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DALAM MAHKAMAH TINGGI DI SHAH ALAM

DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA

GUAMAN NO: 22C-4-02/2015

ANTARA

1. YB ENGINEERING SDN BHD

(NO. SYARIKAT : 235788-H) …PLAINTIF PERTAMA

2. YONG KOK HENG

(NO. K/P: 541220-10-5819/4737058) …PLAINTIF KEDUA

DAN

STANDARD SOFA INDUSTRIES SDN BHD

(NO. SYARIKAT : 576190-T) …DEFENDAN

DAN

1. TU YONG ENG

(beramal di Tetuan YL Design Consultancy Services)

2. HAO WU CONSTRUCTION SDN BHD …PIHAK-PIHAK KETIGA

GROUNDS OF JUDGMENT

Parties and the claim

1. 1st Plaintiff is the owner of a factory and/or building situated on Lot

3845 in Jalan 4D Kampung Baru, Subang, Section U6, 40150 Shah Alam

(Plaintiff’s land, Lot 3845). 2nd Plaintiff is the registered owner of Lot 3845.

Defendant is the owner of Lot 3846 (Defendant’s land) which is located

next to Plaintiff’s land. Plaintiff occupied the front portion of its land for a

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factory for its business of engineering, metal work, tooling, fixture and

component. The back portion of Plaintiff’s land together with a single

storey factory was rented to RAE Industries S/B (RAE) in October 2004.

2. According to Plaintiff, around August 2011 Defendant carried out

construction work on Defendant’s land and failed to take safety measures

and to build a retaining wall structure and/or proper reinforced concrete wall

between Plaintiff’s and Defendant’s land. On 13-10-2011 around 11.30am

a landslide occurred which caused Plaintiff’s retaining wall to collapse,

damage to the land and factory and subsequently soil erosion and soil

subsidence. Around February 2012 Defendant completed the construction

of the retaining wall on Defendant’s land of which the improper construction

further weakened Plaintiff’s land.

3. Plaintiff’s claim is essentially for the reconstruction of a reinforced

concrete wall (paragraph 28 (a) to (g) of statement of claim), Defendant to

fix the damage to its land and damages for the loss of rental.

4. Defendant disputed the claim and brought in the consultant Engineer

Tu Yong Eng as 1st Third Party (TP1, Tu) and the contractor Hao Wu

Construction S/B as 2nd Third Party (TP2, Hao Wu) to claim contribution or

indemnity. It pleaded illegality in that the building/factory on Plaintiff’s land

was built without approval of Majlis Pebandaran Shah Alam (MPSA); the

landslide was caused by Plaintiff’s failure to build a drainage system and

the construction of the retaining wall on its land was with approval.

Defendant counterclaimed for Plaintiff to rebuild the retaining wall between

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Plaintiff’s and Defendant’s land, Plaintiff to bear half the cost of construction

of the retaining wall and the drainage system which it had incurred.

Witnesses

5. Witnesses for Plaintiff were Yong Kok Heng (Managing Director and

owner of Plaintiff’s land, PW1 and witness statement marked as WSP1),

Musa bin Ramli (Principal Assistant District Officer (Land), Pejabat Daerah

dan Tanah Petaling, PW2 and witness statement marked as WSP2), Lee

Kong Phang @ Lee Kon Pin, Sales and Marketing Manager, PW3 and

witness statement marked as WSP3), Wong Chee Lap (Director of RAE,

PW4 and witness statement marked as WSP4) and Dr Chin Yaw Ming

(Civil Engineer and Plaintiff’s expert, PW5 and affidavit dated 13-4-2017).

6. Witnesses for Defendant were Gan Kong V (General Manager, DW1

and witness statement marked as WSD1), Ghazali bin Abd Aziz, Engineer

and Defendant expert, DW2 and affidavit dated 6-4-2017), Wai Mok Suee

(Director of Hao Wu, DW3 and witness statement marked as WSD3) and

Yuen Choon Ghiat (Director of Defendant, DW4 and witness statement

marked as WSD4).

7. Witnesses for TP1 were Tu himself (TP1W1 and witness statement

marked as TP1WS1 and additional witness statement as TP1WS1A) and

Lau Wah Yong (Engineer and TP1’s expert, TP1W2 and affidavit dated 6-

4-2017).

