TEH SIOK YEN 1. ) Loke Wai Kuen 2. ) Lee Wei Lid

TEH SIOK YEN 1. ) Loke Wai Kuen 2. ) Lee Wei Lid

High Court upheld Sessions Court's factual findings that 1st–3rd defendants' renovation works caused water seepage and were liable in negligence and private nuisance; however, Sessions Court erred in awarding excessive general damages without medical evidence and failing to consider mitigation, so general damages were reduced from RM200,000 to RM10,000; 4th defendant (developer) was not liable under the DMC or in tort because DMC did not bind non-signatory purchasers, clause 9 proviso excluded developer liability for others' breaches, there was insufficient proximity and causation and plaintiffs' losses were too remote under s74 Contracts Act; costs were adjusted applying the subordinate...

Citation
BA-12BC-2-04/2021 (Mahkamah Tinggi)
Parties
Appellant (4th Defendant): Tropicana Golf & Country Resort Berhad; Appellant (1st of 1st 3rd Defendants): Teh Siok Yen; Appellant (2nd of 1st 3rd Defendants): Teh Guan Chuan; Appellant (3rd of 1st 3rd Defendants): Teh Siok Lee; Respondent (1st Plaintiff): Loke Wei Kuen; Respondent (2nd Plaintiff): Lee Wei Lid
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 May 2022
Case Number
BA-12BC-2-04/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeals to High Court From Sessions Court Judgment After Trial / Judgment on Consolidated Appeals (final Disposition)
Outcome
Consolidated appeals disposed: appeals by Teh Siok Yen, Teh Guan Chuan and Teh Siok Lee (1st–3rd defendants) partially dismissed/allowed to the extent of varying damages and costs; appeal by Tropicana Golf & Country Resort Berhad (4th defendant) allowed.
Legal Topics
Deed of Mutual Covenants, Negligence, Private Nuisance, Expert Evidence Admissibility (s45 Evidence Act), Remoteness and Causation, Mitigation of Loss, Pre Judgment Interest, Costs Scale and Assessment, Implied Terms in Contract
Source Language
Malay/English
Contract Law Tort Law Civil Procedure Evidence Law Deed of Mutual Covenants Negligence Private Nuisance Expert Evidence Admissibility (s45 Evidence Act) +5 more

Case Brief

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Parties

Tropicana Golf & Country Resort Berhad

Appellant (4th Defendant)

Teh Siok Yen

Appellant (1st of 1st 3rd Defendants)

Teh Guan Chuan

Appellant (2nd of 1st 3rd Defendants)

Teh Siok Lee

Appellant (3rd of 1st 3rd Defendants)

Loke Wei Kuen

Respondent (1st Plaintiff)

Lee Wei Lid

Respondent (2nd Plaintiff)

Procedural Posture

Civil Appeals to High Court From Sessions Court Judgment After Trial / Judgment on Consolidated Appeals (final Disposition)

Legal Issues

  1. 1 Whether Sessions Court erred in admitting and preferring plaintiffs' architect as expert under s45 Evidence Act and rejecting defendants' expert
  2. 2 Whether 1st-3rd defendants liable in negligence and private nuisance causing water seepage and consequential losses
  3. 3 Whether general damages for emotional distress were supported by medical evidence and mitigation and whether amount was excessive

Ratio Decidendi

High Court upheld Sessions Court's factual findings that 1st–3rd defendants' renovation works caused water seepage and were liable in negligence and private nuisance; however, Sessions Court erred in awarding excessive general damages without medical evidence and failing to consider mitigation, so general damages were reduced from RM200,000 to RM10,000; 4th defendant (developer) was not liable under the DMC or in tort because DMC did not bind non-signatory purchasers, clause 9 proviso excluded developer liability for others' breaches, there was insufficient proximity and causation and plaintiffs' losses were too remote under s74 Contracts Act; costs were adjusted applying the subordinate...

Court Disposition

Consolidated appeals disposed: appeals by Teh Siok Yen, Teh Guan Chuan and Teh Siok Lee (1st–3rd defendants) partially dismissed/allowed to the extent of varying damages and costs; appeal by Tropicana Golf & Country Resort Berhad (4th defendant) allowed.

Orders

  • Judgment against 1st to 3rd Defendants reduced to MYR 115682.90 in total damages payable to plaintiffs (reduction from Sessions Court award)
  • General damages for plaintiffs' emotional distress reduced from MYR 200000.00 to MYR 10000.00