CLJRep 1989 1 219 PSB

[1989] 1 CLJ (Rep)
Alfred Templeton & Ors. v.

Mount Pleasure Corp. Sdn. Bhd.
219
ALFRED TEMPLETON & ORS.
v.
MOUNT PLEASURE CORP. SDN. BHD.
HIGH COURT MALAYA, PENANG
EDGAR JOSEPH JR J
[CIVIL SUIT NO. 375 OF 1981]
12 JANUARY 1989
LAND LAW: Trespass - Nuisance to land - Construction of deeds where terms not clear When terms may be implied - Proprietary estoppel - Words or conduct may raise an equity
- Whether Limitation Act can give way to estoppel - Role of equity under the National
Land Code 1965 s. 283(3).
CIVIL LAW ACT: Scope of s. 6 Civil Law Act 1956 - Availability of other remedies where
specific performance not available due to hardship.
DAMAGES: Measure of damages for trespass, nuisance and injury to land - Principles
governing award and assessment of general, special and exemplary damages.
WORDS AND PHRASES: Laches - Definition and scope of laches, acquiscence,
abandonment, waiver and limitation - Benefit and burden of a contract.
In this case, by an agreement in writing dated 12 July 1971, the plaintiffs sold five plots of
land to the defendant company retaining for themselves three neighbouring plots. Clause 11
of the agreement provided that this sale is sold subject to the right of way to owners of
neighbouring holdings to and from their land on the existing road and also from Holding
64(10) Mukim 17, North East District, Penang. When the defendant company by its
contractor, the second defendant, commenced earth works to develop its land the plaintiffs
commenced proceedings against the defendants based on trespass, nuisance to land and an
alleged contractual right of way and claimed:
(i) general damages for trespass, nuisance and injury to their two plots of land allegedly
caused by the development activities of the defendants resulting in obstruction of access
from these lots to the public highway;
(ii) exemplary and aggravated damages;

(iii) specific performance of the contractual right of way;
(iv) alternatively, a declaration that they were entitled to an equitable easement.
The defendants denied the allegations of trespass and nuisance and relied on inevitable
accident and the plea of abatement of nuisance and contended that the plaintiffs claims
were barred by laches, abandonment, acquiscence, delay, waiver and limitation.
Held:
Entering judgment for the plaintiffs:
[1] The plaintiffs succeeded in establishing liability in tort against both the defendants, in
so far as the claims for general damages for trespass, nuisance and injury to Lots 48 and 55
were concerned, resulting in obstruction of access therefrom to the public highway known
as the Batu Ferringhi Road.
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[2] As for the plaintiffs claims in contract, clause 11 did not define the expressions
neighbouring holdings, or the existing road, accordingly those expressions had to be
construed in the light of the surrounding circumstances. So construed, the Court found as
a fact that the expression neighbouring holdings meant the holdings which included Lots
48, 55 and 56, still owned by the plaintiffs, while the expression existing road meant the
existing road evidenced by the 1935 Survey Department Map which had two branches whose
combined width was 30 feet.
[3] The Court further found as a fact, that for purposes of s. 282(3) of the National Land
Code 1965, (the Code) the dominant lands were Lots 48, 55 and 56, whilst the servient
land was Lot 39, one of the five plots of land purchased by the defendant company from
the plaintiffs and upon which the defendant company carried out their development works
for the construction of a condominium block.
[4] Although cl. 11 did not expressly provide for the creation of a right of carriageway under
the provisions of s. 286(1) and s. 288(b) of the Code, the Court found that it was necessary
for such a term to be implied for otherwise the plaintiffs lots would be rendered sterile and
landlocked. The defendant company was thus under a contractual obligation to execute a
valid and registrable easement in due form for the creation of a right of carriageway in
perpetuity.
[5] The Court further found that although the defendant company had been in breach of
clause 11, it was not disposed to granting an order for specific performance thereof since, to
do so, would occasion great hardship to the defendant company because it would involve
the demolition of three dwelling houses in a block of eight link houses standing on the right
of carriageway concerned leading to Lot 48 and which the defendant company had built and
sold to innocent third parties not to mention problems with the Planning Authority. Instead,
the Court being satisfied, having regard to the conduct and relationship of the parties, that
an equity had arisen in favour of the plaintiffs, the appropriate relief to satisfy that equity
would be to make an order analogous to an order for specific performance against the
defendant company; namely, subject to planning permission being obtained, a mandatory
injunction, requiring the defendant company to construct, as soon as reasonably possible, a
single metalled access road 12 feet wide, in accordance with the Plan D75 which it offered to
construct at the trial thus affording access from Lot 48 to the public highway. To give legal
effect to this order, the defendant company was further required to execute the prescribed
Form 17A under s. 286(1) of the Code for creation of an easement of way, in particular, a
right of carriageway within the meaning of s. 288(b) of the Code in perpetuity.
[6] However, in the event of the rights of third parties having intervened, or if there is some
legal or other impediment to the creation of such an easement, the parties shall be at liberty
to apply to Court to enable it to consider what further or other orders it should make in
substitution therefor including, perhaps, an order for the award of damages for diminution in
value of Lot 55, having regard to the circumstances.
[7] The plaintiffs having obtained only a modified form of an order for specific performance
as aforesaid, instead of an order for specific performance for the grant of a right of way as
envisaged in cl. 11, it was entitled to general damages for diminution in value of Lot 48.
Accordingly, the Court awarded the plaintiffs RM100,000 for the diminution in value of Lot
48.
[8] The plaintiffs were also entitled to a sum by way of fair rent for the use by the defendants
of Lot 48 for the storage of building materials and equipment and, as a working platform, for
its development works on its condominium block on Lot 39 at RM500 p.m. for the period of
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10 months from February to November 1981, thus amounting to RM5,000, even though there
was no evidence that the plaintiffs had intended to put their land to any particular use during
that period. Accordingly, the Court made an award of RM5,000 under this head against both
the defendants.
[9] As for the plaintiffs claim for destruction of the family house which stood on Lot 48,
the evidence disclosed that it had been virtually abandoned for more than 20 years at the
time of the acts of trespass complained of and that they never had the intention of restoring
it nor was the Court satisfied that the plaintiffs would do so in the event of an award being
made by the Court under this head. Accordingly no award was made under this head.
[10] As for the plaintiffs claims for exemplary damages, in respect of Lot 48, the conduct of
the defendants was such as to entitle the plaintiffs to an award of RM25,000 and the Court
made an award accordingly under this head.
[11] In these circumstances, having regard to the conduct and relationship of the parties, an
equity had arisen in favour of the plaintiffs, and the appropriate reliefs to satisfy it would be
to make orders analogous to specific performance requiring the defendant company to execute
the prescribed Form 17A under s. 286(1) of the Code thus creating a right of carriageway
under s. 288(b) of the Code in perpetuity over its 40 feet wide main access road on Lot 39
(the servient land) and so affording access from Lot 55 (the dominant land) to the public
highway provided this order did not have the effect of interfering with the rights of third
parties which might have intervened. Accordingly, no award would be made for damages on
account of Lot 55 being landlocked.
[12] As for the plaintiffs claim for damages for trespass to Lot 55 in using Lot 55 as a
dumping ground and a working platform the Court made an order for a mandatory injunction
directed at the defendants to restore the Lot to its natural state.
[13] The Court further found that as the plaintiffs had no intention of developing Lot 55, no
award would be made for the cost of construction of retaining wall to protect the said lot
from soil erosion.
[14] As for the plaintiffs claims for use by the defendants of Lot 55 for the storage of building
materials, a working platform and a rear access the Court found that the defendants had so
used the Lot for a period of 20 months ending in March 1983, and so awarded the plaintiffs
a sum of RM600 p.m. thus amounting to RM12,000.
[15] As for the plaintiffs claims for exemplary damages in respect of Lot 55, the defendants
having saved two to three months by using the Lot as an access to their condominium block
on Lot 39 at the expense of the plaintiffs rights and in view of the defendants conduct
generally, the Court made an award of RM50,000.
[16] Having regard to the circumstances of the case and, in particular, the conduct of the
parties the defence of laches, acquiescence, abandonment and waiver must fail.
[17] The Court further found that the plaintiffs claims were not statute barred under s. 6(6)
of the Limitation Act 1953, as the plaintiffs had by virtue of clause 11 acquired a benefit of
a covenant restricting the use of the adjoining plots. In any event, the plaintiffs cause of
action arose only when the acts of obstruction occurred in mid-1981 and not on the date of
execution of the agreement. Further, the plaintiffs had acquired a beneficial interest in an
equitable easement under the doctrine of constructive trust which would be protected in
perpetuity and s. 22(1)(b) of the Limitation Act 1953, excludes the defence of limitation where
there has been conversion of trust property as in this case.
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[18] In any event, the Court found that the defendant company having taken the benefit of
the transaction concerned are estopped from repudiating the burden imposed on it by clause
11 of the agreement and the Court ruled that one can estop oneself out of the Limitation
Act by conduct.
[Order accordingly.]
Cases referred to:

Johnstone v. Holdway [1963] 1 QB 601
The Shannon Ltd. v. Venner Ltd. [1965] 1 Ch 682
The Moorcock [1889] 14 PD 64
Shirlaw v. Southern Foundation Ltd. [1939] 2 KB 206
Wettern Electric Ltd. v. Welsh Development Agency [1983] 2 WLR 897
Howman & Son v. Blth [1983] ICR 416
Fraser & other v. Thames Television Ltd. & Ors. [1983] 2 All ER 101
Liverpool City Council v. Irwin [1976] 2 All ER 39
Datin Siti Hajjah v. Murugasu [1970] 2 MLJ 253
Crabb v. Arun DC [1975] 3 All ER 865
Ramsden v. Dyson [1866] LR 1 HL 129
Birmingham and District Land Co. v. London and North Western Railway [1888] 40 Ch D 268
Plimmer v. Wellington Corporation [1884] 9 App Cas 699
Inwards v. Baker [1965] 2 QB 29
Ives (ER) Investment Ltd. v. High [1967] 1 All Er 504
Bhagwan Singh v. Hock Hin Bros. [1986] CLJ (Rep) 300
Abigail v. Lapin [1934] AC 491
Butler v. Fairclough [1917] 23 CLR 78
Vallipuram Sivaguru v. PCRM Palaniappa Chetty & Anor. [1937] MLJ 59
Tuan Laye & Anor. [1976] 1 MLJ 169
Yong Tong Hong v. Siew Soon Wah & Ors. [1971] 2 MLJ 105
Bank Negara Indonesia v. Hoalim [1973] 2 MLJ 3
Thomas v. Deriong [1837] 1 Keen 729
Hexter v. Pearce [1900] 1 Ch 341
Duke of Beafort v. Patrick [1853] 17 Beav 60
Dillwyn v. Llewelyn [1862] 4 De GF & J 517
Thomas v. Thomas [1956] NZLR 785
Pascoe v. Turner [1979] 1 WLR 431
Livingstone v. Rawyards Coal Co. [1880] 5 App Cas 25
Munnelly v. Calcon [1978] IR 387
Bracewell v. Appleby [1975] Ch 408
Carr-Saunders v. Dick Mc Neil Associates [1986] 1 WLR 922
Wrotham Park Estates Co. v. Parkside Homes [1874] 1 WLR 798
Chaplin v. Hicks [1911] 2 KB 786
Fernando v. Indrarajah [1987] CLJ (Rep) 747
Pernath Dock Engineering Co. v. Pounds [1963] 1 LL Rep 359
Martin v. Porter [1839] 5 M & W 351
Hilton v. Woods [1867] LR 4 EQ 432
Jagon v. Vivian [1871] 3 LR 6 Ch 742
Whitwham v. Westminister Brymbo Coal Co. [1896] 2 Ch 538
Hole & Son (Sayers Common) v. Harrisons of Thurnscoe [1972] 1 Lloyds Rep 345
Taylor (Wholesale) v. Hepworths [1977] 1 WLR 659
Rookes v. Barnard [1964] AC 1129
Cassell & Co. v. Broome [1972] AC 1027
Broome v. Cassell & Co. [1971] 2 QB 354
Drane v. Evangelou [1978] 1 WLR 455
Australian Consolidated Press v. Uren [1966] 40 ALJR 142
[1989] 1 CLJ (Rep)

223
Kenny v. Preen [1963] 1 QB 499

Holden v. Chief Constable of Lancashire [1987] QB 380
Praed v. Graham [1890] 24 QBD 53
Basely v. Clarkson [1682] 3 Lev 37
Burroughes v. Abbott [1922] 1 Ch 86
Weld v. Petrie [1929] 1 Ch 33
Pickerring v. Lord Stamford [1795] 30 ER 787
Fitzgerald v. Masters [1956] 5 CIR 420
Bester v. Perpetual Trustee & Co. Ltd. [1970] 33 NSWR 30
Fullwood v. Fullwood [1878] Ch D 176
Re Jarvis [1958] 2 All ER 336
Lindsay Petroleum Co. v. Hurd & Ors. [1874] LR 5 PC App Cas 22
Duke of Leeds v. Earl of Amherst [1846] 2 Ph 117 124, ER 886
Glasson v. Fuller [1922] SASR 148
Archbold v. Scully [1861] 9 HCL 360; 11 ER 769
Cashman v. 7 North Golden Gate Mining Co. [1897] 7 QLJ 152
Swan v. Sinclair [1924] 1 Ch 254
Tehidy Minerals Ltd. v. Norman & Ors. [1971] 2 QB 528
Sargent v. ASL Developments Ltd. [1974] 131 CLR 634
Ross T Smyth v. TD Bailey and Son [1940] 3 All ER 60
Beatty v. Guggenheim [1919] 122 NE 378
Tam Kam Cheong v. Stephen Leong Kon Sang & Anor. [1980] 1 MLJ 36
Lysaght v. Edwards [1876] 2 Ch D 499
Temenggong Securities Ltd. v. Registrar of Titles, Johore [1974] 2 MLJ 45
Ong Chat Pang v. Valliappa Chettiar [1971] 1 MLJ 224
Binion v. Evans [1972] Ch 359
Brikom Investments v. Carr [1979] QB 467
Radford v. De Froberville [1977] 1 WLR 1262
Halsall v. Brizell [1957] Ch 169
Tito v. Waddell (No. 2) [1977] Ch 289-311
Hopgood v. Brown [1955] 1 All ER 555
Combe v. Combe [1951] 2 KB 215
Amalgamated Investment and Property Co. Ltd. v. Texas Commerce International Bank Ltd. [1982]
QB 84
Kok Hoong v. Leong Mines Ltd. [1964] AC 993
Turberville v. West Ham Corporation [1950] 2 KB 208
Othman & Anor. v. Mek [1972] 2 MLJ 158
Holmes v. Cowehes [1970] 1 WLR 835
Michell v. Harris Engineering Co. Ltd. [1967] 2 QB 703
Eddington v. Clark [1964] 1 QB 367
Legislation referred to:
Limitation Act 1953, ss. 6(6), 22(1)(b), 32
National Land Code 1965, s. 283(3)
Other sources referred to:
McGregor on Damages, 15th Edn., para.[ 409 ] Not in blue book & 423 p. 267
Estoppel by Representation, 3rd Edn., pp. 319-20
Halsburys Laws of England (3rd Edn.) Vol. 11 para. 706 at pp. 439-440
Waiver Distributed, p. 13
Keaton and Sheridan Equity, 2nd. edu. 1976 pg. 336
For plaintiffs - Gan Teik Chee; M/s. Gan Teik Chee & Ho
For defendants - N.T. Vello (with P. Navaratnam with him); M/s. Chang & Vello
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JUDGMENT
Edgar Joseph Jr J:
This case concerns a dispute between neighbours about acts of alleged trespass and nuisance
to land and also about an alleged contractual right of way and, as might be expected of
such a dispute, it generated a considerable degree of acrimony ending in a long drawn out,
complex and expensive law suit.
Before me, the plaintiffs claims, stated broadly and summarily, were for general damages for
trespass, nuisance and injury to their two plots of land allegedly caused by the development
activities of the first defendant, Low Yat Holdings Sdn. Bhd. - since 6 June 1983 renamed
Mount Pleasure Corporation Sdn. Bhd. and amended accordingly - (the defendant company)
and its contractor the second defendant, on neighbouring land, resulting in obstruction of
access from these lots to the public highway. The plaintiffs further claimed (1) exemplary
and aggravated damages, (2) specific performance of the contractual right of way in order to
obtain for themselves a right of carriageway as aforesaid and an injunction in aid thereof.
Alternatively, the plaintiffs claimed a declaration that they were entitled to an equitable
easement in respect of this right of carriageway.
The defendants denied the allegations of trespass and nuisance and relied on inevitable
accident and the plea of abatement of nuisance. So far as the claim for specific performance
was concerned, the defendants contended that the plaintiffs claims were barred by
abandonment, acquiescence, delay, waiver and limitation.
The material facts, being somewhat complicated, I shall begin at the beginning, by mentioning
by way of background, certain introductory facts.
In 1958, one T.V. Templeton died and left surviving him three children - a son Alfred
Templeton, and two daughters, Rita and Phyllis Templeton - the three plaintiffs herein,
respectively. He also left amongst his assets eight lots of land situated in Batu Ferringhi, to
which the three plaintiffs succeeded. On one of these - Lot 48 (previously known as Lot 64
(10)) - stood the family house which was to figure prominently, at the trial.
During his lifetime, the deceased Templeton sold some other lots adjoining the eight lots,
from time to time; they appear as Lots 49 to 54 in the plan, being at p. 49 of the agreed
bundle (AB), which depicts an area known as Mount Pleasure - so named by the deceased.
The plan also depicts what the first plaintiff Alfred Templeton has described as the roadway
or the old road, subsequently referred to as the existing road, being the area shaded or
dotted therein which was also to figure prominently at the trial.
According to the first plaintiff, when the deceased Templeton subdivided the Mount Pleasure
property, he provided for a roadway to service all the subdivided lots including the lots
sold and, indeed, he had had an understanding with the purchasers thereof to that effect.
The first plaintiff added that some of the lots sold fronted the main Batu Ferringhi Road and
so had to have a rear access road.
Sometime after the death of the deceased - it was not in evidence when this was - the first
and the second plaintiffs emigrated to Perth, Australia, whilst the third plaintiff remained and
still remains in this country. As for the family house, the first plaintiff himself testified that
it had been vacant since 1960 and in time had been vandalised and by 1980 had become a
very run down house.
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Be that as it may, the history of events which called for the consideration of the Court begins
with a Sale and Purchase Agreement in writing, dated 12 July 1971 (the Sale and Purchase
Agreement) expressed to be binding upon the heirs, assigns and personal representatives
of the parties, whereby the plaintiffs as the trustees of the will trusts of the estate of the
deceased Templeton had agreed to sell five plots of land known as Holding Nos. 63(1) (later
renumbered as Lot 394), 64(1) (later renumbered as Lot 39), 78(1), 78(2) and 80 to one Dato
Low Yau Chuan, the managing director and alter ego of the defendant company. However,
the plaintiffs retained for themselves, three other neighbouring plots, now known as Lots 48,
55 and 56, the first two of which are the subject matter of this suit.
By clause 11 of the Sale and Purchase Agreement, it was provided as follows:

This sale is sold subject to the right of way to owners of neighbouring holdings to and from
their land on the existing road and also from holding 64 (10) (now known as Lot 48) Mukim
17, North East District, Penang.
Unfortunately, there was nothing in the Sale and Purchase Agreement defining the right of
way, the neighbouring holdings or the existing road nor, for that matter, was any plan
or sketch annexed thereto to define the nature and extent of the grant concerned. In the
result, there was a considerable dispute at the hearing as to the meaning and effect of this
clause not to mention the legal issues to which it gave rise as will appear later on in this
judgment.
I would, at this stage, interpolate to mention that in order to elucidate the factual issues
which arise for decision, I shall be reproducing certain crucial contemporary documents,
especially the correspondence in the case, showing what they say.
I must now resume the narrative of events which ended in the dispute, the subject of this
action.
Pursuant to the Sale and Purchase Agreement, the plaintiffs, executed in favour of the
defendant company a transfer of the Lots hereinbefore mentioned and this was duly registered
on 19 September 1971.
Although the Sale and Purchase Agreement was silent as to the question of the execution
and registration of the forms prescribed under the National Land Code 1965, (the Code)
for the creation of an easement of way, the first plaintiff said that he came to know, sometime
after the completion of the sale, as to the necessity for these requirements, so he asked for
the same informally, though he was not able to recall to whom he spoke.
However, the defendant company did not execute the forms prescribed under the Code for
the creation of an easement of way and when, sometime in January 1980, the first plaintiff
came to know that the defendant company was ready to commence earthworks on Lot 39
(the major Lot) pursuant to plans they had submitted, he wrote a letter dated 16 January
1980 (Ex. P2) to Dato Low Yau Chuan, its managing director, reminding him about clause 11
of the sale and purchase agreement but this evoked no response.
That letter was in the following terms:
16 January 1980
Mr. Low Yow Chuan,
c/o Low Yat Holdings Sdn. Bhd.,
Federal Hotel,
Jalan Bukit Bintang,
Kuala Lumpur,
Malaysia.
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Dear Sir,
It has been brought to my notice that you have made plans to develop sections of land
purchased from my family in 1971. However, I am led to believe that plans being drawn up
have not allowed for the right of way on the existing access road.
Due to the nature of this information, it would only be fair to remind you that before any
plans are implemented you should check your purchase agreement under clause 11 dated 12
July 1971.
I will be going to Penang in the very near future to look into the matter and will contact you
personally at a later date.
Yours faithfully,
sgd.
(A. Templeton)
So, in February 1980, the first plaintiff flew from Perth to Kuala Lumpur and met Dato Low
at the Federal Hotel (where the latter had his private office) and raised the matter of the
impending earthworks, especially about the provision of a right of way on the existing road
But, instead of addressing the issue raised, Dato Low said that as the lots still owned by
the plaintiffs were small, he offered to buy them. In the words of the first plaintiff, Dato
Low said Why worry, I will buy you out.- But, the first plaintiff replied that the lots
concerned were not for sale, that he and the other plaintiffs wished to keep them for
sentimental reasons and also because the family house stood on one of those lots.
The first plaintiff also mentioned to Dato Low that he had seen the defendant companys
development plans and that these did not show the existing road. In point of fact, however,
the first plaintiff had not seen those plans though he had been informed about them. Dato
Low then suggested that the first plaintiff should see the defendant companys project
manager, Mr. Chan (PW2), at the defendant companys offices at Ipoh Road, Kuala Lumpur,
the next day. The first plaintiff did so.
At this meeting, at which Dato Low was also present, the first plaintiff expressed his concern
saying that although the defendant companys original development plans had allowed for
an existing road the subsequent plans did not. Once again, Dato Low offered to buy out
the plaintiffs but the first plaintiff replied that the remaining lots were not for sale. Upon the
first plaintiff insisting on the existing road, both Dato Low and Mr. Chan said that
arrangements would be made for an alternative access to Lot 48 on which the family house
stood. But the first plaintiff insisted on compliance with clause 11 of the sale and purchase
agreement. Whereupon, Dato Low said, in a joking manner, that the first plaintiff should be
more concerned with getting access to Lot 48 only and not be too concerned about access
to the other lots.
Upon returning to Australia, the first plaintiff took the wise precaution of writing a letter
dated 1 March 1980 (Ex. P3) to Dato Low, wherein he confirmed the discussions at the
meetings aforesaid and which was in the following terms:
1 March 1980
Mr. Low Yow Chuan,
c/o Low Yat Holdings Sdn Bhd.,
468-6E Jalan Ipoh,
Kuala Lumpur 13-04
Malaysia.
Dear Yow Chuan,
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227
After our meeting last week at the Federal Hotel and again at your office in the company of
your project manager Mr. Chan Peng Fook, I would appreciate your assurances by confirming
per return mail that the existing access road will be left as agreed upon under clause 11 in the
purchase agreement of July 1971.
With regard to your offer to purchase the other lots of land, once again I must stress that at
present I am not selling. As mentioned during our meeting, these lots were not included with
the balance of land sold to you in 1971 because it is the intention of my family to at least
retain some property in Penang and at a later date restore our old homestead at Lot 48, and
perhaps develop the other two Lots with help from friends. It is my intention to one day
retire to our home in Penang.
Yours sincerely,
sgd.
I find that this letter contains an accurate account of what transpired at the meetings
concerned, that Dato Low did receive it, but did not reply thereto. Similarly, the first plaintiff
also wrote a letter dated 1 March 1980 (Ex. P4) to Mr. Chan which was in the following
terms:
1 March 1980
Mr. Chan Peng Fook,
c/o Low Yat Holdings Sdn.Bhd.,
468-6E Jalan Ipoh,
Kuala Lumpur 13-04,
Malaysia.
Dear Mr. Chan,
I am writing under separate cover to Yow Chuan to ask him to confirm that the existing
access road will be left as agreed upon.
Although Yow Chuan has more or less agreed to leave the access as it is, I would appreciate
if you could write to me as soon as possible to confirm that he has not in any way changed
his mind.
As the project manager, you are no doubt aware that if Yow Chuan insists on going through
with the development and uses his plan he would have breached the agreement of sale and I
do not have to remind you of the seriousness of his actions.
Your early reply would be appreciated.

