FENG JIN TEXTILE SDN.BHD v SEGAR A/L R.RETNAM

Case Significance

Illustrates the treatment of continuing trespass by the disposal of waste, holding a company and an individual liable and imposing a daily payment until the offending material is removed, while revising quantum in the landowner's favour on appeal.

This High Court decision at Taiping concerns cross-appeals from a Sessions Court judgment in a trespass action arising from the disposal of waste on the plaintiff's land, and the principles governing appellate interference and the assessment of damages for continuing trespass. The plaintiff, a landowner, had sued the first defendant company together with a second defendant individual and a third defendant company for trespass committed by dumping waste on his land; the claim against the third defendant was later withdrawn. The first defendant appealed against both liability and quantum, contending that the Sessions Court judge had erred in finding it liable for the acts of the second defendant, while the plaintiff cross-appealed on quantum. The issues included whether the defendants had committed trespass by disposing of waste on the plaintiff's land, whether trespass is actionable per se without proof of damage, whether the trespass was a continuing one, and whether exemplary damages were appropriate. The Court, applying the standard for appellate interference with a trial court's findings, found on a balance of probabilities that the first and second defendants were liable for the trespass committed on the plaintiff's land. It allowed the plaintiff's cross-appeal against quantum and dismissed the first defendant's appeal against liability and quantum with costs. In addressing the continuing nature of the trespass, the Court's orders included a sum of RM500 per day, payable from seven days after the date of the order until all the residues from the fire had been removed from the plaintiff's land — a figure the Court noted was still less than the RM1,000 daily fine that could have been imposed had a prosecution ensued. The decision illustrates how a court addresses ongoing trespass through a daily payment designed to secure removal of the offending material. The Court's approach also reflects that trespass to land is actionable without proof of special damage, so that a landowner may obtain relief on establishing the unauthorised entry and deposit of material, and that where the intrusion persists the court may fashion an order aimed at bringing the continuing wrong to an end.