8. There were no witnesses for TP2 which did not enter appearance.

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Facts

9. It is not disputed a landslide happened on 13-10-2011 around

11.30am, what is disputed is the cause and the ensuing damage. The

agreed facts as between Plaintiff and Defendant are that Plaintiff’s land is

located on higher ground than Defendant’s land and that Defendant built a

retaining wall between Plaintiff’s and Defendant’s land.

A. Plaintiff’s claim

(a) Cause of landslide and the collapse of Plaintiff’s retaining wall

10. It was Plaintiff’s case the landslide on 13-10-2011 happened due to

the work on Defendant’s land where there was digging and levelling of

Defendant’s land vertically to a depth of approximately 90 degrees and

about 20 to 30 feet and its failure to take appropriate safety measures

(paragraphs 6 and 7 of statement of claim).

11. According to PW1 in his Q&A 4 Plaintiff’s land was almost parallel

with Defendant’s land before Defendant bought Defendant’s land in 2010

and in Q&A 7 Plaintiff had built an L shaped retaining wall between

Plaintiff’s land and Defendant’s land and behind his land to avoid water

from going into the land of others. In Q&A 14 he stated around August

2011 Defendant carried out earthwork and/or excavation work along the

common boundary on Defendant’s land and it dug and excavated further

15 feet in depth and angle of 90 degrees which exceeded the existing

retention wall approximately 10 feet high. In cross examination as to the

documents he had to support his evidence on the excavation done he said

he only had photographs which are in B2 301 and 309. As to whether any

measurements were taken he said there were but are not in the bundle. As

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to what was the original rigid status of Plaintiff’s land he said it was flat and

referred to photographs in B2 291 and 295 where in page 295 (second)

Defendant excavated the earth and as a result of the excavation the

landslide. [NOP Vol 1 pages 47-50).

12. PW5 was engaged by Plaintiff and he produced his investigation

report dated March 2017 exhibited as “CYM-2” to his affidavit and also

separately marked as C1. As per his paragraphs 1, 2 and 4 he is a civil

engineer specializing in geotechnical engineering for about 26 years

especially in the area of hill slopes and basement excavations. He was

engaged to investigate the cause of the collapsed retaining wall and slope

on Lot 3845 bordering with Lot 3846 during the construction activities of the

development of Lot 3846 and the cause of the ground settlement of the

platform at the top of retaining wall built on Lot 3846 by Defendant. He

explained his report was based on the information available from drawings,

soil investigation report and photographs supplied by PW3. He visited the

site on 21-1-2017 and 14-2-2017.

13. In paragraph 2.4 of the report is stated-

“As shown in Photos 9 & 10 of Appendix B, excavation below the retaining

wall started on 24 August 2011. The excavation would be around 3m,

judging from the scale of excavation to the ground level at Lot 3845 in

Photo 9(a) of Appendix B. This would be around RL 33m which is also

round about the proposal platform level of the revised drawing dated 2013

(Section 1.2 (v) (a) & (b).

Further excavation below the original retaining wall was carried out on 12

October 2011 for the construction of the base of the retaining wall. This

excavation is estimated to be around 1.5m to 2m judging from Photo 15(b)

of Appendix B. This is likely to be the depth required for the base

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construction (min 1200 + T1 + lean concrete) as per details specified in

the drawing dated November 2010 with plan no.YL40-13/10/EW/02

(Section 1.2 (iv) (b)). This resulted in a total retained height of excavation

of about 8-9m as presented in Plate 9. It is around 4m to 5m of

excavation below the original retaining wall. Note that the excavation face

is very close to the original retaining wall as shown in Photo 10 (c) & (d) of

Appendix B. This cutting is unsustainable which is resulted in the

collapsed of the original retaining wall and the associated structures

supported on it, on the following day 13 October 2011, as presented in

Plate 10.”

14. His opinion on the cause of the collapse of the original retaining wall

on Lot 3845 can be found in paragraph 15 as follows-

“15. … the excessive cutting of earth below the retaining wall in terms of

height and steepness of the cut during the development at Lot 3846. The

cutting was very steep as it was very close to the original retaining wall.