Yours sincerely,
sgd.
Indeed, Mr. Chan, who was called by the plaintiffs, confirmed the accuracy of the contents
of the letter P4.
Other parts in the evidence of Mr. Chan which merit reference are as follows:
On his discussions with Dato Low regarding the contents of the letter P4, Mr. Chan said:
I told Dato Low that we had to relate PW1s request to the lay out plan. I explained that
there would be a 20 feet right of way to PW1s property - by that I meant it was possible
to provide a 20 feet right of way. Dato Low agreed with this - I mean he agreed with this
proposal. This right of way would be situated at the rear of the link houses overlooking the
sea (shown AB p. 49) - yes, I can indicate the proposed right of way on this plan (marks it
with a red ball pen). Yes, this was the proposed right of way I had in mind when I spoke to
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Dato Low. He agreed with this. Yes, he had the plan before us when we discussed this - so
he knew its implication. No steps were taken to carry out this proposal while I was employed
there.
On P3 - the first plaintiffs letter to Dato Low - Mr. Chan said that although Dato Low did
not show it to him, he recalled that when he saw the first plaintiff in February 1980, at the
defendant companys office, the first plaintiff had given him an account of what had
transpired at the meeting between him (the first plaintiff) and Dato Low, the day before. Mr.
Chans version of what the first plaintiff told him on this occasion was wholly consistent
with that of the letter P3.
Speaking about the original layout plans submitted by the defendant company, Mr. Chan
said this:
Yes, the original layout plan submitted by defendant company did provide for a 20 feet
right of way or back lane which would run along side the common boundary with Lot 39 (i.e.
the Mount Pleasure property owned by the defendant company) from the adjacent lots
belonging to the plaintiffs and others. This right of way corresponded with my own proposal.
Actually, the right of way was already provided for the original layout plan submitted by the
defendant company and approved - this was long before I made my proposal to Dato Low.
Speaking about the amended layout plan, Mr. Chan said this:
...I did make a suggestion of my own as to this right of way and this I would like to illustrate
by marking in red on the plan p. 19, AB. This suggestion of mine was in fact not new as it
was incorporated in the original layout plan. However, I made it because defendant company
were proposing to submit an amended layout plan which provided not a right of way but a
drainage reserve and footpath about 5 feet wide. The width of the right of way proposed by
me was 20 feet. Up to the time I left the services of defendant company my proposal about
the right of way although accepted by defendant company had not been implemented. I do
not know why this was so.
On the position of Dato Low as the brain or alter ego the defendant company, Mr. Chan
said this:
f
The practice of the defendant company was that all decisions on all matters including
technical ones were made by Dato Low personally. I went along with this practice. (Emphasis
supplied.)
On why he left the services of the defendant company after having served it in the capacity
of project manager for 11 years ending on 1 November 1980, Mr. Chan said this:
g
Yes, I finally left the services of the defendant company for greener pastures - not
because of working conditions.
Under cross-examination, Mr. Chan said that his proposal was to restore the 20 feet right of
way only up to Lot 48 in order to comply with the first plaintiffs request.
And, cross-examination on his proposal for a 20 feet right of way, he said this:
Show AB p. 50 - having seen this plan, are particularly, portion marked red, I say it is not
possible to get a road reserve uniformly 20 feet wide, unless part of the newly subdivided lot
is used for the purpose.
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Now, as I have already said, the first plaintiff got no reply to his two letters dated 1 March
1980 addressed separately to Dato Low and Mr. Chan. So, acting upon the advice of a friend,
Dato Salleh Yusoff, he consulted his lawyers Messrs Tunku Zuhri, Manan & Abdullah, who
sent a letter dated 8 April 1980 (p. 30AB) addressed to Dato Low - which I find was duly
received - in the following terms:
8 April 1980
Mr. Low Yow Chuan,

c/o Federal Hotel Sdn. Bhd.
Jalan Bukit Bintang,
Kuala Lumpur.
Dear Sir,
Re: Sale agreement dated 12 July 1971
We have been instructed to write to you on behalf of Mr. Alfred Templeton.

We are informed that in accordance with the above agreement under which you purchased
certain pieces of land from Mr. Templeton the sale to you was subject to the right of way
of owners of adjacent holdings to and from their land to the existing road.
We are further informed that you are currently developing the area purchased by you and
that such development has not provided for the right of way reserved by the above agreement.
We would be grateful if you could kindly confirm whether or not such right of way is to be
provided in accordance with the agreement. We solicit any early clarification from you before
advising Mr. Templeton of any further action in this matter.
Yours faithfully,
sgd.
c.c. Client
However, the letter evoked no response. Instead, unbeknown to the plaintiffs then, the
defendant company had on 8 April 1980, entered into a sale and purchase agreement
(p. 21AB) whereby it had agreed to sell certain land, to wit, Lot T3 (see pp. 22 and 29AB)
which was situated on the existing road, to one Lim Kim Chuan. Similarly, the defendant
company had also on 8 October 1980, entered into another sale and purchase agreement
(pp. 31 to 33AB) whereby it had agreed to sell certain land, to wit, Lot T2, adjacent to Lot
T3, also situated on the existing road, to one Sobri bin Haji Tajuddin.
Manifestly, the defendant company had no intention of honouring its undertaking for the
provision of a right of way under clause 11. In these circumstances, it was not at all surprising
that notwithstanding the receipt of reminders from Messrs Tunku Zuri, Manan & Abdullah,
the defendant company studiously refrained from replying thereto. Messrs Tunku Zuri, Manan
and Abdullah had in fact written a letter dated 8 August 1980 addressed to Dato Salleh
Yusoff (Ex. P5), the friend and adviser of the first plaintiff, telling him of the position.
At first, the first plaintiff, who was then in Perth, felt that he should take time to consider
his position, since, to quote him,
Low Yow Chuan being a millionaire as well as a friend, perhaps we could reach some sort
of understanding and settlement in the future.
However, in February 1981, the first plaintiff heard form his sister Phyllis, the third plaintiff,
that earthworks had begun on the defendant companys condominium scheme on Lot 39. So
he flew from Perth to Penang and inspected the site and saw excavated soil being dumped
from Lot 39 onto Lot 48. He said - and I believe him - that he then spoke to one Mr. Eng,
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the defendant companys project manager, asking that a retaining wall be built to stop spillage
onto Lot 48 and received a favourable response. As a result of this assurance, the first plaintiff
felt more comfortable and returned to Perth.
But then, two months later - in April 1981 - the first plaintiff flew out to Penang again and,
accompanied by an architect Dato Lim Chong Keat and Dato Salleh, he inspected the site
with a view - so he said - of going into an intended joint venture project with a contractor
Lim Kah Bee who owned a neighbouring lot, to develop Lot 55. It was then that the first
plaintiff said - and I believe him - that he saw that his family house which stood on Lot 48
was being buried by reason of the earthworks carried out by the second defendant on the
defendant companys condominium scheme on Lot 39 and also that construction of buildings
had begun thus hindering access. Dato Lim advised the first plaintiff to take legal action
straightaway.
To resume the narrative of events, the first plaintiff then returned to Australia and wrote a
letter dated 5 May 1981 addressed to Messrs Lim Kean Siew & Company (p. 34AB), the firm
of solicitors who had prepared the sale and purchase agreement and who had acted for the
defendant company in that transaction, drawing attention to the contractual requirement for
a right of way and requesting them to intervene in the matter. This letter was in the following
terms:
5 May 1981
Lim Kean Siew & Co.,

Bank Negara,
Leith Street,
Penang.
Dear Sir,
I refer to the agreement of sale of our property to Low Yow Chuan. Under this agreement
a clause was included that the sale of our property is only sold subject to the right of way
of owners along neighbouring holdings to and from their land on the existing road.
A recent visit to our site it would appear that the access road has been built upon in breach
of the above agreement.
As solicitor representing the purchaser at this time, I shall be grateful if you could draw
attention to your then client regarding this matter.
Thanking you.
Yours faithfully,
sgd. Alfred Templeton
Having received no answer to this letter, some eleven weeks later - to be precise, on 29 July
1981 the first plaintiff once again flew out to Penang and called personally at the offices of
Messrs Lim Kean Siew & Co. and, upon his instructions, they wrote a letter dated the same
day addressed to Dato Low Yow Chuan wherein mention was made of the promises made
to plaintiffs during the negotiations for sale. This letter which I find was duly delivered by
hand by the first plaintiff was in the following terms:
29 July 1981
Datuk Low Yow Chuan,

c/o Low Yat Holdings Sdn. Bhd.,
468-6E Jalan Ipoh,
Kuala Lumpur 13-04.
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Dear Sir
Re: Holding Nos. 63(1), 64(1), 78(1), 78(2) and 80 Mukim 17 NED Penang together with
buildings erected thereon bearing addresses Nos. 2 to 7, 236, 251 & 219 Batu Ferringhi
Penang.
We refer to the purchase of the above property by agreement dated 12 July 1971 in which
we represented you as solicitors. Our attention has been drawn to the fact that the existing
road leading to Mr. Templetons family house on Lot 48 and to Lot 55 has now been cut off
by your development. Moreover, your bulldozers have completely buried the said house on
Lot 48.
Mr. Templeton wrote to us regarding this matter on 5 May 1981 and a copy of this letter
was sent to you on 8 May but we have not received any reply from you. It would appear
that the complaint of Mr. Templeton in his said letter of 5 May has been ignored.
Our Mr. Lim Kean Siew who took part in the negotiations in the sale of the property
confirms that the sale of the lands to you was expressly conditional upon the previous owners
having the right to exercise the right of way on the existing road. Without this condition the
previous owners would not have sold the lands.
Mr. Templeton has sought our Mr. Lim Kean Siews assistance in this matter with a view
to seeing you with the hope of settling this matter amicably and he will now be handling this
letter personally.
Yours faithfully,
sgd.
However, this letter elicited no answer. Whilst in Penang at this time, the first plaintiff said
- I believe him - that he visited the site and saw that the defendant companys workers were
encroaching into and dumping soil on Lot 55 and also that the soil they had dumped on Lot
48 had nearly completely buried the family house. He also testified that he had seen a roadway
being cut into Lot 55 and it being used as a place of storage for bricks, machinery, trucks,
cranes and other building materials.
In these circumstances, the plaintiffs retained Messrs Gan Teik Chee & Ho, advocates and
solicitors, who sent a letter date 7 July 1981 (p. 35AB) to the defendant company listing out
generally the grievances of the plaintiffs. This letter was in the following terms:
7 July 1981
Low Yat Holdings Sdn. Bhd.,
468-6E, Jalan Ipoh,
Kuala Lumpur
Dear Sir,
Holdings 63(1), 64(1), 78(1), 78(2) and 80 Mk. 17 NED Penang
We act for Alfred Templeton, Phyllis Templeton and Rita Templeton, the trustees and registered
proprietors of the above properties.
Our clients instruct that under an agreement dated 12 July 1971 for the sale of the above
properties to Low Yow Chuan, they reserved a right of way from Batu Ferringhi Road over
the existing road and according to existing usage for access to neighbouring lands in particular
to Holdings 64(10) belonging to our clients. Subsequently our clients transferred the above
properties to your company as nominee of Low Yow Chuan and planning approval has been
obtained for a housing scheme thereon.
It has now come to our clients knowledge that your proposed housing scheme does not provide
for the right of way as reserved in the agreement dated 12 July 1971.
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Furthermore since early 1981 your servants or contractors have been levelling the said properties
and depositing excavated material onto adjacent lands including Holding 64(10) thereby
submerging the premises situated on the said Holding 64(10). You are hereby requested to
have your servants or contractors cease further trespass and nuisance as aforesaid, to clear
the existing excavated material and to ensure that the reserved right of way is secured.
Please let me have your early reply.
Yours faithfully,
sgd. Gan Teik Chee & Ho
Similarly, Messrs Gan Teik Chee & Ho sent another letter dated 31 July 1981 to the second
defendant (p. 37AB) in the following terms:
31 July 1981
Lim Gim Seng,

Building Contractor,
72 Selok Slim,
Penang.
Dear Sir,
Nuisance and Trespass on Holding 64(10) MK. 17 NED Penang

We enclose herewith a copy of letter dated 7 July 1981 which is self-explanatory.
Our clients instruct that you are the builder responsible for the nuisance and trespass mentioned
in the enclosed letter and that you are storing building equipment and material on our clients
land.
Please note that unless you cease and desist from the said nuisance and trespass and remove
your possessions immediately, legal action will be taken against you and Low Yat Holdings
Sdn. Bhd.
Yours faithfully,
sgd.
Gan Teik Chee & Ho
encl.
Having received no replies to either of these letters, Messrs Gan Teik Chee & Ho sent further
letters (which elicited no answers) to both the defendants dated 1 August 1981 and 19
September 1981 (pp. 38, 39AB) repeating their complaints about trespass and nuisance and
threatening legal action in the following terms:
g
1 August 1981
Low Yat Holdings Sdn. Bhd,
468-6E, Jalan Ipoh,
Kuala Lumpur.
Dear Sir,
Nuisance and Trespass on Lot 64(10) and the vicinity

We enclose herewith a copy of letter dated 31 July 1981 to your building contractor for your
information.
Unless you have the nuisance and trespass ceased immediately, we shall commence legal action
against you and your said contractor.
Please let us know whether you have solicitors to accept service on your behalf.
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Yours faithfully,
sgd.
Gan Teik Chee & Ho
encl:
19 September 1981
1. Low Yat Holdings Sdn. Bhd.
468-6E, Jalan Ipoh,
Kuala Lumpur.
2. Lim Gim Song,
Building Contractor,
72, Solok Slim,
Penang.
Dear Sir,
Nuisance and Trespass on Holding 48 Batu Ferringhi Sek. 2 Penang
We regret not to have heard from either of you on our letters on 7 July 1981 and 31 July
1981 respectively.
Our clients instruct that in the meantime the nuisance and trespass are continuing.
Please note that unless you cease the said nuisance and trespass within 7 days we shall be
applying to Court for injunctions against you.
Yours faithfully,
sgd.
Gan Teik Chee & Ho
c.c. Phyllis Templeton,
36, Jalan Sentosa,
Penang.
Datuk Mohd. Salleh Yusof,
No. 12 Jalan 12/7,
Petaling Jaya,
Selangor
In the result, Messrs Gan Teik Chee & Ho caused the writ herein to be issued on 26
September 1981.
I now turn to events subsequent to the issue of the writ.
Now, the first plaintiff further testified that during a visit to the site in October or November
1982, he had seen servants or agents of the defendants continuing to trespass into Lot 55.
In particular, he stated that he had seen bricks, steel pipes, concrete piles and concrete lying
thereon. Furthermore, he testified that he had seen trucks going up and down the area.
Speaking about his site visits during the period 16 October 1982 to 6 November 1982 he said
this:
I then inspected the property and found work was still proceeding even on those buildings
affected by the order for interim injunction. I also saw trespassing on Lot 55. Bricks, steel
piles, concrete piles and equipment were lying on Lot 55 - the top of and adjacent to defendant
companys property. Trucks were going up and down carrying building material to the work
site. Just next to Lot 55 I observed that construction of multi-storey luxury apartments were
in progress. Lot 55 appeared to be used by the workers as a dumping ground.
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I also noticed that defendant companys workers were using Lot 55 as a place for the storage
of their things and also as a platform to work from (p. 15A to D).
A scrutiny of the record will show that the first plaintiffs testimony as to what he saw
during the site inspections was strongly corroborated by his architect Mr. Bellotti who, upon
the plaintiffs solicitors instructions, had been monitoring the defendants progress of work.
b
I propose to touch upon this aspect of Mr. Bellottis testimony; in doing so, I shall, to begin
with, have to go back a little, to a period in time prior to the date of issue of the writ herein.
In June 1981, Mr. Bellotti said that he had seen a considerable amount of excavated material
deposited on Lot 48 so much so that the plaintiffs family house was virtually buried leaving
only the front porch visible. Lot 48, he said, had been levelled off at the top and was being
used for the storage of building materials by the defendant company. He further said that
from plans he had obtained from the Land Office he was able to verify that three houses
built on the defendant companys site on Lot 39 had encroached onto the access road and
that the defendants seemed to be concentrating on completing those houses. He added that
he had reported the results of his site inspection to the plaintiffs solicitors who, accordingly,
sent the two letters dated 7 July 1981 and 31 July 1981 separately addressed to each defendant.
(pp. 35, 37AB, hereinbefore reproduced) complaining about the trespass and nuisance and
calling for remedial action.
There was no answer to either of those letters from the defendants and, subsequently, the
plaintiffs solicitors sent the further letter dated 1 August 1981 addressed to the defendant
company (p. 38AB, hereinbefore reproduced).
Consequent to that, the plaintiffs solicitors wrote the letter dated 19 September 1981
addressed to the defendants (p. 39AB, hereinbefore reproduced.)
As before, there was no answer to either of these further letters.
In September 1981, Mr. Bellotti found that nothing had been done to remove the soil on Lot
48 or improve the access thereto.
In mid-November 1981, he observed that work appeared to be concentrated on the three end
houses on Plots 100, 101 and 102 shaded black in the plan attached to P9, fronting Lot 48.
He noted that these three houses had encroached onto the existing access road. He further
noted that the defendants had levelled off the excavated material on Lot 48 and were using
it as a working platform and as place for the storage of building material and equipment. In
support, he produced a photograph (P28). Accordingly, he reported to the plaintiffs solicitors
about the results of this inspection and they sent a letter to the defendants solicitors dated
21 November 1981 (p. 41AB), which elicited no reply, in the following terms:
21 November 1981
M/s. Chang & Vello,

Advocates & Solicitors,
Penang.
Dear Sirs,
Penang High Court Civil Suit No. 375 of 1981
We refer to our Mr. Gan's consent on the telephone on 14 November 1981 to an extension
of time till 24 November 1981 for you to file your clients defence on condition that building
operations in respect of houses being erected on the land occupied by our clients right of
carriage-way are suspended for the time being.
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Our clients have just instructed us that over the last few days your clients are hurriedly
proceeding with the construction of the houses abovementioned.
In the circumstances, we do not consider ourselves bound by the agreed extension of time.
Furthermore unless your clients adopt a more reasonable attitude, we shall advise our clients
to apply for punitive damages and for an injunction to restrain your clients from perpetuating
their wrongful position.
Yours faithfully,
sgd.
cc. The Senior Assistant
Registrar,
High Court,
Penang
Speaking about the maximum point of encroachment into Lot 48 by the defendants during
the last quarter of 1981, Mr. Bellotti said this:
I produce a photograph taken by Mr. Chua, a TA of our office, taken I believe during the
last quarter of 1981. I was present when it was taken - put in by consent but subject to
cross-examination - P22. It depicts the porch on the left and part of the excavated material more accurately, the maximum point of encroachment of the excavated material on Lot 48. It
is approx. 90 ft from the boundary separating Lots 48 and 39, taking the point of the boundary
stone on Lot 106 [p. 50AB]. This estimate of 90ft. I based on survey map in p. 50AB. Yes,
it could be less than 90ft. but certainly more than 60ft. (p. 95A to C).
In late November 1981, Mr. Bellotti made another site inspection. He observed the
commencement of removal of soil from Lot 48 although, so far as he knew, no consent had
been obtained to enter Lot 48. It seemed to him that the defendants were concentrating on
completing the three end houses aforesaid. Accordingly he reported to the plaintiffs solicitors
about the results of this inspection by a letter dated 24 November 1981 (p. 42AB) in the
following terms:
24 November 1981
M/s. Gan Teik Chee & Ho.,
2, Che Em Lane (Ist Floor),
Penang.
Attn: Mr. Gan Teik Chee

Dear Mr. Gan,
Re: Templetons Land, Mt. Pleasure

Further to our telephone conversation today, we confirm that we carried out an inspection of
Mr. Templetons land and what remains of his house. We found that contractors are now
excavating and removing the soil dumped on the site previously.
The photographs show a mechanical excavator and a JKR Lorry progressing with the work.
We find this operation quite extraordinary. These photos also show the houses built over the
existing rear access road. The progress stage is concreting up to roof level, and the
commencement of brickwork on the gable end at ground floor.
Yours faithfully,
sgd.
Leo Bellotti,
for Jurubena Bertiga.
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The photographs referred to in his letter dated 24 November 1981 were duly produced and
marked P25A1 to C.
In January 1982, Mr. Bellotti found progress of work was still being concentrated on the
three end houses aforesaid and produced a photograph, P19, in support thereof. He observed
that all excavated material was transferred from Lot 48 to Lot 55. He said he had made a
thorough inspection of Lot 55 at this time and found that considerable material, namely rocks,
boulders and earth, had been deposited there. He also found that Lot 55 had been flattened
by the defendants and was being used for building operations. He recalled that a lorry driver
had asked him to get out of the way but upon his taking objection that it was somebody
elses land, it just went around him.
On this occasion, Mr. Bellotti added that erosion of Lot 55 had already begun. He explained
that Lot 55 was being used by the defendants for the construction of a condominium block
of 16 storey apartments on Lot 39. At this stage, 6 storeys had been completed.
Mr. Bellotti opined that it was absolutely necessary for the defendants to use Lot 55 as an
access to the condominium site on Lot 39 because they had no access within their own land
which was very steep.
Later, in January 1982, Mr. Bellotti said that he had approached the City Council Architect
Mr. Raymond Thong and mentioned the problems faced by the plaintiffs and also asked to
see the defendant companys approved earth work plans and, upon inspection thereof,
discovered for the first time that there was no access road for the plaintiffs lots on the
plan. He then said that he queried Mr. Thong as to why the access road had disappeared
since the brochure issued by the defendant company to prospective purchasers showed a
20 feet backlane adjacent to Lots 48, 49, 50, 51 etc. and separating Lot 39 from them. Mr.
Thong replied that all the City Council required was a 6 ft. wide drain reserve.
Mr. Bellotti the recalled that on 5 February 1982, the plaintiffs solicitors had obtained an
interlocutory injunction against the defendants and so, on 6 February 1982, he had visited
the site to see if the defendants were complying with it and found that they were not.
Accordingly, he reported the results of this inspection to the plaintiffs by letter dated 6
February 1982 (p4 DAB) in the following terms:
6 February 1982
M/s. Gan Teik Chee & Co.,

2, Che Em Lane,
Penang.
Dear Mr. Gan,
Re: Templetons land
Following your instruction yesterday, we enclose two photographs taken early this morning
showing work still in progress on the three end houses adjacent to Mr. Templetons land Lot 48. During our inspection, we did not see any workers on the other six end houses on
blocks X and I because the concentration of work has been directed on the completion of the
three end houses fronting lot 48.
At present, brickwork is in progress and the steel reinforcement was being placed in position
in readiness to cast a concrete slab adjacent to the road. Also, door frames are being fixed.
We will continue to monitor the progress of the work.
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237
Yours faithfully.
sgd.
Leo Bellotti
for Jurubena Bertiga
On the same day - 6 February 1982, the plaintiffs solicitors sent a letter of complaint of the
same date, to the defendants solicitors (p. 47AB) , which elicited no reply, in the following
terms:
6 February 1982
M/s. Chang & Vello,
Penang.
Dear Sirs,
Civil Suit No. 375 of 1981 consent order for interim restraint until hearing of injunction
Further to our telephone conversation this morning, we enclose copy of letter dated 6 February
1982 from our clients architects which is self-explanatory.
It is obvious that your clients are concentrating on completing the erection of the 3 houses
adjacent to Lot 48 in contempt of yesterdays consent order.
Please note that unless all work whatsoever in respect of the 9 houses in question is suspended
immediately, we shall have your clients cited for contempt of Court and also apply for an
interlocutory mandatory injunction for the 3 houses fronting Lot 48 to be demolished.
Yours faithfully,
sgd.
GTCHo
encl.
c.c.
Senior Assistant Registrar,
High Court,
Penang
However, shortly following that complaint, a site meeting was held at which those present
were the solicitors for the plaintiffs and the defendants, one Mr. Kee Kow (DW1), a resident
director of the defendant company and Mr. Bellotti. Speaking with regard to the events at
this meeting Mr. Bellotti said this:
There was no dispute as to fact that defendants had deposited excavated material on Lot
55. It was suggested plaintiffs should be thankful for deposit of excavated material. I dont
agree with this because would have to pile all through that rubbish. It was unconsolidated and
eroding away, posing a problem for us later of having to retain all that in the event of future
development.
Mr. Bellotti then proposed certain remedies by a letter dated 12 February 1982 addressed to
the plaintiffs solicitors (Ex. P17) in the following terms:
12 February 1982
Gan Teik Chee & Ho,

2, Che Em Lane,
Penang.
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Dear Mr. Gan,

Re: Templetons Land.
Further to our telephone conversation last week and my letter dated 1 February 1982, I need
to give more information on the question of the temporary access road cut through plot No.
55 by the contractors working on the adjoining development.
This temporary road was cut without permission for the contractors own convenience in
disposing of surplus excavated material.
You mentioned that whilst it is admitted that trespass has occurred the contractors intention
is to make good plot No. 55 on completion.
I have to state categorically that this would be quite impossible to achieve. The road now
forms a deep cutting through the land and excavated material spills on to adjoining land.
The ground has been seriously undermined and erosion has commenced following the removal
of the top soil and vegetation. Moreover, the ground is now unstable and in danger of collapse
due to a landslide.
There is no way that lot 55 could be reinstated, any earth put back to restore the original
levels would be unconsolidated and in danger of being washed away in wet weather.
This appalling situation which the contractors have created with complete disregard to adjoining
owners land makes any future development of lot 55 almost impossible.
It is our considered view that without the construction of heavy and expansive retaining walls
any future development of this lot could not take place.
Yours faithfully,
sgd.
Leo Bellotti
for Jurubena Bertiga
I must now refer to the evidence adduced by the defence relevant to the questions of trespass
and nuisance.
f
The defence relied upon the testimony of Mr. Kee Kau (DW1), the resident director of the
defendant company, who testified that during the progress of earthworks, bulldozers might
have knocked down the boundary pegs and this could have caused a little bit of spill over
the boundary into Lot 48. He further testified that during the rainy season in July and August
1981, there might have been some wash of earth and slime onto Lot 48 and that as a result
of complaints by the first plaintiff, the defendants had in November 1981 taken steps to
remove the same. Referring to the photograph P28 introduced by Mr. Bellotti, he denied that
the wooden form work show in it was within Lot 48.
However, Mr. Kee Kow admitted that in August 1981 when foundation work for the
condominium block on Lot 39 was in progress earth had been deposited on Lot 55 and a
small portion of Lot 56, by mistake. This is how he explained it:
Because at that time we did not know it was Templetons land. We thought that it was Lim
Kah Bees land. We also thought that it was good to do so because it was a valley.
On a point of information, Mr. Lim Kah Bee was, at the material time, the owner of Lot 371
which adjoined Lot 39 and, in-between these two lots, was Lot 55. According to Mr. Kee
Kau, Kah Bee was also a good friend of Dato Low, the managing director of the defendant
company.
i
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To summarise, therefore, so far as Lot 48 was concerned, the defence contention was fourfold:
(1) that the spoil on Lot 48 was removed in November 1981, (2) that no damage was in fact
occasioned to Lot 48 and so it had suffered no diminution in value, (3) that the plaintiffs
had not suffered the loss of its use since there was no evidence that they had intended to
put it to any use, (4) that, so far as the family house on Lot 48 was concerned, it was a
tumbled down house covered by secondary jungle even before the defendants commenced
building operations and so was beyond repair.
So far as Lot 55 was concerned, the defence contention was twofold; (1) that the deposit of
earth on Lot 55 was caused by mistake and (2) that in any event, the deposit was beneficial
for the development of Lot 55.
I must now evaluate the evidence relevant to the issues of liability so far as the causes of
action in tort are concerned.
Now, it was in evidence that by reason of the defendants earth moving operations aforesaid,
the first plaintiff had made a detailed and formal complaint in writing dated 25 January 1983,
addressed to the Pengarah Kejuruteraan, Majlis Perbandaran Pulau Pinang (Ex. P9) in the
following terms:
25 January 1983
Pengarah Kejuruteraan,
Majlis Perbandaran Pulau Pinang,
Dewan Bandaraya,
Pulau Pinang.
Tuan,
Contravention of Earthworks Bylaw at Mount Pleasure, Batu Ferringhi Road on Lot 39

