(25.04.2017) Nop

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
2 DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA

3 GUAMAN SIVIL NO : WA-22NCVC-307-05/2016
4
5 ANTARA
6
7 1. JEYALAKSHUMY A/P ELIATAMBY
8 (NO. K/P: 370923-10-5253)
9
10 2. ARULJOTHI A/L KANAGERETNAM
11 (NO. K/P: 490306-10-5452)
12 And
13 3. K.THILAGAWATI A/P KANAGARETNAM
14 (NO. K/P: 440725-10-5352)
15 (Suing as the Administrators for the Estate of PARAMESWARI D/O
16 ELIATAMBY)
17
18 4. GANESWARAN A/L NADARAJAH
19 (NO. K/P: 511219-10-5881)
20 And
21 5. VASUTHEVAN A/L NADARAJAH
22 (NO. K/P: 570107-10-5991)
23 (Suing as the Administrators for the Estate of NADARAJ S/O
24 ELIATAMBY)
25
26 6. GNASALINGAM A/L SHANMUGALINGAM
27 (NO. K/P: 590826-08-5171)
28 And
29 7. ARULJOTHI A/L KANAGERETNAM
30 (NO. K/P: 490306-10-5452)
31 (Suing as the Administrators for the Estate of THANALAKSHIMI D/O
32 ELIATAMBY)
33
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1
2 8. ALAMRIO PROPERTIES SDN BHD
3 (NO. SYARIKAT.: 889568-V) …PLAINTIF-PLAINTIF
4
5 DAN
6
7 DATUK BANDAR KUALA LUMPUR …DEFENDAN
8
9 TARIKH : 25.04.2017
10 MASA : 10:15AM
11
12 NOTA KETERANGAN
13 Koram
Hakim Yang Arif Dato’ Hue Siew Kheng YA
Peguam Plaintif Ganesh a/l Perumal GNP

Shasha Aquliah Binti Aziz SSA
Peguam Defendan Jayananda Rao a/l Simmachalam JYN

Gayathri a/p Chandrakasan GYT
14
15
16 Saksi – Saksi
SP-1 Aruljothi a/l Kanageretnam ARUL
SP-2 Jerry Dinesh Pireira JERRY

17
18 Jurubahasa - JRB Penterjemah - PTJ
19
20
21
22
23
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1 MULA
2
3 JRB For full trial WA-22NCVC-307-05/2016, Jeyalakshumy A/P Eliatamby
4 and seven others versus Datuk Bandar Kuala Lumpur.
5
6 GNP My Lady, Ganesh Perumal appearing together with Ms Shasha Aziz
7 for the Plaintiffs. For the Defendant, My Lady, my learned friend Mr
8 Jayananda Rao appearing together with Ms Gayathri and Mr Lim Woi
9 Kang. My Lady, we are calling the Plaintiff’s first witness, Mr Aruljothi.
10
11 SP1
12 Nama : Aruljothi a/l Kanageretnam
13 Umur : 68
14 Alamat: 29, Jalan Cenderai 2, Lucky Garden, Bangsar, 59100, Kuala Lumpur
15 Pekerjaan: Income Tax consultant
16 Bersumpah dan memberi keterangan dalam Bahasa Inggeris
17 Masa : 10:17AM
18
19 GNP My Lady, I believe my learned friend wants to address some issue on
20 the presence of the witness in Court. They are two company’s
21 representative there, one is for the witness and the other is Jerry
22 Dinesh, he’s also a director in the company.
23
24 YA What’s the objection with regards to their presence?
25
26 JYN Nothing, I was in impression that normally witnesses will be in the
27 witness room.
28
29 YA They are not witnesses?
30
31
32 GNP One of them is a witness.
33
34 YA And who is that?
35
36 GNP Mr Jerry is also a company director of Plaintiff company.
37
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1 YA He’s a witness, he’s also a Plaintiff.
2
3 JYN Yes, My Lady.
4
5 YA Right, he’s the Plaintiff. Yes.
6
7 GNP Much obliged, thank you.
8
9 Pemeriksaan Utama (Examination-in-Chief) Aruljothi a/l Kanageretnam oleh
10 Ganesh a/l Perumal
11 Masa: 10:19AM
12
13 GNP Mr Aruljothi, could you please refer to the document that I’ve just
14 passed to you? Can you please tell Court what is this document?
15
16 YA Why can’t he just confirm that this is your witness statement?
17
18 ARUL This is my witness statement.
19
20 YA You confirm?
21
22 ARUL Yes.
23
24 GNP Are the answers quoted in this witness statement yours, Mr Aruljothi?
25
26 ARUL Yes, Yang Arif.
27
28 GNP Do you wish to add anything to this witness statement, Mr Arul?
29
30 ARUL Nothing at the moment.
31
32 GNP Can we have it marked?
33
34 JRB Witness statement marked as WSP1.
35
36 GNP That’s all.
37
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1 Masa: 10:21AM
2
3 Pemeriksaan Balas (Cross-Examination) Aruljothi a/l Kanageretnam oleh
4 Jayananda Rao a/l Simmachalam
5 Masa: 10:21AM
6
7 JYN If it please the Court, My Lady. Good morning, Mr Arul.
8
9 ARUL Good morning.
10
11
12 JYN You have stated in your witness statement that you became a co
13 owner of this land upon the demise of your late mother on 23.11.1988,
14 that’s correct?
15
16 ARUL Yes, my mother passed away on 23.11.1988 and subsequently we
17 took the grant of probate and I became one of the co owners.
18
19 JYN Have you ever lived, occupied or visited Land 57230 or Land 57229,
20 since 1988?
21
22 ARUL Yes.
23
24
25 ARUL Yes I have visited to the land a numerous time because we were
26 involve in this various development projects so I have visited the
27 property, I never lived there.
28
29 JYN Alright, how many times have you visited the properties since 1988,
30 Sir, if you could remember?
31
32 ARUL I would say maybe on a quarterly basis, I visit to see that nothing else
33 is taking place there because the developers absconded and we didn’t
34 want anybody to go and illegally occupy.
35
36 JYN So since 1988, you have visited the land on a regular basis?
37
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1 ARUL Yes.
2
3 JYN Now can I refer to your Answer No.10 in your witness statement? Now
4 the question was that ‘Are you aware of the concrete drain which was
5 discovered by the Eighth Plaintiff’s main contractor on 12.12.2013?’
6 and your answer was ‘The land owners only came to know about the
7 concrete drain when the Eight Plaintiff informed us by way of a letter’.
8
9 ARUL That’s true.
10
11 JYN My Lady, may I refer to Bundle B9? Oh, it’s not marked, is it? My
12 Lady, this was the bundle with the photographs but it’s just a letter.
13 May we introduce that document?
14
15 YA Bundle B9?
16
17 JYN B9, My Lady.
18
19 YA Right, yes page?
20
21 JYN Page 1831. Sorry My Lady, this is the bundle that we are talking about
22 in Chambers earlier where My Lady said it has to be marked all the
23 photographs, there was one letter in that bundle, B9.
24
25 YA Where is this one letter? Those two bundles are not marked?
26
27 JYN Yes, they are not marked as yet, My Lady.
28
29 YA So is it in B9 or what?
30
31
32 SSA Volume 9.
33
34
35 YA So our Volume 9 is this volume, alright? This is Volume 9. B9?
36
37 JYN B9, My Lady.
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1 JRB That is not marked.
2
3 JYN The one which is not marked.
4
5 YA I have not marked today’s bundles filed because my directions have
6 not been complied with. I want the photos, I want the key
7 (10:25:30AM) to the photos
8
9 JYN Yes but there is a letter there, may I refer to letter, My Lady? It’s a
10 letter by the Plaintiff himself.
11
12 YA How is it that you have that as B9? Where is your Bundle B9?
13
14 JYN Our Bundle B9, we have already filed in, My Lady but this is the
15 additional bundles that the Plaintiff –
16
17 YA So do not refer to it as Bundle B9, it’s going to be confusing. I cannot
18 have this right now because this bundle is not before the Court.
19
20
21 JYN Yes, My Lady.
22
23 YA What is the relevance of this letter that you are referring?
24
25 JYN Just confirming the date of the letter which was sent to the Plaintiffs by
26 the developer. These were all the documents that we have requested
27 to be filed in to the Plaintiffs. These documents were omitted from the
28 previous bundles.
29
30 YA Alright, what I want to be done is for the two latest bundles to be filed
31 in as one and if the photographs are going to be included, I want the
32 key to the photographs, you understand? For now tentatively I will
33 mark this as P10.
34
35
36 JYN Very well, My Lady, much obliged. My Lady, if I may? Mr Aruljothi,
37 could you look at this letter? 1831, yes.
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1
2 ARUL Yes, 1831.
3
4 JYN 1831, if you can look at the letter, please? By Alamrio to Aruljothi A/L
5 Kanagaretnam. Is this letter addressed to you personally?
6
7 ARUL Yes.
8
9 JYN Is that you as the recipient?
10
11 ARUL Yes.
12
13 JYN Alright, would you be able to inform the Court the date of this letter,
14 please?
15
16 ARUL The date of the letter is 22.07.2015.
17
18 JYN Now in your Question No.10 of your witness statement, when you said
19 that you were referred or you were informed by the Eight Plaintiff by
20 way of a letter, is this the letter that you mean?
21
22 ARUL No, initially they informed us verbally and then we told them to write a
23 letter to us and they informed us on 22.07.2015 in writing.
24
25 JYN So basically, this is the letter that you are referring to?
26
27 ARUL Yes.
28
29 JYN Now based on this letter Mr Aruljothi, do you agree with me, Sir that
30 the completion date for project on Land 57230 should have been
31 completed by May 2015 based on the JV agreement?
32
33 ARUL At the moment, I can’t recollect the actual date of all these things and
34 the completion date, I can’t remember at the moment.
35
36 JYN Mr Aruljothi, are you aware that Alamrio or the developer discovered
37 the drain in December 2013?
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1 ARUL They informed me much later after they have discovered the drain.
2
3 JYN My question, are you aware that the drain according to them, was
4 discovered in December 2013?
5
6 [10:30AM]
7
8 ARUL I mean the letter, they informed but the actual date, yes.
9
10 YA Were you aware? Just answer the question. Are you aware that they
11 discovered it in December 2013?
12
13 ARUL I would say yes.
14
15 JYN So now would you agree with me Sir, if I were to put it to you that
16 despite the developer discovering the drain in December 2013, it was
17 only informed to the landowners via letter approximately a year and a
18 half later?
19
20 ARUL Yes, by way of letter.
21
22 JYN Now, I will take you to your Question No.11 read together with 12
23 please. What you have answered there is that neither you or the other
24 landowners had allowed or permitted, consented the construction of a
25 concrete drain on Land 57230 nor you had given the right of easement
26 to DBKL, correct?
27
28 ARUL Yes, we have not given any permission.
29
30 JYN Now are you aware whether your late mother or the late Mr Nadaraj or
31 the late Mdm Thanalakshimi or Mr Jeyalakshumy had permitted or
32 given such a consent?
33
34 ARUL No, they would not have given.
35
36 YA Are you aware?
37
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1 ARUL I’m not aware of anything been given to anybody.
2
3 YA Not aware.
4
5 GNP My Lady, my learned friend’s question that the late mother of the
6 witness may have or any other person may have given permission or
7 consent to DBKL or any other person to build the culvert is not in the
8 pleadings, My Lady just for the record.
9
10 JYN No, it was just whether he’s aware, My Lady.
11
12 YA Alright, move on to the next.
13
14 JYN My Lady, may I refer to Bundle B, page 74 to 75? Te topography map
15 prepared by the Survey and Mapping Department Malaysia
16
17
18 YA Alright, have you got the reduced size plan?
19
20 JYN My Lady, we don’t have simply because this particular size, we have
21 tried requesting but it is not that easy to, because you can’t read them.
22
23 YA Alright. What plan is this? Survey plan or what plan?
24
25
26 JYN This is the plan by the Department of Survey and Mapping Malaysia
27 which shows the natural stream running through that land, My Lady.
28 Alright, Mr Aruljothi, I’m not sure whether you are able to read those,
29 I’m just pointing out to you, alright? I mean the subject matter, My
30 Lady is top right of the map that reads Land No.4028 and Land
31 No.4029, My Lady. Mr Aruljothi, throughout this entire JV project with
32 the Plaintiff, have you had come across this document?
33
34 ARUL This particular document, I’m have not come across.
35
36 JYN The reason why I’m reflecting or showing this document because this
37 document shows there is a stream running through this piece of land.
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1 ARUL As far as I’m concerned, I don’t know any stream running in that piece
2 of land.
3
4 JYN Very well.
5
6 GNP My Lady, my apologies, I think my learned friend trying to allude the
7 evidence of a natural stream cutting into –
8
9 YA I think in this case, this has been shown and he said he has no
10 knowledge of the stream running through. This is the Defendant’s
11 document, this is a Part B document.
12
14
15 GNP Yes, My Lady. My Lady, my learned friend is trying to introduce his
16 evidence of a natural stream running through Lot 4029, which was
17 eventually converted to 57280, which is the subject matter of the
18 dispute at the moment. Now this natural stream, it is not in the
19 pleadings, My Lady.
20
21 YA So whether (10:37:42AM inaudible) need not pleaded so it goes
22 towards evidence and are you disputing that the Lot is 4028 and 4029,
23 you are saying it is not?
24
25 GNP No, this is the correct lot.
26
27 YA These are the correct lot.
28
29 GNP But the evidence my learned friend is trying to introduce.
30
31 YA Right, the Defendant will have to present its case also with the regard
32 at this stage.
33
34 GNP But the parties are bound the pleadings, My Lady.
35
36 YA That will be all.
37
1 JYN Much obliged, My Lady. If I may, My Lady?
2
3 YA Yes.
4
5 JYN Mr Aruljothi, My Lady, may I refer to the witness Bundle B7? May I
6 refer to page 1801 to start with, to 1805? My Lady, these are the
7 clearer copies given by our client because once we have photocopied,
8 it became a bit, I’m not sure whether the Court copy is clear, just
9 double check.
10
11 YA Similar?
12
13 JYN Similar, My Lady. Alright, Mr Aruljothi could you please explain to
14 Court are you aware the piece of land that I’m referring to which is
15 written there ‘Alamrio lawan Datuk Bandar isu longkang’, is that the
16 piece of land that is the subject matter of this suit?
17
18 ARUL Yang Arif, all I can say is that, that mark and that wording is there but I
19 don’t seem to able to decipher anything on the map.
20
21 JYN So you wouldn’t know?
22
23 ARUL It is so dark, I won’t know.
24
25 JYN You wouldn’t know?
26
27 ARUL No.
28
29 JYN My Lady, may I just approach the witness just to check on his copy?
30
31 YA Is there any difference?
32
33 JYN Because they go by years, My Lady. They start from 2004 and they go
34 all the way to 2014.
