KUALA LUMPUR (Aug 13): The High Court has ordered the Kuala Lumpur City Hall (DBKL) and a developer under liquidation to pay, jointly or severally, more than RM1.3 million to a retired couple, due to damages incurred to their dream home in Alam Damai, Cheras.

This follows the construction of the commercial project, Monteno Sovo Suites, which resulted in the couple having to move out of their home and rent elsewhere for 10 years, and to having to bear the repairs to their house.

Judge Gan Techiong ordered the payment of the damages and an additional cost of RM100,000 be paid to retired police officer Datuk Adnan Azizon and his retired teacher wife Datin Aziah Ahmad, who are in their 60s, in an April 24 judgement which has been uploaded online this month.

Gan ordered the developer, through its liquidator, and DBKL to pay, jointly or severally, a sum of RM300,000 in general damages for the prolonged hardship and displacement.

The judge also directed another RM160,000 for special damages for rentals paid for alternative accommodation, and RM819,0000 for repair costs and associated relocation expenses.

Besides this, the court ordered RM17,080 for the civil engineer and RM20,000 for the quantity surveyor costs, to also be borne by the developer and DBKL.

“The couple’s claim for aggravated and exemplary damages are dismissed,” Gan said, adding that the court must ensure plaintiffs do not recover more than their actual loss, to prevent overpayment.

The developer, Fame Modulation Sdn Bhd, had caused cracks and structural damage to the couple’s home during the construction of the 29-storey high rise commercial building.

Fame Modulation owned the land and was responsible for the construction of the building, while DBKL was the approving local authority for the project. The piling and excavation works on the said land had caused cracks and structural damage to Adnan and Aziah’s home and gave risk to it collapsing.

Due to the dangers posed, the couple were forced to move out of the house with their four young children, out of fear of the house collapsing.

“The lackadaisical conduct of City Hall — which temporarily halted Fame Modulation’s project but quickly allowed the developer to resume works without adequate safeguards and remedies for Adnan and Aziah — had resulted in them naming City Hall in this civil suit,” the judge said.

“Although the developer had undertaken to repair Adnan and Aziah’s home, it failed to fulfil its undertaking. After several years of waiting, the developer’s failure to repair had resulted in the couple obtaining a loan from Bank Rakyat to finance the repairs of their house, so they could move back home. For a couple in their 60s, who are living on government pensions, to be saddled with a substantial loan to repair their house is an onerous burden,” Gan added in his 46-page judgement.

Gan dismissed DBKL’s argument that the couple should have filed the application via judicial review or that their claim on them was time-barred.

“The defendants can be held jointly and severally liable when their wrongful acts are causally intertwined. The damage is indivisible, and each defendant is liable for the entire loss, regardless of their individual conduct,” the judge ruled, adding that the Federal Court had also ruled that confirmed joint and several liability applies even if acts occurred at different times.

“The City Hall’s rejection of the claim for protection under Section 95(2) of the Street, Drainage and Building Act 1974 is rejected, as it knew of the risks [of the project] and failed to act responsibly. The claim was not time-barred as there was ongoing damage and City Hall’s negligence justified the delay in the repair.”

The High Court also rejected DBKL’s argument that the couple’s claim was an abuse of the court process.

The couple were represented by Cheow Wee and Zachary Yeo from Messrs Cheow Wee & Mai, while Wilson Lim Mao Shen appeared for Fame Modulation (in liquidation) from Messrs Wilson Lim. Mohd Hisham Md Nan of Messrs Haris Salleh & Co appeared for DBKL.

Cheow Wee when contacted by The Edge confirmed the decision and said the defendants had unfortunately filed an appeal on the matter.