Section 2, Town of Batu Ferringhi, NED Penang
We are the owners of Lot 48, 55 & 56, Mk. 17, North East District, Penang and we wish
to bring your attention to the fact that earthworks operations carried out in our neighbouring
land namely, Lot 39, has been indiscriminate and have adversely affected our three properties,
namely, lots 48, 55 & 56.
Our lawyer, Gan Teik Chee, has written to your office on 7 October 1982 and 4 December
1982. On 21 January 1983, we made a visit to your office. We hereby express our displeasure
over the encroachment over our lots in the following context:
(a) Lot 48, MK. 17 NED
This lot has been used as a dumping ground for the earthworks from the neighbouring lot of
Lot 39. Although the main spoil has been removed, our old house that has been there for
years, has been damaged and there is only a few porch pillars left.
We find this outrageous and are not happy how the earthworks operation of Lot 39 could
be allowed to damage neighbouring properties by either your Council or by consulting engineers
of Law Yat Holding.
Although the spoils on this lot has been removed, we still find blasting and earthworks in
process next to this lot; we wish you could exercise some control of earthworks by-laws to
contain their operations and to insist on a concrete retaining wall to contain the height difference
of about 7-10 ft to prevent soil erosion onto our lot.
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(b) Lot 55, Mk. 17, NEE

This lot of about acres in size, was originally a gentle sloping hillslope. It is now filled
with boulders and earth, dumped as a result of earthworks operation on neighbouring Lot 39.
We wonder how has this practice of creating a nuisance and affecting the value of our property
on this Lot 55 been overlooked or allowed.
Low Yat Holding has been using this Lot 55 in addition as dumping ground, as a place to
produce cement bricks, storing sewage pipes and using this as an access and platform for the
construction of the 20 storey condominium. The construction of this 20 storey tower block
has reached 12 storeys and yet Low Yat Holding has not even constructed his own access.
We wonder how this rampant use of other peoples properties for dumping as well as access
be overlooked by your Council.
We would request your good office to immediately ask the Low Yat Holding to vacate this
lot without any further delay and to stop trespassing onto our land, along boundary of which,
we have erected a wooden fence and of which, Low Yat Holding has repeatedly taken down
for free passage of vehicles and plants and for which, we are not able to supervise and control,
simply because we are refused entry to the scheme at the main road.
We request your office to exercise strict control over these arrogant attitudes towards our
natural rights.
We would also request your office to instruct Low Yat Holding to remove all spoils
immediately from our lot, restore it to its natural state, to construct retaining walls whenever
necessary to protect our land from any possible soil erosion, and to re-instate all boundary
stones.
(c) Lot 56, Mk. 17, NED
The dumping on Lot 55 has overspilled to Lot 56 and there is now a huge drop of about
100 feet from top of the earth platform on top of Lot 55 to this lot and the existing streams
on this lot will definitely be affected by heavy downpour.
We feel this is rampant disregard for our legitimate rights and we request your office to
exercise the powers that have been vested in your Council to rectify the situation and to
restore the slopes and ground to its natural state.
(d) General
We feel Low Yat Holding has not been carrying out its earthworks operation in a responsible
manner, or to approved earthworks plans.
We feel that they have not cut their hill low enough in accordance with the Earthworks
plans they have submitted and duly approved by your Council, in order to save cutting costs
of earth and rocks and to reduce the construction of retaining walls. In this way, there is
more fill on the sides of the hill-slopes and since there is no retaining wall to contain such
fill, the sides of the fill has overspilled the slopes, thereby causing more soil erosion more
possible slip failures, softer foundation for their link house that are situated near the boundary
on the slope and also to prevent any cutting or excavation by the front lot owners, which,
executed would amount to Removal of Support and would give rise to legal complications
between the purchasers of these front row houses and the front lot land owners.
We would also like to bring to your attention that in the standard sales agreement of Low
Yat Holding to these house purchasers, there is a clause that says that they will not be
responsible for any land slide after the issue of occupation certificates.
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241
We feel that the developer has an intention of denying responsibility for the stability of
construction of houses on the edge of the hill slopes and together with this disregard to
conforming to approved plans and lack of proper Consulting Engineers supervision, this
earthworks operation will cause untold complications to either the Council, the house buyers
or the front lot land owners. In this respect, we enclose a sketch to show:
(a) the area of lot 39, that we feel is irresponsibly executed;

(b) a typical section of the present cutting and filling operation (assumed) and its corresponding
slip circle failure possibilities.
We wish to call upon your office to exercise Chapter 1 s. 3, clause (4) of Street, Drainage
& Building (Amendment) Act 1978 - Act A 435 to order the immediate cessation of all building
or earthworks in this area, until the above could be confirmed by your office and until the
necessary making good of defects created rectified.
Yours faithfully,
sgd.
c.c.
Pengarah Perancangan,
Majlis Perbandaran,
Pulau Pinang.
Pengarah Bangunan,
Majlis Perbandaran,
Pulau Pinang.
M/s. Gan Teik Chee & Ho,
Penang.
As a result of that complaint, the City Council Engineer Mr. Khoo Say Boon (PW4), called
for a site inspection which was duly held on 8 February 1983. Present at that site inspection
were the resident engineer of the defendant company, a Mr. Tan, their site supervisor, a Mr.
Chew, a resident engineer retained by the defendant company, a Mr. Andrew Khoo of the
firm of Jurutera Jaya Usaha, Penang, and, of course, Mr. Khoo Say Boon himself.
As I consider Mr. Khoo Say Boon to be an independent witness who knew what he was
talking about, it is necessary to make extensive reference to his testimony.
Mr. Khoo began by saying that he was familiar with the defendant companys development
on Lot 39, then referred to the complaint by the first plaintiff which he had received and the
site meeting he called consequent thereto in the following terms:
Yes, I am aware of the Mt. Pleasure Scheme somewhere in Batu Ferringhi. The developer is
Low Yat Holdings Sdn. Bhd. Yes, I have inspected this development - normally I would inspect
once or twice a month.
Yes, in January or February, 1983, I received complaints about earth works in this scheme.
The complaint was in writing dated 25 January 1983. I have it with me - produces - put in
and marked P9. The gist of the complaint concerned encroachment of earths works onto
neighbouring lots. Yes, the complaint as regards Lot 48 was that it was being used as a dumping
ground and asked for construction of a retaining wall to contain the height difference.
Yes, there was also a similar though very serious complaint as regards Lot 55.
Yes, I was requested to intervene in this matter in the manner set out in P9. Yes, there was
also a complaint about Lot 56 which was behind Lot 55. Here, too, I was asked to intervene.
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There was also a complaint in P9 that the earth works were not being carried out according
to approved plans in order to save costs giving rise to slips.
I acted on P9, by calling for a meeting and a site inspection on 8 February 1983. Present at
this site meeting were the resident engineer of Low Yat Holdings a Mr. Tan, their site supervisor,
a Mr. Chew, and the resident engineer retained by Low Yat Holdings, a Mr. Andrew Khoo
of the firm of Jurutera Jaya Usaha of Penang, and myself as representative of the City Council,
Penang.
And then, referring to the events at the site meeting on 8 February 1983, he said this:
At this meeting I asked Mr. Tan and Mr. Chew to consider construction of a retaining wall
on Lot 48 and to remove the earth from Lot 55 and Lot 56. I also told them to construct
their own access leading to the 20-storey condominium which is still under construction. I
told Mr. Andrew Khoo to resubmit an amended earthworks plan because the layout of the
proposed houses on site did not adhere to the approved layout plan as shown on the earth
work plan. I believe most of the proposed houses which were almost completed at the time
of the inspection by me, did not adhere to the approved layout plan as shown in the earth
work plan.
Q. Who was it necessary for you to request them to construct their own access road to Lot
55?
A. Because of para. 2 p. 2 of P9. I felt this para was justified. I came to this conclusion as
a result of my inspection of the site.
I did not notice any vehicles going through Lot 35 during my inspection. However, I saw
there was only one possible access to the condominium site and that was through Lot 55.
Paragraph 8 of encl. 82 (affidavit of Kee Kau affirmed 28 March 1983) read out to witness:
Q. During your site inspection on 8 February 1983, did you see the brick wall and/or wooden
fence mentioned in para. 8 of en. 82?
A. I did not see the brick wall but I am not sure about the wooden fence.
Q. What was the state of the road depicted in the photograph being Ex. KHH2 exhibited to
en. 82, at the time of your site inspection on 8 February 1983?
A. It had not then been tarred.
Amplifying his evidence as to the events at the site meeting on 8 February 1983 and his
observations there, he said this:
Yes, at the site meeting on 8 February 1983, I did draw the attention of representatives of
Low Yat Holdings to the complaint, P9 including para. 2 p. 2. When I suggested the remedial
steps which should be taken and to which I have earlier referred to on the occasion of the
site meeting on 8 February 1983, the representatives of Low Yat Holdings Sdn. Bhd. said
that they would construct their own access and that they would remove the earth overspilled
from their site onto Lots 55 & 56, after Chinese New Year. When I say representatives I
mean Mr. Tan and Mr. Chew. From what I saw at the inspection I inferred that Low Yat
Holdings were then using the access through Lot 55 to their condominium site. I drew this
inference because their own access was steep and obstructed by boulders and full of holes
and depressions and also an abandoned concrete mixer. I also noticed building materials on
Lot 55 such as pipes, bricks and a concrete mixer. The concrete mixer was quite near to the
condominium. I am not sure if the concrete mixer was within Lot 55 or near the boundary.
No, when told about the complaint, P9 para. 2 p. 2, there was no denial on the part of
representatives of LYH that they had been using Lot 55 for access to their condominium.
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243
After the site meeting on 8 February 1983, Mr. Khoo said that he wrote a letter dated 10
February 1983, addressed to the defendant company (Ex. P10) confirming the events there in
the following terms:
Translation
Date: 10 February 1983
Low Yat Holdings Sdn. Bhd.,
468-6 Jalan Ipoh,
Kuala Lumpur.
Earthworks for housing development at Mount Pleasure, Batu Ferringhi Road on Lots
39, 394 Section 2, Town of Batu Ferringhi, North East District, Penang.
With reference to the above, I wish to inform that a visit to the site was made on 8 February
1983 regarding complaints by the proprietor of Lots 48, 55 and 56, s.2, Town of Batu
Ferringhi. Those present at the site were your representatives Mr. Tan (Resident Engineer),
Mr. Chew (site supervisor), Mr. Andrew Khoo (representatives from Jurutera Jayausaha
Konsultant Sdn. Bhd.) and Mr. Khoo of the City Council, Penang.
Based on the boundary stones (pegs) pegged by your surveyor, it has been agreed by all
present that the earthworks carried out have encroached onto Lots 48, 55 and 56.
For Lot 48, approximately 5 feet of the land had been cut. A brick wall (retaining-wall) is
definitely required so as to prevent the earth from falling onto Lot 48. You are also required
to make a study of the surface run-off so that its flow can be controlled with the provision
of suitable concrete drains. Plans showing the proposed works must be forwarded to this
department for approval before work commences.
Earth and rocks from your site have been pushed down to Lots 55 & 56 without consent of
its owners. Your representative at this visit has been directed to remove all materials that
have been dumped there and to restore Lots 55 & 56 to its original condition. Your
representative has promised to start work after the Chinese New Year.
It was also noted that Lot 55 has been used by your vehicles to convey building materials to
the 10 storey apartment.
Rightly, your contractor should use your own access which is located at a higher level. Your
representative has also agreed to construct this access the soonest possible.
I wish to emphasize here, in view of the fact that the construction of the Townhouses near
to Lot 55 are nearing completion, that
(a) all construction works must be carried out in accordance with the approved earthworks
plans including proposed levels for all building proposals.
(b) complaints from residents adjacent to the building site must be settled
before occupation certificates can be forwarded for consideration. Therefore it is important
that the above two matters be settled at the early stage. It has been noted that several
amendments have been made without prior approval from these department. Your representative
has been told to show the lot boundaries and levels achieved on the site.
Your attention is drawn to ss. (4) and (9) of A435 Act which are reproduced below:
Section 4 The local authority may, where it certifies that the safety of life or property is
affected or is likely to be affected by any earthworks, order the immediate cessation
of the whole or any part of the earthworks, the certificate of the local authority
under this subsection shall be conclusive proof of the matters stated therein and
shall not be questioned or subject to any appeal or review in any Court.
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Section 9 Any person who contravenes any provision of this section or fails to comply with
any direction or order given under this section (or does any act to obstruct in any
manner whatsoever the entry or the execution of any work authorised to be effected
or executed under this section by or on behalf of the local authority) shall upon
conviction be guilty of an offence and shall be liable to imprisonment for a term
not exceeding five years or to a fine not exceeding fifty thousand ringgit or to
both, (and in the case of a continuing offence to a fine which may extend to five
hundred ringgit for every day during which the offence is continued.)
The Council may direct you to cease the earthworks if the directions are not complied with.
That is all.
Service for the country.
Your obedient servant,

sgd.
for Pengarah Kejuruteraan
s.k.
Jurutera Jayausaha Konsultant Sdn. Bhd.
No. 77, Cantonment Road, Penang.
d
En. Freddy Templeton,
No. 26, Jalan Sentosa,
Hillside, Penang (Your letter dated 25 January 1983 refers.)
Assistant Director, Low For your information and advice.
Director of Buildings.
Questioned on the contents of that letter, he said this:

Yes, I confirm the contents of my letter P10 are correct.
At para. 5 of P10, I have observed It was also noted etc. By this I meant I found signs
that Lot 55 had been used by DIs vehicles. The signs consisted of tyre marks made by
motor vehicles leading from the common boundary i.e. the cul de sac; next, I saw building
materials lying across boundary, maybe on Lot 55 or beyond. By boundary I am referring
to portion which I now mark on p. 49AB with little blue crosses - This is the boundary
separating Lot 55 from the cul de sac. Building materials were scattered everywhere - I cant
say exactly where but it was beyond boundary I have marked. Building materials consisted of
pipes, cement bricks, debris from building construction.
[P9 last sentence p. 1 referred to witness.] Yes, I found Lots 55 & 56 filled with rocks and
bolders during my site visit on 8 February 1983.
[P9, p. 2 para. 4 read to witness] I noticed part or portion of a wooden fence still standing
during my visit on 8 February 1983 - Yes, I can mark the position of this fence. I do so in
blue circles on p. 49AB. I consider this a third sign. It looked like someone had dismantled
the fencing. I got this impression because one end of the fencing appeared jagged - not smooth.
I found yet another sign: namely Lot 55 had been completely filled with earth. I consider
that it would have been impossible for this to have been done without using vehicles.
Mr. Khoo also said that he had made subsequent site inspections on 17 February 1983, 23
February 1983, 8 March 1983 and 30 March 1983 (the days he testified in Court).
Explaining his site visit on 17 February 1983, he said this:
i
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245
The main purpose of my visit on 17 February 1983 was to check 1st defendants own
access leading to the condominium and whether the earth on Lots 55 & 56 had been removed.
I found their own access was in the same condition as at the time of my visit on 8 February
1983 - i.e. it was difficult to use because of bolders, deep depressions. Also, no steps had
been taken to remove the earth works on Lots 55 & 56.
And, touching on his site visit on 23 February 1983, he said this:

Q. What about your visit on 23 February 1983?
A. I noticed some improvement I saw labourers working, also vehicles like lorries parked at
LYHs own access. I did not notice any lorries using this access - they were parked. (p. 43
E to F).
And, touching on his site visit on 8 March 1983, he said this:

Similarly, on my visit to site on 8 March 1982, I did not pay attention whether or not
there was a brick wall or any fencing at the cul de sac adjacent to Lot 55. This was because
my main purpose was to check whether the developer had started any remedial work which
I had requested on site inspection on 8 February 1983 and confirmed in my letter, P10, paras.
3 & 4. I did not notice whether any building materials were on Lot 55 on this site inspection.
And, touching on his site visit on 30 March 1983, he said this:

Yes, my last inspection was yesterday (30 March 1983) I noted that developers access
was much improved. I found depressions to have been filled and rocks to have been removed.
Also, the laterite road surface was improved. Yes, I would consider that from the developers
point of view and for his purpose, it could be used by vehicular traffic. I can only say that
the portion I have hatched in blue at p. 49AB was much improved. This is because I did not
walk beyond the portion I have hatched in blue - this is a winding road. Judging from what
I saw that day, vehicles could travel between the condominium and the proposed access, i.e.
the developers own access. Yes, vehicles can also go off the developers own access to the
condominium directly.
I must now state my findings regarding this part of the case.

I would begin by saying that I had no hesitation in regarding Mr. Khoo Say Boon as a
credible and reliable witness with no axe to grind. He was testifying as to matters coming
within the scope of his duties as City Council Engineer and he, therefore, had good reason
to recall the events at the various site meetings concerned. He had also made a
comprehensive report (P10) wherein he had stated the results of his observations and generally
the events at the site inspection on 8 February 1983. Accordingly, I accept his evidence.
Having regard to my findings as to Mr. Khoos evidence, I also have no hesitation in
accepting the testimony of the first plaintiff and Mr. Bellotti, in so far as they relate to the
issues of trespass and nuisance to both Lots 48 and 55.
I would add that the contemporary correspondence consisting of the letters of Mr. Bellotti
addressed to the solicitors for the plaintiffs reporting the results of his monitoring of the
earthworks carried out by the defendants, and, consequent thereto, the letters written by the
plaintiffs solicitors to the defendants and their solicitors, the first plaintiffs complaint
addressed to the Pengarah Kejuruteraan, Majlis Perbandaran, Pulau Pinang (Ex. P9) and the
City Council Engineer Mr. Khoo Say Boons letter to the defendant company (Ex. P10(T))
were wholly consistent with the plaintiffs version, so far as this part of the case is concerned.
By contrast, the defence produced no contemporary correspondence and, indeed, the
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defendant company made no reply to Mr. Khoo Say Boons important letter aforesaid nor,
for that matter, did the defendants or their solicitors reply to the plaintiffs solicitors letters
aforesaid denying the accusations made.
Consequently, I reject as false and untrue the evidence, adduced by the defence, in so far
as it is contrary to that adduced by the plaintiffs, in regard to this part of the case.
In these circumstances, subject to the special defences, of laches, limitation, acquiescence,

abandonment and waiver, which I shall be considering at a later stage in this judgment, I am
satisfied that the plaintiffs have succeeded in establishing liability in tort against both the
defendants, on the balance of probability, in so far as the claims for general damages for
trespass, nuisance and injury to Lots 48 and 55 are concerned resulting in obstruction of
access therefrom to the public highway known as the Batu Ferringhi Road.
Turning to the plaintiffs claim in contract, I must now deal with an entirely separate issue,
namely, the interpretation of the expressions the existing road and the neighbouring
holdings and the right of way in clause 11 of the Sale and Purchase Agreement.
For convenience, I shall reproduce clause 11 once again; it reads as follows:
This sale is sold subject to the right of way of owners along neighbouring holdings to and
from their land on the existing road and also from Holding No. 64(10), Mukim 17, North
East District, Penang.
Counsel for the plaintiffs contended that the existing road envisaged by clause 11, had
two branches whose combined width was 30 feet as evidenced in the 1935 Survey Department
Map (p. 49AB).
e
On the other hand, Counsel for the defendants contended that the existing road envisaged
by clause 11 was the road on the ground as at the date of the Sale and Purchase Agreements
as evidenced by their survey map (Ex. D68) prepared some five months after the execution
of the Sale and Purchase Agreement by a private surveyor.
Clearly, clause 11 was not only inartistically worded, it also failed to define the expressions
neighbouring holdings and the existing road, nor, for that matter, was any plan annexed
to the Sale and Purchase Agreement to define those expressions.
Accordingly, since clause 11 is very far from being clear on the points mentioned, I must
construe its provisions in the light of the surrounding circumstances. If any authority is
needed for that proposition I would refer to Johnstone v. Holdway [1963] 1 QB 601 and The
Shannon Ltd. v. Venner Ltd. [1965] 1 Ch 682. In the first of these cases, at p. 612 Upjohn LJ
said this:
In our judgment, it is a question of the construction of the deed creating a right of way as
to what is the dominant tenement for the benefit of which the right of way is granted and to
which the right of way is appurtenant. In construing the deed the Court is entitled to have
evidence of all material facts at the time of the execution of the deed, so as to place Court in
the situation of the parties.
In the second of these cases, at p. 691 Dankwerts, LJ said this:

... we are entitled to have the benefit of the evidence of the surrounding circumstances. A
document intended to have legal effect is not executed in a vacuum. It is drafted and executed
to deal with the situation in which the parties find themselves. Of course, if the words used
in the deed are perfectly clear, they must be given their meaning, and extrinsic evidence is not
admissible, because that would be contradicting the terms of the deed.
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247
Now, the testimony of Mr. Lim Kean Siew (PW5), the solicitor who acted for the purchaser
Dato Low Yeow Chuan, the managing director of the defendant company, which I accept,
supported the contention of Counsel for the plaintiffs. What this witness said was this:
Shown p. 49AB (the 1935 Survey Map) - Yes, I am familiar with this area. Yes, this led to
the insertion of clause 11. Yes, there was an existing road then.
I am satisfied that Mr. Lim was then referring to the existing road appearing in the 1935
Survey Department Map (p. 49AB) which was the raison detre for the stipulation of the
right of way. I also accept the evidence of the first plaintiff who had lived for many years in
the family house standing on Lot 48 on this point.
I do not consider the survey map D68 put in by the defence to be admissible for the purpose
of construing clause 11 since it was prepared some five months subsequent to the execution
of the sale and purchase agreement. As Dankwerts LJ said in the Shannon (ibid) at
p.
693:
Of course, the documents subsequent to the conveyance of 6 February 1930, are not
admissible for the purpose of construing that conveyance.
Accordingly, having regard to the surrounding circumstances, I find as a fact that the existing
road under clause 11 meant the existing road evidenced by the 1935 Survey Department
Map (p. 49AB) which has two branches whose combined width was 30 feet.
Furthermore, having regard to the surrounding circumstances, I also find as a fact that the
expression neighbouring holdings meant the holdings which formed part of the Mount
Pleasure Property owned at one time by the deceased T.V. Templeton, including of course,
the Lots 48, 55 and 56, retained by the plaintiffs and still owned by them.
If follows, therefore, that in the context of the issues which arise for decision in the present
case, I find as a fact, that for purposes of s. 282(3) of the Code, that the dominant lands are
Lots 48, 55 and 56 whilst the servient land is Lot 39.
There is a further point of construction regarding clause 11 which I must now deal with and
this concerns the law on implied terms.
Now, it is generally simple to state the law on implied terms but often difficult to apply it.
Traditionally, terms may be implied by statute or by custom or by reference to the principle
in The Moorcock [1889] 14 PD 64.
Ninety nine years ago, Bowen LJ giving judgment in the Moorcock, explained that terms
would be implied by law where they arose from the presumed intention of the parties and
were necessary to give efficacy to the parties transaction and, some fifty years later, in
Shirlaw v. Southern Foundation Ltd. [1939] 2 KB 206, MacKinnon LJ restated this principle
by saying the law would imply something so obvious it goes without saying.
In the present case, clause 11 does not expressly provide for the creation of an easement of
way under the provisions of ss. 286(1) and 288(b) of the Code. Yet, approaching the matter
on the basis of the officious bystander test, I think it could be confidently predicted that
had the parties concerned been asked about the inclusion of such a clause, they would have
regarded it as going without saying that the same was to be implied for it was so obviously
necessary to give business efficacy to the agreement, that is to say, to make it workable.
In recent times, three different Courts dealing with completely different situations, agreed
that the term contended for should be implied into the particular contract. I refer to Wettern
Electric Ltd. v. Welsh Development Agency [1983] 2 WLR 897; Howman & Son v. Blth [1983]
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ICR 416 and Fraser and other v Thames Television Ltd & Ors. [1983] 2 AER 101, which I
propose only to mention, since the leading case on the subject is Liverpool City Council v.
Irwin [1976] 2 AER 39.
In the Liverpool City Council Case, the City Council had built a tower block fifteen storeys
high and let the flats out to tenants. The Council retained control of the lifts and staircases
themselves but these fell badly out of repair so that tenants could not use the lifts and had
to walk up the stairs in the dark. However, the Council were careful not to insert any covenant
to repair in the tenancy agreements since they did not wish to commit themselves to any
obligation to repair. The question for decision was whether there was an implied term that
they should repair?
In the Court of Appeal, a majority held that the landlords were under no liability to repair or
maintain them because there was no express duty to do so and none could be implied. A
term could only be implied, insisted the majority, if it is necessary to give business efficacy
to the contract, and here it was not necessary to do so. Lord Denning dissented on the
main issue. He was prepared to hold that it was permissible to imply a term in the contract
whenever it was reasonable to do so, and that some obligation to repair and maintain the
lifts and stairways must be placed on the landlords.
In the House of Lords, Lord Dennings view that the City Council were under an implied
obligation to take reasonable care to keep the means of access safe was upheld. Construing
the contract in its context, the House held that since the use of the stairs and lifts was
necessary for the tenants occupying dwelling in the block, the appropriate easements, or
rights in the nature of easements, were to be implied into the contract. Furthermore, it held,
disagreeing with Lord Denning, that although it was not open to the Court to imply terms
which it thought were reasonable, the subject matter of the agreement, namely, a high rise
block in multiple occupation, and the nature of the relationship of landlord and tenant, of
necessity required the implication of a contractual obligation on the part of corporation with
regard to those easements. Accordingly, the obligation to be implied was one to take
reasonable care to maintain the common parts in a state of reasonable care and efficiency.
I would observe that although the House was not prepared to concede a judicial power to
imply any reasonable term into a contract, the disagreement seems to have been more about
the label to be attached than about the substantive issues. If a Court is free to imply
reasonable terms, provided only that it calls them necessary, then the disagreement
between Lord Denning and the House of Lords disappears almost entirely. The fact of the
matter is that the decision of the House puts such a broad construction on the concept of
a necessary term that it seems to mean reasonably necessary, and there is not much
difference between that and a reasonable term.
Looking back at the requirements for the creation of easements, I note that under the Code
which was the relevant law, there are elaborate provisions dealing with easements. I need no
more than refer to some of these. Section 282 (3) provides that easement means any right
granted by one proprietor to another, in his capacity as such and for the beneficial enjoyment
of his land in accordance with the provisions of the Code. Section 284 expressly states that
no right in the nature of an easement shall be capable of being acquired by prescription
(that is to say by any presumption of a grant from long and uninterrupted user), and
s. 286(3) states that no such right shall be capable of being acquired by any implied grant
except in the case of ancillary rights for the enjoyment of an easement which are to be
implied in the grant of an easement. There are also provisions as to easements of way and
the instrument of grant would have to describe the same as either a right of footway or a
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249
right of carriageway the former conferring the right upon the grantee to pass and repass
over the servient land at all times, and for all purposes connected with the dominant land
without animals or vehicles and the latter, with or without animals or vehicles - s. 288.
In Datin Siti Hajjah v. Murugasu [1970] 2 MLJ 253, an action for trespass to land, the
defendant claimed that he had acquired a right of way over the plaintiffs land by user of
upwards of 20 years. Syed Agil Barakbah J (as he then was) held, inter alia, that the law of
easements in the Malay States is now provided for exclusively by the Code which explicitly
precludes the acquisition of any easement by long user.
In the circumstances, taking a robust view of what terms may be implied in a contract, I
would hold that considering the subject matter of the agreement, - sale and purchase of
some only of the Lots owned by the plaintiff vendors - they retaining adjoining Lots - and
the nature of the relationship of seller and buyer, these factors of necessity required the
implication of a contractual obligation on the part of the purchaser or his nominee to execute
a valid and registrable instrument in due form for the creation of an easement of way namely,
a right of carriage-way, in perpetuity, within the meaning of ss. 286 and 288(b) of the Code,
in order to give business efficacy to clause 11, for otherwise those adjoining Lots would be
rendered landlocked and sterile. Furthermore, the agreement did not contain the whole
contract and the term would have to be implied to complete the contract as the parties must
have intended.
I am also completely convinced that the defendant company had, notwithstanding numerous
requests by the plaintiffs and their solicitors, studiously refused to comply with clause 11 of
the Sale and Purchase Agreement which, upon a proper construction, meant that the sale of
the Lots concerned was subject to a right of way over the existing road on the servient land
(Lot 39) as evidenced by the 1935 Survey Map (p. 49AB), thus affording access from the
plaintiffs lands, being Lot 48, 55 and 56, to the public highway known as the Batu Ferringhi
Road.
In the circumstances, I unhesitatingly hold that the defendant company had acted in flagrant
breach of clause 11, but for reasons I shall state a little later in this judgment, I am not
disposed to granting an order for specific performance thereof. Instead, I shall be making
orders analogous thereto, but first I must deal with another and related topic.
Now, on the issue of liability, subject to the special defences of abandonment, acquiescence,
delay, laches, waiver and limitation which I shall consider in the final part of this judgment,
there remains one important field to be considered and that is what is now called proprietary
estoppel.
I note that the plaintiffs have by prayer II(d)(ii) of their amended statement of claim, asked
for a declaration as to entitlement to an equitable easement in respect of a right of carriageway from Lots 48 and 55 to the public highway known as the Batu Ferringhi Road.
Now, upon the evidence before me, I am amply satisfied that quite apart from clause 11 of
the Sale and Purchase Agreement, representations or promises had been made by Dato Low
to the plaintiffs during the negotiations for sale, that the sale concerned was, to quote the
words of his own solicitors in their letter dated 19 July 1981 being Ex. P6,
expressly conditional upon the previous owners having the right to exercise the right of way
on the existing road. Without this condition the previous owners would not have sold the
lands.
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Furthermore, there was also evidence of the conduct of the defendant company in submitting
its original layout plans for the building scheme on the Mount Pleasure Property which
provided for a 20 feet wide right of way to run alongside the common boundary separating
Lot 39 from the adjacent Lots belonging to the plaintiffs and which plans had been approved
by the relevant authorities. This evidence came from the testimony of the defendant
companys own project manager Mr. Chan and was unchallenged.
Finally, there was also evidence of promises made to the first plaintiff during his meetings
with Dato Low and the defendant companys project manager Mr. Chan held at the Federal
Hotel and at its offices in Ipoh Road, Kuala Lumpur, that arrangements would be made for
an alternative access.
The question therefore arises should the defendant company be now permitted to insist on
their strict legal rights by relying on their indefeasibility of title, the fact of non-registration
of a right of carriage way in the statutorily prescribed form under s. 288 of the Code or non
entry of a caveat under s. 84(1)(c) of the National Land Code (Penang and Malacca) Titles
Act 1963, when it would be inequitable for them to do so, having, regard to the dealings
which have taken place between them and the plaintiffs.
I would stress that the circumstances of this case show clearly that if the plaintiffs are totally
denied access to Lots 48 and 55 ownership of which they retain, these Lots would become
landlocked. The plaintiffs do not have the advantage of a registrable easement under s. 288
of the Code, yet it is manifestly clear that but for the promise made by the defendant
companys managing director Dato Low to provide for a right of way as stipulated in clause
11, the sale would never have gone through. The plaintiffs, to the knowledge of the defendant
company, clearly relied on that promise when they entered into the Sale and Purchase
Agreement. In their original layout plan the defendant company had, in fact, provided for
the access but in the amended plans they did not. The defendant company is, in my opinion,
estopped by its conduct and that of its managing director Dato Low from denying the
plaintiffs a right of access from their Lots over its land to the public highway known as the
Batu Ferringhi Road.
A few cases will illustrate the point. In Crabb v. Arun DC [1975] 3 AER 865, Crabb owned
a piece of land in a field. The Local Council were constructing a road close to the field.
Crabb wished to have access to the new road. So, meetings were held between Crabb and
Council officials in which Crabb and his representatives were given to understand that they
would be given access onto the estate road. However, no formal legal steps were ever taken
to confirm that. The Council however acted as if access had been granted by leaving gaps
in a fence it erected between Crabbs land and the road at the agreed points. Later, however,
the Council blocked up the gaps and refused him access claiming that there was no agreement
and demanded payment for the grant of an easement. Lord Denning considered that these
facts gave rise to a proprietary estoppel which could in turn be the foundation of a case by
Crabb for the grant of an easement without paying anything for it, because the Councils
conduct had rendered the land sterile and useless for six years, a loss which could be taken
into account. It was the Councils conduct which led him to act as he did; and this raises an
equity in his favour against them. In the circumstances, it was inequitable that the Council
should insist on their strict title as they did.
To Lord Justice Scarman, who concurred with Lord Denning, the position was this:
... The plaintiff and the defendants are adjoining landowners. The plaintiff asserts that he
has a right of way over the defendants land giving access from his land to the public highway.
Without this access his land is in fact landlocked, but, for reasons which clearly appear from
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the narration of the facts already given by my Lords, the plaintiff cannot claim a right of way
by necessity. The plaintiff has no grant. He has the benefit of no enforceable contract. He
has no prescriptive right. His case has to be that the defendants are estopped by their conduct
from denying him a right of access over their land to the public highway. If the plaintiff has
any right, it is an equity arising out of the conduct and relationship of the parties. In such a
case I think it is now well settled law that the Court, having analysed and assessed the conduct
and relationship of the parties, has to answer three questions. First, is there any equity
established? Secondly, what is the extent of the equity, if one is established? And, thirdly,
what is the relief appropriate to satisfy the equity?
... Such therefore I believe to be the nature of the inquiry that the Courts have to conduct
in a case of this sort. In pursuit of that inquiry I do not find helpful the distinction between
promissory and proprietary estoppel. This distinction may indeed be valuable to those who
have to teach or expound the law; but I do not think that, in solving the particular problem
raised by a particular case, putting the law into categories is of the slightest assistance.
A search for authorities shows that equity does not even have to depend on agreement, for
words or conduct can suffice to raise an equity.
In Ramsden v. Dyson [1866] LR 1 129, Lord Kingsdown spoke of a verbal agreement or
what amounts to the same thing, an expectation, created or encouraged. Similarly, in
Birmingham and District Land Co. v. London and North Western Railway [1888] 40 Ch D
268; Cotton LJ said that:
what passed did not make a new agreement, but in my opinion, what took place between
Mr. Boultons agent (need not on every occasion refer to the trustees) and the plaintiffs would
have prevented Mr. Boulton from bringing ejectment or taking possession of the land as soon
as the term of years limited by the agreements respectively came to an end, it raised an equity
against him ...
And so too, in Plimmer v. Wellington Corporation [1884] 9 App. Cas. 699, the Privy Council
said that:
... the Court must look to the circumstances in each case to decide in what way the equity
can be satisfied.
In recent times, we see the same principle being applied. My choice of some of these cases
is as follows:
In Inwards v. Baker [1965] 2 QB 29, the owner of land told his son that he could build on
it and then live there; in particular, he had said, Why not put the bungalow on my land
and make the bungalow a little bigger The son who had an expectation of being allowed
to stay there but not that the land was his, did just that, spending money on building and
remaining in occupation for the rest of his fathers life. The method of protection which the
Court gave was merely to refuse an action for trespass against the son and to declare that
he could remain on the land for as long as he desired to use it as a home.
In Ives (ER) Investment Ltd v. High [1967] 1 All ER 504 the plaintiffs were refused an
injunction to restrain the defendant from exercising a right of way across the formers land.
More particularly, it was held that the defendant High and his successors had an equity
which could only be satisfied by allowing him to have a right of access over the yard, so
long as the block of flats has its foundations on his land. It is noteworthy that in this case
the contract concerned was not registered under the Land Charges Act 1925, and was
accordingly void against a purchaser of the servient tenement, so reliance had to be placed
on further facts giving rise to an estoppel and upon the doctrine of mutual benefit.
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An important question which arises for decision concerning this part of the case is: What is
the role of Equity under the Code?
In Bhagwan Singh v. Hock Hin Bros. [1986] CLJ (Rep) 300, I had occasion to consider this
question and after referring to cases such as Abigail v. Lapin [1934] AC 491, Butler v.
Fairclough [1917] 23 CLR 78, Vallipuram Sivaguru v. PCRM Palaniappa Chetty & Anor.,
[1937] MLJ 59 and United Malayan Banking Corporation Berhad v. Goh Tuan Laye & Anor.
[1976] 1 MLJ 169 concluded thus:
Despite the misgiving expressed by Professor Haji Salleh Buang as to the locus standi of
Equity under the Code, in his well researched and interesting article entitled Equity and the
National Land Code - Penetrating the Dark Clouds [1986] 1 MLJ, it seems to me, that it is
too late now, to question the proposition that the English doctrine of equitable estoppel applies
and, that as a result, equitable rights or interests in land may arise outside the statutory system
of registration of title. In other words, the Torrens system does not prevent the Court from
doing equity where the rights of third parties have not intervened; Loke Yew v. Port Swettenham
Rubber Company [1913] AC 491.
Professor Visu Sinnadurai in his book on the Sale and Purchase of Real Property in Malaysia
on the question whether equitable principles are applicable under the Code opines (at
p. 206), - and I agree with him- that it is now well settled that they do. And then touching
on the relevant Malaysian cases on the subject, he says this:
In Malaysia, the uncertainty of the application of equitable principles has resulted in a number
of conflicting decisions, but it is submitted that there are now sufficient authorities in favour
of the application of equitable principles under the Land Code. In one of the earliest cases
dealing with this issue, Wilkins v. Kannammal, [1951] MLJ 99 Taylor J observed:
The Torrens law is a system of conveyancing; it does not abrogate the principles of
equity; it alters the application of particular rules of equity but only so far as is
necessary to achieve its own special objects.
Again in Valliappa v. Kesarmal, [1951] MLJ 117 his Lordship said:
Secondly, as to registration, it is perfectly true that some of the earlier local cases
suggest that the Torrens law is incompatible with, and excludes, many of the doctrines
of equity but these cases cannot be fully supported. I think they failed to distinguish
adequately between rights in equity and equitable estates in land.
The views of Taylor J in Wilkinson v. Kannammal were referred to by the Privy Council
in the recent case Oh Hiam & Ors v. Tham Kong [1980] 2 MLJ 159 where their Lordships
themselves restored to equitable principles in dealing with the question of indefeasibility under
the Code. Again, Gill FJ in Karuppiah Chettiar v. Subramaniam [1971] 2 MLJ 116 relied on
the observations of Taylor J and said:
That such equitable estates and rights are recognised under the Torrens System of
registration of titles to land is not open to question.
Furthermore, the Courts in a number of cases in referring to the vendor as a trustee for the
purchaser have relied on equitable concepts to arrive at this view.
Again in considering other issues under the Land Code not related to sale and purchase of
property there is ample Malaysian authority to establish the application of equitable principles.
It is therefore submitted that it is too late in the day to argue in support of the nonapplication of equitable principles under the National Land Code. The Courts should, in cases
not covered by the provisions of the National Land Code, resort to equitable principles which
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are not inconsistent with the Code. Where, of course, the Code is in conflict with general
equitable principles, the Malaysian Courts cannot resort to equitable principles to override
the provisions of the Code.
And, further down, dealing with the effect of s. 6 of the Civil Law Act 1956, which provides:
Nothing in this Part shall be taken to introduce into Malaysia or any of the States comprised
therein any part of the law of England relating to the tenure or conveyance or assurance of or
succession to any immovable property or any estate, right or interest therein
he adds this at pp. 210 and 211:

It is further submitted that s. 6 of the Civil Law Act was not intended to exclude the
application of English equitable principles. To understand fully the scope of the section, it is
important to consider the other provisions of the Act. Section 3 of the Act allows the
importation of English law to Malaysia whereas s. 5 allows the importation of English
mercantile law. Both these sections are restricted in their application with the important proviso
that English law will only be applicable if there are no local legislations dealing with a particular
aspect of law. At the time the Civil Law Act was enacted, there was already in evidence a
system of land tenure and conveyance. This was based on customary law, Malay Reservation
Enactments and Torrens. Section 6 was therefore enacted so as to restrict the application of
English law relating to land tenure and conveyance under the wide powers given under s. 3 of
the same Act. It was for clarity that s. 6 was enacted so as to avoid any problems of wholesale
importation of English land tenure under s. 3. Otherwise it was feared that conflicts might
arise with the local law relating to the same matters. Section 6 does not, nor was it ever
intended to exclude equitable principles if the existing law did not cover a particular point of
law or where the justice of the case demanded the application of these principles. Furthermore,
it should be noted that s. 6 does not expressly exclude the application of equitable principles
per se. It only excludes English land tenure and land law. In this connection, the observation
of Chang Min Tat J in Devi v. Francis [1969] 2 MLJ 169 is appropriate:
The other objection is based on s. 6 of the Civil Law Ordinance 1956 which excludes
the application of the law of England relating to tenure or conveyance or assurance of
or succession to any immovable property or any estate right or interest therein. The
answer to this objection is that the land law of England is one thing and equity another
matter ...
Similarly, Ajaib Singh J in Woo Yok Wan v. Loo Pek Chee, [1975] 1 MLJ 156 said:
What is precluded by s. 6 is the English law relating to tenure or conveyance or
assurance of or succession to any immovable property... but the section does not in
any way preclude the application of the English principles relating to equitable interests
in land.
In conclusion it may be said that s. 6 does not preclude the application of English equitable
principles to determine the status of the vendor and purchaser pending registration. As this
particular principle is not covered by any law in Malaysia, the Malaysian Courts have to, as
they have done in so many cases, apply equitable principles. This they should do confidentially
so long as the application of equitable principles does not conflict with the provisions of the
National Land Code or does not override or affect any right or interest bestowed by the express
provisions of the Code.
In Yong Tong Hong v. Siew Soon Wah & Ors., [1971] 2 MLJ 105 HT Ong CJ speaking for
the Federal Court said:
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In the instant case it may truly be said that there was, in the minds of the contracting
parties, no uncertainty as to the period of tenure. No tenant would willingly pay a large sum
of money for a simple monthly tenancy which is terminable at the will of the landlord at any
time, or even after the month next following. Hence the parties here had expressly agreed
upon a permanent letting. On the faith thereof, the RM8,000 was paid and the structural
alterations made, doubtless at the appellants expense, as consideration for his remaining in
undisturbed occupation for as long as he pleases, provided rent is paid at the rate stated.
And, further down his Lordship added:
Here it seems to me that no strain will be imposed upon the powers of this Court to give
effect to the expressed intention of the parties by holding that the agreement was one for the
grant of as long a lease as the law allows. Section 221(3)(b) of the National Land Code provides
that the maximum term for a lease of a part only of alienated land shall be 30 years. The law
permits no longer term and this Court should grant the appellant no less.
Although the agreement was not a proper instrument for registration as a lease the authorities
are clear that it may be treated as an agreement for a lease. The validity of contracts relating
to alienated land or any interest therein is explicitly declared in s. 206(3) of the National
Land Code.
(Emphasis added)
That decision was upheld on appeal to the Privy Council which held that there was an
equity or equitable estoppel protecting the defendant in his occupation for 30 years.
In Bank Negara Indonesia v. Hoalim [1973] 2 MLJ 3, the Privy Council held that in spite of
the fact that the defendant was not a protected tenant under the Rent Acts, he had an equity
to remain so long as he continued to practice his profession.
Turning to the appropriate remedies, I shall now state my reasons for holding why the
plaintiffs are not entitled to an order for specific performance for the grant of the right of
carriageway from Lot 48 over Lot 39 to the public highway known as the Batu Ferringhi
Road as envisaged by clause 11, as I have construed it, and as evidenced by the 1935 Survey
Department Map (p. 49AB).
Counsel for the plaintiffs had conceded - in my view rightly - that to grant an order for
specific performance as aforesaid would occasion great hardship to the defendant company
since it would involve the demolition of three dwelling houses in a block of eight link houses
standing on the right of carriage-way concerned leading from Lot 48 and which have already
been sold not to mention problems with the planning authority. Moreover, there is plentiful
authority for the proposition that hardship, in particular to third parties, may be a ground for
refusing an order for specific performance. (See Thomas v. Deriong [1837] 1 Keen 729 at 747,
748; Hexter v. Pearce [1900] 1 CH. 341.)
Now, rights arising from proprietary estoppel can be given effect to in various ways; for
example, by dismissing a claim for possession against the person relying on the estoppel
(the promisee) as in Inwards v. Baker (ibid) by refusing to grant an injunction against
him, as in Ives (ER) Investment Ltd. v. High (ibid) or by making an appropriate declaration
of his rights, as in Crabb v. Arun District Council (ibid). In other cases, the Court has
made orders analogous to specific performance by directing the transfer to the promisee of
the property or some interest in the property. So, for example in Duke of Beafort v. Patrick
[1853] 17 Beav 60 the successors in title of an owner who had consented to the construction
of a canal through his property were ordered to convey the site of the canal to the proprietor
of the canal on payment of compensation. Similarly, in Dillwyn v. Llewelyn [1862] 4 De GF
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& J 517 and Thomas v. Thomas [1956] NZLR 785 the Court ordered the transfer of the land
to the donees who, in reliance on imperfect gifts, had spent money on the land. In this
connection, the case of Pascoe v. Turner [1979] 1 WLR 431 also merits reading.
In the circumstances, in the exercise of my discretion, I do not propose to make an order for
specific performance of clause 11 to provide for a right of carriage-way from Lot 48 over Lot
39 to the public highway known as the Batu Ferringhi Road, envisaged by clause 11, as I
have construed it, and as evidenced by the 1935 Survey Department Map (p. 49AB).
However, what I propose to do is to make orders analogous to specific performance by

directing the defendant company, subject to certain conditions, to do certain acts with a
view to providing a limited access from Lot 48 to the public highway, in order to prevent it
from being landlocked.
Now, at the hearing, the defendant company had themselves proposed the provision of a
right of carriageway consisting of a single metalled access road of about 12 feet wide
affording access from Lot 48 to the public highway in accordance with the plan Ex. D75. It
seems to me that this would afford a compromise solution to the problem of access faced by
the plaintiffs in so far as Lot 48 is concerned without in any way affecting their claim for
damages for diminition in value of Lot 48 in view of the limited access it will now have as
compared to that envisaged by clause 11 as I have construed it.
In these circumstances, having regard to the conduct and relationship of the parties, I find
that an equity has arisen in favour of the plaintiffs and, without prejudice to the plaintiffs
claims for damages for diminution in value of Lot 48 by reason of the restricted access they
will now have as compared to that envisaged by clause 11 of the Sale and Purchase
Agreement as I have construed it, the appropriate reliefs to satisfy that equity will be as
follows:
(a) Against the defendant company, subject to planning permission being obtained (if
necessary), a mandatory injunction requiring it to construct, as soon as reasonably
possible, a single metalled access road of about 12 feet in width, affording access from
Lot 48 to the public highway known as Batu Ferringhi Road, in accordance, or
substantially in accordance with the plan D75, tendered on its behalf at the trial and
complying with local authority specifications;
(b) To give legal effect to this order, I would grant a further mandatory injunction requiring
the defendant company or its successors in title, as the case may be, to execute the
prescribed Form 17A under s. 286(1) of the Code and to present the same for registration,
thus creating an easement of way in particular, a right of carriageway within the meaning
of s. 288(b) of the Code in perpetuity over the existing road on Lot 39 (the servient
land) defined in the 1935 Survey Map (p. 49AB) in accordance, or substantially in
accordance with the Plan Ex. D75, tendered on its behalf at the trial and so affording
access from Lot 48 (the dominant land) to the public highway known as the Batu
Ferringhi Road, in favour of the plaintiffs and their successors in title, within two months
from date hereof, or in the event of planning permission being required, then within
one month from the date of the grant of such permission, failing which the Senior
Assistant Registrar of this Court to do so;
(c) Upon presentation of the duly executed instrument in Form 17A aforesaid, the proper
registering authority shall register the same as soon as reasonably possible;
(d) There will also be the following consequential orders:
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(i) the defendant company or its successors in title shall forthwith enquire in writing
from the relevant authorities if planning permission as aforesaid is required; and, if
so, to apply forthwith for the same.
(ii) in the event of planning permission being granted but subject to conditions, the
defendant company or its successors in title, as the case may be, shall comply with
the same as soon as reasonably possible; and shall be responsible for the payment
of all prescribed fees or deposits (if any) in connection therewith.
(iii) the defendant company or its successors in title, as the case may be, shall promptly
provide the plaintiffs or their solicitors with copies of all correspondences passing
between them and the relevant authorities and also of any application for planning
permission.
(iv) in the event of the defendant company or its successors in title, as the case may
be, failing to enquire or to apply or to comply with any condition as aforesaid, then
the plaintiffs or their successors in title, as the case may be, shall be at liberty to
do so, in which case, they shall be entitled to recoup all expenses reasonably
incurred in connection therewith and the same shall be recoverable as a debt due
from the defendant company or its successors in title to the plaintiffs or their
successors in title, as the case may be.
(e) However, in the event of planning permission for the access aforesaid being required
and not being forthcoming or in the event of the rights of third parties having intervened
or in the event of there being some legal or other impediment to the creation of such
easement as aforesaid, then the parties herein shall be at liberty to apply to Court to
enable me to consider what further or other orders I should make in substitution for or
in addition to the orders aforesaid, in which event, perhaps, the damages awarded for
diminution in value to Lot 48 may have to be re-assessed, having regard to the
circumstances of the case.
Turning to the claim in so far as Lot 55 is concerned, it was submitted on behalf of the
defendant company that the plaintiffs could use its own 40 feet wide access road within its
own development on Lot 39, leading up to the boundary of Lot 55 as a means of access
from Lot 55 to the public highway known as the Batu Ferringhi Road.
I can think of no good reason why this should not provide a suitable alternative form of
access to that afforded by the existing road appearing in the 1935 Survey Map (p. 49AB)
which in any case is not feasible due to the presence of six houses constructed by the
defendant company and already sold.
In these circumstances, having regard to the conduct and relationship of the parties which
I have particularised when considering the position of Lot 48, I find that an equity has arisen
in favour of the plaintiffs and the appropriate reliefs to satisfy it will be to make orders
analogous to specific performance as follows:
(a) Against the defendant company, a mandatory injunction requiring it or its successors
in title to execute the prescribed Form 17A under s. 286(1) of the Code and to present
the same for registration thus creating an easement of way, in particular, a right of
carriage-way within the meaning of s. 288(b) of the Code in perpetuity over its 40 feet
wide main access road on Lot 39 (the servient land) and so affording access from Lot
55 (the dominant land) to the public highway known as the Batu Ferringhi Road, in
favour of the plaintiffs or their successors in title, within one month from date hereof,
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257
failing which the Senior Assistant Registrar of this Court to do so provided always that
this order does not have the effect of interfering with the rights of third parties which
might have intervened;
(b) Upon presentation of the duly executed instrument in Form 17A, the proper registering
authority shall register the same as soon as reasonably possible;
(c) However, in the event of the rights of third parties having intervened, or if there is
some legal or other impediment to the creation of such an easement, then the parties
herein shall be at liberty to apply to Court to enable me to consider what further or
other orders I should make in substitution therefor including perhaps, an order for the
award of damages for diminution in value to Lot 55, having regard to the circumstances
of the case.
Subject to the special defences of laches, acquiescence, waiver, abandonment and limitation,
which I shall consider in the final part of this judgment, the remaining issue which now arises
for decision, stated broadly, is what is the measure of damages (if any) to which the plaintiffs
are entitled, arising from the defendants acts of trespass, nuisance and injury to the lands
comprised in Lots 48 and 55.
(a) Claim for Diminution in Value of Lot 48
Counsel for the plaintiffs had submitted that compensation should be awarded on the basis
of diminution in value of Lot 48, which he says, has suffered a complete destruction of its
development potential. Accordingly, relying on P39, the Report of Mr. K. Parampathy, a
chartered valuation surveyor, Counsel has claimed RM741,584.
In the Report, P39, Mr. Parampathy had stated that as regards Lot 48, the loss of its market
value had been occasioned by the loss of proper access. In particular he stated and I quote
him:
The absence of access has resulted in the site becoming landlocked and sterile for all
development purposes. The claim for injury will be based on the market value of the subject
lot if it were provided with proper access facilities. The provision of such facilities would
have permitted the property to be used to the optimum value it inherently enjoyed.
Then turning to the quantum of injury, Mr. Parampathy had referred to a letter from one Mr.
Ong Chin Seng, signed on behalf of the Secretary of the Majlis Perbandaran Pulau Pinang
(the MPPP) dated 10 September 1983, being Appendix II attached to his Report, wherein it
was stated that it can be assumed that Lot 48 could be developed to a density of some 30
units to an acre.
Next, Mr. Parampathy had referred to a study of evidence of sales of sites suitable for density
zoning for 15 units to the acre which disclosed values of approximately RM36 and RM40 per
sq. ft. and, in respect of 30 units per acre, a value of RM60 per sq. ft.
On this basis, he arrived at the conclusion that the market value of Lot 48, assuming it had
not been injured by the activities of the defendants, to be RM48 p.s.f. He then went on to
add that considering Lot 48 was sterile for all development purposes, he attributed to it a
present value not exceeding RM100,000.
Accordingly, he had concluded that a fair claim for injury to Lot 48 was as follows, and I
quote him:
Before value
Market value of subject property:
1 r. 24.4p
-
i
17,533 s.f.
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@ RM48 p.s.f. .. RM841,584
a
After Value
Market value of subject property say
RM100,000
RM741,584
The first observation I should like to make regarding Mr. Parampathys Report is that it is
based on (a) the letter signed by Mr. Ong Chin Seng on behalf of the Secretary of the MPPP
dated 10 September 1983 and (b) a study of the prices paid for other lands.
As for the letter I am afraid its evidential value is virtually worthless. It is true that Mr. Ong
was called as a witness for the plaintiffs but being the chief Administrative Officer of the
Council, he would not have possessed the necessary expertise to express an opinion on a
technical matter such as the likelihood of the Council approving a residential development
of 30 units an acre in the area concerned. He did, no doubt, say that he had consulted the
chief town planner, before writing the letter so that the proper person to have spoken about
the matter would have been the chief town planner; yet, when the latter was called, not a
single question was put to him on the contents of that letter.
As regards the prices paid for other lands referred to in the study, it had not been proved
that they strictly bear comparison to Lot 48 either as regards area or topography.
The second observation I should like to make regarding Mr. Parampathys Report is that it
is based on the assumption that Lot 48 is now landlocked and sterile for all development
purposes by reason of loss of proper access. In my opinion, the assumption is not justified.
It is true that whereas Lot 48 had previously enjoyed access by way of the existing road
mentioned in clause 11 which had two branches leading to Lot 48 whose combined width
was 30 feet, it will now probably have a 12 feet or so wide provide in accordance with their
plan, D75, and in respect of which I have made orders analogous to specific performance
but subject to various conditions. This would be suitable to cater for the needs of a dwelling
house. To that extent, I find that Lot 48 has suffered diminution in value.
Accordingly, I am unable for the reasons stated, to accept Mr. Parampathy's opinion as to
the diminution in value suffered by Lot 48.
Similarly, I am unable to accept the opinion of the defendants expert valuer, Mr. S. Gopal
Krishnan, that there appears to be no valid claim for injurious affection due to lack of access
in respect of Lot 48.
I would add, that in any event, I am satisfied that the plaintiffs never had any serious or
genuine intention of developing Lot 48 much less to a density of 30 units to an acre. The
first and second plaintiffs had long before the events which gave rise to this suit emigrated
to Perth, Australia, where at least the first plaintiff has since been gainfully occupied.
It is true that the first plaintiff did testify that he had plans for the development of Lot 48
and that in this connection he had friends in Kuala Lumpur who were prepared to help
financially. He added that for this purpose Dato Lim Cheng Kiat had arranged for sketch
plans for an eight storey building and cabana comprising 20 to 22 units to be drawn up.
These plans, he added, showed an access road along the same lines as the existing road
appearing in the Survey Map Ex. Pl (p. 49AB). However, he said that these plans were not
submitted to the relevant authority because of the differences he was having with the
defendants relating to the blockage along the existing road and the burial of the family house
on Lot 48. But, neither Dato Lim nor his friends were called to support the plaintiffs claims
in this regard.
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I regret I find this part of the evidence of the first plaintiff to develop Lot 48, too vague and
insufficient to constitute a basis to support a claim for diminution in value as contended for
by his Counsel.
The probabilities were that the plaintiffs held on to Lot 48 as an investment in development
value. That development value lay in the site itself and I so find.
Now, those being my findings of fact what are the principles of law which I should apply to
them?
In Livingstone v. Rawyards Coal Co. [1880] 5 App. cas. 25, 39 Lord Blackburn laying down
the broad fundamental principle as to damages said that the measure of damage is:
that sum of money which will put the party who has suffered, in the same position he
would have been if he had not sustained the wrong for which he is now getting the
compensation or reparation.
In Munnelly v. Calcon [1978] IR 387, Henchy J said at p. 399:

the particular measure of damages allowed should be objectively chosen by the Court as
being that of the particular case, to put the plaintiff fairly and reasonably in the position in
which he was before the damage occurred, so far as pecuniary awards can do so.
But, what is the measure of damages which the Court should award in an unusual case,
such as the present, where specific performance of clause 11 of the Sale and Purchase
Agreement or, in effect, a mandatory injunction to pull down the three houses which stand
on the right of way leading to Lot 48 envisaged by that clause, thus preventing the
continuance of the trespass must be refused on grounds of hardship to third parties although
a modified form of order analogous to specific performance hereinbefore particularised has
been granted.
In my search for authorities, I have uncovered two cases which shed light on the problem.
In Bracewell v. Appleby [1975] Ch 408 six houses built on an estate formed a cul-de-sac
around a private road, each of the six properties comprising part of the road with appropriate
grants and reservations of rights of way over the road for the purpose of access to the
houses. The defendant, who owned one of the houses and who had acquired a plot of land
adjoining its grounds, proceeded to build on the plot a new house, access to which could
only be over the private road and the grounds of the defendants existing house. The plaintiffs,
who each owned another of the six houses on the cul-de-sac brought an action claiming a
declaration that there was no right of way over the private road for the purpose of gaining
access to the new house and seeking an injunction restraining the declaration was granted,
but the injunction was nevertheless refused because the plaintiffs had delayed proceedings
until the building of the new house was at an advanced stage. Graham J accordingly
proceeded to award damages in lieu, and took the view that the defendant must be liable to
pay an amount of damages which in so far as it can be estimated is equivalent to a proper
and fair price which would be payable for the acquisition of right of way in question. While
he accepted that the plaintiffs were reluctant to accommodate the defendant as they did not
want an extra house on the cul-de-sac, he thought that, for the purpose of assessing damages,
the plaintiffs must not be treated as if they were in the extremely powerful bargaining position
which an interlocutory injunction would have given them if it had been obtained before the
defendant started operations. The figure to aim at was that which, in negotiation, the plaintiffs
would have accepted as adequate to compensate them for the loss of amenity and the
increased user of the road, but which at the same time would not be so high as to deter the
defendant from building at all. Graham J considered that the defendant would have been
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prepared to pay a relatively high proportion of his profit for the right of way needed to
achieve the building of the new house in which he wanted to, and now did, live, and he
awarded damages based on 40 per cent of that profit.
In Carr-Saunders v. Dick Mc Neil Associates [1986] 1 WLR 922, the same approach was
adopted in awarding damages in lieu of a mandatory injunction although a right to light
rather than a right of way was in issue. A sum of 8,000 Pounds was awarded by way of
general damages although evidence of the amount of profit the defendants would have made
from the development of their site was lacking.
There seems no reason in principle why the beneficiary of a positive covenant such as
clause 11 of the Sale and Purchase Agreement who cannot obtain specific performance for
the grant of a right of way as envisaged in the 1935 Survey Plan (p. 49AB) but who has
obtained a modified form of an order analogous to specific performance as in the present
case, should not be entitled to damages assessed on the basis of the amount the defendant
company would have been prepared to pay to gain substantial release from the obligation of
performing the covenant. If such a measure is available to the beneficiary of a restrictive
covenant to whom an injunction has not been granted (as in Wrotham Park Estates Co. v.
Parkside Homes [1986] 1 WLR 922, it should also be available to the beneficiary of a positive
covenant who cannot obtain specific performance as aforesaid.
In the present case, there is no satisfactory evidence of the amount of profit the defendant
company would have made from the sale of the three link houses each at a price of about
RM280,000 which stand on the right of way leading to Lot 48 - a situation not unlike that in
the Carr Saunders case (ibid). However, there is evidence before me of the general loss of
amenity suffered by Lot 48 and that loss is obviously substantial for, instead of an access
consisting of two branches with a combined width of 30 feet, the plaintiffs will have to be
content with a single access 12 feet wide offered by the defendant company at the hearing
as evidenced in the plan D75. I propose, therefore, to approach the problem of the assessment
of damages on the basis that damages are awarded in lieu of a mandatory injunction to pull
down the three houses and not merely in compensation for the loss of the actual legal right
of way contemplated by clause 11. As Millet J said, in the Carr Saunders case (ibid) at
p. 931 G to H:
... it seems to me obvious that any dominant owner, negotiating with a servient owner for
monetary compensation for the loss of light, would take into account the general loss of amenity
which his premises would suffer. To that extent, it seems to me that the Court is entitled to
approach the question on the basis that damages are awarded in lieu of an injunction and not
merely in compensation for the loss of the actual legal right. If a mandatory injunction had
been granted the building would have been pulled down and the plaintiff would have been
restored not only to his direct light, but also to sky visibility, a pleasant view of brickwork
and a sloping roof, sunlight and so on.
I have little evidence to guide me, except that 3,000 Pounds or thereabouts must be the
absolute minimum figure. Doing the best I can and taking account, I hope, of all the
considerations that have been pressed upon me by both sides, of the evidence I have heard
and, indeed, of my own view, I award general damages of 8,000 Pounds.
I must interpolate to mention that the plaintiffs are themselves partly to blame for their loss
of the access consisting of the two branches with a combined width of 30 feet envisaged by
clause 11 of the Sale and Purchase Agreement for had they acted with due speed in pursuing
their rights they could have obtained the grant of an easement for such access effected by
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registration in Form 17A under s. 286 of the Code but they did nothing of the sort. Had
they taken this elementary precaution they would not have found themselves in the present
predicament.
Accordingly, proceeding by the steps indicated by Millet J but always bearing in mind the
particular circumstances of this case and that the assessment of damages may sometimes be
purely guesswork (per Vaughan Williams LJ in Chaplin v. Hicks [1911] 2 KB 786 per Fletcher
Moulton LJ quoted with approval by Hamid J (as he then was in Fernando v. Indrarajah
[1987] CLJ (Rep) 747, a case of trespass to land and encroachment,) I would award the
plaintiffs RM100,000 by way of general damages for diminution in value of Lot 48; in particular,
for loss of amenity, namely, that instead of an access consisting of two branches with a
combined width of 30 feet envisaged in clause 11 of the Sale and Purchase Agreement, they
will have to be content with a single access of about 12 feet wide offered by the defendant
company at the hearing as evidenced by the plan D75.
(b) Claim for use and occupation of Lot 48

The next branch of the plaintiffs claim in so far as Lot 48 is concerned, arises out of the
allegation that the defendants had been occupying Lot 48 for the storage of building materials
and as a working platform.
The plaintiffs say that the period of such user was from February to November 1981 - a
period of some 10 months.
Mr. Bellotti, the plaintiffs architect, estimated the rental for use of Lot 48 for that period to
be about RM30,000 for 18 months or in other words, RM1,666 p.m. See his report P20
para. 5. So, for a period of 10 months of user, Counsel for the plaintiffs contended for an
award of, say, RM15,000 under this head.
On the other hand, Counsel for the defendants submitted that the plaintiffs had not suffered
the loss of the use of their land since there was no evidence that they had intended to put
it to any particular use during the period concerned. In any event, he argued that damages
in respect of trespass and/or nuisance ought to be assessed at RM50 p.m. for the period of
10 months, thus amounting to RM500 based upon the testimony of Mr. Kee Kow, the
defendant companys area manager.
In my opinion, Counsel for the defendants submission that the plaintiffs were not entitled to
damages for the use made by the defendants of Lot 48 simply because there was no evidence
that the plaintiffs had intended to put it to any particular use during the period concerned
is quite untenable.
In Pernath Dock Engineering Co. v. Pounds [1963] 1 LL Rep 359, the defendants having
bought a pontoon or floating dock from the plaintiffs failed to have it removed within a
reasonable time from the dock premises of which the plaintiffs were lessees and which were
in the course of being closed down by the lessors. In the plaintiffs action for trespass or
breach of contract, Lord Denning MR assessed damages as the benefit obtained by the
defendant by having the use of the dock premises after he should have removed the pontoon,
although the plaintiff had lost nothing since the dock premises were of no use to them and
their lessors had not required them to pay extra rent.
This case shows that the plaintiff would be entitled to recover more than the market rental
value since recovery would be based upon the benefit which the defendant had extracted
from the user of the land - a principle based upon quasi contractual restitution.
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In Martin v. Porter [1839] 5M & W 351, a reasonable rent for the use of passages in a mine,
generally called wayleave, had been granted, even though no injury has been done to the
land. These damages have been allowed whether the defendant was acting wilfully or
innocently (See Hilton v. Woods [1867] LR 4 EQ 432 and Jason v. Vivian [1871] 3 LR 6 Ch
742).
In Whitwham v Westminster Brymbo Coal Co. [1896] 2 Ch 538 where the defendant had
trespassed on the plaintiffs land by tipping soil from his colliery upon it, it was held that the
principle of wayleave cases applied so that the damages were not to be assessed merely by
taking the diminution in value of land but to the higher value of the user to which the
defendant had put it.
Lindley LJ said:
The plaintiffs have been injured in two respects. First, they have had the value of their land
diminished; secondly, they have lost the use of their land, and the defendants have had it for
their own benefit. It is unjust to leave out of sight the use which the defendants have made
of this land for their own purpose, and that lies at the bottom of what are called the wayleave
cases.
I must, in the circumstances, make an award in favour of the plaintiffs in respect of the
wrongful user by the defendants of Lot 48 in area 17,533 sq.ft. for the storage of building
materials and as a working platform and, for this purpose, assess on the meagre material
available, the fair rental for the period of ten months from February to November 1981.
I agree that neither Mr. Bellotti nor Mr. Kee Kow who testified as to this are really competent
to speak about the fair market rental for the use of Lot 48 and this may explain the widely
divergent opinions they have expressed upon this issue. Accordingly, I find that neither
version put forward by these witnesses on this point, is acceptable.
I note, however, that in their report dated 7 November 1985 (Ex. D83), the defendant companys
architects M/s. Leung Ching Fan & Partners, disagreeing with Mr. Bellottis opinion on the
point as to what would be a fair rental for the use of Lot 48, have said that even the monthly
rental of a bungalow along Batu Ferringhi let unfurnished would be only around RM800 p.m.
which, I would say, is not an unfair estimate they have added that in the case of Lot 48 the
only part of the land comprised in it that could be used as a working platform would have
been the empty land around the family house situated thereon.
In these circumstances, doing the best I can, I would assess the fair rent for the use by the
defendants of Lot 48 for storage of building materials and equipment and, as a working
platform, at RM500 p.m. for the period of 10 months from February to November 1981. This
would amount to 5,000 which I award accordingly under this head.
(c) Claim for destruction of the Family House on Lot 48
I next turn to consider what has been described by Counsel for the plaintiffs as the alternative
claim for loss arising from the destruction of the Templeton family house standing on Lot
48. It was said that that destruction was caused by the deliberate deposit of excavated material
but the defendants said that deposits were due to rain. However, having listened to the rival
versions of the plaintiffs and defendants on this point, I prefer that of the plaintiffs as being
more probable. I believe the testimony of the first plaintiff when he said that the deposits of
earth on Lot 48 by the defendants had virtually buried the family house and, that upon
removal of the deposits, it had been razed to the ground and cleared.
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Counsel for the plaintiffs went on to argue, relying on the report of the architect Mr. Bellotti,
being Ex. P20 para. 5, that the replacement cost of the family house, at the time of the trial,
would be RM240,000. However, he conceded that in view of the age of the house,
compensation should be assessed at RM120,000 on the basis of the loss of the house, a
point which was recognised by Mr. Bellotti himself. As for the testimony of the defendant
companys architect Mr. Wong Yuen Kee (DW9), (who had testified that the house was
incapable of being restored economically even before the fill on Lot 48), Counsel commented,
and I think somewhat cogently, that this testimony was of no value because the witness
had not seen the house before the dumping had occurred.
However, there are certain plain facts which cannot be ignored.

The first plaintiff had himself admitted that the family house had been vacant since 1960 and
that, in time, it had been vandalised and that by 1980 it had become a very run down house.
He added that he had not restored or even repaired the house for practical reasons connected
with his work and the fact that he lived in Australia. He also said that the last time he saw
the house was in 1980, though from a distance.
But then he said that he was prepared to restore the house because it was his family house.
I am afraid I would take this part of the first plaintiffs evidence with more than a pinch of
salt. In fact, I have no hesitation in finding that given the fact that the house had been
virtually abandoned for more than 20 years at the time of the acts of trespass complained of,
and the personal circumstances of the first and second plaintiffs, the plaintiffs never had the
intention of restoring the house nor would they do so in the event of an award being made
by this Court on that basis. Had there been a genuine desire to reinstate or even to repair
the house on the part of the plaintiffs they would have done so long before. Indeed, the
plaintiffs never even engaged a caretaker to look after the house but instead allowed it to
go to seed for at least two decades to the acts of trespass the subject of this suit.
In Hole & Son (Sayers Common) v. Harrisons of Thurnscoe [1972] 1 Lloyds Rep 345, the
defendants lorry demolished a terrace of three cottages belonging to the plaintiffs, causing
the statutory tenant inhabiting one of the cottages to move out. The plaintiffs had intended
to demolish the cottages when the opportunity presented itself and the accident damage
together with the departure of the statutory tenant provided the opportunity, so that they
had no intention of repairing the cottages. The cost of reinstatement was therefore rightly
refused and the plaintiffs recovery was held restricted to a small sum for repairs to an internal
wall and some loss of rent.
In Taylor (Wholesale) v. Hepworths [1977] 1 WLR 659 where fire gutted the plaintiffs billiard
hall on a site which they held for its potential redevelopment value and which they had no
intention of using as a billiard hall, diminution in value was again rightly held to win out
over cost of reinstatement as the appropriate measure of damages. Moreover, even this degree
of recovery was eliminated because it was less than the costs of clearing the site for
redevelopment, which costs the plaintiffs had been saved. The plaintiffs entitlement to
damages thus comprised only the cost of removal of the debris, of immediately necessary
remedial works and of securing the premises against trespassers, together with a sum for
damage to trade fixtures and fittings. I would, in the circumstances, make no award in respect
of the family house whether for repairs or reinstatement and, I might add, that in any event,
any award under this head would have to be nominal and would be merged under the award
for diminution in the value of Lot 48 which I have already made.
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(d) Claim for Exemplary Damages in respect of Lot 48.

Finally, as regards Lot 48, there is a claim for exemplary damages which should be explained
as cases of aggravated damages, that is, as cases of extra compensation to the plaintiff for
injury to his feelings and dignity (see para. 409 Mc Gregor on Damages 15th Edn.).
Rookes v. Barnard [1964] AC 1129 was a case concerning intimidation in industrial relations,
in the course of which a question arose whether exemplary damages could be awarded in
respect of a flagrant breach of contract. In that case Lord Devlin, with the unanimous approval
of all his brethren, reviewed the law and laid down that exemplary damages could only be
awarded in three categories of cases. These concerned, first, oppressive action by officers
of the Crown; secondly, cases where the defendant had with a cynical disregard for a
plaintiffs rights has calculated that the money to be made out of his wrongdoing will probably
exceed the damages at risk, and thirdly, where statute expressly authorised exemplary
damages.
Lord Devlin also expressed three considerations applicable to all cases of exemplary
damages: first, that the plaintiff cannot recover such damages unless he is himself the victim
of such punishable behaviour. Secondly, exemplary damages can be used both for and
against liberty, and are a punishment without the safeguard of the criminal law, so that the
weapon must be used with restraint, and the House might have to place some arbitrary
limit on such awards despite the respect due to assessment of damages by juries. Thirdly,
the financial means of the parties, though irrelevant to compensatory damages are relevant
to exemplary damages.
The fact that exemplary and compensatory damages must thus be presented differently to
the jury, Lord Devlin also indicated, did not necessarily mean that the jury must make two
separate awards. It should, however, be directed that exemplary damages should only come
into play if it regards the amount which it has fixed for compensation as inadequate in the
circumstances to punish and deter the defendant and mark its disapproval for his conduct.
In Cassell & Co. v. Broome [1972] AC 1027 (affirming sub nom. Broome v. Cassell & Co.
[1971] 2 QB 354), the plaintiff claimed that he was libelled in the book, the Destruction of
Convoy PQ17 an account of a dramatic naval tragedy of World War II, by its publishers,
Cassell (the first defendant) and its author (the second defendant). The alleged libels
concerned the performance by the plaintiff, Captain Broome, of his naval duties as commander
of that convoy, responsibility for the tragic loss of the convoy being attributed to defects in
the plaintiffs conduct and character. The evidence showed that both defendants knew before
publication that the passages concerned were false, and, moreover, that they persisted in
publishing without correction, despite the fact that the falseness of the statements complained
of was more than once drawn to their attention on the printers proofs by the plaintiff, the
Admiralty, and others. The jury assessed the compensatory damages at 15,000 Pound, and
the exemplary at 25,000 Pound.
The main issue on which Broome v. Cassell (ibid) came to the Court of Appeal was whether
the jury was debarred by the law as laid down by the House of Lords in Rookes v. Barnard
(ibid) (per Lord Devlin) in 1964, from awarding the 25,000 Pound exemplary damages, over
and beyond damages required (including any for the aggravated nature of the defendants
conduct) to compensate the plaintiff. This additional amount of exemplary damages has
for its purpose (in the Lord Chancellors later words in Cassell v. Broome) (ibid) to vindicate
the strength of the law and act as a supplement to its strictly penal provisions. The trial
Judge in Broome v. Cassell regarded himself as bound by this House of Lords decision in
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265
Rookes v. Barnard. The Judge instructed the jury that in relation to the instant facts they
should only award exemplary damages as a separate item, and only if the case fell within
Lord Devlins second category of calculation of profits against damages. The jury, as already
observed, awarded 25,000 Pounds on the exemplary head. This, then, came to the Court of
Appeal to determine whether the exemplary damages were impermissible or excessive, Counsel
for both defendants arguing that there was no evidence of calculation (interpreting Lord
Devlins language here in a narrow literal sense).
On the narrow issue, whether the facts fell within Lord Devlins second category, Lord
Denning MR and all members of the Court of Appeal left no doubt that in their view they
did; though they treated it as only their secondary ground of decision. Assuming, that is,
that Lord Devlins statement of the law was binding on them (which in their main ground
they denied), they would still hold that the facts fell within the second category of exemplary
damages permitted by Rookes v. Barnard. The defendants had persisted in uncorrected
publication, calculating (as their lordships said, and as the trial Court had said, and also
proved to be true) that the profits and royalties form this sensation-creating book, with its
uncorrected libellous assertions, would exceed any damages awarded against them. This, they
thought (as later did the House of Lords), sufficed to meet Lord Devlins category; there
was no need to show an actual arithmetical calculation with pencil and paper.
This alone, of course, would have sufficed as a ground for dismissing the appeal. And the
House later affirmed its decisiveness. The majority called the appellant attempt to escape
Lord Devlins second category a forlorn hope. They stressed the importance of his
considerations for the Judges directions to the jury.
The second Common Law category laid down by Lord Devlin as justifying an award of
exemplary damages has been interpreted by Lord Hailsham in Broome v. Cassell (ibid) as
not intended to be exhaustive but illustrative, and is not intended to be limited to the kind
of mathematical calculations to be found on a balance sheet. Indeed, in Drane v. Evangelou
[1978] 1 WLR 455, Goff, LJ stressed that a calculation by the defendant of actual money he
hoped to make out of the conduct was not necessary.
In Australian Consolidated Press v. Uren [1966] 40 ALJR 142, Taylor J in his judgment said
that he was quite unable to see why the law should look with less favour on wrongs
committed with a profit making motive than upon wrongs committed with utmost degree of
malice or vindictively, arrogantly or high handedly with a contumelious disregard for the
plaintiffs rights.
It may well be that a defendant may be shown to have the necessary profit motive when
committing a breach of contract where hitherto the writ of exemplary damages has never
been thought to lie (See Kenny v. Preen [1963] 1 QB 499 which concerned a lessees claim
for breach of the covenant of quiet enjoyment.)
It is, however, clear that there are three categories of cases where exemplary damages would
be justified and these have been spelt out by Lord Devlin in Rookes' case (ibid) though
even in those cases it is a matter for the Courts discretion whether or not to make such an
award. (See Holden v. Chief Constable of Lancashire [1987] QB 380.
I would add one final observation on the law as regards exemplary damages and it is this:
the awarding of exemplary damages is somewhat makeshift and arbitrary method of preventing
a tortfeasors unjust enrichment: see McGregor on Damages 15th Edn. para. 423 p. 267. It is
with the above principles in mind that I turn to consider the claim for exemplary damages
with regard to Lot 48.
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It was submitted by Counsel for the plaintiffs that the obstruction of the access to Lot 48
was carried out by the defendants concentrating construction work on the houses
encroaching on the plaintiffs access road as evidenced by Exhibits P2 to P3 and P16A
notwithstanding the vehement protests of the plaintiffs.
Counsel directed my attention to the following extracts from the testimony of Mr. Bellotti at
p. 83A to C of the notes of evidence:
Yes, injunction was obtained on 5 February 1982 - and I was asked to see if it was being
complied with. I found work was still in progress. I went there on 6 February 1982. Yes,
injunction was not being complied with. Work was concentrated on the three end houses which,
as I said, had encroached on the existing access road.
DAB p. 4 - this is a copy of a letter from me to plaintiffs solicitors reporting back about
results of my inspection on 6 February 1982.
[Defendants Counsel agrees to admission of p. 4 DAB and pictures subject to crossexamination - P16A]. These two pictures show work in progress on three end-houses - [Photos
put in by consent subject to cross-examination P16B].
Counsel further directed my attention to the following extracts from the testimony of the
first plaintiff, which he said went to show that the defendant company had been attempting
to force the plaintiffs to sell their remaining lands, Lots 48, 55 and 56:
I now produce that copy - P2. I posted the original of this letter to Mr. Low Yow Chuan
by ordinary air mail post. I reminded him of clause 11- of the Sale and Purchase Agreement
of 12 July 1971. Soon after writing this letter, in February 1980, I came over to KL where
I met Mr. Low Yow Chuan at the Federal Hotel. I raised the matter of development especially
about the existing road. He said that as lots still owned by us were so small, he wanted to
purchase them - he said something to this affect Why worry, I will buy you out. I told
him the properties were not for sale and that we wanted to keep them for sentimental reasons
and also our family house still stood on Lot 48, otherwise we would have included those lots
in the original sale.
In this context, another passage in the testimony of the first plaintiff which merits citation,
reads as follows:
Although I have said before I hesitated commencing proceedings for a number of reasons
including the fact that Dato Low Yow Chuan was a millionaire and a friend, and I was living
abroad, in the end I was compelled to do so because not only had the defendant company
breached clause 11 of the contract of sale and purchase dated 12 July 1981, and buried the
family house but I was also told that one day whether I liked it or not I would have to sell
out to him. It was in February 1980, at the Federal Hotel meeting, that Dato Low Yow
Chuan told me that whether I like it or not I would have to sell out to him. At that time I
thought he was joking but in the light of subsequent events I did not think it was a joke.
On the other hand, Counsel for the defendants submitted that in view of the inordinate delay
on the part of the plaintiffs in asserting their claim to a right of way and in commencing
proceedings and the consequent enormous prejudice (unspecified) to the defendant company,
no aggravated damages should be awarded. In particular, it was contended that if the plaintiffs
had not slept on their rights and instead, either taken a legal easement or lodged a caveat,
the problems which they now faced would not have arisen in the first place. He added that
it was not fair to blame the defendant company when there is no evidence to suggest that
they knew of clause 11 of the Sale and Purchase Agreement (quoted above) at the time their
plans for earthworks on Lot 39 were submitted to the Council.
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I must begin by saying that I have no hesitation in accepting the testimony of the first
plaintiff and Mr. Bellotti, reproduced above, regarding this part of the case. I find nothing
improbable in this aspect of their testimony and I think they stood up well to crossexamination. I am satisfied that Mr. Bellottis letter P16A and the accompanying photos P16B
were a true reflection of the state of affairs then prevailing at the site concerned. It is also
significant that Dato Low, the Managing Director of the defendant company and the
purchaser named in the Sale and Purchase Agreement never testified in Court to rebut the
allegation that the plaintiffs were being pressured into selling their remaining Lots 48, 55 and
56.
On the other hand, I find the submission of Counsel for the defendants that because there
was inordinate delay on the part of the plaintiffs in pursuing their claims to a right of way
and later in commencing proceedings, the plaintiffs should be denied aggravated damages,
quite untenable.
The testimony of the first plaintiff does explain - and I accept that explanation as I see nothing
improbable in it - why he delayed in taking action. I have, when reviewing the history of the
case, given full particulars of this explanation as well as referred to the relevant contemporary
correspondence. Accordingly, I do not propose to indulge in tedious repetition.
Suffice it to say that the evidence, especially the contemporary correspondence, shows clearly
that the plaintiffs resorted to litigation only as a last resort after every attempt at negotiation
had failed. The plaintiffs exhibited remarkable patience which is perhaps understandable given
the fact that the first and second plaintiffs were already settled in Australia and, the further
fact, that they were facing a formidable adversary with considerable resources. I have no
doubt that the defendant company was aware of these disadvantages which the plaintiffs
faced and took full advantage of it by acting in flagrant disregard of their rights in the manner
reflected in the contemporary correspondence reproduced above.
I do not consider that the plaintiffs should be deprived of exemplary damages simply because
of the indulgences they had shown the defendant company in delaying the institution of
proceedings given the circumstances of the case. In this context, I would add that Counsel
for the defendants general submission that the defendants had been prejudiced by the
plaintiffs delay in taking action is without substance. What was the prejudice which the
defendant company had suffered? No attempt was made to answer this question.
Similarly, I was somewhat startled to note that Counsel for the defendants had the temerity
to submit that there was no evidence to suggest that the defendant company knew of clause
11 of the Sale and Purchase Agreement at the time the earthwork plans were submitted to
the local authority when it is remembered that the purchaser under it was none other than
Dato Low, the Managing Director of the defendant company, who as I have said, studiously
refrained from giving evidence at the trial. Eventually, the transfer of Lot 39 was accepted
by the defendant company as nominee of Dato Low and, as to this there was never any
dispute. Moreover, the original earthwork plans did provide for the stipulated right of way.
I consider that in the absence of evidence to the contrary, given the circumstances I have
mentioned, the irresistible inference is that the defendant company well knew of the Sale
and Purchase Agreement and, in particular, of clause 11 thereof, long before their earthwork
plans were submitted to the local authority for the development of the Mount Pleasure
Scheme on Lot 39.
I must next consider the specific grounds urged upon me by Counsel for the plaintiffs in
support of his claim for exemplary damages.
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In summary, Counsel drew my attention to the following facts:

(1) the defendants had notwithstanding the protests of the plaintiffs proceeded to construct
nine dwelling houses - three of which stood on the existing road obstructing the access
to Lot 48, while six of the rest stood on the existing road obstructing the access to Lot
55.
(2) At or about the same time, the defendant company had entered into sale and purchase
agreements to sell the nine houses, each at a price of some RM280,000, no doubt at
substantial profits to themselves and in disregard of the plaintiffs rights.
Accordingly, as a direct result of the construction of the nine houses aforesaid the
defendant company made substantial profits whilst the plaintiffs lost their right of way
which had been specifically contracted for.
(3) The suppression or deliberate nondisclosure in the development plans submitted by the
defendant company to the local authority for the Mount Pleasure Scheme on Lot 39, of
the plaintiffs right of way envisaged in clause 11 of the Sale and Purchase Agreement
or at all.
(4) The attempts by Dato Low, the Managing Director of the defendant company, to
indirectly pressure the plaintiffs into selling their remaining Lots 48 and 55.
(5) Whilst on the one hand, the defendant company was possessed of enormous resources
the plaintiffs were of modest means.
And, I would add that notwithstanding protests by the plaintiffs, the defendants in the course
of their earth moving operations, buried the plaintiffs family house which stood on Lot 48
and later razed it to the ground. These events, I would regard as evidence of the increased
injury to the plaintiffs feelings.
And there was also the evidence of the Chief Town Planner Mr. Ong Swee Teik to the effect
that as a matter of common sense it was the duty of the defendant company, when submitting
its lay out plan, D 55, to the Council, to have disclosed the existence of clause 11. Had there
been such disclosure then this was a matter which would have been taken into consideration
in deciding whether or not to approve the layout plan. There was thus an element of
suppression of a material fact on the part of the defendant company which it never cared to
explain satisfactorily or at all.
I note that Counsel for the defendants was not able to make any effective reply to the five
matters pressed upon me by Counsel for the plaintiffs as affording grounds for awarding
exemplary damages, perhaps understandably so, for in my opinion there was very
considerable substance in them.
I must next ask myself whether upon those five matters, an award of exemplary damages
would be justified bearing in mind the second category of cases enunciated by Lord Devlin
in Rookes v. Bernard (ibid) namely, where the defendant has with a cynical disregard for a
plaintiffs rights calculated that the money to be made out of his wrongdoing will probably
exceed the damages at risk and not forgetting the three considerations applicable to all
cases of exemplary damages expressed by him and which I have detailed above.
Having directed myself as aforesaid, I am completely convinced that the plaintiffs have
brought themselves within the principles and the considerations enunciated by Lord Devlin
aforesaid. In particular, I am satisfied that defendants wrong doing was committed with a
profit making motive, high handedly and outrageously, with a contumelious disregard for
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the plaintiffs rights and that the plaintiffs were the victim of the defendants punishable
behaviour. That being the case, I have a discretion as to whether or not to award exemplary
damages, which I would exercise in favour of the plaintiffs.
Before I proceed to a consideration of the question what is the appropriate quantum of
exemplary damages I should award, I might mention that in Broome v. Cassell & Co. (ibid)
Lord Diplock expressed the opinion (at p. 1126 H) that a Judge sitting alone should make
separate awards for compensatory and exemplary damages.
Various criteria have been applied by the Courts in determining the amount of the exemplary
award. I need only mention those which I consider relevant to the present case.
In Rookes' case, Lord Devlin considered that awards of exemplary damages should be
moderate and that the means of the parties was a relevant consideration. Thus a small
exemplary award would make no impact on a defendant who is well off while, conversely,
even a moderate award may cripple a poor defendant. Next, in assessing the quantum of an
exemplary award regard may be had to the quantum of compensatory award (per Lord Devlin
in Rookes case (ibid) at p. 1128) and also to the conduct of the parties right down to the
time of judgment (see Praed v. Graham [1890] 24 QBD 53). I have accordingly, in considering
the appropriate sum to award by way of exemplary damages kept these considerations in
mind.
In all the circumstances, so far as the claims relating to Lot 48 are concerned, I would award
the plaintiffs a sum of RM25,000 by way of exemplary damages against both the defendants
which represents a little less than 25% of the compensatory award of RM105,000.
I would add, lest I be accused of an oversight, that I did consider the question whether I
should discriminate between the defendants so far as the claim for exemplary damages was
concerned on the ground that the first defendant was the employer while the second
defendant was its contractor. However, I saw no reason to do so, because at the material
time, the second defendant was made aware of the plaintiffs complaints by the various letters
from the plaintiffs solicitors, M/s. Gan Teik Chee & Ho, which I have reproduced above
and copies of which had been extended to him. Notwithstanding that, the second defendant
persisted in the acts of nuisance and trespass concerned.
(a) Claim for damages for Diminution in Value to Lot 55

I must next consider the claim for damages in respect of trespass, nuisance and injury to Lot
55.
Counsel for the defendants conceded that the first defendant had been filling Lot 55 sometime
in August 1981 when the foundation work on it was being carried out but explained that his
clients thought that it was the property not of the plaintiffs but the one Mr. Lim Kar Bee, a
good friend of Dato Lau, the managing director of the defendant company.
Now, trespass is normally associated with intentional acts even though committed by mistake;
for mistake is no defence; see Basely v. Clarkson [1682] 3 Lev 37. So, subject to any special
defences which I shall deal with later, liability is clearly established and the issue therefore
resolves itself into the question what is the appropriate sum to award by way of damages.
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Counsel for the defendants had argued that no damages are recoverable because the fill is
in fact good for the development of Lot 55. On the other hand, Counsel for the plaintiffs has
argued that the fill has caused injurious affection to Lot 55, as a result of which, it cannot
be developed to its full potential; namely, high rise development, and on this basis, he is
claiming RM870,573.
In his report (P39) dated 25 January 1984, Mr. K. Parampathy, the valuer called on behalf of
the plaintiffs, has with regard to Lot 55, said this:
Consequent to the scheme (the Mount Pleasure Development Scheme) being carried out, the
current position is as follows:
(a) ...
(b) Lot 55, Section 2, Town of Batu Ferringhi, is now altered in its physical shape and
content.
The above position raises the following considerations:
(i) ...
(ii) In respect of Lot 55, the loss to its market value considering that its physical character
has so changed that it is incapable of being used to its optimum benefit. Our understanding
is that at present the property can only be used for low density development i.e. a bungalow
unit, semi-detached unit or related low rise development.
Quantum of Injury
The reduction in the market value of the above mentioned lots will be determined by their
estimated market values if the properties were not injured in the manner set out above.
The Majlis Perbandaran, Pulau Pinang vide its reference C50/1/1 - 10 (ENQ (s) 416/83) dated
10 September 1983, expresses the view that the subject lots could have been developed to a
density of some 30 units to the acre. See Appendix II.
In determining the market value of the subject lots will be guided by the level of values passing
on properties enjoying density zoning similar to or close to that of the subject properties.
Study of Comparative Values

Sale evidence of sites suitable for a density zoning of 15 units to the acre reveal value of
approximately RM36 and RM46 p.s.f. and in respect of 30 units per acre a value of RM60
p.s.
Guided by the above levels we adopt RM48 p.s.f. being the market value of Lots 48 and 55
if the sites were not injured by the Mount Pleasure Development Scheme.
We derive the injured value of the subject lots by the use of which they are now likely to be
put consequent to ramifications of the development scheme on Lot 39.
...
...
...
Lot 55, due to the reasons stated above, is assessed on the basis of its possible user for a
bungalow/semidetached units and related low rise development. We consider a fair value under
such circumstances to be in the region of RM15 p.s.f.
Computation of Injury
We compute the injury to the subject lands by the before and the after method of valuation.
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The before value will represent the market value of the subject properties if they were
unaffected by the adjacent development scheme. The after value will be represented by the
value which will rest on the properties consequent to the injury being caused. The difference
in their values would represent the fair claim for injury caused.
We derive the said values as follows:

Lot 55
Before value
Market value of subject property:
2 r. 16.9 p. 26,381 s.f.
at RM48 p.s.f. RM1,266,288
After value of subject
property
26,381 s.f. at RM15 p.s.f.
Say
RM395,715
RM870,573
RM871,000
My criticisms of Mr. Parampathys report which appear under my first observation when
considering the plaintiffs claims for diminution in value in relation to Lot 48 (see pp. 84, 85
ante) would apply with equal force to their claims in relation to Lot 55 and I would now
pray in aid those criticisms.
I regret, therefore, that I am unable to accept Mr. Parampathys opinion as regards the
diminution in value of Lot 55.
Again, I must respect what I said when considering the plaintiffs claim as regards Lot 48,
namely, that I am not satisfied that the plaintiffs had any genuine or sincere intention of
developing Lot 55 much less to a density of 30 units an acre. I have already said that the
first plaintiff had long before the events which gave rise to this suit emigrated to Perth where
he has since been gainfully occupied in the export and import field. Similarly, the second
plaintiff has also emigrated to Perth and neither the second nor the third plaintiffs, who are
the first plaintiffs sisters, gave evidence.
It is true that the first plaintiff testified that in April 1981 he flew out to Penang and consulted
Dato Lim Chong Keat to draw up plans for the development of Lot 55 with a view to going
into a joint venture with his neighbour Mr. Lim Kar Bee. Accordingly, the first plaintiff said,
that it was at this time that he made a site inspection accompanied by Dato Lim and Dato
Salleh and noticed that the family house which stood on Lot 48 was being buried. Acting
on the advice of Dato Lim to take legal action, he engaged his solicitors M/s. Gan Teik
Chee & Co. However, neither Dato Lim nor Mr. Lim Kar Bee were called to testify in support
of the plaintiffs testimony nor any reason given for this omission. I regret I consider this
evidence of the first plaintiff of his intention to go into a joint venture with Mr. Lim Kar Bee
too vague and insufficient to constitute a basis to support a claim for diminution in value as
contended for by his Counsel. As in the case of Lot 48, I find that the probabilities are that
the plaintiffs held on to Lot 55 as an investment which might over the years yield capital
appreciation by way of increase in development value. That development value lay in the
site itself and so find. But, is there evidence of diminution in value to Lot 55 as a result of
the defendants acts of trespass not only by having constructed no less than six houses on
the existing road leading to Lot 55, thus obstructing access thereto, but also by the
defendants acts of trespass in using Lot 55 as a dumping ground and also as a working
platform for the construction of their 20 storey condominium of Lot 39?
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There are two branches to this part of the plaintiffs' claims, firstly, the claim for obstruction
of access, and, secondly, the claim for trespass.
I shall take firstly, the claim for obstruction of access. So far as the problem of lack of access
from Lot 55 to the public highway is concerned, I consider that this has been adequately
met, at any rate, for the time being, by the orders analogous to specific performance, in
particular, the mandatory injunctive relief hereinbefore mentioned which, hopefully, will secure
for the plaintiffs a right of carriageway in perpetuity over the defendant companys 40 feet
wide main access road on Lot 39. If so, I fail to see how any damages could be awarded on
account of Lot 55 being landlocked. Accordingly, I decline to make any award of damages
under this head.
But, on the other hand, if the rights of third parties have intervened, or if there is some legal
or other impediment to the creation of a right of carriageway as aforesaid, then the parties
shall be at liberty to apply to Court to enable me to consider what further or other orders I
should make in substitution therefor, including, perhaps, an order for the award of damages
for diminution in value to Lot 55, having regard to the circumstances.
I shall next take the claim for trespass by using Lot 55 as a dumping ground and also as a
working platform.
The plaintiffs contend that the effect of the dumping of debris by the defendants on Lot 55
during earthworks on Lot 39 has been twofold:
(i) there are now rocks and boulders on Lot 55 which will cause problems when piling
work is carried out and
(ii) there is serious erosion on Lot 55 and the fill along the common boundary between
Lots 55 and 53 - 54 must be contained by a retaining wall - not by turfing and terracing
which is a cheap though not foolproof method of arresting the problem.
The defendant companys answer is that the rocks on Lot 55 are small and will not impede
piling. However, it admits that there are very few large rocks or boulders on Lot 55 but that
these can be dug out if they obstruct piling. Also, the defendant company says that there
is no serious problem of soil erosion and the fill can be contained by a retaining wall, turfing
and terracing. In any event, it was contended that the plaintiffs would have to carry out
these works if they intend to develop Lot 55 as they claim.
It will be recalled that in a letter of complaint dated 25 January 1983 Ex. P9 (reproduced above)
the first plaintiff had written to the Pengarah Kejuruteraan, Majlis Perbandaran, Pulau Pinang,
setting out his grievances, inter alia, with regard to Lots 48 and 55.
That complaint had let to a site inspection on 8 February 1983, at which the City Council
engineer Mr. Khoo Say Boon, the defendant companys resident engineer Mr. Tan, its site
supervisor Mr. Chew and the representative from Jayausaha Konsultant Sdn. Bhd., were
present. And, following that site inspection, it will also be recalled that a letter dated 10
February 1983 from the City Council engineer Mr. Khoo, addressed to the defendant company
(Ex. P10(T)) (reproduced above) with copies to the defendant companys architect and the
first plaintiff, was duly sent.
As I said, when discussing the issue of liability in tort, I accept the letter of Mr. Khoo
aforesaid as a true reflection of the condition of the site on 8 February 1983 and the events
of that day there, bearing in mind, particularly, that there was no denial in writing of the
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contents thereof either by the defendant company or its architects. I, therefore, reject as
false and untrue the evidence of the defendant companys site engineer Mr. Tan Kiat Hooi
that
We denied using Lot 55 as a means of access to our Condo block or as a place for storage
of our materials.
Furthermore, in evidence in-chief, the City Council engineer Mr. Khoo, who I regarded as a
witness of truth had said, inter alia, this:
Q. Why was it necessary for you to request them to construct their own access to Lot
55?
A: Because of para. 2 p. 2 of P9 (Mr. Templetons complaint) which reads:
Low Yat Holdings has been using this Lot 55 in addition as dumping ground, as a place
to produce cement bricks, storing sewage pipes and using as an access and platform for
the construction of the 20 storey condominium. The construction of this 20 storey tower
block has reached 12 storeys and yet Low Yat Holding has not even constructed his
own access.
I felt that this paragraph was justified.

I came to this conclusion as a result of my inspection of the site.
I also accept the evidence of Mr. Bellotti that as a result of the defendants earth moving
operation there was not filling but dumping on Lot 55.
Indeed, support for this part of the plaintiffs claim may be found in the testimony of Mr.
Kee Kar, the defendant companys area manager, who admitted that the rocks shown in the
pictures P51A to C and P52 (of Lot 55) are pieces of blasted rock on Lot 55 (p. 231 D
Notes of Evidence).
This witness further admitted that:

the erosion shown in these pictures is because there is no proper drainage on site. Yes, this
can easily be stopped by providing adequate drainage on Lot 55.
Had we been given a chance we would have carried out draining, turfing and levelling
works. (Emphasis supplied).
It follows, therefore, that I must reject the opinion of the defendants valuation expert Mr. S.
Gopal Krishnan (DW8) in his report Ex. D80 p. 17 that:
whatever injury might have been caused to the land would be offset by the betterment and
therefore Lot 55 is not injuriously affected.
Upon the above evidence, I have no hesitation in holding that the plaintiffs are clearly entitled
to a mandatory injunction requiring the defendants to forthwith remove (as indicated by the
plaintiffs) all material, debris and spoil that have been dumped on Lot 55 and generally to
restore it to its natural state to the satisfaction of the City Council engineer. For the avoidance
of doubt, the defendants must carry out all necessary drainage, turfing and levelling works
to protect Lot 55 from soil erosion and reinstate all boundary stones that may have been
dislodged to the satisfaction of the City Council engineer. There will, therefore, be orders by
way of mandatory injunctions directed at both the defendants accordingly. Upon compliance
with these orders, I fail to see what damage the plaintiffs would have suffered for diminution
in value to Lot 55 and so I am in no position to make any award for damages under this
head.
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(b) Claim for Construction of Boundary Wall to protect Lot 55