35
36 YA Have you seen these documents before?
37
1 ARUL No.
2
3 YA Alright, don’t waste time.
4
5
6 JYN Very well, My Lady. Mr Aruljothi, your Question No.15. Alright, now
7 according to Question 15, you have referred to two letters whereby
8 you have stated the Defendant had written to you with the intention of
9 acquiring a portion of another piece of land known as Lot 4029 for the
10 purpose of erecting, upgrading a drain and constructing a sewerage
11 pipe. Is that correct?
12
13 ARUL Yes.
14
15
16 JYN Then can I refer, My Lady to Bundle B8, page 1822? Yes, 1822 to
17 1827. You have the documents there, Mr Aruljothi?
18
19 ARUL Yes.
20
21 JYN Alright, now would you be able to read out to the Court at page 1822,
22 is this the letter that you are talking about at Answer 15?
23
24 ARUL Yes.
25
26
27 JYN Could you please inform the Court as of the date of the letter?
28
29 ARUL 09.02.1991.
30
31 JYN The 9th or 8th, Sir? Page 1822.
32
33 ARUL 1822 is 08.02.1991.
34
35 JYN Then I will take you to page 1825. Is this the second letter that you
36 referred to in your answer for Question 15?
37
1 [10:45AM]
2
3 ARUL Is that one letter or two letters?
4
5 JYN You told that there are two letters right?
6
7 ARUL Yes, two letters.
8
9 JYN So is this the second letter that you are referring to?
10
11 ARUL Yes, 08.03.1993.
12
13 JYN And I take you to your Question & Answer No.17 where you said that
14 ‘the Defendant did not acquire any portion of Land 4028 but the
15 Defendant did acquire our neighbouring land identified as 4029’ is
16 correct, right?
17
18 ARUL Yes.
19
20 JYN May I ask you to look back to letter at page 1822? The same letter
21 that you have mentioned to Court.
22
23 ARUL Yes, 1822.
24
25 JYN Alright, now can you please look at the letter carefully? Does the letter
26 state anywhere that DBKL was acquiring Lot 4029? Look at the letter
27 Sir, does it state anywhere that DBKL is acquiring the land?
28
29 ARUL Basically when they wrote in the letter, it was not to acquire the land. It
30 was to acquire a portion of the place where a river was running, it was
31 actually Sungai Untut to broaden it and put a culvert there and we
32 gave the permission. Not acquire 4029.
33
34 JYN Alright. Now I come back to your Question 15 again, and your answer.
35 You had answered at Question 15 that ‘the Defendant had written to
36 us with the intention of acquiring a portion of another piece of land
37 known as Lot 4029 for the purposes of’ etcetera. Now my question to
1 you is Sir, I have referred you to the letter, where in the letter does it
2 say that DBKL is intending to acquire the land? I’m not asking what is
3 written, Sir. Based on your answer, where in the letter does it say?
4
5 ARUL Ok my answer to that question represents two letters.
6
7 YA Just answer directly the question posed to you, where does it say in
8 the letter that DBKL was acquiring a portion?
9
10 ARUL Ok, in the first letter, it does not talk about acquiring any piece of land.
11
12 JYN So basically would that be right to say Mr Aruljothi that DBKL was only
13 giving notice to the land owners that DBKL was going to carry out
14 some upgrading drainage system which involves those parcels of
15 land? Do you agree with me?
16
17 ARUL Yes.
18
19 JYN Now may I take you to page 1825 of Bundle B8? Again my question to
20 you Sir, where in that letter does it state that DBKL is intending to
21 acquire the land?
22
23 ARUL I mean here also not specifically mentioned acquiring the piece of
24 land.
25
26 JYN So I put it to you Sir the letter merely says that DBKL is giving notice
27 to the landowners that they are going to carry on ‘kerja-kerja
28 pemasangan paip pembentung najis yang melibatkan lot tanah Tuan’,
29 do you agree?
30
31 ARUL Yes.
32
33 JYN So basically both letters are merely notification that some works will be
34 done that’s all, do you agree?
35
36 ARUL Yes.
37
1 JYN May I refer you to Question 18 and your answer to Question 18, Mr
2 Aruljothi? You were asked about the letter by your solicitors then
3 Messrs Daim & Company enquiring on the amount of compensation
4 the land owners would receive on the portion acquired by the
5 Government in respect to Lot 4029, correct? Am I right to say that?
6
7 ARUL Yes, that’s what I have said in this letter here.
8
9 JYN Are you aware, Mr Aruljothi that for any process of acquiring land, a
10 process of acquisition, it is not under the purview of DBKL at all? Are
11 you aware?
12
13 ARUL I think there are further process, I’m not fully aware.
14
15 JYN I put it to you any process of acquiring of land is done by Jabatan
16 Tanah and Galian Wilayah Persekutuan, are you aware?
17
18 ARUL I’m not fully aware.
19
20
21 JYN I take you to your Question 20 and Answer 20 of your witness
22 statement, Sir. You have given answer as to why the Plaintiff sued the
23 Defendant and according to you from your witness statement, it’s
24 because ‘Defendant was negligent in approving the building plans,
25 when in actual fact the Defendant as a local authority, knew or ought
26 to have known the existence of the concrete drain that had trespassed
27 onto the said land and further, it’s premised on trespass where the
28 Defendant as a local authority had trespassed and/or allowed third
29 party to trespass by allowing the construction of the concrete drain off
30 on the said land’, you agree with that, Sir?
31
32 ARUL Yes.
33
34 JYN Mr Aruljothi, I put it to you Sir, that you or the other Plaintiffs in this suit
35 have no evidence at all or proof that DBKL has trespassed onto Land
36 57230 or allowed any third party to trespass on the land. Do you agree
37 with me?
1
2 ARUL Yang Arif, as far as –
3
4 JYN Mr Aruljothi, sorry Sir. It’s just a yes or no answer, your counsel will
5 ask you further on that.
6
7 ARUL Ok.
8
9 JYN My question to you, Sir is very simple. There is no proof can be shown
10 by you or any other Plaintiffs in this suit to show or evidence to that
11 effect that DBKL or any of their agents have trespassed onto your
12 land. Do you agree or you don’t agree Sir?
13
14 ARUL Yes, I agree.
15
16 JYN I also put it to you, Sir that you or any of the Plaintiffs do not have any
17 evidence or proof to show that it was DBKL or their servants who had
18 constructed the drain as alleged. Do you agree or you don’t agree,
19 Sir?
20
21 ARUL I agree.
22
23 JYN And I also put it to you Sir, that there is no duty nor any obligation on
24 DBKL to inform you or any of the landowners or the developer as to
25 any existence of any drains on your own land. Do you agree or you
26 don’t agree, Sir?
27
28 ARUL I don’t agree.
29
30 JYN I put it to you that it is your duty being the owner of the land, to know
31 what is on your land. Do you agree or you don’t agree, Sir?
32
33 ARUL On my land, yes but what goes underground without my knowledge, I
34 have no idea.
35
1 JYN Do you agree when we say ‘land’, it is the surface as well as the
2 substructure that encompasses the definition for ‘land’, do you agree
3 Sir?
4
5 YA Leave that for submission, it’s a legal issue.
6
7 JYN Very well, My Lady. I put it to you, Sir that you and the other
8 landowners or the developer ought to have proper investigation or
9 survey on the land to know the condition of the land before submitting
10 any permission for a development order, do you agree?
11
12 ARUL As far as the developers are concerned, they have done what is
13 necessary of them. I cannot say anything more than that. I’m not a
14 developer.
15
16
17
18 JYN So do you agree with me that the person who is supposed to develop
19 the land or you as the owner of the land, should have known or should
20 have done a thorough checks on the land before proceeding further to
21 develop the property? Do you agree with me?
22
23 ARUL No.
24
25 JYN Mr Aruljothi, I put it to you that there was already an existing drain
26 running on Land 57230 since the 80’s which is not covered, do you
27 agree with me?
28
29 ARUL I’m not aware of any such thing. I’m not aware of it.
30
31
32 YA When you say already existing drain on the land which was not
33 covered at what point in time?
34
35 JYN That was in mid-90’s to late 90’s to early 2004, My Lady
36
37 YA Right.
1
2
3 JYN Those were the timeframe of the developer. So I’m just putting it to
4 you, Sir there was already a running stream of water on the land from
5 the 80’s all the way to late 90’s. Do you agree with me?
6
7 ARUL No. I’m not aware.
8
9 JYN Then do you agree with me Sir, in mid 90’s that stream was converted
10 to V drain?
11
12 ARUL I’m not aware of it.
13
14 GNP My Lady, my learned friend is now trying to establish that there was a
15 stream in existence since the 1980’s and it was in existence in the
16 1990’s and it was converted which facts, My Lady, was never pleaded
17 in the Defence. That actually deprive the Plaintiff to rebut these facts
18 and my learned friend is now introducing evidence with regards to the
19 drain which is not in the pleadings. We are taking objections to this
20 line of questions, My Lady.
21
22 JYN My Lady, the question posed to the witness is only whether he’s
23 aware. If he’s not, he has answered he is not aware.
24
25 YA You should have pleaded in the Defence.
26
27 JYN We did not plead.
28
29 YA You did not plead that there was an existing drain. That was his
30 argument (10:59:51AM)
31
32 JYN Yes, very well, My Lady. My Lady, I have no more questions, Mr
33 Aruljothi, thank you Sir.
34
35 [11:00AM]
36
37 Masa: 11:00AM
1
2 ARUL Thank you.
3
4 Pemeriksaan Semula (Re-Examination) Aruljothi a/l Kanageretnam oleh
5 Ganesh a/l Perumal
6 Masa: 11:00AM
7
8 GNP Now Mr Aruljothi, you were referred to your answer to Question No.17
9 earlier by my learned friend for the Defendant. Now my learned friend
10 asked you a put question, he said ‘I put to you, you or the other
11 Plaintiffs does not have any proof that DBKL or their agents or any
12 third parties have trespassed onto Land 57230’.
13
14 ARUL Ok.
15
16 GNP You agreed to the suggestion.
17
18 ARUL Can you please repeat the question?
19
20 GNP Now there was a question asked to you just now with regards to your
21 answer to Question No.17 in your witness statement. The question
22 was like this ‘I put it to you that you or the other Plaintiff does not have
23 any proof that DBKL or their agents or any third party have trespassed
24 onto Lot 57230, you agreed’.
25
26 ARUL I said, we have no proof.
27
28 GNP Can you please explain?
29
30 ARUL Yes.
31
32 YA This is actually in respect of Question 20, not 17. Right?
33
34 GNP It was read together, 17 and 20.
35
36
37 ARUL Can I answer?
1
2 YA Yes.
3
4 ARUL Yang Arif, as far as the proof is concerned, I don’t have any proof but
5 what I can say here is as far as I know, the approving authority for any
6 such construction lies with the Defendant and if Defendant says they
7 are not aware such a construction was done without any approval and
8 they have trespassed into a private land which belongs to us, we feel
9 they have been negligent in part of their duty, that’s all.
10
11 GNP I have no further question.
12
13 Masa: 11:02AM
14
15 YA You may step down, you are released.
16
17 ARUL Thank you, Yang Arif.
18
19 GNP My Lady, the Plaintiff is calling their second witness, Mr Jerry Dinesh.
20
21 SP2
22 Nama : Jerry Dinesh Pireira
23 Umur : 38
24 Alamat: Villa 3, Lumina Kiara 15, Jalan Duta Kiara, 50480 Kuala Lumpur
25 Pekerjaan: Director
26 Bersumpah dan memberi keterangan dalam Bahasa Inggeris
27 Masa : 11:03AM
28
29 Pemeriksaan Utama (Examination-in-Chief) Jerry Dinesh Pireira oleh Ganesh
30 a/l Perumal
31 Masa: 11:04AM
32
33 GNP Mr Jerry, is this your witness statement?
34
35 JERRY Yes.
36
1 GNP Now are the answers contained in this witness statement all your
2 answers?
3
4 JERRY Yes.
5
6 JRB Witness statement marked as WSP2.
7
8 GNP Witness ready for cross-examination.
9
10 Masa: 11:05AM
11
12 Pemeriksaan Balas (Cross-Examination) Jerry Dinesh Pireira oleh Jayananda
13 Rao a/l Simmachalam
14 Masa: 11:05AM
15
16 JYN My Lady, if it please the Court. Good morning Mr Jerry.
17
18 JERRY Good morning.
19
20 JYN Jerry, just very quickly, when Alamrio got involve in the development
21 of Land 57230, the subject matter here, I believe there was a JV
22 agreement between the landowners, was there a JV agreement with
23 landowners and your development company?
24
25 JERRY Yes.
26
27 JYN And this was prepared by your lawyers Messrs Andrew Davies & Co,
28 correct?
29
30 JERRY Yes.
31
32 JYN Now may I, My, Lady refer the witness to Bundle B1, page 92 to 116?
33 Is this that JV Agreement that you are referring to? Could you confirm
34 to the Court, please?
35
36 JERRY Yes.
37
1 JYN Can you please inform the Court the date of this JV Agreement, Mr
2 Jerry?
3
4 JERRY 09.08.2010.
5
6
7 JYN Mr Pireira, do you agree that among others, that based on this JV
8 Agreement, that Alamrio would be responsible for all matters
9 pertaining to the construction and administration of the housing
10 development which consist of two parcels of land, 57230 and 57299?
11
12 JERRY Yes, I agree.
13
14 JYN The JV agreement also provides the financing of this development
15 consist for both of these lands?
16
17 JERRY Can you elaborate your question? What do you mean by ‘financing’?
18
19 JYN Ok, just refer to Clause 2(d), please.
20
21 JERRY I agree.
22
23 JYN And Alamrio also agrees based on this JV, any claims by existing
24 purchasers shall be resolved by Alamrio, correct?
25
26 JERRY I agree.
27
28 JYN And most importantly, this Agreement was entered on an as is where
29 is basis, do you agree?
30
31 JERRY I agree.
32
33 JYN Now do you also agree the basic meaning of ‘as is where is’ is that
34 you just take the land as it is? Do you agree?
35
36 JERRY I don’t think I can answer the question with a yes or no.
37
1 JYN Now, do you agree with me because it is an as is where is basis, it is
2 imperative for Alamrio to do all relevant and necessary checks not
3 only on the landowners but also on the land before they proceed to
4 sign the agreement?
5
6 JERRY I disagree.
7
8 JYN But before signing that JV, Mr Pireira, did you or any of your officers
9 has done any checks on that land, 57230 especially?
10
11 JERRY Yes, we did a physical.
12
13 JYN You have done before signing?
14
15 JERRY Yes.
16
17 JYN My Lady, may I refer Bundle B8? May I refer you, Mr Pireira to Bundle
18 B8, please? Page 1817 to 1818. Do you have it there, Mr Pireira?
19
20 JERRY Yes.
21
22 JYN Would you be able to inform the Court or tell the Court what document
23 this is?
