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CHUAH HEE HUAT (TRADING UNDER THE NAME AND STYLE OF

KIM HOR FURNITURE TRADING) v MAJLIS BANDARAYA SEBERANG
PERAI

CaseAnalysis | [2023] MLJU 58 | [2023] 9 MLJ 372

CHUAH HEE HUAT (TRADING UNDER THE NAME AND STYLE OF

KIM HOR FURNITURE TRADING) v MAJLIS BANDARAYA
SEBERANG PERAI

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[2023] MLJU 58; [2023] 9 MLJ 372

Court: MALAYSIA HIGH COURT

Judges: ANAND PONNUDURAI J
Judgment Date: 13/1/2023

In this document:
Catchwords & Digest Cases considered by this case Legislation considered by
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:
 Local Government — Buildings — Building without approval — Defendant demolished
warehouse/store erected by plaintiff — Plaintiff claimed against defendant for loss and
damages suffered as result of demolition — Whether notices were issued and/or served
properly and/or were there proper service on plaintiff — Whether plaintiff was given
reasonable time to vacate and remove furniture to another place — Whether defendant
was estopped from entering and demolishing building/structure — Whether plaintiff was
deprived of his fundamental liberty under art 5(1) of the Federal Constitution — Street,
Drainage and Building Act 1974 ss 72, 97 & 120
Held, dismissing the claim with costs of RM40,000:

(1) Although the first notice was pasted on the building/structure, there could be no doubt that the plaintiff
was aware of it. This was because the plaintiff had in his letter requested an extension of time to
demolish the building/structure and had expressly referred to the first notice. The manner of service was
not irregular as s 120 of the Act allowed pasting at the plaintiff’s address. Further, s 120 of the Act
provided that notices addressed to the ‘owner’ or ‘occupier’ was sufficient and deemed as proper service.
Hence, the service of the notices was proper and had in fact been received by the plaintiff (see paras 33–
35).

(2) The provisions of s 72 of the Act provided no requirement to reissue another fresh 30 days’ notice after
such extensions and after the rezoning application was rejected. Section 72(1)(b) of the Act was
certainly complied with via the first notice while s 72(6) of the Act was exactly what was complied with via
the second notice. It was quite inequitable for the plaintiff to have requested and having been granted
extensions of time to now use the very same indulgence of the defendant against them. Further, the
plaintiff should have taken immediate steps to fulfil its undertaking and demolish the building/structure in
light of the previous notices. Although there was no need to, the defendant then gave the plaintiff a
further 14 days to comply with the earlier two notices. The plaintiff failed to do so nor request for any
extension of time to vacate. The notices issued were valid. The plaintiff had more than ample time to
vacate the building/structure and the actions/conduct of the defendant was reasonable at all times and
not tainted by wednesbury unreasonableness (see paras 37–40, 43 & 46).

(3) There was no merit in the plaintiff’s contention that the defendant was estopped from entering and
demolishing the illegal building/structure. Whilst the defendant acceded to the appeal for time to submit
applications for approvals, these were not negotiations and mediations between the parties. In each and
every letter of the defendant granting the extension of time, the defendant had expressly reserved its
right to proceed with enforcement action under the notices that had already been issued to the plaintiff.
There was never any representation made to the plaintiff that no enforcement action would be taken or
for that matter, a further 30 days’ notice would be given. There was nothing on the facts which required
equitable intervention to invoke estoppel against the defendant, especially against a local authority
carrying out its statutory function in relation to demolishing an illegal building/structure (see paras 48–49).

(4) There was nothing prejudicial in that the notices referred to the exact provision and the contents were
unambiguous. The evidence of the defendant’s Senior Assistant Director of Valuation (‘SD3’) was that
imposition and payment of assessment was not an acceptance of the illegal building/structure and the
assessment was charged on all land and structures irrespective of whether such structures are approved.
The evidence of SD3 was not at all challenged in cross-examination. Lastly, s 114(g) of the Evidence Act
1950 was only to be invoked where there was a withholding of material evidence. It could not see how
and in what manner a ‘laporan siasatan tapak’ by the defendant could be considered material so as to
justify the invocation of s 114(g) of the Evidence Act 1950 against the defendant (see paras 51 & 54–56).