The more difficult question is whether the defendants should be required to construct a
boundary wall wherever necessary to protect Lot 55 from soil erosion as contended for by
the plaintiffs.
Counsel for the plaintiffs has contended for an award of RM210,000 being the cost of
constructing a retaining wall. He has relied for this purpose upon the testimony of Mr. Bellotti
that the estimated cost of a 12 feet high retaining wall for the required length of 420 feet
would be RM500 per foot.
Mr. Bellotti was, of course, neither an engineer nor a quantity surveyor so that his evidence
as to the need for a retaining wall and as to costing must be viewed with reservation.
However, Mr. Lim Seng Hoe (DW5), the Consultant Engineer to the defendant company,
conceded that:
if a retaining wall is necessary, say if it is proposed to build a 6 to 7 storey building, then
I would recommend a rubble retaining wall 10 feet high since the fill is between 10 and 15
feet. A further 8 feet to 10 feet beyond that could be filled.
There is, however, no evidence that the plaintiffs proposed to build a 6 to 7 storey building
on Lot 55 and certainly the defendants could not have foreseen such an eventuality. However,
Mr. Bellotti had testified that he had seen sketches prepared in respect of proposed buildings
to be built on Lot 55; they were three storey town houses and it had not been determined
if piling was required.
As I have already observed when considering the plaintiffs claims in relation to Lot 48, I do
not consider that the plaintiffs had a genuine or sincere intention to develop Lot 55 given
their circumstances their intention being probably to merely hold on to Lot 55 as an investment
which might over the years yield capital appreciation by way of increase in development
value, such value lying in the site itself. Any thoughts the plaintiffs might have had of
embarking on a joint venture to develop Lot 55 must have been of a vague and tentative
nature.
In these circumstances, I am unable to entertain a claim for the cost of a retaining wall. I
regard it as lacking in proof and therefore speculative. I can therefore make no award or
other order in regard thereto.
(c) Claim for use and occupation of Lot 55
The next branch of the plaintiffs claims concerned the use made by the defendants of Lot
55 for the storage of building materials, a working platform and a rear access.
There was cogent evidence from the lips of the City Council Engineer Mr. Khoo Say Boon,
an independent witness, establishing these averments, which I unhesitatingly accept. In this
connection, I also accept Mr. Bellottis evidence and, therefore, reject Mr. Kee Kars denial,
that the defendant company was using Lot 55 as a storage place for their building materials.
These acts of trespass persisted notwithstanding the vehement protests of the plaintiffs as
evidenced by the first plaintiffs letter of complaint to the City Council Engineer, P9, the
testimony of the first plaintiff himself, and the contemporary correspondence of his solicitors,
M/s. Gan Teik Chee & Ho, previously reproduced.
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Counsel for the defendants accepts that his clients had been using Lot 55 as an access and
working platform for their development works on the condominium site on Lot 39, at most,
from August 1981 until March 1983 - a period of 20 months - when a wall and timber fence
were constructed by them. Accordingly, he argued that the measure of damages should be
based on the rental for the use of Lot 55 which he suggested was RM50 per month having
regard to the testimony of Mr. Kee Kow the area manager.
On the other hand, Counsel for the plaintiffs contended for a rental at the rate of RM1,500
p.m. or, in other words, RM30,000 for the period of 20 months.
In the first place, I find that the period during which the defendants used Lot 55 for the
purposes mentioned was 20 months ending in March 1983 when a wall and timber fence
were constructed by them to prevent further encroachment into Lot 55 following persistent
objections by the plaintiffs and the granting of an injunction.
Secondly, as to the quantum of the rental I find that the sum suggested by Counsel for the
defendants is manifestly inadequate whilst that contended for by Counsel for the plaintiffs
is inordinately high.
It will be recalled that I had, in assessing a similar claim, in relation to Lot 48, awarded the
plaintiffs a sum of RM500 p.m. for use and occupation. Lot 55 is, of course, substantially
larger, being in area 26,381 sq. ft. as compared to Lot 48, which is a mere 17,533 sq. ft. in
area and which also had standing on it the plaintiffs family house. In the circumstances, I
would award the plaintiffs a sum of RM600 p.m. for the use and occupation of Lot 55; this
means that for the period of 20 months of user aforesaid, the plaintiffs would be entitled to
RM12,000 and I so order.
(d) Claim for Exemplary damages in respect of Lot 55
Again, as in the case of Lot 48, there is also a claim for exemplary damages, for the defendants
acts of trespass to Lot 55.
For the same reasons I gave in allowing the plaintiffs claim for exemplary damages for
trespass and nuisance to Lot 48, I would allow the same claim in regard to Lot 55. It would
be tedious and unnecessary to repeat those reasons and I need no more than say that I
adopt them with the necessary modifications and would add the general observation that
the evidence of persistent trespass notwithstanding vehement protests by the plaintiffs was
equally overwhelming.
As for Lot 55, the profits which the defendant company would have gained from the sale of
the six houses which stood on the existing access to Lot 55, at a price of about RM280,000
per house, cannot be disregarded. I do not think that it would be unreasonable to estimate
these profits at about 20% of the purchase price.
There is also the evidence of Mr. Bellotti that it was his belief that by using Lot 55 to gain
access to their condominium site on Lot 39 the defendant company had saved 18 months.
He further testified and I quote him:
My estimate about defendant company having saved 18 months was based on my inspection
of site, rate of progress of work by contractors, the number of workers on site and
topographical conditions. Yes, for these reasons estimate defendant company would have taken
18 months to construct their own access.
Yes, I did see defendants workers working on defendants own access. I first saw this in
June 1981. Thereafter I also saw this but work was not continuous - it was sporadic.
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On the other hand, Mr. Lim Seng Hoe (DW5), the defendant companys consultant engineer
said that only one month, if at all, was thus gained by the defendant company. But, Mr. Tan
Kiat Hooi (DW2), the defendant companys resident engineer, accepted that their access could
have been completed from scratch in over two months.
I consider that Mr. Bellottis estimate of the time saved by the plaintiffs is an exaggeration
bearing in mind that it has no firm basis. However, I would regard the estimate of Mr. Lim
as perhaps, understandably, an understatement.
But, having said that, I have no doubt that the defendant company must have saved several
months as a result of using Lot 55 as an access to their condominium block on Lot 39. Doing
the best I can, on the meagre material available, I do not think it would be unreasonable to
say that the defendants saved at least two to three months at the expense of the plaintiffs
rights.
It will be seen, therefore, that the acts of trespass committed by the defendants to Lot 55
were in fact far more serious than those to Lot 48 when judged from the point of view of the
financial gain made by the defendants at the expense of the plaintiffs and the conduct of
the defendants generally. In the case of Lot 48, I awarded RM25,000 by way of exemplary
damages. Having regard to the principles and considerations enunciated by Lord Devlin in
Rookes v. Barnard (supra), and the particular circumstances of the case, I consider that
RM50,000 by way of exemplary damages in the case of Lot 55, would not be unreasonable
and I so order.
That disposes of all the plaintiffs claims. I must next consider the special defences of laches,
acquiescence, abandonment, waiver and limitation advanced on behalf of the defendants.
I shall take, first of all, the defences of laches, acquiescence, abandonment and waiver, which
will be discussed together, as they are closely related and there is a certain degree of
overlapping.
I shall begin by defining each of these defences and then proceed to an examination of the
legal position having regard to the particular circumstances of the present case. Lastly, I
shall deal with the defence of limitation - in like manner.
Laches
Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A
Court of Equity refuses its aid to a stale demand where the plaintiff has slept upon his rights
and acquiesced for a great length of time. He is then said to be barred by laches. In
determining whether there has been such delay as to amount to laches the Court considers
whether there has been acquiescence on the plaintiffs part and any change of position that
has occurred on the part of the defendant. The doctrine of laches rests on the consideration
that it is unjust to give a plaintiff a remedy where he has by his conduct done that which
might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect
he has, though not waiving the remedy, put the other party in a position in which it would
not be reasonable to place him if the remedy were afterwards to be asserted (Halsburys
Laws of England 3rd Edn. Vol. 14 p. 641 paras. 1181, 1182). Laches has been succinctly
described as inaction with ones eyes open.
Now, can lapse of time, and delay, however gross in a suit seeking final, as opposed to
interlocutory relief, of itself, amount to the equitable defence of laches. It is clear that delay
in some circumstances can amount to evidence from which the inference can be drawn that
the plaintiff has released (or waived, there seems to be no difference) the claims which he
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asserts: lapse of time always gives rise to a presumption that a stale suit is ill-founded: for
a reasonable man is not likely to sleep on his claims if they are well founded. Whether it
does or does not is a question of fact in each case.
It is possible to point to a number of cases in which plaintiffs have been successful in spite
of spectacular delays. In England, in Burroughes v. Abbott [1922] 1 Ch 86, rectification of an
instrument was granted after a delay of 12 years: in Weld v. Petrie [1929] 1 Ch 33 the Court
of Appeal held that a mortgagors redemption suit was not barred by a delay of 26 years
and in Pickerring v. Lord Stamford [1795] 30 ER 787 was held that after a delay of 35 years,
a portion of a testators residuary estate which had been devoted by ten trustees of the
testators will to charity was really held by them on trust for the testators next of kin. In
Australia, a decree of specific performance was granted by the High Court in Fitzgerald v.
Masters [1956] 5 CIR 420, 26 years after the cause of action arose and in Bester v. Perpetual
Trustee & Co, Ltd. [1970] 33 NSWR 30, Street J rejected a defence of laches where a plaintiff
waited 20 years before commencing a suit to rescind a transaction on grounds of undue
influence. There are many cases which indicate that mere delay is not a defence in Equity.
In 1795, in Pickering v. Lord Stamford (ibid), Arden MR inclined to the view that delay in
a situation where no statute of limitation applied, could have legal effect only if it amounted
to a release implied from conduct or was coupled with detriment to the defendant or a third
party.
In Fitzgerald v. Masters (ibid) equitable relief was granted after an inordinate length of time
had elapsed. On the point under discussion, Dixon CJ and Fullager J at p. 433 held that
there were no circumstances apart from delay for refusing relief, thereby (and in my opinion;
correctly) holding that mere delay of itself cannot constitute laches. In Fullwood v. Fullwood
[1878] Ch D 176, Fry J held that mere lapse of time affords no bar in Equity.
My research into the authorities on the subject leads me to the conclusion that there are no
fixed rules or principles on which the Court acts and each case is considered on its merits
and particular facts. In the case of in Re Jarvis [1958] 2 All ER 336 Upjohn J said at p. 341:
I have been referred to a number of text books and authorities on this question of laches,
acquiescence and delay, but I forbear from referring to them, for in this realm of law each
case depends so much on its own facts that the citation of other cases having some points of
similarity and some of difference does not really assist.
In this context, the case of Lindsay Petroleum Co. v. Hurd & Ors. [1874] LR 5 PC App. Cas.
221 merits reading.
The defence of laches is only allowed where there is no statutory bar (Halsbury ibid p. 641
para. 1181).
Section 32 of the Limitation Act 1953 (Revised 1981), provides that nothing in this Act
shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches
or otherwise.
Acquiescence
The term acquiescence, like the term laches. is - confusingly - used in different senses.
Three should be referred to: (a) It can refer to the type of estoppel of which Ramsden v.
Dyson (ibid) is an example. It is this meaning which Lord Cottenham LC in Duke of Leeds v.
Earl of Amherst [1846] 2 Ph 117 at 124, 41 ER 886 at 888 said was the primary meaning of
the term.
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Poole J in Glasson v. Fuller [1922] SASR 148 thought likewise. (b) It can refer to an element
in one of the two kinds of laches, viz the action of a plaintiff over a long period of time,
with full knowledge of his rights, refraining from exercising his rights in circumstances where
it can properly infer that he has abandoned them. This is waiver, affirmation, release. This is
the sense in which Hanbury uses the term when he says: The chief element in laches is
acquiescence (c) Finally, as in evident from the question of Lord Wensleydales speech in
Archbold v. Scully [1861] 9 HCL 360 at 383; 11 ER 769 at 778 the term acquiescence can
be used as referable only to the second type of laches considered in this chapter, i.e. the
type of laches which involves prejudice to the defendant or to third parties.
Sir Samuel Griffith alluded to these different senses in Cashman v. 7 North Golden Gate
Mining Co. [1897] 7 QLJ 152, 153-4 where he said:
The term acquiescence is not a term of art. It was used in Courts of equity as a term to
characterize a defence which may be set up by a person against whom another makes a claim
for equitable relief. It is a well-known doctrine of equity that when a person claiming equitable
relief has lain for a long time and so conducted himself that it would be inequitable to permit
him to complain of the defendants actions, the Court will refuse to grant the relief. The term
also bears another meaning. It may be fairly applied to a man who, seeing an act about to be
done to his prejudice, stands by and does not object to it. He may be very properly said to
be acquiescing in that act being done. But the difference in point of law in the legal consequences
of the two kinds of acquiescence is quite clear. A man who stands by and sees an act about
to be done which will be injurious to himself, and makes no objection, cannot complain of
that act as a wrong at all. He never has any right of action, because he stands by and allows
the act to be done. Acquiescence in the other sense is a defence to an action for specific
relief, on the ground that the plaintiff cannot be reinstated in his original position without
doing injustice to the defendant, but it is not an answer to a cause of action already accrued.
In Glasson v. Fuller (ibid), Poole J also alluded to the different meanings of the term when
he said:
Acquiescence is used in two senses. If one stands by while he sees the violation of his right
in progress, and takes no steps to intervene, he is said to acquiesce in the violation, and he
may be thereby debarred from his remedy in respect of it. This is acquiescence in the true
sense, but its effect has nothing to do with the lapse of time, and it has no relation to laches.
In another sense, acquiescence is used to denote that some equitable right of A has been violated,
as where he has been induced to make a gift by undue influence, or where there is a cestui
que trust, and his trustee has purchased the trust property, and that after the influence has
ceased or the violation has been brought to his knowledge he assents to the continuance of
the state of affairs resulting from the violation, to the retention of the gift by the donee, or
of the property by the trustee. The lapse of time without proceedings being taken by A is
evidence of such assent, and upon acquiescence of this latter kind the doctrine of laches is
based. Acquiescence in the strict sense implies either that the party acquiescing has abandoned
his right, or that he is estopped from asserting it. Acquiescence in this sense is no more than
an instance of estoppel by words or conduct. Laches, acquiescence in the second sense, is no
defence if there is a statute of limitation in operation, unless it exceeds the period allowed by
the statute.
Abandonment
It is true that even where a right of way has been acquired by express grant it may be
abandoned. (See Swan v. Sinclair [1924] 1 Ch 254). However, mere non-user is neither a
release nor an abandonment; for abandonment of an easement can only be treated as taking
place where the person entitled to it has demonstrated a fixed intention never at any time
thereafter to assert the right himself or to attempt to transmit it to anyone else.
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(See Tehidy Minerals Ltd. v. Norman & Ors. [1971] 2 QB 528, 553)
In pleading an abandonment, therefore, both the fact of non-user for some definite period
and facts showing that the non-user implies release or abandonment of the right should be
alleged. (See general 14 Halsburys Laws of England 4th Edn. paras. 127-130.)
Waiver
Sir Alexander Turner (in Estoppel by Representation, 3rd Edn., pp. 319-20) takes the view
that waiver is not capable of exact definition. In Sargent v. ASL Developments Ltd. [1974]
131 CLR 634 at 655 Mason J repeated Lord Wrights dictum (uttered in Ross T Smyth v. TD
Bailey and Son [1940] 3 All ER 60) that waiver was a vague term used in many senses. The
truth of the matter was put by Cardozo J in Beatty v. Guggenheim [1919] 122 NE 378 at 381.
That learned Judge said that: Much of the trouble comes from the use of the misleading
word waiver... It is made to stand for many things - sometimes for estoppel, sometimes for
contract, sometimes for election. In so speaking Cardozo J was no doubt aware of what
had been stated two years before by Ewart in his book Waiver Distributed, p. 13, namely:
Commencing with waiver, we may say that (if it is anything) it is (it certainly used to be)
of unilateral character. The possessor of some property throws it away. The effect may be
that someone else is benefited, but waiver has no relation to benefits. A watch is thrown
away, and some functionary or finder is so much the richer (if the true owner do not intervene).
But the waiver is complete although the watch be never found, although it be flung into the
ocean.
Election is waivers nearest neighbour, for it, too, is unilateral. But in election, the act has
a legal effect upon the relationship between two persons, or upon the legal right of some
party. Waiver has no such effect Waiver implies that you have something, and that you
are throwing it away. Election, upon the other hand, implies that you have a right to get one
of two things, or to occupy one of two positions, by choosing between them. Release comes
next in order; but it is bilateral, inasmuch as it requires concurring acceptance by someone
else. Estoppel is also bilateral, and depends, not (as in release) merely upon the concurrence
of the estoppel asserter, but upon his consequential action.
Contract is the furthest removed from waiver and unilateralism, for it connotes the equal
action of the two interested parties. Waiver cannot be all, or like all, of these. If it be identical
with any one of them, let us say so, and we shall understand that we have two names for the
one thing. And if it be not identical with any one, let us so declare, and ascertain, if we can,
whether it has any separate and independent existence.
Now, in granting the plaintiffs the reliefs and remedies hereinbefore mentioned, I had taken
into consideration the submission of Counsel for the defendants that in view of the alleged
delay and inaction on the part of the plaintiffs their claims are barred by laches, acquiescence,
abandonment and waiver. In particular, it was argued that the plaintiffs were fully aware that
an easement of way had not been created in due form under the Code, and yet they had
waited until 1980 when the defendant company had submitted plans for development of Lot
39, carried out surveys, commenced earthworks and applied for sub-division, before making
their demands for a right of way to Lot 48. Furthermore, it was said that plaintiffs had waited
until 26 September 1981, before issuing their writ by which time construction work on the
defendant companys site had reached an advanced stage and the rights of innocent third
parties had intervened; moreover, it was urged that the defendant companys title to Lot 39
had by then become indefeasible.
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I shall now refer, only in outline, to the plaintiffs explanation for that delay, as I had done
so fully when considering the history of the case - in doing so, some degree of repetition
will be inevitable. I would, however, mention by way of reminder, that it was an explanation
I had accepted.
Now, in the present case, the first plaintiff had explained that it was only in January 1980
that he first came to know of the defendant companys likely repudiation of clause 11 of the
Sale and Purchase Agreement as a result of which he flew over from Perth, where he had
emigrated and was working, to Kuala Lumpur, sought for and had a meeting with Datuk Low
and Mr. Chan Peng Fook, then the area manager of the defendant company, who told him
that a suitable alternative access to Lot 48 would be provided by the defendant company.
Mr. Chan, who had served the defendant company for about 11 years, ending on 1 November
1980, and was at the date of trial, a town planner attached to Kelang Jaya, Development Co.
Sdn. Bhd., confirmed that a 20 feet backlane had in fact been provided for in the defendant
companys initial building plans, partly to serve as a new road for access to neighbouring
lots, including the plaintiffs adjoining Lot 48. However, in subsequent layout plans, there
was substituted for the 20 feet backlane, a mere 5ft. wide drainage reserve, which incorporated
a foot path.
Upon his return to Perth, the first plaintiff wrote the letter dated 1 March 1980, P3, to Dato
Low confirming the events of that meeting but received neither a reply nor an acknowledgment.
The first plaintiff then consulted a friend, Dato Salleh Yusoff, who advised that a solicitors
letter be sent to Dato Low. This was duly done when M/s. Tunku Zuhri & Co. sent a letter
dated 8 April 1980 (p. 30AB) to the defendant company. But, again there was no response.
The solicitors apparently sent reminders but again without result. The solicitors then wrote
a letter dated 8 August 1980 to Dato Salleh mentioning that despite several letters being
sent to Dato Low no reply had been received and suggested that legal action be threatened.
Dato Salleh duly conveyed this to the first plaintiff who was then in Perth, but in the words
of the first plaintiff which I accept as true I was then in Australia ... we decided we should take time to consider for the simple
reason that Mr. Low Yow Chuan being a millionaire as well as a friend perhaps we could
reach some sort of understanding and settlement in the future.
But then, in February 1981 when the first plaintiff received a letter from his sister the Third
plaintiff that work on the defendant companys scheme had commenced, he flew out again
to Penang, visited the site and saw that excavated soil was being dumped on Lot 48. He
then complained about this to one Mr. Eng, the defendant companys project manager, and
asked that a retaining wall be built similar to the one that was being built to stop the spoilage
onto houses adjoining Lot 48. Mr. Eng assured the first plaintiff that this would be done.
Then, to quote the first plaintiff, Having had this assurance I felt more comfortable and I
returned to Perth ...
However, in April 1981, the first plaintiff once again flew to Penang to inspect his properties.
He said that on this occasion he was accompanied by Dato Lim Chong Keat to draw up
plans for development of Lot 55. It was then that the first plaintiff saw that his family house
was being buried and decided to take action against the defendants and so he consulted M/
s. Gan Teik Chee & Ho, advocates and solicitors. It will be recalled that the first plaintiff had
also sought the assistance of M/s. Lim Kean Siew & Co. the solicitors who had acted for
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the Dato Low in the matter of the sale and purchase of the five plots of land concerned
and they had, as a result, written the letter dated 29 July 1981 addressed to Dato Low (see
Ex. P6 hereinbefore reproduced) imploring him to comply with clause 11 but to no avail.
It will also be recalled that Mr. Lim Kean Siew had himself given evidence for the plaintiffs
confirming the events relevant to this part of the case.
So, as a last resort, on 26 September 1981, the plaintiffs commenced the proceedings herein
against the defendants after a letter before action was ignored. In these circumstances, I
accept the first plaintiff's explanation for the delay in commencing proceedings; there is nothing
unreasonable about the explanation and it is confirmed by the contemporary correspondence
to which I have referred and the testimony of Mr. Chan, then the defendant companys area
manager and Mr. Lim Kean Siew.
Upon the evidence aforesaid and having regard especially to the fact that it was only in
April 1981 that construction work began on the basis of a new layout plan which, unlike the
original plans, made no provision for any road access to and from the plaintiffs properties
over Lot 39, the strenuous objections and attempts at negotiation by the first plaintiff who
suffered the disadvantage of residence overseas - (which was fully exploited by the defendant
company) - the relative resources and the conduct of the parties generally, I am not prepared
to hold, in view of the authorities cited, that the plaintiffs claims are barred by laches or
acquiescence.
As to abandonment and waiver, that too had not been proved and indeed I am satisfied that
the plaintiffs intended neither to abandon nor to waive their rights under clause 11.
Accordingly, the defences of laches, acquiescence, abandonment and waiver must fail.
I now turn to consider Limitation.

Limitation
It was submitted for the defendants that under s. 286 of the Code, a grant of easement of
way must be created by an instrument in Form 17A. Accordingly, clause 11 of the Sale and
Purchase Agreement could only operate as an agreement to grant an easements as such any
action to enforce that agreement, had by virtue of s. 6(6) of the Limitation Act 1953 (Revised
1981), to be brought within six years from the date from which the cause of action accrued,
that is to say, the date of the breach.
It was pointed out that the Sale and Purchase Agreement provided a time span for completion;
in particular clause 10 provided that if the plaintiffs, as trustees of the Will Trusts of their
father T.V. Templeton, failed to obtain a Court order to sell the property or to rectify the
defect in title to Holding 64(1) (Lot 39) within 6 months, the agreement was to become null
and void In the event, however, the transfer was executed pursuant to the Sale and Purchase
Agreement and was registered on 29 September 1971.
Accordingly, it was submitted that the plaintiffs had six months from the date of the Sale
and Purchase Agreement to register their easement of way in Form 17A; that is to say, unitl
12 January 1972 and, from that date, a further period of six years; that is to say until 12
January 1978, to commence proceedings for specific performance - s. 6(6) of the Limitation
Act. As in this case, the plaintiffs had commenced proceedings only on 26 September 1981,
their action was statute barred - so it was argued.
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On the other hand, it was submitted for the plaintiffs, and I agree, that cl. 11 is primarily a
restrictive covenant, taken by the plaintiffs, for the benefit of the lots (48, 55 and 56) retained
by them and other neighbouring lots, intended to be binding on the purchaser not to obstruct
access to and from those Lots to the public highway known as the Batu Ferringhi Road, an
amenity which they had enjoyed from before. Manifestly, had the purchaser not undertaken
to be bound by this restrictive covenant, the sale and purchase transaction would not have
gone through.
As Salleh Abbas FJ, speaking for the Federal Court said, in Tam Kam Cheong v. Stephen
Leong Kon Sang & Anor. [1980] 1 MLJ 36, 39 col 1 G:
In our judgment, there is no merit to say that only an agreement under seal can constitute
a covenant while an agreement under hand cannot. For this purpose it is sufficient to quote
Halsburys Laws of England (3rd Edn.) Vol. 11 para. 706 at pp. 439-440 as follows:
The word (covenant) will, however, be construed to cover stipulations in an agreement
under hand if otherwise it would have no effect as where a document refers to the
covenant contained in a lease which is not under seal.
Further, in Vol. 23 of the same edition at para. 152, p. 75, a restrictive covenant is defined
as covenant or agreement ... restrictive of the user of land. There is therefore no magic in the
word covenant.
On a point of construction, his Lordship explained:

The essence of a negative covenant does not lie in its form but in its substance. A covenant
couched in a positive form is but a negative covenant if in substance it is negative (Cheshire,
ibid p. 518).
And, when considering the particular clause which called for construction in that case, he
said this:
According to clause 11 of the Purchase Agreement, the staircase shall be open to use by
the respective owners of the floors, their friends, relatives and visitors and be kept clean and
hygienic and maintained by the respective owners. It is thus not open to any owner of the
floor block the staircase.
And, at p. 474, his Lordship explained the doctrine of restrictive covenant in these words:
The doctrine of restrictive covenants on Tulk v Moxhay, supra, as later explained in Re

Nosbet and Pitts Contract [1906] 1 Ch 386 is this. The owners of land to which the benefit
of a covenant restricting the use of other land (i.e. burdened land) has been attached may
enforce that restriction by injunction against all persons who subsequently own or occupy
the burdened land unless they obtain a legal estate for value without notice of the covenant.
It is an equitable doctrine formulated by equity Judges in order to fill the gap left uncovered
by the common law.
At common law, the benefits of covenants, be they positive or negative, which are made
with a covenantee who has an interest in the land to which they relate, passes to his successors
in title. The burden of such covenants, however, does not run with the covenantors land.
Therefore, his successors in title are not bound to observe the covenants (Austerberry v. The
Corporation of Oldham [1885] 2 Ch D 750). It was therefore left to the equity to allow
enforcement of the burden of the covenant against the covenantors in successors in title,
provided that the following conditions are fulfilled:
(i) The covenant must be negative in nature, i.e. it must be a covenant to desist from doing
a certain thing.
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(ii) The covenantee must retain the land from the protection of which the restrictive covenant
is taken and in the case of subsequent assignments the assigned must show that the
benefit of the covenant has passed to him.
(iii) The covenant must touch and concern the land.

(iv) The covenant must be imposed between vendor and purchaser.
(See Keeton and Sheridan Equity (2nd Edn., 1976) p. 336). The doctrine became very popular
and applicable mostly in cases where an owner of land selling part of it to a purchaser wishes
to protect the unsold part by taking a covenant from his purchaser restricting the mode of
use of the sold part.
And, on the question whether the doctrine of restrictive covenant applied to Sabah, he
concluded at p. 475:
There is no doubt that by virtue of s. 2 of the application of Laws Ordinance (Cap 6) of
Sabah, this doctrine, being an equitable doctrine, is applicable to Sabah.
There would appear to be no difference between the position in Peninsular Malaysia and
Sarawak having regard to the applicability of s. 6 of the Civil Law Act 1956, to both the
territories.
So also, in the present case, I too would construe clause 11 of the Sale and Purchase
Agreement as being a covenant although positive in form, essentially negative in substance;
that is to say, that it was intended to protect the plaintiffs unsold lands (Lots 48, 55 & 56)
and neighbouring lands by affording them access to and from the public highway known as
the Batu Ferringhi Road and, to that extent, restricting the mode of use of the land sold (Lot
39). I have already observed, in passing, that the Sale and Purchase Agreement was expressed
to be binding upon the heirs, assigns and personal representatives of the vendors and the
purchaser respectively.
It is true that the purchaser under the sale and purchase agreement was Dato Low Yeow
Chuan but he was the managing director of the defendant company and, in fact its alter ego
or nominee, so that there was no question but that the defendant company took the transfer
with notice of the covenant. In such a situation, subject of course to the discretion of the
Court, an owner of land to which the benefit of a covenant restricting the use of other land
has been attached, may enforce that restriction by injunction against any person who
subsequently owns or occupies the burdened land except one who obtains the land for value
without notice of the covenant: Tan Kam Cheongs case (ibid at p. 474).
Accordingly, clause 11 does not by itself create an easement of way, an essential requirement
of which is registration under s. 288 of the Code in Form 17A. But, be that as it may, upon
a proper construction, clause 11 is, in my opinion, effective in imposing the restrictive
covenant aforesaid upon the purchaser or his assigns. The fact that it might be an implied
term of clause 11, having regard to the surrounding circumstances of the case, including the
conduct of the parties, that a grant of easement was to be executed in Form 17A, makes no
difference to its legal effect.
Having thus established the legal effect of clause 11, it will be readily recognised that each
act of obstruction of the existing road evidenced in the 1935 Survey Plan (p. 49AB) on the
part of the defendants would constitute a separate breach, thus giving rise to a fresh cause
of action for each days obstruction. Since the first acts of obstruction occurred in mid-1981,
when construction on part of the existing road providing access to Lot 48 had begun - see
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the evidence of Mr. Kee Kow (DW1) - and the writ having been issued on 26 September
1981 - no bar by way of limitation arises, assuming the Limitation Act 1953, to be applicable
at all.
Similarly, since trespass constituted by placing and leaving objects on the plaintiffs lands
would be continuing wrongs, prospective losses cannot be claimed at law but will ground
fresh actions when they occur: p. 874 McGregor on Damages 15th Edn.,
But, Counsel for the plaintiffs went further and submitted, and I also agree, that in respect
of the intended grant of the easement, the plaintiffs were the purchasers whilst the defendant
company, through its alter ego and nominee Dato Low Yow Chuan, was the vendor, the
plaintiffs having given full consideration for the grant of an easement by the transfer of Lot
39 to the defendant company. Accordingly, the plaintiffs had acquired a beneficial interest
in an equitable easement under the doctrine of constructive trust enunciated in Lysaght v.
Edwards [1876] 2 CH D 499. In that case, Jessel MR said:
It is that the moment you have a valid contract for sale the vendor becomes in equity a
trustee for the purchaser of the estate sold, and the beneficial ownership passes to the
purchaser, the vendor having a right to the purchase-money, a charge or lien on the estate for
the security of that purchase-money, and a right to retain possession of the estate until the
purchase money is paid, in the absence of express contract as to the time of delivering
possession.
The Malaysian Courts have consistently applied the doctrine enunciated in Lysaght v.
Edwards (ibid) so, for example, in Temenggong Securities Ltd. v. Registrar of Titles, Johore
[1974] 2 MLJ 45, HS Ong, FJ speaking for the Federal Court said:
e
In our view there can be no doubt as to the position in law. As was said by Jessel MR in
Lysaght v. Edwards:
... the effect of a contract for sale has been settled for more than two centuries;
certainly it was completely settled before the time Lord Hardwicks, who speaks of
the settled doctrine of the Court as to it. What is that doctrine? It is that the moment
you have a valid contract for sale the vendor becomes in equity a trustee for the
purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the
vendor having a right to the purchase-money, a charge or lien on the estate for the
security of that purchase-money, and a right to retain possession of the estate until
the purchase-money is paid, in the absence of express contract as to the time of
delivering possession.
I would quote first the headnote to Williams v. Greatrex:
Held: (3) That the purchaser having paid the deposits on and having entered into
possession of the land, became the equitable owner of the land under a contract binding
on the vendor such that the vendor could not now object to specific performance on
the ground of laches unless he could show that he had not acquiesced in the purchasers
acts of possession or that the purchaser had abandoned the contract; and that the
evidence showed sufficient acquiescence by him and no abandonment by the purchaser.
Accordingly, despite the lapse of time, the purchaser was entitled to specific
performance on payment of the balance of the price and interest thereon for the
intervening years.
Denning LJ said in that case:
If he wished to exclude the purchaser, he ought to have taken possession himself.