24
25 JERRY This is a demarcation and topographical survey.
26
27 JYN Prepared by?
28
29 JERRY Jurukur Perpaduan.
30
31 JYN And who are they?
32
33 JERRY Our licensed surveyor.
34
35 JYN And this survey was commissioned at the request of Alamrio?
36
37 JERRY Yes.
1
2 JYN Is there a date when this survey was conducted, Mr Pireira?
3
4 JERRY The drawing mentions that the survey was conducted on 01.06.2010.
5
6 JYN That was before the JV Agreement was executed?
7
8 JERRY I might have to look at the –
9
10 JYN Just double check with that, please. That would be Bundle B1, page
11 92.
12
13 JERRY Yes, the survey appears to be before the date of the JV.
14
15 JYN Now looking at that plan, if I may take to you to the plan, Mr Pireira?
16 Looking at this plan here, the subject matter of the land would be
17 based on this survey is 57230?
18
19
20
21 JERRY I believe.
22
23 JYN It’s the right one.
24
25 JERRY The other one, is it?
26
27 JYN The Land 57230.
28
29 JERRY So it’s document 1818.
30
31 JYN Sorry, that would be 1818, I’m so sorry, I apologise.
32
33 JERRY Yes.
34
35 JYN At the bottom left, right?
36
37 JERRY Yes, it’s there.
1
2 JYN It’s marked No.57230?
3
4 JERRY Correct.
5
6
7 YA Why is it not coloured?
8
9 [11:15AM]
10
11 JYN It’s just black and white, My Lady. Would you be able to highlight the
12 land for the Court?
13
14 JERRY Yes, sure.
15
16 YA That one is 1817?
17
18 JYN That is 1818, My Lady.
19
20 YA I mean to ignore 1817?
21
22 JYN 1818 first, My Lady. Alright, Mr, may I, My Lady. Yes. Mr Pireira,
23 alright, looking at this document, at page 1818. There are three
24 shades at the very top of the piece of land. Three shades. Shaded
25 areas. Would you be able to inform the Court what are these three
26 shades are marked as?
27
28 JERRY This was illegal trespassing shed that were built on the land.
29
30 JYN So that top –
31
32 YA Just to be very clear. What are you referring to?
33
34 JERRY My Lady, the building that is shaded diagonally with lines and says
35 ‘temporary building’. And the shrine and also the temporary building
36 below it.
37
1 JYN Alright. These temporary buildings. So there were some occupiers or
2 can we say squatters? Would it be right?
3
4 JERRY Squatters.
5
6 JYN Squatters were there at the time. Mr Pereira sorry, you said that you
7 have made a site visit on to the land 57230. When you visited the
8 land, were the squatters still there?
9
10 JERRY Yes.
11
12 JYN And the temporary shelters.
13
14 JERRY Yes, they were.
15
16 JYN And based on this drawing do you agree with me that the squatters
17 were occupying within the border of land 14310 as well? They were
18 very close to the border of the land.
19
20 JERRY The squatters were connected to properties on 1230.
21
22 YA So there was a spill over?
23
24 JERRY Yes.
25
26 JYN And Mr Pereira, are you aware that before Alamrio got involved to
27 develop this land, there were two previous Developers who had
28 embarked on developing the land? Are you aware?
29
30 JERRY Yes, I am.
31
32 JYN And these two Developers were Region Dynamic being one and the
33 other is Hartamont Development Sdn Bhd. Are you aware?
34
35 JERRY Yes.
36
1 JYN Aware yes. And are you aware that first was, we have Region
2 Dynamics as the First Developer. Then we had Hartamont. Are you
3 aware that when Hartamont came in they had done some works on
4 the land before abandoning their works? Would you be able to confirm
5 that?
6
7 JERRY I don’t have the specific details but I believe they have done some
8 work.
9
10 JYN They have done some works. And there were already existing buyers
11 for units sold on the land. Would you be able to confirm that as well?
12 Existing purchasers.
13
14 JERRY Which Company are you referring?
15
16 JYN Hartamont.
17
18 JERRY I believe so, yes.
19
20 JYN And based on the JV Agreement between your Company and the land
21 owners, the JV Agreement we referred earlier, that Alamrio had set
22 aside about RM700,000 for the purpose to compensate the existing
23 purchasers.
24
25 JERRY Yes. Agree.
26
27 JYN What is the paid up capital of Alamrio, Mr Pereira?
28
29 JERRY Is, I’m sorry, got a few companies. I think it’s 1 or 2 million.
30
31 JYN 1 or RM2 million.
32
33 YA How much?
34
35 JERRY I believe it’s RM1 million ringgit.
36
1 JYN And did Alamrio obtain financing or loans to start off this
2 development?
3
4 JERRY We obtained no bank financing but we have pumped in serious
5 amount of money into the project.
6
7 JYN So you had investors?
8
9 JERRY I am being one of the major investors.
10
11 JYN May I would be able to inform the Court how much that these
12 investors had pumped in?
13
14 JERRY Approximately about RM5 million to RM6 million ringgit. This is
15 excluding works done.
16
17 JYN Right. Now, upon signing the JV Agreement, the normal course of the
18 events would be that Alamrio took upon their respective consultants.
19 Right, would you be able to inform the Court that who are your
20 consultants for each area of work?
21
22 JERRY We have the architect.
23
24 JYN And which Company is that?
25
26 JERRY IDE.
27
28 JYN So we have architects IDE. Then who else please?
29
30 JERRY We have IMK.
31
32 JYN And who were they?
33
34 JERRY They are the civil engineers.
35
36 JYN IMK.
37
1 JERRY Yes.
2
3 JYN Then who else? We have IDE, IMK.
4
5 JERRY We have GeoTechnic.
6
7 YA Do not consult your lawyer. Wait. Answer promptly.
8
9 JERRY I’m sorry. I have many projects. So there are many Companies. I know
10 who we have hired but I don’t recall all the names in particular.
11
12 YA You can’t recall all the names.
13
14 JYN Sorry, Mr Dinesh, I think your answer is in Question 12.
15
16 JERRY 12 yes, ok. Thanks.
17
18 JYN Just one. Is it correct, your answer in Question 12. Question & Answer
19 12 would be correct?
20
21 JERRY Yes.
22
23 JYN Yes. Can we go through one more time please? So your architects are
24 IDE Architect. Right?
25
26 JERRY Yes.
27
28 JYN And your main con?
29
30 JERRY Midflex Advisory.
31
32 JYN Midflex Advisory Sdn Bhd. Your civil engineers?
33
34 JERRY IMK I believe.
35
36 JYN Your Geotechnical Consultants?
37
1 JERRY Sorry, their names slips my mind.
2
3 JYN Alright. GCU Consultants?
4
5 JERRY Yes. GCU yes.
6
7 JYN And your surveyor?
8
9 JERRY Jurukur Perpaduan.
10
11 JYN The one who prepared the documents you are referring now.
12
13 JERRY Yes.
14
15 JYN At page 1817 and 1818?
16
17 JERRY Yes.
18
19 JYN Alright. Mr Pereira, did you? Ok. Since we had the previous developer,
20 Hartamont Development, did you use their plans or designs as a
21 continuation to apply for approval from DBKL or it was fresh plans.
22
23 JERRY We have done a full fresh submission.
24
25 JYN Now would you agree with me Mr Pereira that pre-development stage,
26 Alamrio had conducted all proper and necessary service on the land?
27
28 JERRY I agree.
29
30 JYN They inspected and investigated land 57230?
31
32 JERRY I agree.
33
34 JYN They have checked on the feasibility for the suitability of the proposed
35 development.
36
37 JERRY I agree.
1
2 JYN And who made the application to DBKL?
3
4 JERRY Our architects.
5
6 JYN They are?
7
8 JERRY IDE.
9
10 JYN IDE Architects. Ok. Based on your letter of appointment towards your
11 individual consultants, the architects, surveyors, geo-technicians and
12 all that. Do they work independently or they are all under the purview
13 of the architect?
14
15 JERRY They are under the purview of the architect. I believe the surveyor is
16 probably on a standalone. The rest are under the purview of the
17 architect.
18
19 JYN The surveyor is standalone. At that time 2010, how many projects had
20 Alamrio had undertaken? Not for this per se, generally how many
21 projects you all had in hand? At the time, 2010.
22
23 JERRY We have a lot of ongoing projects. Not with this particular Company
24 but Alamrio group of companies.
25
26 JYN No, I’m talking about Alamrio.
27
28 JERRY This Company is purely for this particular development.
29
30 JYN Alright. Prior to June or on around June 2010, Mr Pereira, besides this
31 demarcation and topographical survey conducted by your surveyors
32 did your consultants, any other consultants conducted any surveys on
33 the land?
34
35 JERRY Prior to 2010, I don’t believe there is to be -
36
37 JYN Or during that time?
1
2 JERRY No.
3
4 JYN Or at the time when this document was prepared.
5
6 JERRY No. I think everything is coming forward from this document.
7
8 JYN Being a developer, Mr Pereira, in your opinion do you think that the
9 survey conducted by Jurukur Perpaduan was comprehensive enough
10 and sufficient for the development purposes?
11
12 [11:30AM]
13
14 JERRY Yes, I do.
15
16 JYN Did your surveyors via their survey plan indicate any existence of any
17 concrete drain on land 57230?
18
19 JERRY Based on this drawing, no.
20
21 JYN When you submitted or I beg your pardon when your consultant
22 submitted it for development order would you agree that it was also
23 submitted together for land 57230 and also for land 57229 together?
24
25 JERRY I apologise I cannot recollect the dates. I’m not sure if the submissions
26 were at the same time but it’s two separate lands so it’s actually two
27 separate developments.
28
29 JYN I will rephrase it then.
30
31 JERRY Ok.
32
33 JYN Alright. Alamrio was also developing land 57229.
34
35 JERRY Agree.
36
1 JYN And My Lady, may I refer the witness to the document page 1818?
2 The earlier page where he has did some marking. Alright, would you,
3 My Lady, can he mark the latest, other piece of land as well. Is that
4 possible? From this document 52229?
5
6 YA What do you want him for?
7
8 JYN Just to identify the two pieces of land that they were developing at the
9 same time, My Lady.
10
11 YA Alright. One piece has been marked.
12
13 JYN Yes. And the other piece. Just for clarity. For clarification purpose. At
14 page 1818, Mr Pereira. Just to double check.
15
16 YA No. Don’t use the same colour. At least for the bottom.
17
18 JYN Can we use the darker green, My Lady?
19
20 YA Yes?
21
22 JYN A darker colour?
23
24 YA Yes.
25
26 JYN Mr Pereira, just to run by one more time for clarification. So what that
27 you have marked with a light green would be land 57230?
28
29 JERRY Yes.
30
31 JYN Dark green would be land 57229?
32
33 JERRY Yes.
34
35 JYN Or previously known as, now is known as 67424?
36
37 JERRY It is now known as 57229.
1
2 JYN 57229. Alright. Ok, now. I will take you to page 1818.
3
4 YA Alright, pages that were marked, the numbering again.
5
6 JYN My Lady, the light green shaded light green is land 57230.
7
8 YA Yes.
9
10 JYN That is subject matter. The other land is 57229 but then known as
11 67424.
12
13 YA Previously known as 67424. Alright.
14
15 JYN Alright. Now I will refer you Mr Pereira to page 1817. Now this
16 document is done by your surveyors as well, right?
17
18 JERRY 1 8 1?
19
20 JYN 1817. Now would you be able to inform the Court and tell the Court
21 what document this is?
22
23 JERRY Demarcation and topographical survey.
24
25 JYN For which piece of land?
26
27 JERRY 57229 which was previously known as 67424.
28
29 JYN Alright. So this is a closer image for land 57229 which is similar to
30 what was highlighted as dark green in the previous map.
31
32 JERRY Yes.
33
34 JYN Correct. Yes. Alright. Would you be able to inform the Court the
35 proximity of these two land, piece of land please? From what you have
36 gone and seen, site visits etcetera, etcetera.
37
1 JERRY 100, 150 metres.
2
3 JYN Between these two lands here?
4
5 JERRY Yes.
6
7 JYN So if I were to stand at land 57230 I can see land 57229.
8
9 JERRY There are some buildings there’s a temple there. May obstruct your
10 direct view but at some angle from 57229 you can see it.
11
12 JYN My Lady, I refer to witness to document page 1817. You have this
13 document, Mr Pereira?
14
15 JERRY Yes.
16
17 JYN You have one. Now, would you be able to inform the Court what are
18 the indications drawn in the light blue colour by your surveyors?
19
20 JERRY Light blue double line.
21
22 JYN We go along the entire piece of land first.
23
24 JERRY Ok.
25
26 JYN Alright, what?
27
28 JERRY It says the big light blue double line on the right says monsoon drain.
29
30 JYN So there is a monsoon drain. And how long does the drain measures?
31
32 JERRY All the way across the, on the side of that side of the land.
33
34 JYN And may I also refer you to the top portion of the land? There are light
35 blue dotted lines. Would you be able to tell the Court what those lines
36 are, the dotted lines?
37
1 JERRY It mentions also concrete drain.
2
3 JYN Concrete drain. And do you agree that the dotted lines fall short on
4 land 57229? The top most portion. There’s no continuation anymore.
5
6 JERRY You are talking about the dotted line. Is it?
7
8 JYN Dotted lines especially yes please.
9
10 JERRY Yes.
11
12 JYN This box?
13
14 YA You mean where it stops?
15
16 JYN There is no more, nothing is written on top of that, My Lady. It just
17 basically stops there. The top most dotted blue lines My Lady. Those
18 are concrete drain.
19
20 YA I know. It is outside the 67424. So it does not really stop there. It
21 continues.
22
23 JYN Yes.
24
25 YA Then what is shown on the plan.
26
27 JYN That is correct. I am coming to the next question, My Lady. So, Mr
28 Pereira, do you agree with me that the blue dotted lines indicate there
29 is an existence of an underground concrete drain that comes from
30 somewhere. Do you agree?
31
32 JERRY I disagree.
33
34 JYN Mr Pereira, I put it to you, sir that as early as June 2010 your surveyor
35 had indicated through his plans there is a concrete drain running on
36 the land border of land 57229. Do you agree?
37
1 JERRY Are you referring to the top?
2
3 JYN Yes. That is the land that you are developing as well. So I am telling
4 you there is already your surveyors had already indicated there is a
5 concrete drain running onto the land.
6
7 JERRY But the drain is suspended.
8
9 JYN No, I really wouldn’t know. That is the reason why I am just saying it
10 just stopped.
11
12 JERRY The drain, it is not in the, wait, based on the drawing, My Lady, the
13 drain is basically suspended. It’s not a continuous drain. As what you
14 see there as that line, that is where it’s supposed to stop.
15
16 JYN So, you are saying that this drawing indicate that the drain stops there.
17
18 JERRY Yes.
19
20 JYN It doesn’t flow through anywhere else.
21
22 JERRY No.
23
24 JYN Mr Pereira, I put it to you that this concrete drain does not stop but in
25 fact it goes all the way back through land 57230 beyond the railway
26 tracks to the area of Chong Hwa School. Do you agree with me?
27
28 JERRY Which we eventually found out, yes.
29
30 JYN Now your surveyors based on their reports had indicated there is a
31 monsoon drain running all across the adjacent land. There is a
32 concrete drain also running through the land which you are saying that
33 it had stopped, suspended. I put it to you, sir that Alamrio or your
34 consultant if they had conducted a proper and comprehensive survey
35 inspections and investigations you would have found out that this
36 drain is running through land 57230.
