The principal can be held liable for the tortious acts of an agent if such acts were authorized or ratified post-commission, affirming vicarious liability principles and applying agency law in holding D1 jointly responsible for D2's trespass.

JUDGMENT

S Nantha Balan JCA:

Introduction

[1] This is an appeal against the decision of the Learned Judge of the High Court (after a full trial) in Kuala Lumpur High Court Suit No: WA-22NCvC-120-03-2017 ("Suit 120"). The appellant in this appeal is Fanuc Sdn Bhd (plaintiff in Suit 120). The 1st respondent is Adenland (Cheras) Sdn Bhd (1st defendant) and the 2nd respondent is Prestasi Infra Bina Sdn Bhd (2nd defendant). For convenience, consistency, and to avoid confusion, we shall refer to the appellant, the 1st respondent and 2nd respondent as plaintiff, D1 and D2, respectively.

[2] On 6 March 2017, the plaintiff filed Suit 120 against D1 and D2 based on causes of action in negligence and trespass. D2 did not defend the action. Likewise, D2 (qua 2nd respondent in this appeal) did not respond to this appeal. By a decision dated 19 June 2019, the Judge dismissed the plaintiff's claim against D2 with costs of RM80,000.00. The Judge allowed the plaintiff's claim against D2, and ordered D2 to pay RM80,841.78 as special damages, and RM500,000.00 as general damages with 5% interest per annum from the date of filing of the action to the date of full realisation, and costs of RM40,000.00. The Judge disallowed the plaintiff's claim for RM73,470.00 being the value of earth that was wrongfully removed from the plaintiff's land. The Judge also disallowed the sum of RMl,362,405.00 as reinstatement cost. Finally, the Judge also rejected the plaintiff's claim for aggravated and exemplary damages. The decision of the High Court is reported as Fanuc Sdn Bhd v. Adenland (Cheras) Sdn Bhd & Anor, [2020] 5 CLJ 489 (HC).

[3] Essentially, the plaintiff is aggrieved with the High Court's decision in exonerating D1 from liability for trespass. According to the plaintiff, D1 should be jointly and severally liable together with D2, for the trespass that was committed by the latter. The plaintiff is also aggrieved that the High Court did not order a further sum of RM73,470.00 being the value of earth that was removed from the plaintiff's land. The plaintiff is also aggrieved that the Judge rejected the claim for RM1,362,405.00 as reinstatement cost, as well as the claim for aggravated and exemplary damages.

Background Facts

[4] The plaintiff is the registered proprietor of land held under Lot 14761 (formerly known at Lot 1169, Geran Mukim 1129, Cheras Batu 9, Mukim of Ulu Langat, Daerah Ulu Langat, Selangor) ("the plaintiff's land"). D1 was the owner of land held under PT 5700 and PT 5701, Mukim Hulu Langat, Daerah Hulu Langat, Selangor Darul Ehsan measuring approximately 3.36 acres. We shall refer to the lands held under PT 5700 and PT 5701, Mukim Hulu Langat, Daerah Hulu Langat, Selangor Darul Ehsan as "the Project land".

[5] D1 intended to undertake a proposed building development on the Project land known as "Cadangan Pembangunan Perumahan yang mengandungi 1 Blok Pangsapuri 23 Tingkat, 2 Blok Pangsapuri (Low Rise) 4 Tingkat, Kemudahan Rekreasi di Tingkat Podium Di Atas 2 Tingkat Tempat Letak Kereta" di atas PT 5700 dan 5701, seluas 3.36 ekar, Mukim Hulu Langat, Daerah Hulu Langat, Selangor Darul Ehsan" ("the Project").

[6] The Project was approved by the Majlis Perbandaran Kajang ("MPK") in 2014. The Project land was located quite close to the plaintiff's land which was on a higher elevation. The plaintiff's land and the Project land are separated by a road reserve, and an access road known as Jalan Kemacahaya ("the access road"). The access road was "S" shaped and meandered through the Project land. It is not denied that the contour and path of the access road did not allow D1 to fully utilise the Project land. Hence, D1 wanted to "straighten" the access road. MPK gave their approval for the access road to be straightened. D1 had previously approached the plaintiff to get them to consent to the height of the plaintiff's land being "trimmed". Hence, if the height of the plaintiff's land was reduced, then there would be no need for a high retaining wall. But