve the representation coming from a man with previous experience of planning in DBKL in PW 1 but then again as a professional D1 cannot afford to act based on assumptions and presumptions and representations without verifying the truth of what had been said to him and unless he had obtained express instruction that no searches would be necessary, he ought still to discharge his professional duty to make the relevant searches to satisfy himself. It is not a duty that he can delegate to his client unless that particular duty has been carved out or excluded from his scope of work as an architect. 29 Whether the plaintiff is contributorily negligent in having made the said representation to the defendants with respect to the non-encroachment as the plaintiff understood it [76] Whilst the defendants JO Architects are liable, I would have to consider next if there is any contributory negligence on the part of the plaintiff, having made the said representation to the Architects. [77] I have no doubt that if not for the assurance and representation given that there would be no issue of the encroachment because of what the plaintiff had understood to be a CDO earlier given, for which they were confident that the neighboring lands affected would have to be surrendered to the authorities for the purpose of public or common access, the Architects would not have proceeded the way they did. [78] In fact it would be a case where the Architects would have to do all relevant searches and inquiry to ensure that the widening of the flyover does not encroach onto the neighboring land and likewise the construction of the metalled road as well. He is to advise the client on the risk involved if the client still chooses to proceed if the position is still unclear even after the Architects have made the relevant searches and inquiry. [79] Surely it cannot be a case of professional courtesy for the Architects here not to put in writing their disagreement with their client, the plaintiff, so as not to offend them. There would come occasions when a professional 30 would have to put his foot down and say that if the client still insists to persist then either the professional has to resign or else make it absolutely clear that the client is fully aware of the risks involved and that the professional would not be liable in any way for the consequences that follow. [80] No doubt the Architects had been lulled into a sense of complacency where diligence is required where the testing of the understanding of the plaintiff as their client, is concerned and to ascertain if the plaintiff had properly appreciated the ramifications and restrictions that would arise now that the development is no longer a comprehensive development under a single owner. [81] If not for the representation made by the plaintiff, the Architects as defendants would not have deferred to the plaintiff on their understanding as to why there is no encroachment. Whilst it does not absolve the Architects completely from liability save in a case where the risk undertaken and the exemption from liability had been clearly spelt out in writing, the context of this case would nevertheless justify a finding of contributory negligence on the part of the plaintiff. [82] It would have been different if the plaintiff had stated through its Project Director and its Managing Director that they may be wrong and that the defendants would need to ascertain and confirm this fact of 31 encroachment. No doubt the plaintiff Managing Director had signed the Submission Drawings after the D1 had first signed. I can appreciate that the responsibility is still with the defendants to comply with all relevant by-laws and requirements of DBKL but here is a case where the Managing Director with his background and experience in development would have taken a cursory look at where the widened flyover was reflected in the revised Submission Drawings and would have realized that the flyover had encroached onto the neighboring land. The Managing Director was after all, ably assisted by his Project Director, with considerate experience, having retired as the Deputy Director of the Planning Unit of DBKL. [83] While the plaintiff may be gung-ho on proceeding with all exuberance and enthusiasm, the professional here in the Architects must have the gumption to forewarn and to impress upon the client the attendant risks involved. [84] Whilst such a signing off by the plaintiff as owner does not absolve the defendants of their liability, it nevertheless would justify a reduction of the extent of the defendants’ liability in the context of contributory negligence where the plaintiff was quite aware of the encroachment themselves, albeit under their erroneous understanding of what a public or common access or a government reserved land is where there would be no issue of encroachment. The pressure on the Architects to proceed was 32 palpable given the testimony of PW 2 that the additional ingress via the flyover would make the service apartment more saleable and attractive to prospective buyers. [85] It was raised by the plaintiff that contributory negligence was not pleaded by the defendants with respect to the metalled road’s encroachment. However I have taken a closer look at the Re-amended Defence and it is alluded to in paragraph 9.5 though not so elegantly pleaded as under the rubric of particulars of contributory negligence. [86] I would find both the plaintiff and the defendants to be equally liable and as such the defendants’ liability is reduced by 50% accordingly. Whether the second defendant was a partner at the material time and therefore is jointly and severally liable together with the first defendant [87] D2 is Julaihi Bin Zainuddin. He became a partner of JO Architects with effect from 24.7.2007, having entered into a Partnership Agreement with D1 vide a Partnership Agreement dated 19.9.2007. [88] It is true that when the plaintiff appointed JO Architects on 5.1.2006 D2 was not a partner yet. Likewise when the DO 2007 was issued by DBKL on 16.1.2007. 