37
1 JERRY I disagree.
2
3 JYN My Lady, may I refer the witness to Bundle B6?
4
5 YA Have you done with these maps?
6
7 JYN These maps, for the time being yes, My Lady.
8
9 YA You’re going on to new area.
10
11 JYN Yes.
12
13 YA We take a short break.
14
15 JYN Right.
16
17 JRB Court bangun.
18
19 AKHIR
20
21 MASA : 11:44AM
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1 TARIKH : 25.04.2017
2 MASA : 12:04PM
3
4 MULA
5
6 Sambung Pemeriksaan Balas(Continued Cross-Examination)Jerry Dinesh
7 Pireira oleh Jayanandarao A/L Simmachali
8 Masa: 12:05PM
9
10 JYN If it please the Court, My Lady. Mr Pireira, continuation from where we
11 left off earlier. Yes. But My Lady, may I refer the witness to Bundle D6,
12 page1464. My Lady, this is a very thick document that runs all the way
13 to page 1605. It’s actually a Master Testing Services Sdn Bhd. It’s the
14 Soil Investigation Report, My Lady. 1464 to 1605. My Lady I am not
15 going to dwell too detailed into it. Just a few pertinent points that we
16 need to ask the witness. Mr Pireira this report at Bundle D6, that runs
17 from 1464 to 1605. This you agree that this is a copy of the Soil
18 Investigation Report conducted by Master Testing Services Sdn Bhd?
19
20 JERRY I agree.
21
22 JYN It’s dated June 2011.
23
24 JERRY Yes.
25
26 JYN And you have knowledge about this document?
27
28 JERRY Yes.
29
30 JYN And do you agree based on para 1.2 of this report, it indicates the
31 purpose this -
32
33 YA 152 page?
34
35 JYN Page 1467, My Lady. Do you agree with me the purpose of this report
36 is clearly made there? That is basically to obtain geotechnical
1 engineering information underlying the site to provide criteria, data in
2 the design etcetera, etcetera. Do you agree?
3
4 JERRY I agree.
5
6 JYN And this investigation was conducted based on your instructions, your
7 company’s instructions?
8
9 JERRY Yes.
10
11 JYN And may I refer to page 1467, para 1.5. Field works started on
12 10.05.2011 completed 24.05.2011.
13
14 JERRY Yes.
15
16 JYN The same page at para 1.3, states 9 borehole tests were conducted at
17 the proposed site meaning land 57230 and 57229.
18
19 JERRY Agree.
20
21 JYN Once you have received this investigating report, Mr Pireira, did you
22 do any further checking on the soil on the land 57230?
23
24 JERRY No.
25
26 JYN May I refer My Lady, the witness to page 1605 of the same bundle
27 please? Page 1605, Mr Pireira?
28
29 JERRY Yes, I have it.
30
31 JYN You got it. Would you be able to inform the Court what document is
32 this?
33
34 JERRY This is a document that shows the 9 boreholes done by the soil
35 investigation team.
36
37 JYN So would I be correct to say it’s within Soil Investigation Layout plan?
1
2 JERRY Yes.
3
4 YA Just a moment, repeat.
5
6 JYN It’s written Soil Investigation Layout Plan, My Lady.
7
8 YA I see.
9
10 JYN And this Soil Investigation Layout plan is prepared by?
11
12 JERRY Master Testing Services Sdn Bhd.
13
14 JYN And now would you be able to explain to the Court who are GCU
15 Consultants Sdn Bhd written there?
16
17 JERRY GCU Consultants are the party that prepare for the foundation works.
18 the design for the foundation works.
19
20 JYN I see. Just to clarify, Mr Pireira, right. So you are saying that this plan
21 was not prepared by Master Testing Services Sdn Bhd or GCU. Who
22 prepared this layout plan?
23
24 JERRY I believe the plan is prepared by Master Testing and then given to
25 GCU for verification and acceptance.
26
27 JYN I see. So in other words both Master Testing and GCU Consultants
28 are aware of this investigation.
29
30 JERRY Yes.
31
32 JYN Now based on these layout plans, Mr Pireira, there are 4 borehole test
33 conducted on land 57230.
34
35 JERRY You are correct.
36
37 YA There are 4?
1
2 JYN Four, My Lady, 4 borehole tests. It’s marked as DBH1, DBH2, 3 and 4
3 respectively, My Lady. Whereas the other five, I believe were
4 conducted on land 57229. Right?
5
6 JERRY Yes.
7
8 JYN Now I would like to refer to borehole marked DBH1, Mr Pireira. You’ve
9 got it.
10
11 JERRY Yes.
12
13 JYN Yes. A, B, C right. Would you agree with me that according to this plan
14 that borehole test was conducted on land 57230 very close to the
15 border to land 14310?
16
17 JERRY Yes.
18
19 JYN That is near to the location of the two temporary buildings indicated.
20
21 JERRY Yes.
22
23 JYN Whereas the other 3 boreholes were conducted somewhere in the
24 middle of the land etcetera, etcetera. Correct?
25
26 JERRY Yes.
27
28 JYN You have seen this Soil Investigation Report, Mr Pireira?
29
30 JERRY Yes.
31
32 JYN Would you agree with me that this soil location around DBH1 had
33 previously been excavated?
34
35 JERRY I’m sorry. Can you repeat the question?
36
1 JYN Would you agree with me the soil around the location of DBH1 had
2 previously been excavated?
3
4 JERRY Previously -
5
6 JYN Excavated or something removed from that area?
7
8 JERRY Depends on –
9
10 YA Did you say excavated. Is it?
11
12 JYN Yes, My Lady. Excavated.
13
14 JERRY Previously may I asked the timeline. When do you?
15
16 JYN Based on this report. I mean I wouldn’t know the timeline. I am just
17 telling has it been excavated? Are you aware?
18
19 JERRY To execute the bore?
20
21 JYN No, prior to that.
22
23 JERRY No.
24
25 JYN No. And you are aware of what this called the borehole log?
26
27 JERRY Yes.
28
29 JYN May I refer My Lady to witness to page 1470? The borehole log starts
30 from page 1471. Am I correct, Mr Pereira?
31
32 JERRY Yes.
33
34 JYN Alright. I am just going to very roughly and quickly take you to the
35 borehole next.
36
37 JERRY Yes.
1
2 JYN What was found in the report very quickly, yes? Now, My Lady, may I
3 lead the witness very quickly on this point? Alright. Mr Pereira, just
4 looking at BH1, I’ll call it the log.
5
6 JERRY Ok.
7
8 JYN BH1. That at page 1471, top most. It says borehole number. BH1,
9 right.
10
11 JERRY Correct.
12
13 JYN Correct. Alright. Now according to this soil report it says that at 0.00
14 metre depth dark brown sandy clay was recovered. Correct?
15
16 [12:15PM]
17
18 JERRY Yes.
19
20 JYN At one to two metres, soft to medium silty grey sandy clay recovered.
21 Correct?
22
23 JERRY Yes.
24
25 JYN At two metre below to around five metres, degree of silty sand was
26 recovered. Correct?
27
28 JERRY Yes.
29
30 JYN Alright now can we run by to page 1473 for BH2?
31
32 JERRY Ok.
33
34 JYN Alright. There it says the similar depths the contents were dark brown
35 sandy clay. One to two metres, no recovery. Below two metres depth,
36 very loose light grey silt sand was recovered. Correct?
37
1 JERRY Yes.
2
3 JYN Now BH3 at page 1478 please. It says again at 0 metres, dark brown
4 sandy clay, one to two depth, no recovery. Below two metres depth,
5 loose light grey silty sand was recovered. Correct?
6
7 JERRY Sorry, what page?
8
9 JYN At page 1478. Sorry.
10
11 JERRY 7-8 is it?
12
13 JYN 7-8 from BH3.
14
15 JERRY I’m sorry but that is 11 metres depth. I think you are looking at the
16 wrong.
17
18 JYN 11 metres depth. Is it? BH3.
19
20 JERRY Yes. 1478 is still BH3 but it’s 11 metres.
21
22 JYN BH3, is it?
23
24 JERRY 1477.
25
26 JYN 1477, I beg your pardon. Thank you for correcting me, Mr Pereira.
27 Thank you.
28
29 YA Should be 1477.
30
31 JERRY 7-7.
32
33 JYN Am I correct? Based on the report.
34
35 JERRY Yes.
36
1 JYN Yes. May I refer you to page 1481 please? 1481. Again the depth
2 recorded at 0 metres. Dark brown sandy clay. One to two metres,
3 loose ground very silty sand. Two metres depth, loose like grey silty
4 sand recovered. Correct?
5
6 JERRY Yes.
7
8 JYN Alright. Now may I refer you to page 1484 at BH3? BH5, I beg your
9 pardon. BH5. It also indicates the contents of what was found at
10 different depths. Right?
11
12 JERRY Yes.
13
14 JYN And may I refer to 1488, Bundle B, sorry BH6. Likewise, am I correct?
15
16 JERRY Yes.
17
18 JYN And 1491 page for BH7, likewise?
19
20 JERRY Yes.
21
22 JYN Different depths, different sand contents.
23
24 JERRY Yes.
25
26 JYN And lastly page 1495 of BH8.
27
28 JERRY Yes.
29
30 JYN Alright.
31
32 YA Borehole 8?
33
34 JYN Yes, that’s Borehole 8, My Lady. That’s correct? Now –
35
36 YA That’s not the last document?
37
1 JYN I’m just referring to these eight first, My Lady.
2
3 YA Ok.
4
5 JYN Now, Mr Pereira, I put it to you that the Soil Investigation Report that
6 we have referred. It shows the ordinary or a natural soil on land
7 57230. Do you agree with me? A natural soil.
8
9 JERRY 57320.
10
11 JYN 57320.
12
13 JERRY Which land are you referring to again?
14
15 JYN 57230.
16
17 YA On the subject land?
18
20
21 JERRY Subject land, yes. Boreholes 1 to 4, yes.
22
23 JYN Yes. Alright. Now, do you agree between these two lands, 57230 and
24 57229 right? Between one to two metres, it’s loose, light grey silty
25 sand. Do you agree all reports said the same? From one to two
26 metres.
27
28 JERRY No, there is some detection of limestone as well.
29
30 JYN Alright. Now can we compare to DB1? DBH1. Where the concealed
31 drain was discovered.
32
33 JERRY Yes.
34
35 JYN Yes, at page 1471. Correct?
36
37 JERRY Yes.
1
2 JYN Alright. Would you agree with me at the same depth, one metre to two
3 metres what was recovered was soft to medium stiff grey sandy clay?
4
5 JERRY As per the report, yes.
6
7 JYN Yes. It’s not the same as to the other areas of land on site 57230. The
8 other boreholes 2, 3, 4 do not resemble the same content within that
9 depth. Would you agree with me?
10
12
13 JYN You disagree. I put it to you that Mr Pereira that at DBH1 on the
14 subject matter land 57230, the area where it is stated that there is a
15 drain, the contents of the soil are totally different from the other part on
16 the same land. At that.
17
18 JERRY Can you tell you which, what is the depth you are looking at?
19
20 JYN One to two metres.
21
22 JERRY One to two metres?
23
24 JYN Yes.
25
26 JERRY Can you kindly repeat your question again?
27
28 JYN Alright. Ok. Just very quickly. Right. We have 4 boreholes done on
29 land 57230. Alright.
30
31 JERRY Yes.
32
33 JYN One is very close to where the drain is supposed to run. That is where
34 we indicated as BH1. DBH1 on the layout plan. Alright. Now my
35 question to you is that looking at the soil content at a depth of one to
36 two metres on that 4 boreholes. BH1 gives us a different content
1 compared to 2, 3 and 4 at the same distance, depth. The nature of
2 soil.
3
4 JERRY I disagree.
5
6 JYN I put it to you Mr Pereira that because the difference of soil along
7 DBH1, it warranted further investigation on part of Alamrio.
8
9 JERRY I disagree.
10
11 JYN Or your consultants.
12
14
15 JYN I put it to you that Alamrio and their respective consultants had failed
16 to do the necessary checks and investigation in the area of DBH1. Do
17 you agree?
18
19 JERRY Disagree.
20
21 JYN If proper investigations are done Alamrio would have discovered the
22 concealed drain on land 57230 at this time.
23
25
26 JYN Would you be able to inform the Court, Mr Pereira when did the
27 Development Order was granted to Alamrio by DBKL for land 57230?
28 Would you be able to remember?
29
30 JERRY Not offhand.
31
32 JYN Its ok. Sorry. It’s ok. I’ll refer to your witness statement. You have
33 answered the question there. 13, My Lady, may I refer the witness to
34 his witness statement Question 13 and Answer 13? Now would I be
35 right to say that the DO or the Development Order was granted on the
36 02.03.2012 to Alamrio?
37
1 JERRY Yes.
2
3 JYN Correct. And the Building Plan? I just take it for the 17th, Mr Pereira,
4 your answer.
5
6 JERRY On the 16th of -
7
8 JYN November.
9
10 JERRY November.
11
12 JYN Alright. And how about the approvals for earthworks plan and piling
13 works plan given DBKL? Would you be able to remember?
14
15 JERRY Piling works was approved on the 19.10.2012.
16
17 JYN October 2012.
18
19 JERRY And earthworks was also approved on the same day. 19th October
20 2012.
21
22 JYN Ok. Before the construction work on land 57230, did Alamrio had to
23 clear the land?
24
25 JERRY Yes.
26
27 JYN When did this clearing take place? Around which year?
28
29 JERRY Sometime, I believe 2013.
30
31 JYN 2013?
32
33 JERRY Yes.
34
35 JYN I think the date is wrong. Can I just refer? My Lady, may I refer the
36 witness to B8, Bundle B8?
37
1 YA WB?
2
3 JYN B8, My Lady. B8, at page 1819. 18, 19.
4
5 JERRY Yes.
6
7 JYN There is a letter written by Alamrio to Golden Star Enterprise. Would I
8 be correct Mr Pereira to say that Alamrio had requested Golden Star
9 Enterprise via the letter dated 17.04.2012 to clear the land?
10
11 JERRY Yes. From the squatters.
12
13 JYN Alright. So basically the land was cleared on the 17.04.2012?
14
15 JERRY No, it was not.
16
17 JYN No, it was not.
18
19 JERRY This letter is a notice to the squatter.
20
21 JYN Notice to squatters?
22
23 JERRY To Mr Charlie to remove the squatters.
24
25 JYN The squatters. So based on this, it’s dated 17.04.2012. When were
26 the squatters removed from the land?
27
28 JERRY Don’t have, I can’t recollect exactly but I think within one or two
29 months he removed the, only the buildings, the physical buildings, he
30 demolished it.
