A recent case contributed to an important development in Malaysian jurisprudence on joint and several liability involving property developers and local authorities. This decision demonstrates that separate acts or omissions may result in joint and several liability for the same loss where their effects are causally intertwined and the resulting damage cannot reasonably be divided.
In Adnan bin Azizon & Anor v Fame Modulation Sdn Bhd (in liquidation) & Datuk Bandar Kuala Lumpur [High Court of Malaya at Kuala Lumpur, Civil Suit No. WA-22NCVC-411-07/2022, 24 April 2026], a retired police officer and his wife commenced proceedings after excavation, piling and construction works for a neighbouring 29-storey commercial development caused cracks and serious structural damage to their matrimonial home in Alam Damai, Cheras.
The Developer undertook to repair the Plaintiffs’ house and reimburse RM2,500 per month for alternative accommodation, but the repairs were not completed and the Plaintiffs ultimately had to finance the necessary demolition, reconstruction and repair works themselves.
The High Court held both the Developer and DBKL jointly and severally liable, finding that the Developer’s negligent development works and DBKL’s failure to adequately enforce its conditions and Stop Work Orders contributed to the same indivisible damage.
The Court awarded RM1,316,179.10 in damages, together with 5% interest per annum from the date of judgment until full payment and RM100,000 in costs.
BACKGROUND OF THE CASE
The Developer was the registered proprietor of Lot 41096, Jalan Alam Damai, Kuala Lumpur, where it developed the 29-storey Montena Sovo Suites. The Plaintiffs’ matrimonial home was immediately adjacent to the development, and cracks began appearing following excavation and piling works.
A landslide occurred on 31 December 2014, causing fissures on the neighbouring road, collapse of the drain beside the Plaintiffs’ house and larger cracks to the property. DBKL subsequently issued a Stop Work Order on 5 January 2015.
DBKL withdrew the Stop Work Order on 27 January 2015, allowing construction to resume. Fearing for their safety, the Plaintiffs and their four children moved into rented accommodation, while the Developer later undertook to carry out repairs and reimburse rental at RM2,500 per month.
The repairs were ultimately not completed and rental payments ceased in 2019. The Plaintiffs had to engage their own contractors to demolish and rebuild the damaged portions of the house, and only returned home in January 2025 — almost 10 years later.
WHEN REGULATORY PROTECTION DOES NOT PROVIDE A COMPLETE SHIELD
DBKL relied on section 95(2) of the Street, Drainage and Building Act 1974, which provides considerable protection to a local authority in relation to its inspection and approval functions. DBKL argued that this statutory protection shielded it from liability.
The Court rejected an absolute interpretation of that protection. Relying on Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors, the Court held that section 95(2) does not protect a local authority where its own conduct creates or contributes to a foreseeable danger and it subsequently fails to ensure that the risk is adequately controlled.
DBKL also argued that the Plaintiffs should have proceeded by judicial review. The Court rejected this because the Plaintiffs were not seeking to invalidate DBKL’s approval or administrative decision, but were instead pursuing a private law negligence claim for damages.
DBKL’s limitation defence under section 2(a) of the Public Authorities Protection Act 1960 was similarly rejected. The 1st Plaintiff first complained to DBKL on 16 June 2014, followed by a formal complaint on 22 October 2014, while the action against DBKL was only filed in July 2022.
However, the Court found that the alleged wrong was not confined to 2014: DBKL issued a Stop Work Order on 5 January 2015, withdrew it on 27 January 2015, and issued another Stop Work Order on 5 July 2017 which was again withdrawn without the Developer complying with the conditions imposed. The Court therefore treated the matter as an ongoing wrong, rather than a single isolated event occurring when the first cracks appeared.
ISSUE 1: HOW DID DBKL BECOME JOINTLY LIABLE WITH THE DEVELOPER?
The Developer and DBKL committed different wrongs. The Developer was responsible for the negligent excavation, piling and earthworks, while DBKL was liable for failing to properly enforce its own conditions and Stop Work Orders despite repeated complaints from the Plaintiffs.
The Court relied on the Federal Court decision in Majlis Perbandaran Ampang Jaya v Steven Phoa, commonly known as the Highland Towers case. That decision recognised that different defendants may commit separate acts of negligence but still be liable where their conduct ultimately contributes to the same damage.
Steven Phoa applied the principle in Malaysian National Insurance Sdn Bhd v Lim Tiok that tortfeasors do not need to act together or pursuant to a common plan. Separate torts may give rise to liability where they occur substantially contemporaneously and contribute to the same or indivisible damage.
Both elements were satisfied in this case. The Developer’s works and DBKL’s failures in supervision and enforcement operated during substantially the same period, while the resulting structural damage could not reasonably be divided between the two Defendants.
ISSUE 2: THE PRACTICAL EFFECT OF JOINT AND SEVERAL LIABILITY
The Court found the Plaintiffs’ loss to be indivisible. There was one damaged house, one displaced family, one period of alternative accommodation and one programme of demolition, reconstruction and repair, with no reliable basis to allocate particular losses to either Defendant.
The consequence was that the Plaintiffs were entitled to judgment for the whole loss against each Defendant. They were not required to identify which crack, rental payment or repair cost was attributable specifically to the Developer and which was caused by DBKL’s regulatory failures.
This was particularly important because the Developer was already in liquidation. DBKL was not made liable simply because it had greater financial resources; its liability arose from its own negligent conduct. However, joint and several liability meant that the Plaintiffs were not dependent solely on recovery against an insolvent Developer.
The Court also considered Lembaga KWSP v Edwin Cassian in explaining the practical effect of joint and several liability. A successful plaintiff may pursue liable judgment debtors until the judgment is fully satisfied, but the principle does not permit double recovery beyond the total loss awarded.
CONCLUSION: THE PRACTICAL EXPOSURE FOR LOCAL AUTHORITIES
DBKL did not physically carry out the excavation, piling or earthworks which damaged the Plaintiffs’ house. Its liability arose because its own failures in supervision and enforcement were found to have contributed to the continuation and aggravation of the same damage.
The case does not mean that every complaint against a developer will automatically expose a local authority to liability. The Court’s conclusion depended on the particular evidence, including repeated complaints, regulatory conditions, Stop Work Orders and the continuation of development works despite those circumstances.
However, where the negligence of a developer and a local authority operate during the same period and contribute to the same indivisible loss, the local authority may be exposed to joint and several liability for the whole judgment, subject to the rule against double recovery.
The significance of this case therefore goes beyond an ordinary construction-negligence dispute. It represents an important development in Malaysian jurisprudence on joint and several liability involving property developers and local authorities, demonstrating that separate acts or omissions may result in liability for the same loss where their effects are causally intertwined and the resulting damage cannot reasonably be divided.
For further information, please contact Dato’ George Miranda at george@mirandasamuel.com.
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– By George Miranda, Joy Sam Jia Qian, Amir Faiz –
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.
