JUDGMENT

Raus Sharif JCA:

Introduction

[1] There are four inter-related appeals involving the same parties before the court. With the agreement of the parties, this court heard the four appeals together. The appeals are:

(i) W-02-207-04

An appeal by the defendant against the decision of Azmel Maamor J (as he then was) on 10 February 2004 in ordering interim injunctive orders (prohibitory and mandatory) against the defendant (1st appeal).

(ii) W-02-1021-04

An appeal by the plaintiff against the decision of Azmel Maamor J on 30 August 2004 in reviewing the mandatory injunction ordered against the defendant that he had granted on 10 February 2004 (2nd appeal).

(iii) W-02-34-07

An appeal by Tan See Siong and Soe Bank Tee (the defendant's directors) against the decision of Abdul Malik Ishak J (as he then was) on 20 December 2006 in finding the defendants' directors guilty for contempt and sentenced each of them to three weeks imprisonment and a fine of RM15,000 and in default thereof to one month imprisonment (3rd appeal).

(iv) W-02-1098-08

An appeal by the plaintiff against the decision of Mohd Yazid Mustafa JC on 15 September 2008, in dismissing the plaintiff's application to expunge the order in allowing the defendant's application to regularise and reseal the order of Azmel Maamor J dated 30 August 2004 (4th appeal).

Factual Background

[2] The material facts leading to these appeals are as follows. The defendant is a development company. They were developing 26 units of double story terrace houses on Lot 286, Taman Megah, Off Jalan Shell Gate, Bandar Port Dickson ("the project site"). The plaintiff is the owner of a house situated on a piece of land adjacent to the project site.

[3] It is the plaintiff's case that as a result of the earthworks carried out by the defendant's contractors, who had dug into the ground, there is a considerable degree of voids beneath the porch and driveway concrete slap of the plaintiff's house. It causes surface cracks as well as structural cracks affecting the foundation and safety of the plaintiff's house.

[4] On 23 March 2003, the plaintiff filed a writ against the defendant. In his statement of claim, the plaintiff prayed for:

(i) An injunction to restrain the defendant by itself or by its servants or agents or otherwise from further carrying out development works on the project site.

(ii) An injunction whereby the defendant is required forthwith to carry out repairs of the damage and cracks on the plaintiff's house.

(iii) Damages; and

(iv) Costs.

[5] The plaintiff thereafter filed a summons in chambers, applying for an interim injunction. The prayers sought by the plaintiff in the summons in chambers were identical to the prayers sought in the statement of claim.

[6] On 10 February, after hearing the parties, Azmel Maamor J (as he then was) granted orders in terms of the plaintiff's prayers in the summon in chambers. In effect, Azmel Maamor J granted in favour of the plaintiff:

(i) Prohibitive injunction, preventing the defendant from further developing the land; and

(ii) Mandatory injunction, asking the defendant to rectify or repair whatever damages and cracks on the plaintiff's house.

[7] A notice of appeal was filed by the defendant against Azmel Maamor J's decision. Hence, the 1st appeal.

[8] After the above decision, there were various applications made by both parties before Azmel Maamor J. The relevant applications were:

(i) Plaintiff's notice of motion dated 7 May 2004 to cite the defendant's directors, Mr. Tan See Siong and Soe Bank Tee for contempt for failing to obey the mandatory injunction ie, to immediately repair the damages and cracks on the plaintiff's house.

(ii) Defendant's summons in chambers dated 26 June 2004 seeking inter alia:

(a) Whether the court had in fact, besides granting an interlocutory injunction restricting the defendant from carrying the works of the development side, had also granted a mandatory injunction whereby the defendant w