31
32 JYN Ok.
33
34 YA You mean the squatters had already moved out?
35
1 JERRY At the point when I issued this letter, My Lady, they were still there.
2 And then after issued this notice, within one or two months, they
3 moved out. And then the buildings were -
4
5 YA Demolished.
6
7 JERRY Yes.
8
9 JYN Alright. Sorry, My Lady. And based on your witness statement, Mr
10 Pereira, you said that on the 14.11.2013 the construction works
11 commenced. I am referring to your, I’m so sorry. To your Question 19
12 and Answer 19.
13
14 JERRY Yes.
15
16 JYN Now, may I refer to Bundle B, My Lady? May I refer the witness to
17 Bundle B, My Lady? Bundle B. May I refer to first page 42 please? 42
18 to 44. Do you have it Mr Pereira?
19
20 JERRY I’m sorry. Ok, yes.
21
22 [12:30PM]
23
24 JYN Would you be able to inform the Court what document is this please?
25
26 JERRY This is the approval for piling.
27
28 JYN For piling?
29
30 JERRY Piling works.
31
32 JYN From?
33
34 JERRY From the DBKL.
35
36 JYN From DBKL to?
37
1 JERRY To GCU Consultants.
2
3 JYN GCU Consultants. And can you also please explain to the Court what
4 document is at page 45 to 48?
5
6 JERRY This is the approval for earthworks.
7
8 JYN Earthworks. Would you be able to inform the Court reading the said
9 letter, what is the validity time for such works?
10
11 JERRY 12 months from the issuance of the letter.
12
13 JYN 12 months from the issuance of the letter. When would the 12 month –
14
15 YA Which one is what? When, October? What is the chop there? What’s
16 the date there? Is it 9th or 19th?
17
18 JYN 19th. What dates?
19
20 JERRY 19th October.
21
22 YA At page 45?
23
24 JERRY 45? I’m unable to.
25
26 JYN But both letters were received on the same day by your office.
27
28 JERRY Yes. We’ve received on the 2nd November.
29
30 JYN So when you say 12 months from the date of this letter, when would it
31 expire the 12 months according to your calculations, Mr Pereira?
32
33 JERRY Should be exactly a year after.
34
35 JYN What would the date be, sir?
36
37 JERRY 20th October.
1
2 JYN 20th October? And when did your construction work begin on the site
3 for 57230?
4
5 JERRY I see it’s on Question 19. They said works have commenced on the
6 14.11.2013.
7
8 JYN That’s after the expiry of 12 months. Am I correct to say that?
9
10 JERRY Yes.
11
12 JYN Are you aware, Mr Pereira that pursuant to the Building Bylaws before
13 any commencement of work it is necessary for you to obtain Borang
14 B?
15
16 JERRY Yes.
17
18 JYN Yes. Would you be able to explain to the Court what is Borang B
19 please?
20
21 JERRY Approval to build. It is basically a document that will enable us to start
22 construction without, with a kelulusan Pelan Kerja Tanah and
23 earthworks, we still require Borang B before we can physically start
24 work at site. It’s a requirement as per this document that you see on
25 page 45.
26
27 JYN May I refer to, My Lady, may I refer the witness to Bundle B9, page
28 183? I beg your pardon. I think there’s, I meant B10. So sorry. 1835
29 please. You have it? Sorry, Mr Pereira.
30
31 JERRY Yes, it’s alright. Yes.
32
33 JYN And 1836 as well. Preceding document. In 1836 do we have Borang B
34 there?
35
36 JERRY Yes.
37
1 JYN We have. That is a notice to commence work was given by Alamrio’s
2 architect. Yes?
3
4 JERRY Yes.
5
6 JYN Received by DBKL on the 14.11.2013.
7
8 JERRY Yes. 4th, is it?
9
10 JYN Are you sure it’s 4th or 14th?
11
12 JERRY Looks like 4th.
13
14 JYN It says terima 14th here. I’m so sorry. It looks like 14th here.
15
16 YA Yes.
17
18 JYN Not 4th, 14th.
19
20 JERRY Sorry, the chop. Ok, I was referring to the document.
21
22 JYN No, the chop.
23
24 JERRY Sorry.
25
26 JYN This was done by your people dated 04th November. But received by
27 DBKL only on the 14th. Or sent to become the 14th November. Am I
28 correct? I’m so sorry if I am wrong please correct me. DBKL received
29 this on the 14th November, this Borang B. Would you agree with me?
30
31 JERRY Let me just have a look.
32
33 JYN Please.
34
35 JERRY Yes, we have prepared it on the 4th and they have received it on the
36 14th November.
37
1 JYN Alright. Based on that confirmation, Mr Pereira and based on your
2 previous answer, when does Alamrio start work?
3
4 JERRY At 14th November.
5
6 JYN Do you agree with me that Borang B says that work can only
7 commence four days after this notice is received by DBKL?
8
9 JERRY Yes. The notice says so.
10
11 JYN So Alamrio was supposed to commence work not on the 14th but the
12 18th November. Would I be right to say that?
13
14 JERRY Yes.
15
16 JYN So you have started work on the 14th when you are supposed to start
17 work on the 18th.
18
19 JERRY Work consists of two different, three different areas. We are talking
20 about piling, earthworks and site clearing. Clearing has come in, site
21 clearing works has commenced earlier. We cannot only approve this
22 section of the work until we get Borang B.
23
24 JYN Alright. This Borang B is for which section of work?
25
26 JERRY Piling and earthworks.
27
28 JYN Alright. So you are saying that piling and earthworks have not
29 commenced?
30
31 JERRY Yes.
32
33 JYN Alright. Mr Pereira, in your Statement of Claim you have alleged that
34 the concealed drain was discovered by the main contractor sometime
35 or on about 12.12.2013. Am I correct?
36
37 JERRY Correct.
1
2 YA Can you wrap up this present line of questioning?
3
4 JYN My Lady?
5
6 YA Can you wrap up this present line of this area?
7
8 JYN My Lady, the, in relation to Borang and everything, we are done. We
9 are just going now based on Statement of Claim when he discovered
10 the concealed drain. On that issue now.
11
12 YA This is a fresh issue?
13
14 JYN Fresh issue, My Lady.
15
16 YA Alright. We start in the afternoon.
17
18 JYN Very well, My Lady.
19
20 YA Alright. 02:45PM.
21
22 JYN Very well, My Lady. Much obliged.
23
24 JRB Court bangun.
25
26 AKHIR
27
28 MASA : 12:38PM
29
30
31
32
33
34
35
36
37
1 TARIKH : 25.04.2017
2 MASA : 02:59PM
3
4 MULA
5
6 JRB WA-22NCVC-307-06/2016.
7
8 JYN If it can please the Court, My Lady. Does the witness need to take the
9 oath again?
10
11 YA No. But you’re reminded you’re on your oath, you still are under oath.
12
13 JERRY Yes, ok.
14
15 Sambungan Pemeriksaan Balas (Continued Cross-Examination) Jerry Dinesh
16 Pireira oleh Jayananda Rao A/L Simmachalam
17 Masa: 02:59PM
18
19 JYN Mr Pireira, just to pick from where we left off earlier this afternoon. But
20 do you have an employee by the name of Steven Lee working with
21 Alamrio?
22
23 JERRY No.
24
25 YA Steven?
26
27
28 JYN S-T-E-V-E-N L-E-E.
29
30 [03:00PM]
31
32 JERRY No, he’s not my employee but he works for my contractors.
33
34 JYN So I take it that you know who Steven Lee is?
35
36 JERRY Yes.
1
2 JYN I put it to you that Steven Lee did inform you about a drain running
3 across Land 57230 somewhere in the year 2012.
4
5 JERRY I disagree.
6
7 JYN Mr Pireira, according to your Statement of Claim, you alleged that the
8 concealed drain was discovered by the main contractor sometime on
9 or about 12.12.2013, right? You want to look at the Statement of
10 Claim again?
11
12 JERRY Yes.
13
14 JYN Ok. I’ll just guide you there, yes. Just a minute. Bundle A. My Lady,
15 refer to Bundle A. If you can look at page 38? Top marking at
16 paragraph 27. If you can just take a look?
17
18
19 JERRY Yes.
20
21 JYN So it’s correct, yes? Would it be right to say that the main contractor
22 discovered the drain sometime on or about 12.12.2013?
23
24 JERRY Yes.
25
26 JYN And the same Statement of Claim, yes, can you please refer to
27 paragraph 41, Mr Pireira? Paragraph 41 at page 40 of the Statement
28 of Claim, it was alleged that by-way of two letters in August 2014
29 Alamrio had informed DBKL that they couldn’t proceed with the
30 construction works because of the problem of the trespass and the
31 drain. Correct?
32
33 JERRY Yes.
34
35 JYN Am I reading correctly?
36
37 JERRY Yes.
1
2 JYN That’s correct, yes. And down at paragraph 45 of the Statement of
3 Claim, because of the trespass, Alamrio could not proceed with the
4 construction works thereby causing loss and damage which is
5 continuing. Correct?
6
7 JERRY Yes.
8
9 JYN Alright. May I, My Lady, may I refer the witness to Appendix C of the
10 Statement of Claim, please? Appendix C. Appendix C, it’s at page 53,
11 My Lady. Mr Pireira, would you be able to locate Appendix C of the
12 Statement of Claim?
13
14
15
16
17 JERRY Yes.
18
19 JYN And it’s stated at the top of that page that the LAD is for the period of
20 39 months of stoppage of construction works from 12.12.2013 to
21 March 2017.
22
23 JERRY Correct.
24
25 JYN So coming back to the Statement of Claim, is the Plaintiff’s case that
26 the construction of works on Land 57230 stopped from 12.12.2013?
27
28 JERRY Yes.
29
30 JYN At the time the concealed drain was discovered by Alamrio’s maincon.
31 Is it correct? The dates, yes?
32
33 JERRY Yes.
34
35 JYN And your witness statement, if I may refer to Question and Answer
36 47? You have stated that as a result of the existence of the concrete
37 drain, Alamrio the Eighth Plaintiff, could not continue with the
1 construction works because the piling for the foundation to the building
2 would fall right into the concrete drain and as such any continuation of
3 construction works had to first address the removal of the concrete
4 drain.
5
6 JERRY Yes.
7
8 JYN Correct? Yes. May I refer to your police report at Bundle B1? My Lady,
9 may I refer the witness to Bundle B1 page 216? Page 216 in B1, Mr
10 Pireira.
11
12 JERRY Yes.
13
14 JYN Can you confirm that is the police report that you have lodged?
15
16 JERRY Yes.
17
18 JYN Can you please read the date on the police report, please?
19
20 JERRY 05.10.2015.
21
22 JYN And it’s a Sentul Report 17614/15, right?
23
24 JERRY Yes.
25
26 JYN Now in this report that you’ve lodged on 05.10.2015, you had said that
27 ‘During the execution of the bore piling works on Lot 57230, you
28 encountered an obstruction in the form of an underground concrete
29 box culvert which resulted in us halting all further construction works’.
30 It’s correct, right?
31
32 JERRY Correct.
33
34 JYN Now do you agree with me that it took you almost two years for
35 Alamrio to lodge this police report, if it is indeed discovered in 2013?
36
37
1 JERRY Yes.
2
3 JYN And do you agree, Mr Pireira, that in this police report, there is no
4 allegation whatsoever that DBKL is responsible for the alleged
5 trespass?
6
7 JERRY Yes.
8
9 JYN Now going back to the date that you said the work stopped, the
10 construction of work stopped, yes. That would be 12.12.2013. Now
11 may I refer the witness to Bundle B6, My Lady? B6. Page 1780.
12 Would you be able to inform the Court or tell the Court what letter this
13 is? From which company and to whom?
14
15
16 JERRY Yes. It is from Alamrio Properties.
17
18 JYN And that would be the Plaintiff here, right?
19
20 JERRY Yes.
21
22 JYN Ok.
23
24 JERRY To YB Datuk Seri Tengku Adnan, Menteri Wilayah Persekutuan.
25
26 JYN And the date of that letter, please?
27
28 JERRY 01.09.2016.
29
30 JYN And would you be able to inform the Court who is the writer of this
31 letter?
32
33 JERRY I am the writer of this letter.
34
35 JYN So this letter is dated 01.09.2016, yes?
36
37 JERRY Yes.
1
2 JYN Alright. May I take you to paragraph 9 of the letter, please, which is at
3 page 1781?
4
5 JERRY Yes.
6
7 JYN Alright. Now would you be able to confirm from that paragraph you
8 have written to Yang Berhormat Tengku Adnan that ‘kerja-kerja bore
9 pile telah mencapai kemajuan sebanyak 80% apabila APSB menemui
10 halangan dalam bentuk kotak pembentun monsoon culvert berukuran
11 1.5 x 1.2 dalam longkang bawah tanah, bukan hanya merosakkan
12 peralatan cerucuk malah sebarang pembinaan dihentikan serta-
13 merta’? So you have stated in this letter that 80% of bore piling works
14 has been completed.
15
16 JERRY Yes.
17
18 JYN 80%, yes?
19
20 JERRY Yes.
21
22 JYN That is as of 12.12.2013?
23
24 JERRY Yes.
25
26 JYN May I refer to Bundle B6 as well, page 1682?
27
28
29
30 JERRY Yes, I got the document.
31
32
33 JYN Ok. Are you aware of this letter?
34
35 JERRY Yes.
36
37 JYN And would you be able to tell the Court it’s from whom to whom?
1
2 JERRY It is from Alamrio Properties, the Plaintiffs, to Dewan Bandaraya Kuala
3 Lumpur Planning Department.
4
5 JYN And this letter was signed by whom, Mr Pireira?
6
7 JERRY Our Project Manager, Mr Kamarulzaman.
8
9 JYN But do you agree that this letter was also sent to DBKL?
10
11 JERRY Yes.
12
13 JYN This is where Alamrio is appealing to DBKL to exempt payment on the
14 additional development charge. Is it correct?
15
16 JERRY Yes, on the enhanced development charge.
17
18 JYN Charge, ok. Now can I ask you to look at the last paragraph at page
19 1682? Yes? Last paragraph. This is in relation to Land 57229, right?
20
21 JERRY Yes.
22
23 JYN Alright. Do you agree that in that particular letter, you have mentioned
24 that ‘kerja-kerja tapak telah giat berjalan’?
25
26 JERRY I’m sorry, the last paragraph, is it?
27
28 JYN Yes. The last line, ‘Untuk pengetahuan Tuan’.
29
30 JERRY Yes, ‘Untuk pengetahuan Tuan, kerja-kerja tapak telah giat berjalan.’
31
32 JYN Alright. Now when you said ‘kerja-kerja tapak giat jalan’, which tapak
33 are you referring to?
34
35 JERRY Tapak A, 57230.
36
1 JYN So would you agree that as at 16.10.2014, works were still going on
2 on that Land 57230, based on this letter?
3
4 JERRY I disagree.
5
6 JYN May I refer you to page 1705 Bundle B6, please? Sorry, 1705. Page
7 1705 Bundle B6.
8
9 [03:15PM]
10
11 JERRY Yes.
12
13 JYN See that letter, Mr Pireira?
14
15 JERRY Yes.
16
17 JYN Mr Pireira, would you be able again to inform the Court who is the
18 maker of this letter?