He never did so. I am quite clearly of opinion that, as long as the purchaser
remained in possession under a contract which entitled him to be there, he had an
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equity which the Courts will protect. There was no need for him to claim specific
performance in order to give him a right to be there. Laches or delay is not a bar
to this action.
In a concurring judgment Hodson LJ (as he then was) cited with approval Cotton LJ in Mills
v. Hoywood where his Lordship said:
In such a case, as, e.g., where the purchaser in possession has no right or title to
such possession except as purchaser, his contract of purchase, and acquiescence in
his possession is a recognition by the vendor of this right.
The law is clear that the vendors, after receipt of the full purchase price and surrender of
possession of the lands to the appellants are bare trustees for the appellants of the said
land and it must consequently follow, as night must day, that the vendors have no interest
in the lands which can be the subject matter of a caveat.
And, in Ong Chat Pang v. Valliappa Chettiar [1971] 1 MLJ 224 Gill GJ said at p. 229 col.
A, B:
In my judgment, the point at which the vendor becomes constructively a trustee for the
purchaser is reached only when he has done all that is necessary to divest himself of the legal
estate by executing a valid transfer of the land in favour of the purchaser. In other words, a
purchaser does not get a title in equity until the vendor has done all that is necessary to
perfect the purchasers title. This was brought out quite clearly by Lord Wright in delivering
the judgment of the Privy Council in Abigail v. Lapin, a case from Australia ...
In Temenggong Securities Ltd. & Anor. v. Registrar of Titles, Johore & Ors. (ibid), the Privy
Council referred to the vendor as the trustee of the purchaser.
Finally, one of the consequences of the new constructive trust currently being invented by
the Court of Appeal in England should be noted. In Binion v. Evans [1972] Ch 359, for
example, Lord Denning MR seems to suggest that whenever a promisees contractual rights
over land are threatened by the promisors assignee (provided he is a volunteer or has notice),
the promisees rights will be protected by a constructive trust - presumably, in some cases,
in perpetuity.
Lord Denning observed at p. 368 C to D:
This imposing of a constructive trust is entirely in accord with the precepts of equity. As
Cardozo J once put it: "A constructive trust is the formula through which the conscience of
equity finds expression, see Beatty v. Guggenheim Exploration Co. [1919] 225 NY 380, 386:
or, as Lord Diplock put it quite recently in Gissing v. Gissing [1971] AC 886, 905, a
constructive trust is created whenever the trustee has so conducted himself that it would be
inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired.
A similar type of case to Binion v. Evans (ibid) is Brikom Investments v. Carr [1979] QB
467. There tenants were seeking to rely on oral representations given by their landlord to
themselves or their assignors to the effect that the landlords would repair the roofs of the
tenants flats without charge. The leases clearly and expressly stipulated that the tenants
would pay a maintenance charge and a contribution towards the landlords expenses in excess
of the maintenance charge. In Lord Dennings words:
In all strictness of law neither the tenants nor their assignees have any answer to the claim
for contribution. The covenants of the lease are clear. But the tenants and their assignees rely
on various representations or promises made by the landlords before and after the leases were
executed ...
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It was suggested that if assignees are able to rely on an oral or written representation (not
contained in the deeds) it would cause chaos and confusion amongst conveyancers. No one
buying property would know where he stood.
I am not disturbed by these forebodings. I prefer to see that justice is done; and let the
conveyancers look after themselves.
Now, in the present case, the plaintiffs have claimed a declaration that they are entitled to
equitable easements in respect of the right of way hereinbefore mentioned. I would put that
claim in this way: the defendant company having obtained a registered transfer of Lot 39
from the plaintiffs, the effect of this was that it had been paid in advance for the grant of
the easements of way as aforesaid which the defendant company thereafter held as bare or
constructive trustee for the plaintiffs. The plaintiffs are, I believe, fortified in this view, by
the following passage in the judgment of Oliver, J in Radford v. De Froberville [1977] 1
WLR 1262:
... The plaintiff contracted for the supply of a wall bounding his property as part of the
consideration for the transfer and the effect of the transaction was that he transferred his land
before the work was done ...
I was satisfied, therefore, that the plaintiffs here were entitled to declarations as to entitlement
to equitable easements in respect of the right of way aforesaid, with consequential orders
analogous to specific performance, requiring the defendant company to execute the requisite
Forms 17A for registration under s. 288(b) of the Code for the creation of a right of way;
namely, a right of carriageway in perpetuity, to afford access from Lots 48 and 55 to the
public highway known as the Batu Ferringhi Road, in the manner and subject to the conditions
hereinbefore particularised.
The defence of limitation fails because s. 22(1)(b) of the Limitation Act 1953, provides by
way of exception, that no period of limitation prescribed by the Act applies
to an action by a beneficiary under a trust being an action to recover from the trustee
trust property or previously received by the trustee and converted to his use. (Emphasis
supplied.)
The defendant company had in this case converted the trust property i.e. the equitable
easement in respect of the right of way, by building upon it the three houses and the six
houses which partly obstruct access to Lots 48 and 55 respectively.
In this context, I have not overlooked the submission of Counsel for the defendants that the
definition of land in the Limitation Act excludes any right of way, easement or right in the
nature of an easement. However, s. 22(1) of the Limitation Act uses the expression trust
property and not land, while the Trustee Act 1949, in s. 2 provides that
property includes moveable and immovable property, and any interest in any property,
moveable and immovable and any debt, and any thing in action, and any other right or
interest, whether in possession or not (Emphasis supplied.)
Clearly, the definition of trust property in the Trustee Act is much wider than the definition
of land in the Limitation Act, which no doubt is concerned with actions to recover land
under s. 9. Indeed, Counsel for the defendants had himself acknowledged that the definition
of trust property could very well include a right of way. (See p. 16 of his Further Written
Submission.) I have no hesitation in holding that it does.
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In any event, the defendant company having taken the benefit of the transaction concerned,
by purchasing the lands concerned, cannot repudiate the burden imposed on it by clause 11
of the Sale and Purchase Agreement and further or alternatively, are estopped from denying
that the plaintiffs are entitled to a right of way giving access to Lot 48 and 55.
I shall take first the doctrine of mutual benefit.

In Halsall v. Brizell [1957] Ch 169, the owners of an estate in 1851 laid it out in 174 buildings
plots and formed roads and sewers, a sea wall, promenade etc. and, in disposing of the
building plots, they retained the roads, sewers, sea wall and promenade in their own
ownership. They entered into a deed with the owners of the various plots providing for the
regulation of the estate, one provision of the deed being that each party to it and his
successors should pay a just proportion in respect of his plot of land towards the expenses
of maintaining the roads, sewers, seawall and promenade. A question arose a century later
as to whether the trustees of the roads, sewers, seawall and promenade had rightly assessed
one of the holders for his contribution. Upjohn J held that the charge was made invalidly
but opined that any person who took the benefit of the covenant (i.e. presumably by
purchasing one of the plots) automatically exposed himself to the burden of paying a due
proportion of the expenses.
In E.R. Ives Investment Ltd. v. High (ibid), the dictum of Upjohn J aforesaid was seized upon,
in a situation where the owner of Blackacre erected a building with foundations which
trespassed to a small extent on Whiteacre. The owners of Blackacre and Whiteacre then orally
agreed that Blackacres trespassing foundations could remain but that Whiteacre should have
a right of way over Blackacre. Blackacre passed to purchasers. The question was whether
the purchasers were bound by the agreement and the Court of Appeal held that they were.
A variety of reasons was given, one of which referred to Halsall v Brizell (ibid) to the effect
that so long as the owners of Blackacre took the benefit of having foundations which reached
into Whiteacre they must shoulder the burden of the right of over Blackacre.
The same principle has been given general effect by Megarry VC in Tito v. Waddell (No. 2)
[1977] Ch 289 - 311.
Another illustration of the principle that a party cannot enjoy the benefits of an arrangement
without giving effect to the burden imposed on such benefits is to be found in Hopgood v.
Brown [1955] 1 AER 555 (a decision relating to the use of drainage.)
Applying the principle enunciated in these cases, I would say that the defendant company
having taken the benefit of the transaction by receiving a valid and registrable transfer of
the lands concerned from the plaintiffs it cannot now repudiate the burden imposed upon it
by clause 11 of providing the right of way stipulated therein and so are bound by the
covenant to do so.
In other words, the defendant company had taken the transfer of the lands concerned subject
to the condition imposed under clause 11.
As Ong CJ said in Yong Tong Hongs case (ibid) the validity of contracts relating to alienated
land or any interest therein is explicitly declared in s. 206(3) of the National Land Code and
so there can be no question of the Limitation Act applying.
I must lastly consider whether one can estop oneself out of the Limitation Act. I confess
this is a fine point of law which is not free from difficulty.
i
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In Combe v. Combe [1951] 2 KB 215, Denning LJ (as he then was) enunciated the doctrine
of promissory estoppel in these terms:
... where one party has, by his words or conduct, made to the other a promise or assurance
which was intended to affect the legal relations between them and to be acted on accordingly,
then, once the other party has taken him at his word and acted on it, the one who gave the
promise or assurance cannot afterwards be allowed to revert to the previous legal relations as
if no such promise or assurance had been made by him...
The language of the learned Judge would seem apt to deal with a defendant who, it is alleged,
has caused a plaintiff to delay proceedings.
Moreover, the so-called equitable proprietary estoppel has been expanded to create a cause
of action. In other words, it can be used not just as a shield but also as a sword. I have,
when considering the plaintiffs claim to a declaration as to entitlement to an equitable
easement, referred to an array of cases to illustrate the propositions that rights arising from
proprietary estoppel can be given effect to in various ways. I have in mind especially the
cases where the Court has made orders analogous to specific performance by directing the
transfer to the promisee of the property or some other interest in the property in question.
In particular, I have in mind cases such as Crabb v. Arun District Council (ibid), Duke of
Beaufort v. Patrick (ibid), Dillwyn v. Llewelyn (ibid) and Thomas v. Thomas (ibid) which I
have already discussed.
Only six years ago, in Amalgamated Investment and Property Co. Ltd. v. Texas Commerce
International Bank Ltd. [1982] QB 84 Lord Denning emphasised the return to estoppel as a
sword when he synthesized the cases and announced that the doctrine of estoppel had
become overloaded with cases and that the separate developments" of estoppel by
representation, promissory and proprietary estoppel could now be seen to merge into one
general principle shorn of limitations. That general principle was that where a man by his
words or conduct, has led another to believe in a particular state of affairs, he will not be
allowed to go back on it when it would be unjust or inequitable for him to do so. Lord
Dennings actual words will repay reading and they are as follows:
The doctrine of estoppel is one of the most flexible and useful in the armoury of the law.
But it has become overloaded with cases. That is why I have not gone through them all in
this judgment. It has evolved during the last 150 years in a sequence of separate developments:
proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and
promissory estoppel. At the same time it has been sought to be limited by a series of maxims:
estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel
cannot do away with the need for consideration, and so forth. All these can now be seen to
merge into one general principle shorn of limitations.
When the parties to a transaction proceed on the basis of an underlying assumption - either
of fact or of law whether due to misrepresentation or mistake makes no difference - on which
they have conducted the dealings between them - neither of them will be allowed to go back
on that assumption when it would be unfair or unjust to allow him to do so. If one of them
does seek to go back on it, the Courts will give the other such remedy as the equity of the
case demands.
In Kok Hoong v. Leong Mines Ltd. [1964] AC 993, a decision of the Privy Council from the
then Federal Court of Malaysia, in a case of moneylenders, their Lordships said:
There are statutes which, though declaring transactions to be unenforceable or void, are
nevertheless not absolutely prohibitory and so do not preclude estoppels. One example of
this is the Statute of Frauds (see Humphries v. Humphries [1910] 2 KB 531 in which it was
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289
no doubt considered that ... the statute ought to be treated as regulating procedure, nor as
striking at essential validity) a more direct test to apply ... is to ask whether the law that
confronts the estoppel can be seen to represent a social policy to which the Court must give
effect in the interest of the public generally or some section of the public, despite any rules
of evidence as between themselves that the parties may have created by their conduct or
otherwise.
These words are widely drawn and suggest that the Limitation Act can give way to estoppel.
Indeed, there are dicta in Turberville v. West Ham Corporation [1950] 2 KB 208 which
suggest that a defendant will not be heard to rely on a statute of limitation if his acts on
statements during the currency of the period have induced the plaintiff to delay proceedings.
And, in Othman & Anor v. Mek [1972] 2 MLJ 158, Ong, CJ said:
... Statutes of Limitation which bar the enforcement of a right by action are rules of procedure
only: see 24 Halsbury, 3rd Edn., p. 181. A right which becomes unenforceable merely by
reason of limitation does not ipso facto perish or vanish into thin air: see Holmes v. Cowcher
[1970] 1 WLR 835 where it was held that although under s. 18(5) of the Limitation Act
1939, arrears of mortgage interest outstanding for more than six years are irrecoverable by
action, the mortgagors were only entitled to the equitable remedy of redemption provided
that they paid all arrears of mortgage interest, whether statute barred or not. If, as in that
case, equitable rights did not perish by reason of limitation, can this same defence be set up
here to deny the rights of a beneficial owner to be granted his claim to be a legal title?
So far as may be necessary, I would hold that based on these dicta the Limitation Act is
purely procedural. (See Othman & Anor. v. Mek (ibid) and cf. Michell v. Harris Engineering
Co. Ltd.) [1967] 2 QB 703 and, therefore, in certain circumstances, one can estop oneself out
of the Limitation Act by conduct.
Now, what are the circumstances here which could be said to estop the defendant company
out of the Limitation Act? I have referred to these circumstances earlier in a different context,
when considering proprietary estoppel generally and, for convenience, would summarise them
as follows:
(a) the promises made by Dato Low to the plaintiffs during the negotiations for the sale
that the sale was expressly conditional upon the provision of the right of way concerned,
upon which the plaintiffs relied and without which the transactions would never have
gone through - see, Dato Lows own solicitors letter Ex. P6, reproduced above.
(b) Clause 11 of the agreement of Sale and Purchase - reproduced above.

(c) The original layout plans for the development of the Mount Pleasure Property submitted
by the defendant company which provided for a 20 ft. right of way to serve, inter alia,
the plaintiffs lots.
(d) the promises made by Dato Low as Managing Director of the defendant company to
the first plaintiff in early 1980 at the Federal Hotel and at its registered office in Ipoh
Road, Kuala Lumpur, to provide a right of way.
(e) it was as late as April 1981 that the defendant company commenced construction work
on the basis of a new layout plan which, unlike the original layout plan, made no
provision for any road access from the plaintiffs Lots to the public highway resulting
their being cut off as confirmed in their own solicitors letter dated 29 July 1981 (Ex. P6)
and
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(f) generally, the first plaintiff (who alone shouldered the burden of prosecuting the claim)
suffered the disadvantage of residence overseas and faced a potential adversary of
infinitely greater resources but, more importantly, there was the conduct of the parties
as reflected in the contemporary correspondence reproduced above.
I would conclude this part of the case by applying the approach adopted by Lord Denning
in the Amalgamated Investment and Property case (ibid) that when, as here, the defendant
company has by its words and conduct led the plaintiffs to believe that they would be
provided a right of way from their Lots, which otherwise would be landlocked, it should not
be allowed to go back on them when it would be unjust or inequitable for it to do so.
If, contrary to my primary view, the defendant could not or did not estop itself out of the
Limitation Act, then I would hold that by reason of the promises made by its Managing
Director to the first plaintiff at the meetings held in early 1980 at the Federal Hotel and at its
registered office in Ipoh Road to provide for a right of way, it had acknowledged the plaintiffs
right or title to a right of way as claimed. (See, by analogy the case of Eddington v Clark.)
[1964] 1 QB 367. The writ herein having been issued on 26 September 1981, the action is not
barred by limitation.
In summary, therefore, there will be judgment for the plaintiffs as follows:
(1) Against both the defendants, general damages for diminution in value of Lot 48 RM100,000
(2)(a) Against the defendant company, subject to planning permission being obtained (if
necessary), a mandatory injunction requiring it to construct, as soon as reasonably
possible, a single metalled access road of about 12 feet in width, affording access from
Lot 48 to the public highway known as Batu Ferringhi Road, in accordance or
substantially in accordance with the plan D75, tendered on its behalf at the trial and
complying with local authority specifications.
(b) To give legal effect to this order, I would grant a further mandatory injunction
requiring the defendant company or its successors in title, as the case may be, to
execute the prescribed Form 17A under s. 286(1) of the Code and to present the
same for registration, thus creating an easement of way in particular, a right of
carriageway within the meaning of s. 288(b) of the Code in perpetuity over the
existing road on Lot 39 (the servient land) defined in the 1935 Survey Map (p. 49
Ex. AB) in accordance or substantially in accordance with the Plan Ex. D75 tendered
on its behalf at the trial and so affording access from Lot 48 (the dominant land) to
the public highway known as the Batu Ferringhi Road, in favour of the plaintiffs
and their successors in title, within two months from date of the decision herein, or
in the event of planning permission being required, then within one month from the
date of the grant of such permission, failing which the Senior Assistant Registrar of
this Court to do so.
(c) Upon presentation of the duly executed instrument in Form 17A aforesaid the proper
registration authority shall register the same as soon as reasonably possible.
(d) There will also be the following consequential orders:
(i) The defendant company or its successors in title shall forthwith from date of
decision herein enquire in writing from the relevant authorities if planning
permission as aforesaid is required; and, if so, to apply forthwith for the same.
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291
(ii) in the event of planning permission being granted but subject to conditions, the
defendant company or its successors in title, as the case may be, shall comply
with the same as soon as reasonably possible; and shall be responsible for the
payment of all prescribed fees or deposits (if any) in connection therewith.
(iii) the defendant company or its successors in title, as the case may be, shall
promptly provide the plaintiffs or their solicitors with copies of all
correspondences passing between them and the relevant authorities and also of
any application for planning permission.
(iv) in the event of the defendant company or its successors in title, as the case may
be, failing to enquire or to apply or to comply with any condition as aforesaid,
then the plaintiffs or their successors in title, as the case may be, shall be at
liberty to do so, in which case, they shall be entitled to recoup all expenses
reasonably incurred in connection therewith and the same shall be recoverable
as a debt due from the defendant company or its successors in title to the
plaintiffs or their successors in title, as the case may be.
(e) However, in the event of planning permission for the access aforesaid being required
and not being forthcoming or in the event of the rights of third parties having
intervened or in the event of there being some legal or other impediment to the
creation of such easement as aforesaid, then the parties shall be at liberty to apply
to Court to enable me to consider what further or other orders I should make in
substitution for or in addition to the orders aforesaid, in which event, perhaps, the
damages awarded for diminution in value to Lot 48 may have to be re-assessed,
having regard to the circumstances of the case.
(3) Against both the defendants, special damages, by way of fair rent for their use of Lot
48 for the storage of building materials and equipment and as a working platform, at the
rate of RM500 p.m. for a period of 10 months, that is to say, from February to November
1981. RM5,000
(4) In respect of the plaintiffs family house, I make no award since any award under this
head would be nominal and would merge under the award for diminution in value of
Lot 48 - Nil
(5) Against both the defendants, exemplary damages, in the sum of RM25,000 insofar as
the claims in tort relating to Lot 48 are concerned. - RM25,000
(6) In respect of the plaintiffs claims, against both the defendants for general damages for
alleged diminution in value of Lot 55, I make no award - Nil
(7)(a) Against the defendant company, a mandatory injunction requiring it or its successors
in title to execute the prescribed Form 17A under s. 286(I) of the Code and to present
the same for registration thus creating an easement of way, in particular, a right of
carriageway within the meaning of s. 288(b) of the Code in perpetuity over its 40 feet
wide main access road on Lot 39 (the servient land) and so affording access from Lot
55 (the dominant land) to the public highway known as the Batu Ferringhi Road, in
favour of the plaintiffs or their successors in title, within one month from the date of
the decision herein, failing which the Senior Assistant Registrar of this Court to do so
provided always that this order does not have the effect of interfering with the rights
of third parties which might have intervened.
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(b) Upon presentation of the duly executed instrument in Form 17A, the registering
authority shall register the same as soon as reasonably possible.
(c) However, in the event of the rights of third parties having intervened, or if there is
some legal or other impediment to the creation of such an easement, then the parties
shall be at liberty to apply to Court to enable me to consider what further or other
orders I should make in substitution therefor including, perhaps, an order for the
award of damages for diminution in value to Lot 55, having regard to the
circumstances of the case.
(8) (a) Against both the defendants, a mandatory injunction requiring them to remove
forthwith from date of decision herein (as indicated by the plaintiffs) all material,
debris and spoil that had been dumped on Lot 55, and generally, to restore it to its
natural state, to the satisfaction of the City Council Engineer, Penang.
(b) For the avoidance of doubt, against both the defendants, a further mandatory
injunction requiring them to carry out all necessary drainage, turfing and levelling
works to protect Lot 55 from soil erosion and reinstate all boundary stones that
may have been dislodged, to the satisfaction of the City Council Engineer, Penang.
(c) Having regard to the time limits imposed by the provisions of para. 2(b) above, the
relevant authorities shall reply in writing immediately to the enquiry by the defendant
company or its successors in title or by the plaintiffs or their successors in title
made pursuant to the provisions of para. 2(d)(i) or 2(d) (iv) above, as the case may
be, and if planning permission is required, shall process the same and make a decision
thereon as soon as reasonably possible.
(9) In so far as the claim for the cost of a retaining wall to protect Lot 55 from soil erosion
is concerned, I regard it as lacking in proof and therefore speculative. I can therefore
make no award or other order in regard thereto.
(10) Against both the defendants, special damages by way of fair rent for their use of Lot
55 as a storage place for their building materials and as an access and working platform
for their development works on the condominium site on Lot 39, at the rate of RM600
p.m. for a period of 20 months, that is to say, from August 1981 to March 1983. RM12,000.
(11) Against both the defendants, exemplary damages, in the sum of RM50,000 in so far as
the claims in tort relating to Lot 55 are concerned. - RM50,000.
(12) Against both the defendants, interest at the rate of 6% p.a. on all compensatory general
damages awarded for the period from date of service of the writ until date of judgment
under s. 11 of the Civil Law Act 1956, and thereafter, at the rate of 8% p.a. until
satisfaction under O. 42 r. 12 of the Rules of High Court 1980.
(13) Against both the defendants, interest at the rate of 3% p.a. on special damages awarded
for the period from date of accrual of cause of action until trial.
(14) Against both the defendants, costs of the action on the higher scale to be taxed by the
Senior Assistant Registrar of this Court in default of agreement by the parties.
(15) Generally, the parties be and are hereby at liberty to apply.
Also found at [1989] 1 CLJ 693

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[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

ALFRED TEMPLETON & ORS.

(ii) exemplary and aggravated damages;

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[1989] 1 CLJ (Rep)

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Current Law Journal

[1989] 1 CLJ (Rep)

Cases referred to:

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Kenny v. Preen [1963] 1 QB 499

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[1989] 1 CLJ (Rep)

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

By clause 11 of the Sale and Purchase Agreement, it was provided as follows:

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[1989] 1 CLJ (Rep)

Dear Yow Chuan,

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Your early reply would be appreciated.

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[1989] 1 CLJ (Rep)

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Mr. Low Yow Chuan,

We have been instructed to write to you on behalf of Mr. Alfred Templeton.

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[1989] 1 CLJ (Rep)

Lim Kean Siew & Co.,

Datuk Low Yow Chuan,

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Current Law Journal

[1989] 1 CLJ (Rep)

Lim Gim Seng,

Nuisance and Trespass on Holding 64(10) MK. 17 NED Penang

Nuisance and Trespass on Lot 64(10) and the vicinity

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Current Law Journal

[1989] 1 CLJ (Rep)

M/s. Chang & Vello,

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Attn: Mr. Gan Teik Chee

Re: Templetons Land, Mt. Pleasure

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[1989] 1 CLJ (Rep)

M/s. Gan Teik Chee & Co.,

[1989] 1 CLJ (Rep)

Alfred Templeton & Ors. v.

Gan Teik Chee & Ho,

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[1989] 1 CLJ (Rep)