remedy presentation

8/18/2019 Remedy Presentation

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• The Plaintif, bought two piece o land and was the lawul attorney or the

registered proprietor o the two piece o land in Kuala Lumpur, known asArea 1 & Area ! "t was a business area which was #ust de$eloping andthe plaintif build a hotel! %e de$eloped a hotel in one land Area 1' and aparking lot on the other land Area '! (hile the )eendant*s land, waslocated in between the Plaintif*s land! To enable ree access, the twoareas or the con$enience o the Plaintif, the Plaintif constructed a

stretch o road right across the )eendant*s land the access road'! The)eendant barricaded the access road by erecting concrete bollards thusobstructing access and thorough are between the two areas the accessroad'!+ cause o action The plaintif*s case was that the construction othe access road was in accordance with the plans appro$ed by theauthorities!

• The plaintif wanted to remo$e the concrete bollards and to restrain thedeendant rom obstructing the plaintif rom ha$ing ree access andthorough are through the access road!

• The )eendant claims that the construction o the access road across its

land constituted a trespass! ot only that, the deendant also restrain theplaintif rom encroaching onto and-or using the access road and also to

FACTS OF THE CASE


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ISSUES

(hether Plaintif is entitled to remo$e theconcrete bollards.

(hether Plaintif can apply to restrain the)eendant rom obstructing access and

thorough are between the two areas the

access road'


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PLAINTIFF’S CASELOCUS

STANDIGovernment of Malaysia v Lim it Sian! "A#$%l Hami$ C&'(•Plaintif must possess an interest in the issues raised in the proceedings•(here the pri$ate interest o plaintif relies on the interest o public,plaintif has to get A/ consent to create the relator relationship

0 2 304 5 a party beore commencing a ci$il action must pro$e that shehas ad$ersely afected because o the act o another party

)S* +ran$s +,$ v S%r%,an-aya Se.%riti / Anor•or an applicant to pass the ad$ersely afected test, the applicant has to atleast show he has real and genuine interest in the sub#ect matter!

+ASED ON THE P*ESENT CASE(•%e was the lawul registered attorney or the registered proprietor o twopieces o land•Plaintif has constructed the access road through )eendant*s land whichis in the middle' in accordance with the plans appro$ed by the authorities!•

%ence because o )eendant*s action on barricaded the access road byerecting concrete bollards thus obstructing access and thorough are


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CAUSE OFACTION

The cause - set o circumstances which leads up to an action in court!

Leetan! v Coo0er• 4ause o action is a actual situation, the e6istence which entitles oneperson to obtain remedy rom the court against another person

+ASED ON THE P*ESENT CASE• The cause o action accrued when )eendant barricaded the access road by

erecting concrete bollards thus obstructing access and thorough are betweenthe two areas the access road'!

TIMELIMITATION

• As the sub#ect matter o this suit is concerning land, thus according to7ection 8 o Limitation Act pro$ided where an action is made in respect oland and the reco$ery thereo, the period o limitation would be 1 years

•%owe$er, based on this case there is no date-time stated thus assuming it isstill within limitation period, Plaintif can take action!


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LA1APPLICA+L

ENATIONAL LAND CODE 2345

According to section 673"2' o L49A land administrator*s right o way may be either9a'Pri$ate right o way: orb'Public right o way

1HAT ISLA*O1

LAND ADMINIST*ATO* *IGHT OF 1A8 7ection 677 o L4

"t is a right o way created by the Land Administrator o$eralienated land, to pro$ide access rom that land to a publicterminal!


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ELA+ *ENANG PULAU PINANG 9 PENTAD+I* TANAH DAE*AHTIMU* LAUT: PULAU PINANG / ANO* ;? 4 ML& 26>

•A pri$ate o way created or the bene;t o the state

authority or the proprietor or occupier o any alienated landis reerred to as a pri$ate right o way 5 s! 2


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HO1 TO APPL8FO* LA*O1B

Setion 63="2' of NLC The proprietor or occupier o any alienated countryland may apply to the Land Administrator in ?orm


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•"n the present case, the plaintif has acuiredappro$al rom the land authorities on the plan o theroad!