19
20 JERRY Our Project Manager, Mr Kamarulzaman.
21
22 JYN Alright. And it’s addressed to?
23
24 JERRY Addressed to Dewan Bandaraya Kuala Lumpur Planning Department.
25
26 JYN Alright. And the date of the letter, please?
27
28 JERRY Date of the letter is 21.01.2015.
29
30 JYN Alright. May I request you to read para 2 and 3 of this letter, please?
31
32
33 JERRY ‘Penangguhan pembayaran-pembayaran caj pembangunan tersebut
34 adalah untuk jangka masa enam bulan bermula daripada tarikh surat
35 ini dan akan berakhir pada 20.07.2015. Penangguhan ini adalah untuk
36 membolehkan pihak kami mencari dana dan memulihkan daripada
37 berkekangan kewangan setelah mengambil-alih projek terbengkalai
1 dan juga telah membuat sejumlah bayaran kepada pembeli-pembeli
2 yang terdahulu sebagai bayaran gantirugi. Ini secara tidak langsung
3 telah mengakibatkan pengurusan kewangan kami telah terjejas. Untuk
4 pengetahuan Tuan, kerja-kerja pembangunan pejabat blok A kami
5 sedang rancak berjalan dan kami memerlukan lebih aliran tunai bagi
6 memastikan kontraktor yang dilantik dapat dibayar perkhidmatan
7 mereka mengikut jadual yang memastikan kelicinan projek’.
8
9 JYN Very well. So would you agree with me that your letter to DBKL states
10 that as at 21.01.2015, works on Land 57230 was ongoing, or as you
11 put it, ‘rancak berjalan’?
12
14
15 JYN I put it to you, Mr Pireira, the two letters from Alamrio to DBKL dated
16 16.10.2014 and 21.01.2015 clearly indicates construction works were
17 ongoing on land 57230.
18
19 JERRY I do not think we meant ‘ongoing’. We meant that active works had
20 been taken place, a lot of works have taken place.
21
22 JYN Well, I put it to you that based on your Pleadings, you have taken the
23 stand that works on Land 57230 had stopped on 12.12.2013. But
24 based on your letters dated 16.10.2014 and 21.01.2015, Alamrio has
25 stated to DBKL that works are ongoing. Do you agree that there is a
26 material contradiction between these letters and your Statement of
27 Claim?
28
30
31 JYN Now may I, My Lady, may I refer the witness to Bundle B6? Can you
32 please look at page 1747? Bundle B6. 1747. Would you be able to
33 explain to Court what this letter is?
34
35
36 JERRY We’re requesting for an extension in payment for building charges.
37
1 JYN For which land?
2
3 JERRY Block B, 57229.
4
5 JYN And this letter is signed by?
6
7 JERRY My CEO, Mr Ganeswaran.
8
9 JYN And is he also one of the registered landowners of land 57230 and
10 57229?
11
12 JERRY Yes, he is.
13
14 JYN Can you please read para 2 again, of the letter, please, Mr Pireira?
15
16 JERRY ‘Untuk pengetahuan Tuan, kerja-kerja pembinaan untuk Blok A telah
17 pun diberhentikan disebabkan masalah pencerobohan tanah.
18 Manakala untuk Blok B, pihak kami menghadapi kesukaran untuk
19 menjual unit-unit kediaman dan ditambah pula masalah kedudukan
20 kewangan syarikat yang tidak stabil sehingga tidak langsung memberi
21 kesukaran kepada kami untuk memajukan projek tersebut’.
22
23 JYN So Mr Pireira, you’re aware of the contents of the letter, right? Are you
24 aware of them?
25
26 JERRY Yes.
27
28 JYN Now what Mr Ganeswaran is saying, correct me if I’m wrong, that for
29 Lot A Land 57230, works has stopped because of the trespass
30 problem?
31
32 JERRY Yes.
33
34 JYN Right? Whereas for Block B Land 57229, you are having problems
35 selling the apartments. Do you agree?
36
37 JERRY Yes.
1
2 JYN Alright. Now as far as Land 57229 based on this letter, does Alamrio
3 have a developer’s license and the permit iklan and jualan at the time?
4
5 JERRY No.
6
7 JYN If you don’t have, I put it to you that you are not allowed to sell any
8 units on Land 57229. Do you agree?
9
10 JERRY We did not sell any units.
11
12 JYN Alright. And you have also stated in that letter the reason why work on
13 Land 57230 has stopped is because of a trespass problem.
14
15 JERRY I do not think we stated that.
16
17 JYN Did not stated that, is it?
18
19 JERRY No.
20
21 YA Paragraph 2?
22
23 JERRY Yes.
24
25 YA (03:21:47PM inaudible)
26
27 JERRY Yes, My Lady, he’s referring to Block B.
28
29 YA You’re referring to Block A or Block B?
30
31 JYN Block A, My Lady. 57230.
32
33
34 JERRY Block A, yes.
35
36
37 JYN So he did mention that it’s because of trespass problem, right?
1
2 JERRY For Block A, yes.
3
4 JYN Block A, yes. Sorry. Mr Pireira, would you be able to inform the Court
5 who is the main contractor for this project?
6
7 JERRY Midflex.
8
9 YA For Block A?
10
11 JYN Block A, My Lady. Subject matter 57230. May I refer the witness to
12 Bundle B9? Page 165.
13
14 JERRY Yes, My Lady.
15
16 JYN Alright. Would you agree that the documents from page 165 to 168
17 are minutes of the Site Meeting No. 8 which was held on 22.04.2014?
18
19 JERRY Yes.
20
21 JYN Based on these documents, Mr Pireira, who was Alamrio’s
22 representative at the meeting?
23
24 JERRY En Kamarulzaman.
25
26 JYN And his designation was at the time?
27
28 JERRY Project Manager.
29
30 JYN Now may I refer you to the third page, that is page 323? 323 actually
31 is 167, I beg your pardon, sorry. I beg your pardon, it’s 167 but what
32 you see on top is –
33
34 JERRY Yes, I’ve got it.
35
36
37 JYN Just the bottom one there, right.
1
2 YA No, you’re referring to which page?
3
4 JYN 167, My Lady. There are two numbers there. Actually the pagination
5 for this case is 167.
6
7 YA Not 323?
8
9 JYN 323 is actually the original pagination, I believe. Yes. I may be wrong, I
10 stand corrected but 167 is the one which we’re referring to. Because
11 this document consists of three pages, right? 165, 166, 167 and 168. I
12 beg your pardon, four pages.
13
14 JERRY Ok.
15
16 JYN Yes. Now according to the minutes of the meeting, Midflex has
17 completed 30 bore piles out of a total of 161.
18
19 YA Alright, which paragraph?
20
21 JYN That’ll be at page 5.5, My Lady.
22
23 JERRY Yes, 30.
24
25 JYN That’s correct, yes. Alright. Now may I take you to B9 as well? Meeting
26 No.9 which was held on 06.05.2014 at page 169. May I refer to page
27 170 at para 5.4?
28
29
30 JERRY Yes.
31
32 JYN Alright. The representative who was present for Alamrio was Mr
33 Ganeswaran and Mr Kamarulzaman?
34
35 JERRY Yes.
36
1 JYN And according to the minutes, in May 2014 Midflex had completed 38
2 bore piles out of a total of 161. Is it correct?
3
4 JERRY Can I mention something here?
5
6 JYN Yes.
7
8
9 JERRY These are piling test results, it’s not the pile itself. That means the
10 number of units finished is over 161. This number that you are
11 mentioning, 30 means testing the piles. It’s a testing activity, it’s not
12 the construction of the pile.
13
14
15 JYN Oh, so those were only purely for testing purposes?
16
17 JERRY Yes, that means you basically put a load on the pile and then you test
18 it. So basically 161 numbers have already been completed.
19
20 JYN Completed?
21
22 JERRY Yes.
23
24 JYN So this is only for Land 57230?
25
26 JERRY Yes.
27
28
29 JYN So in other words, correct me if I’m wrong, please, so you’re talking
30 about the 161 piles that were completed on Land 57230?
31
32 JERRY Yes.
33
34 JYN Alright. In your Alamrio Statement of Claim, you have stated clearly as
35 per your evidence earlier, works came to stop 12.12.2013.
36
37 JERRY Correct.
1
2 JYN Whereas the minutes which I referred to earlier dated April and May
3 2014 respectively says that works were ongoing. So do you agree
4 there’s a contradiction?
5
6 JERRY That is not a contradiction because these are ancillary works to the
7 original work that can be continued. Items like testing the piles.
8 Physical construction work has come to a bottleneck.
9
10 JYN So basically when you say works continuing on the land, you are
11 defining that they are ancillary works?
12
13 JERRY Yes.
14
15 JYN My question to you, works were still ongoing on the land? Do you
16 agree?
17
18 JERRY Only testing.
19
20 JYN Mr Pireira, is it true that Alamrio has terminated the main contractor’s
21 appointment?
22
23 JERRY Yes.
24
25 JYN My Lady, may I refer the witness to Bundle B9, page 185? Page 185,
26 Mr Pireira. Is this Alamrio’s notice of the termination of employment of
27 contractor?
28
29
30 JERRY Yes.
31
32 JYN It’s dated?
33
34 JERRY 16.06.2015.
35
36 JYN Would you be able to inform the Honourable Court reasons given by
37 Alamrio for the termination?
1
2 JERRY The reason we terminated Midflex was due to the fact that they have
3 removed some items from the construction site which breaches their
4 PAM contract. Within the same period, we also struggled to have
5 made payment to them because we could not progress further with
6 our work and make a claim from the –
7
8 YA What are the reasons for termination? What is it?
9
10 JERRY Because they have removed items from the site.
11
12 JYN Is there a suit currently between Midflex and Alamrio in Court?
13
14 JERRY Yes.
15
16 [03:30PM]
17
18 JYN And would you be able to inform the Court who is suing who?
19
20 JERRY Midflex is suing us.
21
22 JYN And was there any Counterclaim by Alamrio against Midflex?
23
24 JERRY Yes.
25
26 JYN If I were to refer you to Bundle B9, pages 29 to 96, would you agree
27 that this is the Statement of Claim?
28
29
30 JERRY Yes.
31
32 JYN The Defence and also Counterclaim throughout page 96. Just to
33 confirm. I’ll run by you again, Mr Pireira, alright? Statement of Claim
34 filed by Midflex against Alamrio is at pages 97 to 132. Your Defence or
35 Alamrio’s Defence and Counterclaim is at page 133 to 161. Am I
36 correct? Mr Pireira, My Lady, I stand corrected. I’m so sorry. I’ll
1 rephrase myself, yes. Page 29 to 96 is the Statement of Claim. Do you
2 agree?
3
4 JERRY It’s Midflex’s Statement of Claim.
5
6 JYN Yes, Midflex suing Alamrio. Correct?
7
8 JERRY I can’t run through it all, but yes.
9
10 JYN No, just generally.
11
12 JERRY Yes, generally.
13
14 JYN Just the title will do, yes. Then from page 97 to 132 is Alamrio’s
15 Defence and Counterclaim. Would you be able to confirm that, Sir?
16
17 JERRY Based on the last two pages it seems yes, it’s our Counterclaim.
18
19 JYN Ok. And pages 133 to 169 is Midflex’s Reply and Defence to
20 Counterclaim. 133 to 161.
21
22 JERRY Yes.
23
24 JYN Mr Pireira, are you familiar with the facts of this case?
25
26 JERRY Yes.
27
28 JYN Do you agree, Mr Pireira, in this Midflex Suit, Alamrio has taken the
29 position that the cost of stoppage of work for this project and
30 termination of Midflex’s appointment was that Midflex has removed the
31 materials and goods from site without permission?
32
33 JERRY Yes.
34
35 JYN And do you agree that based on this case, that is the Midflex Court
36 case, the construction work onsite were going on until sometime
37 April/May 2015?
1
2 JERRY I disagree.
3
4 JYN So you’re saying that Midflex’s Statement of Claim is incorrect insofar
5 as to ongoing works still April or May 2015?
6
7
8 JERRY Can you repeat your question? I don’t quite understand what you’re
9 trying to say here.
10
11
12
13 JYN Ok. I’ll put it again for you. And please correct me if I’m wrong, ok, Mr
14 Pireira.
15
16
17 JERRY Ok.
18
19 JYN You have said that you’re familiar with the Midflex case.
20
21 JERRY Yes.
22
23 JYN Alright. And I’ve also asked you that the reason why Alamrio has
24 taken position that the cause for the stoppage of work is because
25 Midflex has removed materials and goods from the site without
26 permission from Alamrio.
27
28 JERRY Correct.
29
30 JYN Alright. Now it’s also in Midflex’s case shows us that the construction
31 works were ongoing sometime until April or May 2015. You disagree.
32
33 JERRY Can you tell me which part that shows?
34
35 JYN It’s all in Midflex’s Statement of Claim, yes.
36
37 JERRY Yes.
1
2 JYN If I may refer My Lady, to witness at page 51? One example, yes.
3
4 JERRY Ok, sure.
5
6 YA 51?
7
8 JYN 51, My Lady. Para 49. Alright. Please correct me. It says that, ‘Pada
9 17.03.2015 – ‘
10
11 YA Maybe you want to go to the translation. It’s at 84.
12
13
14 JYN 84. That is correct, My Lady. Thank you very much. At page 84,
15 translation.
16
17 JERRY 84, you’re referring to number? Paragraph 49. At the very bottom, Mr
18 Pireira. Page 84. I will just take you through roughly because you have
19 asked for one or two examples.
20
21
22 JERRY Yes, yes.
23
24 JYN Because this is not my case, it’s Midflex’s case, alright?
25
26 JERRY Sure.
27
28 JYN On para 49 it says there ‘On 17.03.2015, Midflex wrote to Alamrio
29 confirming that Alamrio through its representative, Mr Ganeswaran,
30 agreed to DPM Engineering, the subcontractor, Midflex, extracting
31 sheet piles from the site. Midflex also notified Alamrio that the
32 extraction works would commence on 18.03.2015. That sheet piles
33 which had not been paid for by Alamrio had not been affixed to the
34 land and were removed without damaging the land’. Alright. Now
35 based on this one paragraph, it seems that works were still going on in
36 2015. This is only a portion. Now my question to you, Sir, is this, it’s
1 Midflex’s case that works were still ongoing onsite 57230 as late as
2 April or May 2015. Do you agree?
3
4 JERRY I disagree. Statement 49 purely means that –
5
6 JYN No, I’m taking an example.
7
8 JERRY Yes, but –
9
10 JYN Is it generally the case? Because you’re aware of the case, I’m not.
11
12 JERRY Yes, yes.
13
14 JYN Alright.
15
16 JERRY It’s not –
17
18 JYN It is their Pleading that work was going on on the land as of April/May
19 2015.
