In the case of Projek Lebuh Raya Utara-Selatan Sdn Bhd v. Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 4 MLRA 68 CA, the Court of Appeal overturned a High Court decision that had initially found the appellant (PLUS) liable for breach of contract and negligence regarding remedial works following a landslide.+3
Case Summary
- Background: The respondent owned several lots of land (Lots 2391, 4197, and 2392) planted with oil palm trees adjacent to a highway managed by the appellant (PLUS) . In January 2000, a landslide occurred at Bukit Jenun on the respondent’s land, obstructing the appellant’s right of way .+2
- The Agreements: Two key agreements were made:
- The “June Agreement” (June 2000): Between the respondent and the appellant’s agent (GFE), where the respondent agreed to absorb all excavated earth on its land to create a “satisfactory formation platform” .+1
- The “Tol Agreement” (August 2000): A Temporary Occupation Agreement allowing PLUS to occupy Lot 2391 for six months to conduct remedial works.+2
- The Dispute: The respondent sued for RM1,958,211.10, alleging PLUS breached the Tol Agreement by overstaying, failing to provide “as-built” drawings, and dumping excavated earth across all three lots, which allegedly caused instability and damaged potential housing development plans .+2
- The Decision: The Court of Appeal allowed the appeal, setting aside the High Court’s judgment except for a sum of RM188,760.33 which the appellant admitted was due . The Court found that:+1
- PLUS did not breach the Tol Agreement; staying to complete rectification was within its scope .
- The “dumping” of earth was done at the respondent’s instruction per the June Agreement; therefore, the respondent was estopped from claiming damages for it .+1
- The High Court judge failed to consider that the obligation to remove the earth shifted to the respondent under the June Agreement.
Relevant Quotes from the Court
On the Doctrine of Estoppel:
“It would be inequitable for the respondent to argue and raise the issue that the respondent had objected to the dumping and did not know about the consequence of the dumping after having consented in writing to the dumping. The Court of Appeal would call in aid the doctrine of estoppel in favour of the appellant…” .
On the Error of the High Court regarding Negligence:
“The High Court judge also erred in law and in fact when he ruled that the respondent had proved negligence on the part of the appellant… without considering the salient fact that it was the intervening act of the respondent in instructing GFE to dump the excavated earth that caused the negligence”.
On the Harmonious Reading of Agreements:
“There is no clause in the Tol Agreement that says that the June agreement is being superceded by the Tol Agreement. That being the case, both the agreements must be read harmoniously together in adjudicating the disputes…”.
On the Requirement for Pleadings:
“The material facts must be pleaded but the legal consequences need not be pleaded… the court is not entitled and should not decide a suit on an issue which is not pleaded” .
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
