Filed on behalf of [Respondent]

Team 10 MOOT

HUNGER GAMES MOOTING COMPETITION 2019

IN THE

COURT OF APPEAL UNIVERSITI TEKNOLOGI MARA SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN

THE CASE BETWEEN

1. Shah Alam Sudahjual Bhd (SAS) …APPELLANT

AND
2. Mr. Beh Lee Lah (BLL) …RESPONDENT

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 Table of Contents

CONTENT PAGE

List of Authorities 3

Statement of Facts 4

Arguments 5

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 LIST OF AUTHORITIES

CASES
1. Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ
389

2. Donoghue v Stevenson [1932] AC 562

3. Anns v Merton London Borough Council [1978] AC 728

4. Smith v Eric S Bush [ 1990] 1 AC 325

5. Pendaftar dan Pemeriksa Kereta-Kereta Motor v KS South Motor Sdn Bhd [2000] 2
AMR 1838, CA

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 STATEMENT OF FACTS

Shah Alam Sudahjual Bhd (SAS) is a pioneer of the ‘build and sell method’ of housing
development. The company is incorporated in December 2013. On 25 January 2015 SAS
completed the construction of two blocks of condominiums at the top of Bukit Jelutong, Shah
Alam, which known as Casa Impian Barat (CIB) while the other block facing east named as
Casa Impian Timur (CIT).
The respondent is known as Mr Beh Lee Lah (BLL). On 26 January 2015, Encik
Lazir Milas Abdullah (LMA), LMA informed BLL that there were two condo units left for
sale, one on the first floor of Casa Impian Barat (CIB-1-001) and another on the penthouse
floor of Casa Impian Timur (CIT-P-007).
BLL purchased the penthouse and paid the sum RM 3 million in cash for condo unit
CIT-P-007, Casa Impian Timur. However, SAS warrants that the aforementioned properties
shall be free from defect for a period of 12 months from the date of signing the sale and
purchase agreement which referred as ‘warranty period’. This sale and purchased is subject to
Sudahjual Bhd’s standard exclusions at
http://www.sudahjual.net/exclusion/fineprint/microscopic. One of the exclusions on the
webpage stipulates that
“The seller shall not be responsible for any defect(s) to the property named in the
relevant sales and purchase agreement between the Buyer and Seller after the warranty
period. The Seller shall also bear no liability for any consequences whatsoever arising from
any such defect in the condo unit”.
Mr BLL move into the penthouse, CIT-P-007 on 1 February 2015 and decorated the
place with expensive antiques worth RM 5 million. On 1 January 2017, BLL found out that
the condo unit on the first floor of Casa Impian Barat, CIB-1-001 was still on sale and
decided to buy the unit for the purpose of storing his antiques since his penthouse was getting
a little crowded.
Mr BLL purchased CIB-1-001 on 2 January 2017 for RM 2 million. The purchased
was on similar terms as the penthouse. Mr BLL then moved half of his antiques worth RM
2.5 million into CIB-1-001.
However, on 14 February 2018, Casa Impian Barat collapsed but Mr BLL escaped the
tragedy because he was in his penthouse in Casa Impian Timur. According to an investigation
made by the Shah Alam Municipal Council (SAMC), Casa Impian Barat was build on
improperly laid foundations because SAS wanted to maximize its profits and only carried out
half of the required piling.
Meanwhile, the value of condo units in Casa Impian Barat dropped , which Mr BLL
penthouse is now only worth RM 100,000. Although a survey confirm that Casa Impian
Timur was still structurally sound, people no longer wanted to live in that block for fear of
the same incident could happen again.

