Defendants are liable for trespass as they disposed of waste on Plaintiff's land without consent, justifying exemplary and daily damages for continuing trespass.

Noor Ruwena Md Nurdin J:

Introduction

[1] This case concerned an appeal that was filed by the Appellant/lst Defendant, Feng Jin Textile Sdn Bhd (D1) against the Respondent/Plaintiff in the Sessions Court, Segar a/l Retnam. The Plaintiff sued D1 and 2 others, namely, one Chai Kah Wei (D2) and Kok Meng Trading Sdn Bhd (D3). Later, the Plaintiff withdrew the suit against D3. For ease of reference, I will refer to the parties as they were at the Sessions Court. Dissatisfied with the decision of the Sessions Court Judge (SCJ) on 31 January 2024, D1 filed the Notice of Appeal to this Court on 2 February 2024 against the whole decision of the SCJ. The Plaintiff then had crossed appeal against quantum as the SCJ did not award him damages for the continuous trespass despite finding that the Defendants were liable for trespass on his land.

[2] This Court heard the appeals on 10 December 2024 and delivered its decision on 7 January 2025 where I had made the following orders:

i. D1's appeal was dismissed;

ii. SCJ's award for RM20,000.00 in general damages was upheld;

iii. D1 was ordered to pay RM30,000.00 in exemplary damages to the Plaintiff; and

iv. damages of RM500.00 to be paid by D1 to the Plaintiff for the continuing trespass for the period of 19 September 2022 to 19 February 2024 (date of stay on the SCJ's decision) and RM500.00 to be paid on a daily basis commencing from 7 days after the date of this Court's order until all the residues from the fire have been removed from the Plaintiff's land; and

v. appeal costs of RM5,000.00 to be paid by the D1 to the Plaintiff.

Facts Of The Case

[3] The subject matter of the appeal concerned a piece of land held under No Hakmilik 1242, Lot 1679, Tempat Kampung Dew Road, Mukim Jebong, Daerah Larut & Matang, Negeri Perak ("the land"). Plaintiff owned ½ share of the land and the other ½ share were owned by 2 persons by the name of Saravanan a/l R. Krishnan and Valliamah a/p Marimuthu. The Plaintiff averred that he was given the authority by the other 2 co-owners of the land to bring the action against the defendants. D1 was a company involved in the 'manufacturing and trading of yarn, cotton fabric and other related products' and having its business address at Lot 3806, Jalan Perusahaan 1, Kawasan Perindustrian Kamunting, Taiping ("the premises"). D2 was the owner of a backhoe bearing registration number AGW 6585. D3 was a company registered in Malaysia and having its business address in Bagan Serai. It owned a lorry bearing registration number AAP 536.

[4] On 13 February 2022 a fire broke out on the premises owned by D1 and pursuant thereto there were a lot of residue from the fire comprising of burning cotton waste ("cotton waste") on the premises then. D1's representative lodged a police report regarding the incident and therefore, there was no dispute on the date of the fire. D1 admitted that it had appointed Chai Sing Choon Excavator Works (CSCEW) to remove the cotton waste. CSCEW brought in D3's lorry and a backhoe AGW6585 owned by D2 to carry out works to clear the premises of the cotton waste from 14 February 2022 until 19 February 2022. On 19 February 2022, Chai Sing Choon (SP4), informed D1's representative that he could no longer carry out the clearing works. Therefore, D1 issued 2 payment vouchers for the works done by CSCEW. The on 20 February 2022, D1 appointed SNSB Recycling Sdn Bhd (SNSB) to supply industrial garbage bins for the disposal of the remaining cotton waste from the premise. The latter then issued an invoice to D1 for the works done. Apart from these facts, D1 denied the Plaintiff's allegations, particularly that it had appointed D2 and D3 to carry out the clearing works and that it had trespassed on the Plaintiff's land.

[5] The Plaintiff went to visit the land on 19 February 2022 at 2.30 pm with his brother and saw the lorry No AAP 536 and backhoe No AGW 6585 on the land. The operators of the vehicles were seen to be disposing of the burning cotton waste on the land. The