Negligence by developer for poor waterproofing design in high-end condominium found liable, while management company not liable due to lack of duty of care.

Lim Chong Fong J:

Introduction

[1] This is a suit which involves a claim made by the management corporation against the developer and property manager due to latent defects in a high end condominium.

[2] The plaintiff is the management corporation of the Dua Residency condominium ("Condominium") established pursuant to the Strata Titles Act 1985 .

[3] The 1st defendant is a private limited company involved in property development.

[4] The 2nd defendant is also a private limited company involved in property management.

[5] Both defendants are wholly owned subsidiaries of E&O Property Bhd ("E&O"), a public limited company listed in the Bursa Saham.

Preliminary

[6] The plaintiff commenced this Suit on 4 October 2017 against the 1st defendant for breach of contract, breach of statutory duties and/or negligence predicated on design flaws as well as against the 2nd defendant for breach of contract and/or negligence predicated on inadequate maintenance which resulted in latent defects discovered in several parts of the Condominium. Consequently, the plaintiff claimed damages for rectification of the defects.

[7] The trial of this Suit took 10 days on 24 May 2019, 1 July 2019, 5 August 2019, 13 January 2020, 24 to 27 August 2020, 22 September 2020 and 1 October 2020. The first 4 days of the trial was conducted before Justice Lee Swee Seng and I took over the remaining days of the trial upon His Lordships elevation to the Court of Appeal. There were also 2 site visits to the Condominium by me on 14 January 2020 and 14 October 2020.

[8] The bundle of pleading was marked as bundle BOP and the documentary evidence are collated in bundles CBOD 1 to CBOD 6 as well as PBOD 7 to PBOD 12 which carried status B. During the course of the trial, exhibits D1, D2, P3, D4, P5, P6, P7, P8 (a) - (f) and P9 (a) - (i) were also admitted in evidence.

[9] The plaintiff called the following factual witnesses:

(i) Othniel Lim Soon Weng (PW1), a building inspector and thermographer of Architect Centre Sdn Bhd;

(ii) Karthigasu a/l Ratnasingam (PW2), a registered valuer and the chief executive officer of Crest Consulting Services;

(iii) Harshad Kapadia (PW3), a resident and member of the Management Committee of the plaintiff; and

(iv) Philippe Stoll (PW5), the head of Building Systems of SKA Kimia Sdn Bhd;

as well as the following expert witnesses:

(i) Ir. Tham Kum Weng (PW4), a professional engineer and director of T-Corp Engineers Sdn Bhd;

(ii) Ar. Anthony Lee Tee (PW6), an accredited architect and independent building inspector of Architect Centre Sdn Bhd; and

(iii) Sr. Tony Thang Boon Eng (PW7), a consultant quantity surveyor and principal of TAQ-Surveyors.

[10] The defendant called the following factual witnesses:

(i) Leo Kai Chin (DW1), formerly Assistant Project Manager of the Project;

(ii) Eira Anastasia Skelchy (DW2), Senior General Manager of the 2nd defendant;

(iii) Mohd Hazipah bin Ahmad (DW3), a registered architect employed in GDP Architects Sdn Bhd; and

(iv) Sze See Chuen (DW4), a professional engineer and director of Jurutera TSSC Lim Sdn Bhd;

as well as the following expert witnesses:

(i) Dato Ir. Dr Chng Guan Bee (DW5),a professional engineer and director of CGB Consultants Sdn Bhd; and

(ii) Sr Gan Chee Sing (DW6), a consultant quantity surveyor and partner in Ukur Bahan Consult.

[11] After the close of the trial, the parties submitted their respective written submissions in chief as well as submissions in reply. Oral submissions of counsel were held on 17 December 2020.

Background Facts

[12] These facts are based on the statement of agreed facts and as found by me from the evidence adduced before me.

[13] At all material times, the 1st defendant is the registered and beneficial owner of all the freehold land situated at Geran 58582 for Lot 341, s 63, Bandar dan Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur, measuring in total, approximately 207,507 square feet ("Land").

[14] In or around 2004, the 1st defendant developed a portion of the Land, measuring ap