FANUC SDN BHD (Company No. 165601-T) 1. ADENLAND (CHERAS) SDN BHD (Company No. 895197-H) 2. PRESTASI INFRA BINA SDN BHD (Company No.989966-M)

FANUC SDN BHD (Company No. 165601-T) 1. ADENLAND (CHERAS) SDN BHD (Company No. 895197-H) 2. PRESTASI INFRA BINA SDN BHD (Company No.989966-M)

On the facts the Court of Appeal held D2 was D1's agent and that D1 was liable for D2's trespass because D1 participated in and acquiesced to the wrongful excavation: D1 failed to supervise as required, produced no evidence from its supervising engineer or clerk of works, paid D2 in full after notice of trespass and later awarded D2 further work — conduct amounting to assent/ratification; the independent contractor defence was not pleaded and could not be relied upon to absolve D1; adverse inference drawn for non‑calling key witnesses; plaintiff entitled to special damages, value of earth, reinstatement cost and general/exemplary damages plus interest and costs.

Citation
W-02(NCVC)(W)-1268-07/2019 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: Fanuc Sdn Bhd; 1st Respondent / 1st Defendant: Adenland (Cheras) Sdn Bhd; 2nd Respondent / 2nd Defendant: Prestasi Infra Bina Sdn Bhd
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
28 July 2021
Case Number
W-02(NCVC)(W)-1268-07/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (tort: Trespass and Negligence) / Appeal From High Court After Full Trial (court of Appeal Judgment)
Outcome
Appeal allowed in part; High Court dismissal of claim against 1st Defendant (D1) set aside; judgment entered jointly and severally against 1st and 2nd Defendants
Legal Topics
Trespass, Vicarious Liability, Agency, Independent Contractor, Non Delegable Duty, Damages (special, General, Exemplary, Reinstatement), Adverse Inference, Without Prejudice
Source Language
Malay/English
Tort Property Law Civil Procedure Evidence Trespass Vicarious Liability Agency Independent Contractor +4 more

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Parties

Fanuc Sdn Bhd

Appellant / Plaintiff

Adenland (Cheras) Sdn Bhd

1st Respondent / 1st Defendant

Prestasi Infra Bina Sdn Bhd

2nd Respondent / 2nd Defendant

Procedural Posture

Civil Appeal (tort: Trespass and Negligence) / Appeal From High Court After Full Trial (court of Appeal Judgment)

Legal Issues

  1. 1 Whether principal (D1) is liable for trespass committed by its agent/contractor (D2)
  2. 2 Whether D2 was an independent contractor disentitling D1 to liability and whether that defence could be raised without pleading
  3. 3 Whether D1 assented to or ratified the trespass by post‑trespass conduct (payment, further contract)

Ratio Decidendi

On the facts the Court of Appeal held D2 was D1's agent and that D1 was liable for D2's trespass because D1 participated in and acquiesced to the wrongful excavation: D1 failed to supervise as required, produced no evidence from its supervising engineer or clerk of works, paid D2 in full after notice of trespass and later awarded D2 further work — conduct amounting to assent/ratification; the independent contractor defence was not pleaded and could not be relied upon to absolve D1; adverse inference drawn for non‑calling key witnesses; plaintiff entitled to special damages, value of earth, reinstatement cost and general/exemplary damages plus interest and costs.

Court Disposition

Appeal allowed in part; High Court dismissal of claim against 1st Defendant (D1) set aside; judgment entered jointly and severally against 1st and 2nd Defendants

Orders

  • RM80,841.78 awarded as special damages jointly and severally against D1 and D2
  • RM73,470.00 awarded as value of earth removed jointly and severally against D1 and D2