20
21 JERRY This wasn’t work, this was them removing items they’ve installed.
22
23 JYN Alright. So generally, their case is that works were still ongoing
24 April/May 2015. You disagree?
25
27
28 JYN Alright. Mr Pireira, if I refer to your Statement of Claim, para 41.
29 Statement of Claim, it’s in Bundle A. Page 40. This would be in Bundle
30 A.
31
32 JERRY Ok.
33
34 JYN Page 40, yes. I refer to para 41 wherein you have stated that Alamrio
35 have written to DBKL requesting for the Defendant to provide a
36 solution to the problem on the trespass of the concrete drain on the
1 said land as the Eighth Plaintiff was unable to carry on with the
2 construction of the said project. Correct?
3
4 JERRY Yes.
5
6 JYN Eighth Plaintiff would be Alamrio?
7
8 JERRY Yes.
9
10 JYN Correct, yes. Now I put it to you, Mr Pireira, that construction works on
11 Land 57230 did not stop in December 2013 upon the discovery of
12 drain as alleged in your Statement of Claim or your police report. Do
13 you agree?
14
16
17 JYN I put it to you that the reason for work stopping at the site has nothing
18 to do with DBKL and had nothing to do with trespass or negligence but
19 it has to do everything with Alamrio terminating the main contractor.
20 Do you agree?
21
23
24
25 GNP My Lady, this line of defence, just to put it on record, this line of
26 defence is not in the Defendant’s Pleadings. Just to alert the Court so
27 we’ll probably make a submission on this.
28
29 YA This has not been pleaded?
30
31 GNP Yes.
32
33 JYN My Lady, it is their contention that there was trespass and negligence
34 by DBKL. Now it is my duty just to raise the issue that that particular
35 negligence and trespass was not because of DBKL based on
36 documents that we have put forward earlier. So a bit of latitude would
37 be appreciated, My Lady.
1
2 YA All these are in the bundles?
3
4 JYN Yes, they are in the bundles, My Lady. They all are in the Common
5 Bundle of Documents, My Lady, it’s all –
6
7 GNP My Lady, at the point when my learned friend wanted to tender these
8 particular documents from Midflex, the main contractor for the Eighth
9 Plaintiff, we actually took an objection saying that these documents
10 are not relevant. My Lady actually directed that these objection is
11 taken by way of submission at the submission stage. And the Court
12 will decide on the relevance of documents. So therefore I’m putting the
13 objection.
14
15 YA Alright. You’re raising the objection at this point in time. But for
16 submissions to be made at this expectant hour, there will have to be
17 some evidence led.
18
19 GNP Correct but what my learned friend’s line of defence now is not
20 contained in the Defence. They’re saying the termination or rather the
21 reason why the Eighth Plaintiff had to stop work is not because of the
22 finding of the drain at the material time but it’s because they had a
23 dispute and they terminated the main contractor. So it’s like basically
24 hit and go first, if I may say. So that’s a totally different Defence –
25
26 YA Is there anywhere in your Pleadings that justifies this is the line of
27 cross-examination?
28
29 JYN My Lady, the entire suit by Midflex came to light only about two
30 months ago when it was stumbled completely coincidentally in Court
31 when we had the matter in the same Court. That’s the reason why we
32 found out because this was not brought in much earlier –
33
34 YA Whose Court? Which same Court?
35
36 JYN We had a matter in the same Court, it’s the Construction Court. So we
37 had a matter on the day before Yang Arif Dato’ Mary Lim. So that is
1 when this matter was also heard. So that is when we came to know
2 that there was a suit pending against Alamrio by Midflex.
3
4 YA But did you amend your Pleadings? You didn’t amend your Defence
5 either.
6
7 JYN No, we did not, My Lady. We did not amend Pleadings.
8
9 YA Why?
10
11 JYN The reason why simply because the very case against us was that we
12 were negligent and we had trespassed onto the land. It was not even
13 for breach of statutory duty, these two issues. Now we have a right to
14 defend in any way based on the documents and confirmation by
15 witnesses that evidence shows otherwise irrespective of whatever
16 evidence which is admissible to the Court.
17
18 YA In respect of trespass, what was pleaded by the Defendant? Just a
19 general denial?
20
21 JYN Yes, we just said that we never trespassed on the land because it’s a
22 private land. We’ve always maintained that stand, My Lady, that we
23 never trespassed because it was a private land. And No.2, we have
24 also made very clear to them that if there is any works or need to be
25 on the land, we will notify by letter. That’s always the procedure. So
26 that’s the reason why we brought in their previous two letters saying
27 that if there are ongoing works on land or it’s needed, we would have
28 notified based on the statutory provisions that we will write to you and
29 notify under which provisions we’re exercising the right to be on the
30 land and for how long. And ask for –
31
32 YA How much further are you going to go in this –
33
34 JYN My Lady, insofar as Midflex, I have no more questions.
35
36 YA Alright.
37
1 JYN That’s all. Because I’m just referring whether he’s aware of the case.
2
3
4 GNP My Lady, I think I just want to put the record straight. The existence of
5 the Midflex suit against the Eighth Plaintiff was actually divulged
6 during the mediation process before His Lordship Louis O’Hara. And
7 my learned friend just informed the Court that they accidentally
8 stumbled upon the suit in the Construction Court before Her Ladyship
9 Mary Lim. And My Ladyship Mary Lim is only in Court on the last year.
10 So I do not know how my learned friend was stumbled upon this suit
11 before Her Ladyship Mary Lim. His Lordship Lee Swee Seng is sitting
12 in that Court. So what I’m saying, My Lady –
13
14 YA Was this information obtained through mediation?
15
16 [03:45PM]
17
18 JYN Not at all, My Lady, it’s way before mediation. It was way before
19 mediation because just to answer my learned friend’s question, it is
20 true that Yang Arif Dato’ Mary Lim has been elevated to Court of
21 Appeal but the part-heard is still ongoing now, My Lady. we are still
22 going on with the part-heard. So that’s the reason why sometimes that
23 Court has to be vacated for Yang Arif Mary Lim to come down to
24 continue the trial. So it is not a conclusion, it’s still ongoing now. And I
25 can inform the Court on record the suit number which is still ongoing
26 at the moment. But this issue about this suit with due respect to my
27 learned counsel, we got to know much earlier, at least two weeks
28 earlier and we did what needs to be done, we did a search in the
29 Court, an official search to find out are the parties the same parties,
30 and it’s related to this as well. It was not obtained from mediation. Ask
31 them. I am very firm on that it was never from a mediation. And we
32 have proof to show that you have written to Court for documentations
33 and for Court documents way before the mediation date, My Lady.
34
35 GNP My Lady, we are saying this because the document B9 only surfaced
36 from the Defendant’s side after the mediation. So we took the position
37 that we will only reveal the information –
1
2 YA Alright. At this point in time, evidence has already gone in with regards
3 to this case but no further questions?
4
5 JYN No more, My Lady. That’s it.
6
7 YA Ok. If you want to Re, you can Re if you need to clarify anything. But
8 for now, we will proceed. How much longer will you take?
9
10 JYN My Lady, for this question against the maincon, there are no more
11 questions.
12
13 YA No, the cross-examination of this witness?
14
15 JYN My Lady, I still have to cover the entire issue of damages. I have not
16 even touched the damages yet.
17
18 YA How much longer will that be?
19
20 JYN I will take maybe about an hour and a half, My Lady.
21
22
23 YA An hour and a half?
24
25 JYN Yes, My Lady. Because I think those questions were all documentary
26 questions insofar as damages.
27
28 YA Ok. Before you go to quantum, before you go to damages, your
29 liability issue all done?
30
31 JYN We have not, we are just going on the issue of, My Lady, the
32 obligation for DBKL statutorily for the issue of trespass and
33 negligence. That will be the main crux. I’m coming to the very tail-end
34 already.
35
36 YA Alright. Go on. You finish your loss and liability first.
37
1 JYN Very well, My Lady. Much obliged. Mr Pireira, you have stated in your
2 Statement of Claim that DBKL built the concealed drain. Yes? In your
3 Statement of Claim. Do you agree that DBKL has built the concealed
4 drain?
5
6 JERRY Can you tell me which page you’re referring to?
7
8 JYN Or shall I just rephrase? Do you know that DBKL had built the drain?
9 Are you aware? Is this within your knowledge that DBKL has built the
10 concealed drain?
11
12 JERRY I can’t answer that with a ‘yes’ or ‘no’.
13
14 JYN No, you have to answer because it’s your Statement of Claim.
15
16 JERRY I’m unaware that they, I have not seen through the construction
17 process of who constructed the drain.
18
19 JYN Alright. Now I will take you to Bundle A page 42. Page 42, alright. Can
20 you just read para (iv)?
21
22
23 JERRY ‘The Defendant and/or its agents and/or its representatives and/or its
24 workers did not have any rights under the law to build the said
25 concrete drain on the said land without the consent of the joint’ –
26
27 JYN I’m so sorry. Which page are we reading? Page 42? Para (iv)?
28
29
30 JERRY Oh, sorry. That’s (v), is it? Ok, sorry. ‘The Defendant in person and/or
31 through its agents and/or its representatives or its workers had built a
32 concrete drain without prior approval of the joint co-owners of the said
33 land.’
34
35 JYN Alright. It is your case, Mr Pireira, based on your Statement of Claim,
36 that it is DBKL, the Defendants in person or through its agents or its
37 representatives and/or workers built the drain. Now my question to
1 you is that do you have any proof to show that it was the Defendant
2 who built the drain? Yes or no, Sir?
3
4 JERRY Yes.
5
6 JYN I put it to you there is no evidence in any bundle that has been filed
7 before the Court to show proof that it was DBKL who built the concrete
8 drain. Do you agree with me?
9
11
12 JYN Now in your Statement of Claim, you had claimed that DBKL was
13 negligent because they approved the development order on
14 02.03.2012 without first investigating and researching the conditions of
15 the said land. Right? That’s your Statement of Claim. Mr Pireira, you
16 contend that DBKL has a duty to investigate the condition of all
17 privately owned lands before approving any development order on
18 those lands?
19
20 JERRY Yes.
21
22 JYN Yes. Alright. Would you be able to inform the Court where is it
23 provided that DBKL has such a duty to investigate and research the
24 conditions on privately owned land?
25
26 JERRY Can you repeat the question?
27
28 JYN Alright. You have claimed DBKL has a duty to investigate the
29 conditions of all privately owned lands before approving any
30 development order for those lands. Now my question to you, Sir, can
31 you please provide the Honourable Court where and how DBKL has
32 such a duty?
33
34 JERRY I think to us developers, our knowledge is that any drainage or road
35 that belongs to DBKL is constructed and instructed by them to be
36 done based on the Road and Drainage Act 133.
37
1 JYN Ok. So you’re saying that this is based on knowledge?
2
3 JERRY Yes.
4
5 JYN Not law?
6
7 JERRY Act 133 is law, right?
8
9 JYN You have brought up Act 133. Where in Act 133 says that DBKL has
10 such a duty?
11
12 JERRY I need to refer to it now.
13
14 JYN I will provide you with the Act if you want.
15
16 YA Shouldn’t this be left for submission?
17
18 JYN Very well, My Lady. Very well. Alright. So it is Act 133 and your
19 knowledge? Alright. I put it to you, Sir, that there is no obligation
20 anywhere for a local authority to check or research the conditions of
21 land before approving any development order.
22
24
25 JYN I put it to you that the obligation rests on the developer and their
26 consultants. Do you agree?
27
28 JERRY I’m unable to answer that question.
29
30 JYN In your Statement of Claim, Mr Pireira, the Plaintiff’s claim that DBKL
31 was negligent when they approved the building plans because there
32 are two floors of basement car parks. Can you please inform the Court
33 where is it provided that DBKL must take reasonable steps to ensure
34 that there is no hindrance to the Plaintiff’s plan to build the two floors
35 of basement car parks?
36
37 JERRY By checking their original records.
1
2 JYN So you’re imposing your duty on DBKL that they should check their
3 original records?
4
5 JERRY If there was a drain there in their records, they would have told.
6
7 JYN No, I’m talking about the two basement car parks. Because your
8 Statement of Claim is in relation to two floors of basement car park.
9 My question to you is that where is it provided that DBKL must take
10 reasonable steps, because your Statement of Claim says they should
11 take reasonable steps to ensure there is no hindrance to the Plaintiff’s
12 plan to build the two floor of basement parking lots?
13
14 JERRY I think the situation is a bit more complex. The drain, if DBKL had
15 record of the drain, they would not have allowed us the two basement
16 car parks. But they also did not know at that point whether they had
17 the drain or not. So because it’s a trespass everybody is in doubt of
18 whose responsibility it is. Definitely us as the landowners and the
19 developers have no responsibility to go underground and dig and look
20 for a drain because if it was there, it would have been in the land title.
21
22 JYN I put it to you, Mr Pireira, that there is no such obligation or duty on the
23 local authority to check or do any research on a private land to see
24 whether there are any hindrance or obstructions.
25
27
28 JYN I put it to you that such obligations is purely and falls squarely on the
29 developer and the consultants.
30
32
33 JYN Mr Pireira, if I may take you to Statement of Claim page 40 of Bundle
34 A, please?
35
37
1 JYN Alright. Is it your claim, as you put it, the concrete drain on the said
2 land was managed by the Defendant’s workers or agents or
3 representatives from time to time?
4
5 JERRY Sorry, what number are you at?
6
7 JYN Page 40. Alright. Did you at any point of time claim that it’s the duty of
8 DBKL to manage the concrete drain?
9
10 JERRY What do you mean by ‘manage’?
11
12 JYN Do you think that DBKL has the duty to manage the concrete drain on
13 Land 57230?
14
15 JERRY Do you mean maintenance?
16
17 JYN Yes.
18
19 JERRY They were maintaining the drain.
20
21 JYN Alright. Alright now I take you to page 42 of the Statement of Claim
22 Bundle A, Roman (vi), yes, sorry. If you look at the very bottom of that
23 paragraph, ‘There was a concrete drain on the said land that was
24 managed by the Defendant’s workers and/or agents and/or
25 representatives from time to time’.
26
27 JERRY Yes.
28
29 JYN Alright. Do you have any proof to show that it was DBKL who were
30 managing the drain?
31
32 JERRY Alam Flora were managing the drain.
33
34 JYN Do you agree Alam Flora is a totally a different entity from DBKL?
35
36 JERRY They are contracted by DBKL.
37
1 JYN So Alam Flora is part of DBKL? In your opinion?
2
3 JERRY No, they are contractors to DBKL.
4
5 JYN Are they independent?
6
7 JERRY They are an independent entity, yes.
8
9 JYN May I refer the witness to Bundle B1, My Lady? B1 page 172. 172, Mr
10 Pireira, at Bundle B1, yes.
11
13
14 JYN Would you be able to inform the Court what document is this?
15
16 JERRY This is a letter from Jururunding IMK, our consulting engineers, to our
17 Alamrio Properties, our CEO Mr Ganeshwaran.
18
19 JYN What is the date of the letter, Mr Pireira?
20
21 JERRY The date of the letter is 23.12.2013. This is basically them informing
22 us about the drain.