Also the retained height of excavation at the time of the collapse was

about 8-9m without any lateral support. It collapsed within a day of

excavation.”.

15. In cross examination by Defendant counsel PW5 stated he has been

to Plaintiff’s land but not Defendant’s and the photographs in his report

were provided by Plaintiff (NOP Vol 1 page 172). In cross examination by

TP1 counsel PW5 stated he was engaged by Plaintiff in January 2017. He

agreed the scale and size of objects are distorted depending on the

position and angle of the photographs and that when one sees something

in the photographs whatever is there can be seen and whatever is not there

can’t be seen (page 188). He was referred to plate 9 of his report and

asked to explain how he prepared it. He stated that the level of 40 was

from the drawing referred to in paragraph 1.2.i of his report and the levels

of 36 and 32.8 from the as built drawing referred to in paragraph 1.2.ii and

the final excavation levels were from two photographs. The height of

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excavation of 8-9 meters was from the photograph in C1 40(a) where the

distortion is minimal and the retaining wall is about 4m and this would be

around 3m by scale. He also referred to the photograph in C1 43 where

the additional excavation is about 1.5m judging from the water pool which

is above the same distance and therefore the distortion minimum. [pages

190-192]. The 4m height of the retaining wall was derived from the

photographs and the 2 trenches which is about 2m and platform level in

plate 9 was 40m and original ground level before excavation was 36m and

40m minus 36m is 4m (page 194].

16. The evidence of DW1 and DW4 were that Defendant wanted to build

a factory on its land and construction works started in August 2011 wherein

Hao Wu was its contractor and Tu the professional engineer who designed

and supervised the work. DW4 in cross examination by Plaintiff counsel

said the work in August 2011 was clearing of rubbish and demolition of the

old factory and that although there was excavation he could not remember

when that was done (NOP Vol 2 page 392).

17. According to DW3 Hao Wu carried out the construction work

according to the approved plans drawn by TP1 and it hired a few sub

contractors to carry out work which was not within its expertise (Q&A 2 and

3 WSD3). The work started before the landslide and there was an

approved drawing as in B4 693 dated 10-10-2011. To a question as the

approval was dated 10-10-2011 and the landslide occurred on 13-10-2011

and since the work started before the landslide this meant there was no

approval, he disagreed. He further disagreed when he started work it was

illegal. To a question that Defendant’s witness said work started in August

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2011 he disagreed as in August 2011 the work was demolition of factory

which was done by Defendant (NOP Vol 2 page 358). The digging of the

land was done by YSS Transport which is Hao Wu’s sub contractor and the

instruction to excavate came from Defendant. He confirmed the

construction work done by Hao Wu included the retaining wall (page 358).

DW3 said the excavation was 1m deep and referred to B7 223 where T1

column showed 350 and T3 600 which added together is almost 1m. In re

examination on when Hao Wu started work he was referred to B3 474

which was MPSA approval dated 28-9-2011 for kelulusan pelan pelan

lampu laman he agreed he started work around September (page 384).

18. DW2 was engaged by Defendant to provide an expert report on inter

alia whether Plaintiff, Defendant or TP1 and/or TP2 caused the soil erosion

in Lot 3845 during the construction of the retaining wall or after the

completion of the constructed retaining wall between Plaintiff’s and

Defendant’s land. At page 10 of his affidavit was stated as follows-

“2.2 No proper drainage on lot 3845

a. From the survey plan No SH/17/SEL/158/A (Appendix 5) … showed

that the concrete drain with a dimension of 0.45m (wide) x 0.15m (deep)

constructed between the hostel and the factory convey the surface runoff

and flow towards west before it meets a larger drain size of 0.50m (wide) x

0.35m (deep) which was constructed parallel to lot 3844 which flow

towards the discharge point located near to the entrance of lot 3845.

b. There was no perimeter drain or surface drain constructed on the

eastern side of lot 3845 (refer Appendix 5). …

c. The photos 314 in Appendix 7 shows that the rainwater that drops from

the roof eaves of the factory directly on the concrete floor slab and then it

flow towards a kerb of the eastern side of lot 3845 before it is conveyed

through a pvc pipe of 6in diameter with brackets to the discharge point in

lot 3846.

