JUDGMENT

Hazizah Kassim JC:

A. Introduction

[1] This is an appeal by the defendant against the decision of this court in allowing the plaintiff's claim for trespass and the order to repair the damaged awning.

B. Material Facts

[2] The plaintiff and the defendant are neighbours residing in the Tropicana Indah Resort Homes, Petaling Jaya.

[3] The plaintiff is the registered owner of a property known as No 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, while the defendant possesses a property at No 26 Jalan PJU 3/12E.

[4] The defendant's property is located directly behind the plaintiff's property and is one floor above it.

[5] The plaintiff's claim against the defendant is for the following reliefs.

a) An order requiring the defendant to demolish the wall and/or the illegal structure built on top of the original retaining wall;

b) In the alternative to (a), an order for the defendant to strengthen the original retaining wall and appoint a certified engineer and/or professional (approved by the plaintiff) to certify the construction of the illegal structure;

c) An order for the defendant to repair and/or replace the awning at the plaintiff's property;

d) Alternatively to para (c), an order that the defendant bear all costs of repairing the awning incurred by the plaintiff;

e) An order for the defendant to pay damages for trespass to the plaintiff;

f) An order for the defendant to pay damages for the diminution in market value and the opportunity cost associated with the sale of the plaintiff's property;

g) General damages for trespass;

h) Special damages for trespass;

i) Interest at 5% per annum for (g) and (h), calculated from the date of the writ summons until the date of full settlement;

j) Costs;

k) Any other relief this court deems fit and proper to grant.

C. Applicable Law

[6] In the case of Hong Yik Trading v. Liziz Plantation Sdn Bhd; [2017] 5 MLJ 398; [2017] 8 CLJ 491, the Federal court makes findings on the burden of proof as follows:

12] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. This is highlighted in the case of Selvaduray v. Chinniah; [1939] 1 MLJ 253 where Terrell, Ag CJ stated:

... it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case, there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial, the learned judge has found that the position was exactly even, ie that any preponderance in the plaintiff's favour had disappeared. That being the case, the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff.

[7] The standard of proof in civil actions has also been determined by the Federal court in Inas Faiqah Mohd Helmi v. Kerajaan Malaysia & Ors; [2016] 2 MLJ 1; [2016] 1 PIR 16; [2016] 2 CLJ 885; [2016] 2 AMR 217:

[13] The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabilities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. In the case of Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases:

The... [standard of proof]... is well settled. It must carry a reasonable degree o