• This means, the Land Administrator has granted apri$ate right o way to the plaintif or the constructiono the access road!•"t is no longer an arguable issue as it is a settled lawthat Land Administrator has the right to grant a pri$ate

right o way in the case where he ;nds it is expedient to do so!7tated in Si Rusa Inn Sdn Bhd & Ors v TheCollector of Land Revenue, Port ickson & Ors !"#$% " 'L( ")%'

• The )eendant has no right to restrain the Plaintifrom using the road to access to the Plaintif*s landArea 1 & '!•

Thereore, the Plaintif in his prayer9i! or the )eendant to remo$e the concrete bollards:


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*EMED8

1' The Plaintif is entitled to apply orprohibitory in#unction towards the)eendants by remo$ing the

concrete bollards and restraining)eendants rom obstructing Plaintifin accessing the road reely

' The Plaintif may claim or generaldamages or the lost he has suferedin his business along the time that)eendant barricaded the accessroad


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DEFENDANT’S

CASEISSUES

(hether Plaintif has done an act otrespass on the deendant*s land.

(hether land administratorauthority' is

correct in granting pri$ate*s right o way tothe Plaintif.


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1HATCONSTITUTEST*ESPASS TO

LANDB

1! Bental state o trespasser There e6ists an intention to trespass The act was done $oluntarily The intererence is oreseeable as a

conseuence o the trespasser*s act!! "ntererence

entering land in another*s possession3emaining on another*s landCntering or placing an ob#ect on

another*s land"ntererence to airspace


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LA*O1 ISSUE

LA30( is created by the Land Administrator o$er alienated land topro$ide access between any land and a public terminal with orwithout concurrence rom the proprietor

"n the case o ela# *enan! P%la% Pinan! v@ Penta$#ir Tana,:Daera, Tim%r La%t: P%la% Pinan!/Anor , it diferentiate the

meaning o Dpri$ateE and DpublicE!

pri$ate right o way created or the bene;t o the state authority orthe proprietor or the occupier o the alienated land!

pri$ate right o way created or the bene;t o the public is reerred

to as a public right o way!

?rom the situation gi$en we can see that the intention o thePlaintif in constructing the hotel and the parking lot is or thecommercial purpose!the access road built by the Plaintif is or the public purposes and the

land administrator in this case is ma.in! ron! $eision in!rantin! 0rivate ri!,t of ay to t,e Plainti@


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The other issue is whether it is e6pedient to create a right o way!

C6pedient means more than mere con$enience or pleasure!

4ase9 Si Rusa Inn Sdn* Bhd* & Ors* v* The Collector Of LandRevenue, Port ickson & Ors

a 4ollector must be satis;ed that access was not otherwisereasonably a$ailable and that the word FreasonablyF did not meanFcon$enientlyF!

3espondent in this case wanted a shorter, or much shorter route tothe sea or swimming and allied acti$ities!

"n this case, the right o way does not granted because there isanother alternati$e route and there is no urgent necessity

"ncon$enience*s actor is not the good reason to apply right o way!

(hen we look into the situation gi$en, there is no urgent necessity orthe land administrator to grant right o way! Land administrator makewrong decision in granting the right o way to the Plaintif!


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*EMED8

2@ General $ama!es. Geore damages could be awarded, two elements must be ul;lled:trespass has actually occurred. %e has sufered some damage as a result o the trespass!. %owe$er, it must be noted that trespass to land is actionable per se in thesense that it does not reuire the pro$e o damage as long as an act otrespass has been established!

On! A, Lon! v Dr S Un$eroo$ ;2376? < ML& 6

. /eneral damages are simply compensation that will gi$e the in#ured partyreparation or the wrongul act and or all the natural and directconseuences o the wrongul act so ar as money can compensate! "t is akind o damages that the law presumes a person will incur as a conseuenceo a tort!

. (hen the plaintif encroached onto the deendant*s land, the afectedland was damaged due to the plaintif*s conduct in constructing a stretch

road across the deendant*s land! The land was badly afected that thedeendant would not be able to repair it immediately and e$en i the


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The third possible remedy that the deendant couldseek or is in#unction! "n#unction simply means anorder rom the court pre$enting a repetition o the

deendant*s act or it may be an order to do somethingpositi$e! This is an additional remedy and may beobtained in addition to general damages wheredamages alone are not suHcient as a remedy!

"n this case, the deendant can apply or an order oin#unction reuiring the plaintif to cease his act intrespassing onto the deendant*s land! The applicationor this in#unction could be made interlocutory during

the commission o the act alleged and that the orderthat will be issued later is ser$ed as a temporaryprohibition beore the case is brought to the court! "tsunction is to pre$ent the alleged trespass rom

continuing until the case is decided!


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CONCLUSION

Thereore, the deendant in hisprayer could claim or

/eneral damagesC6emplary damagesProhibitory in#unction

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