…”.

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19. At paragraph 3.1(a) DW2 concluded Plaintiffs failed to provide proper

drainage in lot 3845 to discharge water that drops on the factory’s concrete

floor when it rains … contributed to the cause of soil erosion. The same

was reiterated in paragraph 3.3(a) where he stated Plaintiffs were negligent

to provide a drainage network to collect water that drops in the eastern side

of lot 3845.

20. In cross examination by Plaintiff counsel DW2 was not able to tell

from the photos in B2 453-459 if there was a wall at the back portion of

Plantiff’s land as there soil beneath had already eroded (NOP Vol 2 page

298) and that the earth was eroding towards south which lot 3847 (page

299). He said the erosion was solely dependent on drainage (page 303).

To a question if a proper wall was constructed at the back portion would

soil erosion happen he said “possibly no”. No compaction could also be a

cause of soil erosion, there could be other factors and it cannot be only the

drainage system (page 306). As to whether if there is a wall built and

refilled proper compaction would soil erosion happen he said ‘no” (page

307). There followed a series of questions and answers-

Qn: … And it would not happen even with the current drainage system if

there is a wall and proper compaction?

…

Ans: Means the current drainage system if there is no drainage? Then the

soil be soaked.

…

Ans: If there is no proper drainage then the soil will be soaked. And then

they will lose strength.

Qn: Will be soaked ya. But it will not there’s no soil erosion? There won’t

be erosion.

Ans: So the water will carry along the particles, the clay particles out.

Judge: The question is will there be soil erosion?

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Ans: Yes.

Judge: There will still be soil erosion.

Qn: There will still be soil erosion.

Ans: There will still”.

[pages 307-308].

(b) Analysis and finding

21. This evidence of DW1 and DW4 shows there was at the very least

construction work by Defendant on its side of the land from August 2011.

As to what the nature of work was DW3 as the contractor would be better

placed to say what it was. According to DW3 the work in August 2011 was

for the demolition of the old factory which was by Defendant’s contractor

and his construction work which included the retaining wall was around

September 2011 from the date of MBSA’s 1st approval for kelulusan pelan

pelan lampu laman. Regardless of whether it was August or September

2011 this was before the landslide of 13-10-2011.

22. Going by Plaintiff’s pleaded case the landslide and the collapse of its

retaining wall was due to Defendant digging and leveling its land to a depth

of approximately 90 degrees and about 20 to 30 feet. As explained by

PW5 the collapse was due to excessive cutting of the earth below the

retaining wall in terms of height and steepness of the cut. Plaintiff must

thus prove this was what was done by Defendant.

23. It was PW1 evidence Defendant dug and excavated further 15 feet in

depth and angle of 90 degrees which exceeded the existing retention wall

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approximately 10 feet high. In cross examination as to the documents he

had to support his evidence on the excavation done he said he only had

photographs which are in B2 301 and 309. As to whether any

measurements were taken he said there were but are not in the bundle.

His evidence on the specifics of excavation was therefore only with

reference to photographs.

24. Plaintiff’s expert PW5 had produced his report where in paragraph 15

he stated cause of the collapse of the retaining wall was due to the

excessive cutting of earth below the retaining wall in terms of height and

steepness of the cut during the development at Lot 3846 and the retained

height of excavation at the time of the collapse was about 8-9m without any

lateral support. Although certain levels were obtained from drawings the

final excavation level was obtained from 2 photographs namely C1 40(a)

and C1 43. Refer to NOP Vol 1 pages 190-192. By themselves the

photographs do not prove anything. The Court is thus unable to without

more accept the evidence solely on photographs.

25. The evidence of PW1 and PW5 who relied on photographs to prove

excavation shows that PW1’s excavation was 15 feet which is about 4.57m

as contrasted to PW5 who said it was 8-9m. This shows the Court cannot

rely solely on photographs.

26. It was submitted by Plaintiff’s counsel that TP1W1 had given

evidence that the excavation was the cause of the landslide. In this regard

it was TP1W1 evidence that excavation was one of the reason (NOP Vol 2

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page 480). Further he was not asked as to the excessive cutting in terms

of height and steepness which was the bone of Plaintiff’s contention.

