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2021 MarsdenLR 3211
COURT OF APPEAL PUTRAJAYA
NBC LAND SDN BHD – Appellant
Versus
MAJLIS PERBANDARAN KLANG – Respondent
[Civil Appeal No: B-01(NCVC)(W)-441-08-2019]
A breach of contract claim is only time-barred upon breach awareness, while insufficient evidence led to the dismissal of trespass and nuisance claims.
Headnote:(A) Local Government Act 1976 (Act 171) – Limitation Act 1953 – Appeal from dismissal of claim for breach of contract, trespass, and nuisance –
Issues of limitation addressed, confirming appellant's claim commenced post-response of respondent on breach – Statutory cognizance under s 6(1) of Limitation Act – Claims of trespass and nuisance dismissed for lack of evidence; partial appeal allowed for assessment of damages. (Paras 8-9, 21-25, 37)
Facts of the case: Appellant, a property development company, claims against respondent for breach of contract regarding land rehabilitation at a dumpsite, alleging time-bar issues and unlawful disposal of waste on additional land.
Findings of Court: The court found that the appellant's claim for breach of contract was not time-barred, while trespass and nuisance claims were dismissed due to lack of proof.
Issues: Breach of contract timing, evidentiary burden for trespass claims, and nuisance claims linked to failure to prove trespass.
Ratio Decidendi: The appellate court determined that the cause of action arose upon notice of the breach in December 2016, while emphasizing the burden of proof on the appellant for the trespass claim, which it failed to meet.
Result: Appeal allowed in part; claim for trespass and nuisance dismissed.
JUDGMENT
Introduction
[1] This is an appeal from the appellant, NBC Land Sdn Bhd (formerly known as Banjaria Sdn Bhd) against the decision of the High Court dated 8 August 2019 dismissing the appellant's claim against the respondent, Majlis Perbandaran Klang (MPK) with costs, after a full trial.
[2] Having considered the respective parties' written submissions and the oral arguments and the relevant Records of Appeal, we had allowed the appeal in part on the issue of limitation and dismissed the appeal in respect of the appellant's claim for trespass and nuisance. These are our reasons in respect of the said decision.
Background Facts
[3] The appellant is a property development company in Klang. The respondent, is the Municipal Council of Klang, established pursuant to the Local Government Act 1976 (Act 171).
[4] The facts relevant to this appeal are gleaned from the narrative spelled out by the learned judge in her judgment and the appellant's Chronology of Facts.
(a) Golden Hope Plantations Berhad ('Golden Hope') was the owner of a piece of land ('the said land') measuring approximately 161.36 acres in Klang. In 1997, desirous of acquiring a portion of the said land for the purpose of a dumpsite, the State Authority issued the relevant statutory notices under the Land Acquisition Act 1960 to Golden Hope. In response to the notices, Golden Hope proposed that the State lease the portion of the said land that it required instead of acquiring the whole land.
(b) The State Authority agreed and a lease agreement was entered between Golden Hope and the respondent of which Golden Hope leased 36 acres of the said land to the respondent for use as a dumpsite. These 36 acres leased to the respondent is located on Lot 77168 and part of Lot 77169 ("the affected land") and the lease was to expire on 22 April 2002.
(c) On 30 June 2000, the appellant purchased the said land from Golden Hope. The sale and purchase agreement between them stipulated that the said land was purchased on an "As is where is basis". The appellant then issued a notice to the respondent to stop dumping rubbish on the affected land and on 1 December 2000, the respondent complied with the request.
(d) The appellant and the respondent subsequently discovered that the actual portion of the said land used by the respondent as a dumpsite was 39.479 acres, which is an additional 3.479 acres in excess of the 36 acres leased to the respondent under the lease agreement.
(e) Via a letter of 5 January 2002 to the respondent, the appellant acknowledged receipt by YDP Dato' Sharif's office confirming the matters discussed during the meeting on 13 December 2001 which, among others, are as follows:
"Kami difahamkan bahawa pihak Majlis Perbandaran Klang ("MPK") akan menjalankan kerja-kerja rawatan/pemulihan (rehabilitation) di atas bekas tapak pelupusan sampah ("tapak tersebut") yang terletak di atas Lot 77168 dan sebahagian Lot 77169 di mana kos-kos untuk kerja tersebut akan ditanggung sepenuhnya oleh pihak MPK..."
(f) At the appellant's request, the respondent filled the dumpsite with red soil and took steps to relocate some of the rubbish. Following the appellant's dissatisfaction with the steps taken, another meeting was held on 2 December 2003 at the respondent's premises. At the meeting attended by the parties' respective representatives, the respondent had agreed to bear 50% of the cost to rehabilitate the affected land used by the respondent as a dumpsite.
This is evident from the Minutes of the Meeting of 2 December 2003, the relevant extracts are reproduced as follows:
"2.2 RAWATAN PEMULIHAN DI TAPAK PELUPUSAN MPK DI JALAN TELOK GONG (LAMA)
(a) ...
(b) Tuan Tanah iaitu Syarikat Golden Hope Plantations telah meminta supaya Majlis membaikpulih tanah di tapak pelupusan sampah tersebut.
(c) Kos bagi rawatan pemulihan bekas tapak pelupusan seluas 40 ekar ini adalah lebih kurang RM6 juta. Syarikat Banjaria Sdn Bhd telah bersetuju untuk berkongsi 50:50 bagi kos tersebut.
3.1 KOS RAWA
