E.C.H. DEVELOPMENT & MANAGEMENT SDN. BHD. 1. ) PRABAGARAN A/L PERUMAL 2. ) PRIYA DHARASHNI A/P SREENEVASAN

E.C.H. DEVELOPMENT & MANAGEMENT SDN. BHD. 1. ) PRABAGARAN A/L PERUMAL 2. ) PRIYA DHARASHNI A/P SREENEVASAN

As registered proprietor of the separately issued 51m2 title the plaintiff retained exclusive proprietary rights and the defendants' structures occupying that titled land constituted trespass actionable per se; plaintiff did not owe a duty of care in negligence to subsequent purchasers for the pure economic loss asserted and the defendants' counterclaim was barred by res judicata given the previous suit resolving the shortfall in area between developer and Previous Proprietors.

Citation
W-02(NCVC)(W)-1761-08/2018 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: E.C.H. Development & Management Sdn. Bhd.; Respondent / Defendant: Prabagaran A/L Perumal; Respondent / Defendant: Priya Dharashni A/P Sreenevasan
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
27 November 2019
Case Number
W-02(NCVC)(W)-1761-08/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (land/tort Dispute) / Court of Appeal Judgment on Appeals W 02(ncvc)(w) 1761 08/2018 and W 02(ncvc)(w) 1778 08/2018
Outcome
Appeal No. 1761 allowed in part; Appeal No. 1778 dismissed; High Court judgment set aside in favour of plaintiff/appellant in Appeal 1761
Legal Topics
Trespass, Negligence (pure Economic Loss), Indefeasibility of Title, Res Judicata, Laches, Adverse Possession, Title Correction
Source Language
Malay/English
Land Law Tort Contract Civil Procedure Trespass Negligence (pure Economic Loss) Indefeasibility of Title Res Judicata +3 more

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Parties

E.C.H. Development & Management Sdn. Bhd.

Appellant / Plaintiff

Prabagaran A/L Perumal

Respondent / Defendant

Priya Dharashni A/P Sreenevasan

Respondent / Defendant

Procedural Posture

Civil Appeal (land/tort Dispute) / Court of Appeal Judgment on Appeals W 02(ncvc)(w) 1761 08/2018 and W 02(ncvc)(w) 1778 08/2018

Legal Issues

  1. 1 Whether defendants trespassed on plaintiff's separately issued 51m2 title
  2. 2 Whether plaintiff owed a duty of care in negligence to subsequent purchasers for pure economic loss
  3. 3 Whether doctrine of res judicata bars defendants' counterclaim

Ratio Decidendi

As registered proprietor of the separately issued 51m2 title the plaintiff retained exclusive proprietary rights and the defendants' structures occupying that titled land constituted trespass actionable per se; plaintiff did not owe a duty of care in negligence to subsequent purchasers for the pure economic loss asserted and the defendants' counterclaim was barred by res judicata given the previous suit resolving the shortfall in area between developer and Previous Proprietors.

Court Disposition

Appeal No. 1761 allowed in part; Appeal No. 1778 dismissed; High Court judgment set aside in favour of plaintiff/appellant in Appeal 1761

Orders

  • Prayers 3 to 8 of Statement of Claim allowed
  • Defendants to remove all structures forming the encroaching part of the property within three months from date of order