27. The evidence of Defendant’s expert DW2 showed there could be

other reasons for the landslide namely no proper drainage on Plaintiff’s

land which led to the soil erosion. He agreed that if there was a proper wall

at the back portion and proper compaction there would be no soil erosion.

However he said that with the current no drainage system there would be

soil erosion even with the proper wall and compaction. The evidence of

PW4 as Plaintiff’s tenant showed it built facilities and amenities for its

workers such as toilet, washing area, cooking area and hostel (NOP Vol 1

page 138). The water from the toilet goes into a drain which links to a main

drain in front of his factory and the drainage was not approved by the

Sewerage Services Department (page 142). As per Plate 6 in PW5’s

report the kitchen, toilet and water pool collapsed and the hostel cracked.

28. Thus from Plaintiff’s own evidence as outlined above Plaintiff has not

proved that Defendant dug and leveled its land to a depth of approximately

90 degrees and about 20 to 30 feet. There could have been other factors

as agreed by DW2.

29. In this regard section 101 of Evidence Act 1950 provides that –

“101. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or

liability dependent on the existence of facts which he asserts must prove

that those facts exists.

(2) When a person is bound to prove the existence of any fact, it is said that

the burden of proof lies on that person.”.

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30. In Tenaga Nasional Bhd v Perwaja Steel S/B [1995] 4 MLJ 673 the

court referred to the aforesaid provision and stated what this meant was

that “the plaintiff must prove such facts as the plaintiff desires the court to

give judgment as to its right to claim against the defendant”. Here Plaintiffs

have not proved the existence of the facts of Defendant digging and

leveling its land to the depth as asserted.

31. Although it was not disputed Defendant had paid a compound of

RM25,000.00 imposed by MBSA it was explained by DW4 if they had not

paid the construction work cannot be continued (NOP Vol 2 page 454).

Payment of the compound does not amount to proof it was the excavation

work that caused the landslide.

(c) Improper backfilling/no compaction during construction of

retaining wall

32. For this Plaintiff relied on the expert report where at paragraph 5.0

were set out the events of ground settlement. It will be seen this is based

on the chronological events as complied in Appendix B which are based on

the photo compilation prepared by Plaintiff. These were again based on

photographs without more. As to the cause it was stated to be “likely” due

to the serviceability limit state of the retaining wall in retaining the soil.

There were “other possible influencing factors” such as improper filling, no

compaction, no drainage filter and non granular fill material. These were

again taken from photographs namely C1 46 and 48.

33. Plaintiff had therefore not proved its allegation of ground settlement

due to the construction of the retaining wall.

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(d) Finding on Plaintiff’s claim

34. For the above reasons the Court found that Plaintiffs had not proved

its case.

(e) Illegality

35. Illegality was pleaded by Defendant that the retaining wall, building

and factory on Plaintiff’s land was built without approval and therefore

illegal. This would be relevant if Plaintiffs had proved its case and relates

to the claim for loss of rental claimed by Plaintiff. Plaintiff had rented the

back portion of its land with a single storey factory to RAE which it said

RAE terminated due to safety issues.

36. The evidence of PW1 shows that in 2007 there was a programme by

the State Government “The Illegal Factories Rehabilitation Programme”

where all factories set up before 2007 would be legalized provided the

premium for land status conversion from agriculture to industry was paid.

Plaintiff duly applied for the conversion which was approved by letter of

approval dated 5-10-2011 (B2 94-97) and the premium of RM625,197.00

was charged as per Notice to Pay (Form 7G, B2 98). Plaintiff paid a

premium of RM308,700.00 which was a 50% deduction due to payment

within 3 months together with the cukai tahunan of RM7,797.00 on

25-10-2011 (B2 99-100). From 2011-2017 Plaintiff has been issued a lesen

perindustrian (B2 86-93). [Q&A10-13].

37. In cross examination PW1 stated that at that time of construction no

submission of plans to MBSA was made (NOP Vol 1 page 18) and that

when the application for business license was submitted there was no

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building plan as that was not required (page 19). Certain conditions in the

letter of approval were not complied with (page 26) and so too the condition

in the Land Office Circular dated 31-7-2006 (C2 3-10) where within 1 year

of the approval of change of land use there had to be an application for

building and planning approval and Certificate of Fitness (page 29). When

Plaintiff built the factory in front and at the back of Plaintiff’s land there was

no Development Order (DO) and PW1 disagreed the rental to RAE was

illegal (page 42-43) but agreed conversion was not the same as DO or

approval and the licence was for Plaintiff to operate (page 46).