23
24 [04:00PM]
25
26 JYN Alright. Now may I take you to para 2 please?
27
28 JERRY Yes.
29
30 JYN Can you please read to Court what did they write at para 2?
31
32 JERRY Ok. ‘We would like to highlight to you that 1.5 by 1.2 metre concrete
33 drain with concrete cover slab is not picked up and indicated in the
34 survey drawing. Therefore we have not anticipated this drain in the
35 overall drainage design and submission.’
36
37 JYN Alright. So now, do you agree that this letter is written to Alamrio?
1
2 JERRY Yes.
3
4 JYN Saying clearly that they did not pick up the drain and indicate it in the
5 survey drawing. Do you agree?
6
7 JERRY They mean that the surveyors did not pick it up in their drawing.
8
9 JYN That is what I'm saying. So they have not, alright. Now, may I refer
10 you to para 4? Where they write ‘We reckon’. Can you please read it
11 out? Just that line please
12
13 JERRY ‘We reckon this will involve the drain diversion and resubmission of
14 road and drainage plan to DBKL.’
15
16 JYN Now, looking back at your Statement of Claim, leaving the letter aside.
17 Looking back at your Statement of Claim, at Bundle A, page 39 at
18 para 37. Would you agree reading that or reading your Statement of
19 Claim, Alamrio is saying that they acted in mitigation by making
20 application to the surrounding land owners with the intention of moving
21 or rerouting the concrete drain? Am I right to say that? That once you
22 found out that you are taking mitigating steps.
23
24 JERRY Yes.
25
26 JYN Alright. And may I refer you to Bundle B1 page 173?
27
28 JERRY Yes I have it.
29
30 JYN Yes. Do you agree this is a letter to Aset Perbadanan Keretapi?
31
32 JERRY Yes.
33
34 JYN Written by Alamrio?
35
36 JERRY Yes.
37
1 JYN Dated 06.01.2014.
2
3 JERRY Correct.
4
5 JYN Do you agree that this letter does not make any reference to the
6 alleged discovery of the concrete drain?
7
8 JERRY The contents doesn’t but the attachment does.
9
10 JYN Where is the attachment’s page?
11
12 JERRY 175.
13
14 JYN Alright. Now, 175 says, ‘Pelan lokasi untuk jajaran baru longkang
15 konkrit.’ Do you agree that there's no Development Order attached to
16 this letter or with this letter?
17
18 JERRY It’s not here but I'm not sure if it’s attached originally.
19
20 JYN Instead of Development Order, you enclosed a pelan lokasi instead.
21 Would you agree?
22
23 JERRY Yes, I believe this is Item No -
24
25 JYN 1.
26
27 JERRY 4. The plan is Item No.4.
28
29 JYN Yes. Item No.1?
30
31 JERRY I'm not sure why it’s not attached.
32
33 JYN It’s not there, yes. So basically would you again, if I were to put it to
34 you Sir, this letter makes no mention of the alleged discovery of a
35 concrete drain, do you agree?
36
1
2 JYN Where does it say that there is a discovery of a concrete drain in this
3 letter?
4
5 JERRY I believe my CEO and my Project Manager has actually gone to meet
6 KTM.
7
8 JYN No Sir, I'm talking about this letter. My question is that -
9
10 JERRY It shows in the attachment at page 175.
11
12 JYN No, I'm not asking about attachments. I'm saying that is it stated that
13 there is the discovery of a concrete drain?
14
15 JERRY The contents of the letter, no. Only under pelan tapak.
16
17 JYN Alright. Besides this letter to APK, Aset Perbadanan Keretapi, what
18 was other proposed drain diversions that Alamrio has undertaken?
19
20 JERRY I'm sorry, your question again?
21
22 JYN Besides other mitigating efforts that writing to Aset Perbadanan
23 Keretapi, what other efforts Alamrio has undertaken?
24
25 JERRY We made two clear efforts. One was try to go along the KTM corridor,
26 and then through DUKE. That was unsuccessful. DUKE did not allow
27 us to proceed with the new alignment. So we could not forward that
28 plan to DBKL. We also tried with our neighbouring lot, Mr Charlie.
29 However, his request for financial compensation was something that
30 we could not meet. And DBKL at that time divulged to us that they
31 were not keen to participate in helping us to move the drain.
32
33 JYN Alright. You have mentioned all these efforts. Did you at any point of
34 time, Alamrio proposed a drain diversion which was officially submitted
35 to DBKL for approval?
36
1 JERRY We could not do that because we had no approval from the
2 neighbouring land owners. We would have been trespassing.
3
4 JYN So you did not make anything to DBKL for -
5
6 JERRY We could not successfully give them a proposal because the item was
7 alienated in our land and could not move to any other land.
8
9 JYN Would you agree that Keretapi Tanah Melayu Berhad that owns their
10 land next to Land 57230 had given their permission to divert?
11
12 JERRY Yes.
13
14 JYN Can you confirm this at Bundle B1, page 196, is that the letter?
15
16 JERRY Yes.
17
18 JYN Can you confirm that is the letter that they have given permission?
19
20 JERRY Yes.
21
22 JYN That's KTMB, yes?
23
24 JERRY Yes.
25
26 JYN Alright. Besides KTMB, you also have seek permission from another
27 neighbouring land owner, namely Lembaga Lebuhraya Malaysia.
28 Correct?
29
30 JERRY Yes.
31
32 JYN Now, refer to your Statement of Claim, at para 39. Statement of Claim
33 Bundle A para 39. At page 40 please.
34
35 JERRY Yes.
36
1 JYN Alright. Do you agree that you have said, ‘Thereafter the Eighth
2 Plaintiff made an application to Lembaga Lebuhraya Malaysia vide
3 letter dated 22.07.2017 for permission to divert the concrete drain but
4 LLM had denied the Eighth Plantiff request’.
5
6 JERRY Correct.
7
8 JYN Alright. And you corroborated and confirmed this at your witness
9 statement, Question 35 and Answer 35 as well, right? Your witness
10 statement. Question 35. Can you confirm it is similar to your
11 Statement of Claim as well?
12
13 JERRY Yes.
14
15 JYN Alright. Now, may I refer you to Bundle B1, Mr Pireira?
16
17 JERRY Yes.
18
19 JYN Page 198 please? We have a letter there, Sir?
20
21 JERRY Yes.
22
23 JYN We have. Alright. Would you be able to inform the Court what letter
24 this is?
25
26 JERRY This is a letter from Alamrio Properties to LLM.
27
28 JYN Alright. What are the contents of this letter?
29
30 JERRY It’s us requesting them to allow us to use their land for the diversion.
31
32 JYN Alright. Would I be right to say that Alamrio is asking LLM’s
33 permission?
34
35 JERRY Yes.
36
37 JYN Look at Bundle B1 again, at page 202.
1
2 JERRY Yes.
3
4 JYN What letter is this please?
5
6 JERRY Letter from LLM to one of their departments. Which is DUKE. I think
7 it’s one of the concession owners.
8
9 JYN Alright.
10
11 JERRY I think they are forwarding our matter to them.
12
13 JYN Ok. Now, can you look at page 203 please?
14
15 JERRY Yes.
16
17 JYN Can you please explain to the Court what letter is this?
18
19 JERRY This is from DUKE writing to LLM.
20
21 JYN Would you agree that this letter or according to this letter Mr Pireira,
22 Lebuhraya Duta Ulu Klang to LLM dated 04.09.2014 that they have no
23 objection to Alamrio’s request to divert the concrete drain but subject
24 to conditions? Do you agree?
25
26 JERRY But this letter is not written to us. It’s not towards LLM.
27
28 JYN But you said that LLM has denied. I'm telling you now based on this
29 letter that they did not deny but they said that you can divert but
30 subject to conditions. Do you agree?
31
32 JERRY I disagree. This is DUKE. DUKE is telling LLM that they are ok with it.
33 But LLM have a different response.
34
35 JYN Alright. Now, do you have anything in your bundles, documents that
36 was filed in to Court that LLM has denied Alamrio’s request as
37 pleaded in your Statement of Claim?
1
2 JERRY I don’t think there's anything here.
3
4 JYN So we have no proof whatsoever on records in Court to show that
5 LLM has denied your request to divert the drain. Do you agree?
6
7 JERRY I agree.
8
9 JYN Mr Pireira, you agree you had meetings with DBKL, right?
10
11 JERRY Yes.
12
13 JYN Do you agree that DBKL had informed Alamrio to apply for permission
14 to divert the drain?
15
16 JERRY No.
17
18 JYN May I take you to your Statement of Claim, Bundle A, para 41?
19
20 JERRY Ok.
21
22 JYN You basically wanted DBKL to provide the solution to the problem.
23
24 JERRY Correct.
25
26 JYN Now Mr Pireira, what possible solution do you expect DBKL to come
27 up with if Alamrio did not submit their plan for diversion of the drain?
28
29 JERRY When we met Azrul and his immediate boss, we explained to them
30 that during our meeting with LLM, LLM were not keen to allow us to
31 construct the drain due to the maintenance. They would not want to be
32 liable over the maintenance of the drain. So we advised Azrul to speak
33 to his boss to enforce easement on LLM to move this drain to their
34 land. However, there was no follow-up after that on DBKL’s part.
35
36 JYN Alright. Did you follow-up with any writing to confirm that this meeting
37 took place and this is what was spoken, for record purposes?
1
2 JERRY No.
3
4 [04:15PM]
5
6 JYN And may I refer to Question and Answer 37 if your witness statement,
7 Sir? The question was, why did the Eighth Plaintiff decided to block
8 the concrete drain. Question 37, page 14.
9
10 JERRY Ok yes. Go ahead please.
11
12 JYN Yes. At the very bottom, you did write or you did answer the question,
13 ‘All of us thought that this was an isolated drain’. Correct?
14
15 JERRY Yes.
16
17 JYN And you said that the drain was blocked with the intention to demolish
18 and continue with the piling works.
19
20 JERRY Correct.
21
22 JYN Can I refer you to Bundle B1, page 167?
23
24 JERRY Yes.
25
26 JYN Would you agree that this is a letter dated 12.12.2013 from Midflex to
27 IDE Architect and Alamrio?
28
29 JERRY Yes.
30
31 JYN Correct. Now do you agree that this letter at paragraph 2 clearly states
32 that, ‘We write to inform you that we had discovered a 1.5 times 1.2
33 deep concrete drain running through the site. The source of the drain
34 seem to be coming from the direction of the school adjacent to railway
35 track, running through the site and heading towards the monsoon
36 drain near the TNB reserve. The drain has constant running water
37 flowing in it. Now do you agree with me Mr Pireira, that based on this
1 letter, as early as 12.12.2013 the main con had said the drain had
2 constant running water flowing in it? Do you agree?
3
4 JERRY I agree it’s constant water.
5
6 YA Can you wrap up your present line of questions?
7
8 JYN Very well My Lady. So do you agree that this is not an isolated drain?
9
10 JERRY Excuse me, I think when we say isolated we do not mean the drain is
11 not active. We mean it’s not connected to a large drain network. We
12 mean it’s a single line drain. That’s what we mean by isolated.
13
14 JYN Ok, alright. And you also said that DBKL, once you have blocked the
15 drain, DBKL has threatened to issue summons and stop work.
16 Correct?
17
18 JERRY Yes.
19
20 JYN And they have asked you to remove the blockage.
21
22 JERRY Yes.
23
24 JYN Are you aware that blocking a running drain is an offence under the
25 Streets Drainage and Building Act? Are you aware it’s an offence to
26 block drains?
27
28 JERRY We were not aware because we didn’t think it was their drain. If it’s a
29 private drain we can block it.
30
31 JYN Alright. I put it to you DBKL had advised Alamrio and your consultant
32 to submit plan for diversion but you or your consultants failed to do so.
33 Do you agree?
34
35 JERRY I disagree. We were unable to do so.
36
1 JYN I put it to you that the entire claim is baseless and without proof, Mr
2 Pireira.
3
4 JERRY I disagree.
5
6 JYN The concrete drain was indeed concealed underground and your
7 surveyors had not picked up the concrete drain. Do you agree?
8
9 JERRY Surveyors only pick up things above ground. I don't think they can pick
10 it up underground.
11
12 JYN You don’t think?
13
14 JERRY It’s not possible. They do not excavate and survey items underground.
15
16 JYN Are you familiar with the term electromagnetic utility locator or ground
17 penetrating radar for underground excavation work?
18
19 JERRY It’s not an excavation tool, I think. It’s to radar… it is for a utility
20 deduction.
21
22 JYN Alright. So you are familiar with this?
23
24 JERRY I've heard of this technology before.
25
26 JYN Ok. Alright. I put it to you Mr Pireira that there are technologies
27 available and they are pretty common these days in the industry,
28 alright, to do checking on a particular land if one wants to build a
29 basement carpark.
30
32
33 GNP My Lady, the Defendant has not taken a specific line of defence
34 against the surveyor. It’s only a bare denial and there are no
35 particulars insofar the negligence is concerned in their defence. But
36 now my learned friend is going into introducing evidence of the
37 shortcomings of the surveyor. In fact My Lady, we also propose that
1 the surveyor be part of the witness for the Plaintiff’s case. My Lady
2 has suggested that the surveyors presence is unnecessary. So
3 therefore we have actually amended the list of witnesses.
4
5 YA Are you sure?
6
7 GNP Yes. Surveyor was part of in our list as a witness.
8
9 YA Alright. I'll look into that later.
10
11 GNP So, if the need arises My Lady -
12
13 YA Are we going to call that witness?
14
15 JYN No My Lady. We just based on the letters that we have received.
16 Because whatever evidence I'm soliciting here is based on evidence
17 we have on record under the Common Bundle. So I need to ask those
18 questions if the witness is not aware or he doesn’t know, he is at
19 liberty to say I do not know. It’s not in my purview. He is at liberty to
20 say so, alright. My Lady, there are some questions as to photographs,
21 since My Lady has directed that they have to be marked properly.
22
23 YA Right. Mark them properly.
24
25 JYN Yes.
26
27 YA No. Would that be all for this present witness?
28
29 JYN For this witness, insofar as… I have one more question as to the… no,
30 we have asked the question, dotted line and negligence. Yes, My
31 Lady, I'll be asking on damages.
32
33 YA Alright. We will continue tomorrow.
34
35 GNP My Lady, just one more thing, My Lady. We are supposed to show the
36 CD on the slide.
37
1 YA Not today.
2
3 GNP So when are we –
4
5 YA That is the Defendant’s CD isn't it?
6
7 GNP No, we also have one.
8
9 YA Alright. 09:30AM.
10
11 JYN 10:30AM My Lady?
12
13 YA 9:30AM.
14
15 JYN Much obliged, My Lady.
16
17 JRB Court, bangun.
18
19 AKHIR
20
21 MASA : 4:22PM

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

2 DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA

Hakim Yang Arif Dato’ Hue Siew Kheng YA

Peguam Plaintif Ganesh a/l Perumal GNP

Peguam Defendan Jayananda Rao a/l Simmachalam JYN

SP-1 Aruljothi a/l Kanageretnam ARUL

SP-2 Jerry Dinesh Pireira JERRY

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