PETALING JAYA: A High Court in Klang has upheld a lower court’s ruling requiring a developer to pay 15 home buyers in Bandar Puteri Klang a total of RM2.3 million in damages for negligence and breach of contract.
Justice Norliza Othman said the quantum of damages which the sessions court ordered developer Malayapine Estates Sdn Bhd to pay was fair and adequate to cover the losses incurred by the home buyers.
“This court did not find any flaws in the award of damages by the sessions court.
She (trial judge Mursyida Abdul Halim) based her award on reliable evidence and documentation tendered in court and not her own fancy calculations,” Norliza said in a judgment dated Oct 30, 2023.
The judgment was released on the judiciary’s website earlier this month after Malayapine Estates secured leave to bring its final appeal against liability and quantum to the Court of Appeal.
In her 33-page judgment, Norliza said Mursyida had the opportunity to hear the testimony of witnesses and had given due consideration and sufficient judicial appreciation to the evidence tendered by both parties before coming to her decision.
Mursyida had in May last year ruled that the home buyers had proven their claim against the developer on the balance of probabilities.
She said Malayapine Estates owed a duty of care to the home buyers to ensure that the site of the housing project was suitable for construction of houses.
Norliza said the trial judge was correct to reject the testimony of the expert produced by the defence on grounds that he had not conducted any soil investigations of his own but instead relied on data given to him by the developer.
The judge also noted that the developer’s expert had admitted he was “not 100% involved with the analysis and preparation of the report”.
On the other hand, Norliza said the trial judge was entitled to rely on the testimony of the home buyer’s expert witness, geotechnical engineer R Krishnan.
Krishnan testified that he had conducted a physical examination of the property, during which he observed the external and internal defects highlighted by the home buyers.
As regards the quantum, Norliza upheld the awards of RM144,775 and RM173,928 in rectification costs, calculated based on the size of the respective properties.
The judge also ordered Malayapine Estates to pay each of the home buyers RM5,000 in costs for the appeal.
The home buyers had entered into sale and purchase agreements in respect of their units with the developer in 2012. The agreements provided for a defect liability period of 24 months.
They received vacant possession of their units two years later.
Upon taking possession, the home buyers discovered both internal and external defects in their properties, all of which were duly reported to the developer.
The external defects included cracks in brick walls and along the perimeter drain, as well as separation gaps between the slabs laid in their driveway.
The developer carried out rectification works, but the defects resurfaced.
The home buyers then appointed Krishnan who concluded that the development had been built on a 24-metre deep platform of “extremely soft to very soft compressible marine clays and earth fill”.
They brought the suit in 2018.
At trial, Krishnan testified that the site had not been properly engineered and treated prior to the commencement of construction.
This caused the overall subsidence of the land to continue, causing damage to the external components of the property, his report said. - FMT
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