38. In re examination PW1 stated when he paid the land premium neither

the Land Office nor MBSA asked for the building plan to be submitted

(page 58) and the same too for the application of business licence and its

renewal (page 60).

39. PW2’s evidence essentially was that with the payment of the

premium Plaintiffs’ land “mendapatkan status pemutihan” (Q&A 14 WSD2).

In cross examination when asked whether with the payment the proses

pemutihan was complete, he replied sebahagian sahaja and that the

process is completed when the document of title is issued (NOP Vol 1

pages 79-80). He confirmed there were conditions in the letter of approval

which had not been complied with (page 81) and the Land Office Circular

stated that after payment of premium there was 1 year to comply with the

conditions (page 82). At the time of the letter of approval the process of

conversion was completed “tetapi perlu memproses untuk mendapat

kelulusan bangunan” (page 84). To a question the borang 7G was for the

change of status and not the rehabilitation of illegal factory he agreed it was

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for change of status and a part of rehabilitation (page 85). In re

examination he stated the 1 year for compliance was not stated in the letter

of approval (page 87).

40. From the evidence above although Plaintiffs have paid for the

premium for the conversion of Plaintiffs’ land from agriculture to industrial

the process of conversion will not be completed until the conditions in the

letter of approval and the Land Office Circular have been complied with.

The evidence is that these conditions were not complied with. The

business licence is only the licence to operate. It follows the factory is

illegal such that the rental to RAE is illegal and Plaintiffs would not have

been able to claim on the loss of rental. The law is clear the Court will not

grant any relief founded on illegality nor enforce any rights based on

illegality. This Court looks no further than Merong Mahawangsa S/B v

Dato Shazryl Eskay bin Abdullah [2015] 5 MLJ 619.

(f) Consent judgment between RAE and Dft and Hao Wu

41. In an earlier case 52-1168-05/2012 filed by RAE against Defendant,

Hao Wu and TP1, there was a consent judgment obtained between RAE

and Defendant and Hao Wu dated 6-12-2012 (B1 12-13). Pursuant to that

consent judgment Defendant and Hao Wu were to pay RAE RM139,000.00

as full and final settlement. It then further stated “sekiranya terdapat

tuntutan lain untuk kerugian yang sama seperti diplidkan di dalam

Pernyataan Tuntutan Plaintif, pihak Plaintif bersetuju untuk menanggung

rugi pihak Defendan Pertama dan Defendan Kedua terhadap tuntutan yang

dibuat oleh pihak tersebut”. Although the digging and excavation and

landslide was pleaded what was claimed by RAE in that case were for

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losses and damage sustained on its property which was rented to it by

Plaintiff. The subject matter of the claim by RAE is different from that by

Plaintiffs in this instant suit. Defendant can be liable if Plaintiffs prove their

case which they have not.

(g) Credibility of DW1 and DW4

42. It was submitted by Plaintiffs’ counsel the Q&A of DW1 and DW4

were identical other than the answers to Q1 and Q2 as confirmed by DW4

(NOP Vol 2 pages 386-388) and raises a doubt as to whether the answers

of DW4 were that of his or provided by DW1. However as explained by

DW4 as to why it was word for word the same as that of DW1 he said it

was “because we speak the truth. So we speak the truth. The answer will

be the same”. He confirmed his witness statement was his evidence (page

388). Plaintiff counsel then went on to cross examine him “I will ask you

every line. I will find out whether it is your evidence”. The questions posed

to DW4 were answered by him and there was no answer such as I don’t

know or I cannot answer which would perhaps suggest his evidence was

not as per the witness statement. DW4 was the director of Defendant since

2002 (page 390) and would have personal knowledge of the facts at the

relevant time. This was borne out by his answers in cross examination.

His evidence is that of his own and not provided by DW1 and can be given

due weight.

