1. ) Hee Kee Liong 2. ) Hee Chun Keet v PJS TYRE AUTO SERVICE SDN BHD

Case Significance

Illustrates the principles governing joinder of parties and the doctrine of continuing trespass, which fixes liability on the current proprietor of the encroaching land rather than a predecessor in title, so that a former owner is not a proper party to the claim.

This High Court decision at Shah Alam concerns an application to add a party in a land-trespass action. The plaintiffs alleged that the defendant, the registered proprietor of an adjoining lot, had trespassed on their land through fencing and structures that encroached upon it — a continuing trespass, recurring from day to day. In the application before the court, the defendant sought to add the previous proprietor of the defendant's land as a co-defendant, invoking Order 15 and the court's inherent jurisdiction under the Rules of Court 2012. The court examined whether the previous proprietor was a proper party to the proceedings and held that she was not. The action was framed around a continuing trespass, and once the previous proprietor had ceased to own the land, the continuing encroachment concerned only the defendant as the current proprietor; any consent that might have been granted to a previous proprietor to enter the encroached area did not bind the new proprietor, and the defendant's own liability for the continuing trespass could not be shifted onto a former owner who no longer held the land. Applying authority on who may properly be joined, the court concluded that the previous proprietor was not a necessary or proper party whose presence was required to resolve the questions in the action. The court observed that adding a former owner who no longer held the land would not assist in determining whether the encroaching fencing and structures should be removed, and would only complicate proceedings directed at the party actually in a position to abate the trespass. It accordingly dismissed the application to add her as a co-defendant, with costs of RM3,000 subject to allocatur. The judgment is a useful illustration of the principles governing joinder of parties, and of how the doctrine of continuing trespass fixes liability on the current proprietor of the offending land rather than a predecessor in title.