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 ARGUMENTS

2. Respondent claim in negligence for pure economic loss suffered due to drop in the
value is valid.
2.1. Respondent and appellant has a close proximity of relationship.
2.1.1. The issue whether the developer owned duty of care towards the buyer.
2.1.2. As said in Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon:
“To make out a case against a defendant in the tort of negligence, a plaintiff
must establish four ingredients. First, he must show that he was owned a duty
by the defendant to take reasonable care. Second, that the defendant breached
that duty. Third, that the resultant breach caused that harm in question; and
fourth that he (the plaintiff) suffered damage that was not too remote.”
2.1.3. Referred to the case of Donoghue v Stevenson [1932] AC 562, the court
held the defendant liable, by applying the neighbour principle. Manufacturers
have a legal duty of care to the ultimate consumers of their products if it is not
possible for defects to be identified before the goods are received.
2.1.4. However, compared to Smith v Eric S Bush [ 1990] 1 AC 325, the
Federal Court upheld the Court of Appeal decision that there was no
assumption of responsibility by the defendant since there was no proximity of
relationship between the parties.
2.1.5. In this case, appellant is seller, and respondent is the buyer, therefore
there is contract between them. The proximity test was fulfilled.

2.2. The appellant breach duty of care.

2.2.1. In Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia
Consultant & Ors, The failure of the engineering consultants to determine the
soil condition to a high degree of the certainty was a breach of the implied
term of its appointment to take reasonable care, which also breaches of
professional duties. Therefore, the engineering consultants are liable to Hamid
for negligence and breach of contract.
2.2.2. As referred to Steven Phoa Cheng Loon & Ors v Highland Properties
Sdn Bhd & Ors, the second defendant, was the purported architect of
Highland Towers, has breached his duty of care to the plaintiffs. He had failed
in his duty as an architect and had refused to comply with the requirements
imposed by the authorities on the drainage of the area.
2.2.3. Therefore in this case, the appellant breach his duty of care to the
respondent, by only carried out half of the required piling.
,

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 2.3. Respondent suffered damages due to appellant breach of duty.
2.3.1. In addition to a duty and a breach of duty, the plaintiffs, in order to
recover, must establish that the defendant caused their loss. Normally, the test
employed to decide the causation issue is the ‘but for’ test. If the accident
would not have occurred but for the conduct of the defendant, there was
causation.
2.3.2. In Caparo Industries plc v Dickman And Others [1990], as we apply the
‘but-for’ test to this case, the auditor was not liable
2.3.2. To apply to this case, if CIB-1-001 didn’t collapse, the value of CIT-P-
007 wouldn’t have dropped.

2.4. The loses due to drop in value is foreseeable by both parties.

2.4.1. Plaintiff fail to formulate and implement of required pilling which
caused damages incurred by respondents, and therefore resulted in the drop of
respondent’s condo value. The elements of foreseeability and proximity were
clearly discernible from established facts.
2.4.2. Furthermore, in the case of Steven Phoa Cheng Loon & Ors V.
Highland Properties Sdn Bhd & Ors, defendant was found liable for not
reasonably foresee the danger of a landslide producing lateral road against the
foundation of the building even the usage of the rail piles was approved by
professional practice at the time.
2.4.3. In the case of Pendaftar dan Pemeriksa Kereta-Kereta Motor v KS
South Motor Sdn Bhd [2000] 2 AMR 1838, CA, the Court of Appeal rejected
he defendant’s argument that to impose a duty on them to ensure that
particular s of registered vehicles are too burdensome.Therefore, the
defendants were held liable as there was foreseeability and proximity between
the parties.
2.4.4. To apply to this case, the appellant should put enough piling for CIB-1-
001 since it is foreseeable for them take reasonable care towards the
respondent.
As the conclusion. Respondent and appellant has a close proximity of
relationship and the loses due to drop in value is foreseeable by both parties.
Therefore respondent claim in negligence for pure economic loss suffered due
to the drop in the value is valid.

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 Prayers for Relief
1. The appellant shall be liable for breach of contract with respect to CIB-1-001
2. The appellant shall be rewarded the claim for pure economic loss with respect to
CIT-P-007.
With that, I thank the court for its time & indulgence.

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