43. With regard to DW1’s evidence being hearsay it is not disputed he

joined the sales team of Defendant in February 2013 which is after the

landslide and the construction of Defendant’s retaining wall. Some of his

evidence were from photographs, documents and as informed to him.

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Where it was not from his personal knowledge he was forthright and

admitted so. His evidence from photographs and documents can be given

due weight and to be tested in the light of the overall evidence and not to

be relied on merely by virtue of his say so.

B. Defendant’s counterclaim

44. Defendant’s counterclaim is dismissed. With regard to the claim for

Plaintiff to rebuild the retaining wall between Plaintiff’s and Defendant’s

land although it was the Court’s finding the landslide and the collapse of the

retaining wall was not caused by by Defendant digging and levelling its land

to a depth of approximately 90 degrees and about 20 to 30 feet, the other

factors as agreed by DW2 were drainage and no proper compaction of

which only drainage may be attributed to Plaintiff. As per the evidence of

DW4 there were plans to build the retaining wall on its land before the

landslide (NOP Vol 2 page 402). This means the retaining wall was not

necessitated by the landslide. The reliance on MBSA’s letter dated

15-11-2011 C3 485 that Plaintiff was to bear half the cost is misplaced as

that letter merely asked Defendant to have a discussion with Plaintiff “bagi

cadangan perkongsian kos tembok penahan”. As to the construction cost

of the drainage system built there was no proof it had been built with the

consent of Plaintiff.

45. Although there was evidence led in respect of a counterclaim for

trespass and nuisance for the mixture of soil and stone that flowed from

Plaintiff’s land to Defendant’s land, trespass and nuisance was not pleaded

and the Court will not consider this part of the counterclaim.

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C. Defendant’s claim against Third Parties

46. As Plaintiff has not proved its case against Defendant, Defendant’s

third party claim against TP1 does not arise. Defendant’s case against TP1

is dismissed with costs.

47. The Court adds that in any event the design of the retaining wall on

Defendant’s land was not that of Tu’s but of one Wong Chiang Heng

(Wong) wherein the L shaped wall was supplied by Alliance Precast

Industries S/B (API). It was the evidence of Tu he advised Defendant to

build the retaining wall according to 3 approved plans submitted to MBSA

as in B7 222, 223 and 225 but Defendant did not follow the approved plans

and that Defendant wrote a letter to MBSA (B9 2) it had constructed the

retaining wall as per API’s specification and requirement.

48. From the evidence the plans of Tu required 2 walls to be built and

ultimately 1 was built as per Wong/API’s L shaped wall and not that of Tu’s.

This was confirmed by DW1 (NOP Vol 2 pages 274-275). DW3 also

confirmed in Tu’s design in B7 225 there was no L shaped wall and that C3

81-84 were the L shaped design drawings (page 380). He agreed they had

built according to Wong’s design and it was not following Tu’s (page 381).

DW3 further agreed the documents in B3 541-547 were to buy the L

shaped wall supplied by API to Hao Wu to be put on the boundary

between.

49. Plaintiff’s and Defendant’s land (page 376). DW4 stated Hao Wu had

built 1 wall which was L shaped (page 432). He also agreed the wall was

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built according to the design of API which follows that of Wong’s (pages

436-437).

50. With regard to MBSA’s letter in B9 2 DW4 confirmed he issued it and

it was received by MBSA on 16-1-2014. He agreed based on the letter

Defendant will repair any defects and that it stated the current wall was

constructed as per API’s specification and requirement.

51. In respect of TP2 it did not appear appearance. The Court will not

make any order against TP2.

Conclusion

52. Plaintiffs’ claim against Defendant and Defendant’s counterclaim is

dismissed with costs to Defendant. Defendant’s claim against TP1 is

dismissed with costs.

Dated : 28 December 2017

See Mee Chun Hakim Mahkamah Pembinaan Shah Alam

Solicitors for Plaintiff Mr Richard Tee, Ms Caryn Shua and Ms Karen Tan Tetuan Richard Tee & Chin, Kuala Lumpur

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Solicitors for Defendant Mr William Foo and Ms Tan Limin Tetuan Foo Hiap Siong & Co, Kuala Lumpur Solicitors for First Third Party Ms Patricia Chan Tetuan Lee Ros & Ling, Selangor