The Federal Court confirmed that the local authority's approved building plans supersede additional interpretations, clarifying obligations regarding construction compliance based on existing structural assessments.

Zabariah Mohd Yusof FCJ:

A. Introduction

[1] This is the appeal by the appellant/defendant against the decision of the Court of Appeal (COA). The COA allowed the appeal of the respondent/ plaintiff and set aside the decision of the learned trial judge, who decided in favour of the appellant/defendant.

[2] In this judgment, parties will be referred to as they were in the High Court.

[3] The Federal Court had granted leave to the defendant for the following questions of law:

"1. Whether the Court, in interpreting the meaning of particular directions or conditions issued by a local authority in the exercise of its statutory power under s 70 of the Street, Drainage and Building Act 1974 , is in fact forming an opinion as to usages of any body of men or meaning of words used by particular classes of people, having regard to s 49 of the Evidence Act 1950 and as such the Court is entitled to rely on the opinions of persons having special means of knowledge.

2. If Question 1 is in the affirmative, whether the Court in assessing opinion evidence should give more weight to opinion evidence under s 49 Evidence Act 1950 than evidence under s 45 ."

B. Background

[4] By a Sale and Purchase Agreement (SPA) executed in March 2012, the plaintiff and his son purchased 2%-storey Quad Villa held under HS (D) 156356 PT 75801, Pekan Kajang (the property) from the developer, the defendant. Initially the plaintiff sued two defendants, namely the developer and the Majlis Perbandaran Kajang (MPKJ). However, the plaintiff has since withdrawn his action against MPKJ. Therefore all references to "defendant" herein is to the developer which is Jade Homes Sdn Bhd.

[5] Although the plaintiff took possession of the property on 29 June 2013, he could not physically occupy the property due to some alleged material defects in the construction.

[6] The plaintiff claims that the defendant failed and/or refused to rectify the defects when it failed to build a "Reinforced Concrete Wall" (RC Wall) outside the property at the slope bordering the boundary between his lot and his neighbour at the back of the property. The plaintiff asserts that the building of the RC Wall was a requirement under Condition 8 Annexure F (Condition 8) of the Approved Building Plan/Development Order (DO) issued by the Local Authority, MPKJ dated 24 December 2010.

[7] The plaintiff further avers that instead of constructing the RC Wall as mandatorily required according to the Approved Building Plan, the defendant merely constructed a three-feet high rubble wall on the slope to protect the stability of the adjoining property. The plaintiff alleges that the construction of the slope and rubble wall by the defendant was essentially costs driven (according to their own architect, DW6's evidence).

[8] The plaintiff also alleges that the defendant has failed and/or neglected to abide by their own undertaking to construct an RC Wall for the slope on the plaintiff's property. The undertaking which was referred to, by the plaintiff is the Letter of Undertaking in B1 12-14 which was issued by the defendant to MPKJ which essentially states that:

"...saya/kami berjanji bahawa saya/kami bersetuju melepaskan dan menanggung rugi MPKJ daripada segala tuntutan, tindakan, penalty, tuntutan kos, pembayaran, perbelanjaan dan permintaan berkaitan dengan pembinaan CERUN (SLOPE) dan TEMBOK PENAHAN (REINFORCED CONCRETE WALL) di atas tanah milik saya tersebut."

[9] According to the plaintiff, the construction of the three-feet high rubble wall on the slope at the boundary between the plaintiff's property and his neighbour, had caused water and sediment to flow into the plaintiff's property every time it rains and the plaintiff and his family is deprived of the full use and enjoyment of the property especially the wet kitchen area.

[10] In the amended Statement of Claim, the plaintiff claimed that despite several enquiries, the defendant:

(a) failed to give any confirmation as to whether the RC Wall will be constructed