33 [89] However when the Construction Drawings were issued D2 was already a partner. Construction Drawing 1 for the flyover was issued by JO Architects on 1.10.2009 and that of Construction Drawing 2 for the metalled road issued on 5.10.2009. [90] D2, on behalf of JO Architects, had attended meetings, both site meetings and client consultant meetings, with the plaintiff. He admitted even chairing those meetings and preparing the minutes of the meetings. He further admitted under cross-examination that he would advise on matters that were raised at the meetings where architectural issues were concerned. [91] D2, who gave evidence as DW 1, would have time to inspect the Submission Drawings and the Construction Drawings which came much later into the partnership. D2 said he was not responsible for the Submission Drawings done before his time as a partner and the Construction Drawings 1 and 2 which were drawn by D1 who was DW 2. [92] I am afraid such a defence would not bite as to the world, D2 was a partner at the material time when the Construction Drawings 1 and 2 were issued by JO Architects and it does not matter at all if within the partnership there is segregation of duties, for that would not be a matter that concerns the plaintiff. D2 could also not wriggle away from the fact that when the flyover and metalled road were constructed, he is a partner and would be 34 responsible if there has been no proper supervision to ensure that the construction was within the boundary of the plaintiff’s land. As stated it does not matter if between themselves there were segregation of duties for to the world they are one partnership. [93] Section 11 of the Partnership Act 1961 is clear on the joint and several liabilities of the partners. “Liability of partners 11. Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied but subject to the prior payment of his separate debts. Liability of firm for wrongs 12. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act.” (emphasis added) 35 [94] Neither would the kind of partnership, here that of a salaried partnership of D2, make any difference where liability is concerned. It is for D2 to get the necessary indemnity from D1 in the event of being sued. No amount of arrangements between the partners inter-se whether as salaried, commission or equity partners in charge of separate projects or assignments or branches would affect the world at large that deals with the partnership as a whole. [95] I agree with the proposition of law as submitted by learned counsel for the defendants that under section 19 of the Partnership Act 1961 that a partner who is admitted as a partner into an existing firm does not thereby become liable for the creditors of the firm for anything done before he becomes a partner. [96] However the cause of action of the plaintiff in tort is in the Construction Drawings 1 and 2 and not in the Submission Drawings. The Construction Drawings 1 and 2 were the direct cause of the encroachment as based on these Construction Drawings the Contractor has constructed the respective flyover and the metalled road. D2 was already a partner when the Construction Drawings 1 and 2 were issued. [97] Unpleasant as the results may be, this Court would still have to apply the law and it is left to D2 to claim his indemnity against D1 or else to 36 persuade the plaintiff not to execute against him as he was only a glorified partner as in a salaried partner and not an equity partner. Pronouncement [98] As both the defendants in D1 and D2 are partners during the material time I had held both D1 and D2 to be jointly and severally liable as partners. [99] For clarification judgment is given for the apportionment of equal liability between the plaintiff and the defendants for damages to be assessed and interest shall be at 5% per annum from date of Statement of Claim of 10.5.13 to realization. [100] The above is with respect to liability as parties have agreed to bifurcate this trial with assessment of damages to be to be fixed for another date. [101] After hearing the parties on costs I had awarded costs of RM70,000.00 to be paid by the defendants to the plaintiff. Date: 28 February 2018. - Signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur 37 For the Plaintiff : S.Ravindran (Messrs Sreenevasan Young) For the Defendants : E.T.Low together with Jeremy Low (Messrs Cheong Wai Meng & Van Buerle) For the Third Parties : Watson Peter together with Farah Azaliya (Messrs Peter Chambers) Date of decision: 19 September 2017