(5) Whilst it could be assumed that the plaintiff had indeed suffered some losses as a result of the
demolition, it was attributable to the plaintiff himself. Having followed the requisite procedure, the
demolition of the building/structure was in accordance with the law and hence art 5 of the Federal
Constitution was not violated (see para 57).

Summary :

This was a claim by the plaintiff as the registered owner of a piece of land (‘the land’) against the defendant for
what the plaintiff contended was the unlawful demolition of its warehouse/store (‘building/structure’) on it with the
main contention being that there had been non-compliance by the defendant of the provisions under the Street,
Drainage and Building Act 1974 (‘the Act’), in particular, with regards to the issuance of various notices prior to
such demolition. The plaintiff who had a furniture business had built the building/structure on the land to place
furniture. The plaintiff never obtained the approval of the defendant to erect the building/structure. The defendant
issued a notice pursuant to s 72(1)(b) of the Act (‘the first notice’). The first notice was addressed to the owner of
the building/structure and requesting to demolish the building/structure within 14 days of the notice. The first
notice was pasted on the building/structure considering that the building/structure was locked and there was no
occupant on the land. The plaintiff wrote to the defendant, referring to the first notice and sought an extension of
time in respect of demolishing the building/structure pending the application for subdivision of the land. The
defendant replied that the approval of the defendant was required for the building/structure and the plaintiff was
:
 required to submit proof of the appointment of the plaintiff’s consultant. The defendant served another notice,
giving 30 days’ notice to vacate the building/structure failing which the defendant could enter the building/structure
and demolish the same (‘the second notice’). The second notice was served on someone who acknowledged
receipt of the same. The plaintiff appointed an architect as his consultant to submit all the plans to the defendant
to support an application to rezone the land from ‘agriculture’ to ‘commercial’. The architect wrote to the defendant
to request 30 days extension of time to submit the plans and documents required by the defendant to apply for
the rezoning of the land. The defendant granted the plaintiff an extension of 30 days. The consultant applied to
re-zone the land to Jabatan Perancang Bandar dan Desa Negeri Pulau Pinang (‘JPBDPP’) and informed the
defendant that the plaintiff would demolish the building/structure in stages. The plaintiff was given a further
extension of time pending the decision for rezoning by the JPBDPP. However, the defendant later informed the
plaintiff that its application for a licence and advertisement was rejected and the plaintiff was given a final notice to
stop any business/activities on the land within 14 days. The plaintiff’s application for rezoning was then
denied/rejected. The defendant then issued a notice pursuant to s 97 of the Act referring to the first notice and
providing 24 hours’ notice, notifying that it would enter the premise and demolish the building/structure (‘the
proviso notice’). Neither the plaintiff nor his consultant responded to the proviso notice. The defendant
subsequently entered the premise and demolished the building/structure by caving the roof which necessitated
and included the removal of the furniture from the premise. Hence, this claim by the plaintiff against the defendant
for loss and damages suffered as a result of the demolition.

Cases considered by this case · Learn more

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[2018] 4 MLJ 685

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Referred

TAN TEK SENG v SURUHANJAYA 22/1/1996

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[1995] 3 MLJ 331

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TAN SRI KHOO TECK PUAT v PLENITUDE 7/12/1994

HOLDINGS SDN BHD MYFC

[1995] 1 AMR 41; [1995] 1 CLJ 15; [1994] 3 MLJ 777;

[1993] MLJU 548
Referred

MUNUSAMY VENGADASALAM v PP 27/11/1986

MYSC
[1987] 1 CLJ 250; [1987] 1 MLJ 492

Referred

ADMIRALTY COMRS v SS SUSQUEHANNA -

[1926] AC 655; [1926] AC 655

Referred

BOLAG v HUTCHISON -

[1905] AC 515; [1905] AC 515

Referred

BONHAM-CARTER v HYDE PARK HOTEL -

[1948] 64 TLR 177

Referred

MUNUSAMY VENGADASALAM v PP
[1987] CLJ Rep 221
Referred
:
 Legislation considered by this case · Learn more

Legislation Name & Jurisdiction Provisions

1974 Act s 72(1)(b), s 97, s 120

Evidence Act 1950 s 114(g)

Federal Constitution art 5

Street, Drainage and Building Act 1974 120, ss 72, 97

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