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2025 MarsdenLR 3066
HIGH COURT MALAYA PULAU PINANG
TAN SOW MOOI – Appellant
Versus
RAINBOW PARADISE BEACH RESORT BERHAD & ANOR – Respondent
[Civil Appeal No: PA-12BNCvC-15-06/2023]
The appellate court intervenes when a lower court's decision is 'plainly wrong' due to material errors of law or fact, as seen in the mishandling of trespass and nuisance claims.
Headnote:(A) National Land Code 1965 - Section 232(1)(a) - Strata Titles Act 1985 - Section 5(2) - Lease agreement - Plaintiff's long-term lease rights were violated when Defendants converted resort into quarantine center without consent, resulting in claims for trespass and nuisance - Sessions Court's dismissal was found to be 'plainly wrong' due to failure to evaluate evidence and misapplication of law - Appeal allowed with costs and orders for possession and damages. (Paras 1, 24, 66, 70)
(B) Appellate Intervention - The appellate court may only intervene if the lower court's decision is 'plainly wrong' due to material errors of law or fact, or lack of judicial appreciation of evidence. (Paras 4, 11, 12)
Facts of the case:
The Plaintiff, a permanent resident of a resort, was forced to vacate her suite when the Defendants converted the resort into a quarantine center during the Covid-19 pandemic. She claimed damages for trespass and nuisance after the Sessions Court dismissed her case. (Paras 1-3, 21)
Findings of Court:
The Sessions Court failed to evaluate the Plaintiff's causes of action and made erroneous findings regarding the notice served to the Plaintiff, leading to a 'plainly wrong' decision. The appellate court found merits in the Plaintiff's appeal. (Paras 66-68)
Issues: The main issues included whether the Plaintiff's rights were violated by the Defendants' actions and the adequacy of the notice given to vacate her unit. (Paras 24, 66)
Ratio Decidendi: The appellate court ruled that the Sessions Court's failure to properly analyze the Plaintiff's claims for trespass and nuisance constituted a material error of law, justifying the intervention. (Paras 36, 66)
Result: Appeal allowed with orders for possession and damages. (Paras 70)
(Post-Trial Appeal)
Prelusion
[1] The Plaintiff (P) has a long-term lease over her suite in the Defendants' resort. She is not just a resort guest who stays at the resort for a holiday. She is a permanent resident at the resort.
[2] When the Covid-19 pandemic hit the country, the Defendants decided to convert their resort into a quarantine centre. When the Defendants did that, for some reason, they had to get P to move out of her suite. P asserts that she was given very little time to move out. She nevertheless moved out.
[3] P sued the Defendants to get back possession of her suite and for damages suffered. The Sessions Court dismissed her claim. She appeals to the High Court.
The Law On Appellate Intervention — The 'Plainly Wrong' Test
[4] It is vital, in this post-trial Appeal, to review the law on appellate intervention. An appellate Court should only interfere to disturb the findings of the first-instance Court (here: the Sessions Court), if the Sessions Court was "plainly wrong".
[5] Our Federal Court, in Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors ; [2020] 10 CLJ 1; [2020] 8 AMR 227, through the written grounds of Justice Zabariah Mohd Yusof FCJ, comprehensively expounded the genesis of the "plainly wrong" principle, through its development over the years, into its current meaning.
[6]Ng Hoo Kui (supra) propounded that the primary "plainly wrong" principle, includes the following not-exhaustive elaborative tenets, and I apply them here-
(1) The Sessions Court's judgment is "plainly wrong" if it was arrived at through "no or insufficient judicial appreciation of the evidence": citing UEM Group Bhd (previously known as Uem Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor ; [2018] MLJ(Supp) 363; [2011] 1 AMCR 338.
(2) This phrase of the "lack of judicial appreciation of the evidence" encompasses these three errors-
(i) critical factual finding which has no basis in evidence (that is, findings not based on the evidence);
(ii) demonstrable misunderstanding of the relevant evidence (that is, misunderstanding the evidence);
(iii) demonstrable failure to consider the relevant evidence (that is, failure to consider the evidence).
(3) The Sessions Court's judgment is "plainly wrong" if it was arrived at through a "material error of law": following Henderson v. Foxworth Investments Ltd [2014] 1 WLR 2600 (UKSC).
(4) The Sessions Court's decision is "plainly wrong" if it "could not reasonably be explained or justified", making it a decision "which no reasonable judge could have reached": citing Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case ; [2018] 2 CLJ 641; [2018] 1 AMR 517.
(5) An appellate Court is to evaluate whether the Sessions Court's decision was "reasonably made": paragraph 77 of Ng Hoo Kui (supra).
[7] The "plainly wrong" principle, however, is not intended to be used as a catch-all method to replace the Sessions Court's decision with my own (the appellate Court's) decision, on the facts of the case. The Federal Court in Ng Hoo Kui (supra) puts it this way-
[76] What is pertinent is that, the 'plainly wrong' test is not intended to be used by an appellate Court as a mean to substitute its own decision for that of the trial Court on the facts.
[78] Hence following this Court's ruling in Tengku Dato' Ibrahim Petra bin Tengku Indra Petra an appellate Court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was 'plainly wrong' where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if the appellate Court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge.
[Emphasis Added]
[8] Put differently — even if an appellate Court finds, on the evidence
