Introduction

This is a dispute between the plaintiff  (“Plaintiff”) and three defendants namely the first defendant (“1st Defendant”), second defendant (“2nd Defendant”) and third defendant (“3rd Defendant”). MWKA represented the Plaintiff.

The Plaintiff is the owner of Lot 4978 and Lot 4979, Daerah Ulu Langat, Mukim Kajang, Negeri Selangor measuring approximately 10 acres. The 1st Defendant is the owner of neighbouring Lot 7981; the 2nd Defendant is the owner of neighbouring Lot 7982; and the 3rd Defendant is the owner of Lots 7983 and 7984. The Plaintiff’s lands are located north of and share a common boundary with Lot 7981 and 7982. Lots 7983 and 7984 are located to the south of Lot 7981.

Facts

1. On 22 March 2010, the directors of the Plaintiff made a visit to the Plaintiff’s lands and were shocked to discover that the Defendants had encroached and trespassed onto the Plaintiff’s lands by dumping massive amounts of excess earth onto the Plaintiff’s lands. This was evident from the fact that the Defendants’ lands had been cut and levelled significantly, and at the same time, the Plaintiffs’ lands had been filled and raised substantially. The result was that the affected lands were all perfectly level.

2. The Plaintiff’s surveyors calculated the volume of earth dumped on the Plaintiff’s lands at a whopping 417,321.37m3. This raised the Plaintiff’s lands about 20m higher than its original levels. This would have cost the Plaintiff approximately RM9 million to remove.

3. In order to prove the Plaintiff’s contention that the earth dumped onto the Plaintiffs’ lands had come from the Defendants’ lands, the Plaintiff obtained high-resolution satellite images of the affected lands, which showed the progress of the earthworks and the dumping of the excess earth on the Plaintiff’s lands.

4. MWKA filed a claim against the Defendants for a mandatory injunction to compel the Defendants to remove the dumped earth and to restore to Plaintiffs’ lands to its original earth levels. Despite the satellite images, the Defendants denied that the earth had come from their lands. Accordingly, the Plaintiff filed an application for an order to allow (i) a licensed surveyor to enter and survey the Defendants’ lands for the purpose of calculating the volume of earth removed so that a comparison could be made with the volume of earth dumped on the Plaintiff’s lands; and (ii) a qualified geologist to study the characteristics of the earth on the Defendant’s lands so that an expert opinion could be given on whether the earth on the Plaintiff’s lands had originated from the Defendants’ lands. The Defendants’ opposed the application.

5. The results of the survey and the geologist’s study firmly supported Plaintiff’s case. Soon after, the Defendants came forward to negotiate an amicable settlement.

6. On 4 July 2011, the parties entered into a consent judgment whereby the 3rd Defendant agreed to inter alia, (a) remove the earth dumped on the Plaintiff’s lands; (b) restore the Plaintiff’s lands to its original levels; (c) build a retaining wall along the boundary of the Plaintiff’s lands; (d) indemnify the Plaintiff from any claims in respect of the restoration work; and (e) pay a monthly compensation of RM60,000 per month to the Plaintiff for delaying the Plaintiff’s development project.

7. Despite the consent judgment and various extensions of time, the 3rd Defendant failed to show significant progress in the earth removal works. Accordingly, MWKA applied to cite the 3rd Defendant and its directors for contempt of court. The 3rd Defendant opposed the application citing financial difficulties for its failure to comply with the consent judgment.

Conclusion

8. On 7 June 2013, the High Court found that the 3rd Defendant and its directors were in contempt of court for failing to comply with the court judgment and ordered that the directors be committed to prison for 8 weeks.

9. Giving the 3rd Defendant a final chance, the Plaintiff agreed to suspend the committal order and gave the 3rd Defendant until 1 August 2014 comply fully with the consent judgment. To date, 90% of the excess earth has been removed.

 

© 2019 MahWengKwai & Associates |
Terms of Use | Privacy and Personal Data Protection

logo-footer