Trespass and Calculation of Damages in Malaysia (Case Study)
Zeus Enterprise Sdn Bhd & Tan Heritage Sdn Bhd v Gan Heow Kit & Ors [2024] CLJU 1878 – Melaka High Court
Introduction
When land is wrongfully encroached upon, Malaysian courts can award different categories of damages to compensate the landowner. In the High Court decision of Zeus Enterprise & Tan Heritage v Gan Heow Kit, the court dealt with prolonged trespass involving hoardings, removal of fencing, destruction of cement blocks, and even airspace encroachment.
This case is particularly important because it illustrates how damages in trespass cases are assessed and quantified.
Types of Damages Awarded in Trespass
The plaintiffs claimed losses for both physical damage to their land and ongoing interference with their property rights. The court ultimately awarded three categories of damages:
- Special Damages (RM181,471.37)
- These represent actual financial losses suffered by the plaintiffs.
- In this case, special damages covered expenses incurred to protect their property, including costs of erecting fences, installing cement blocks, hiring security, and conducting repeated surveys.
- The plaintiffs successfully proved these sums with invoices, receipts, and surveyor reports.
- General Damages (RM63,000.00)
- General damages are awarded for loss of use and enjoyment of land.
- Unlike special damages, these do not require exact proof of monetary loss.
- The court assessed a reasonable sum to compensate the plaintiffs for the continuous disturbance, inconvenience, and deprivation of their land during construction.
- Exemplary Damages (RM70,000.00)
- Also called punitive damages, these are awarded to punish defendants for particularly high-handed, deliberate, or oppressive conduct.
- In this case, despite repeated complaints, MBMB warnings, and police reports, the defendants persisted in trespassing.
- The court therefore imposed exemplary damages to deter similar conduct in future development disputes.
- Interest on Damages
- The total of RM314,471.37 was subject to 5% interest per annum from the filing of the writ (12 January 2017) until full settlement.
- This ensures plaintiffs are not disadvantaged by the passage of time between filing and judgment.
Why the Court Took a Strict Approach
The court emphasized several aggravating factors in calculating damages:
- The defendants knew by October 2016 that the adjoining lots belonged to the plaintiffs but still continued encroachment.
- Orders from MBMB to stop work and remove hoardings were ignored.
- Plaintiffs’ attempts to protect their land (metal poles, chain link fencing, cement blocks) were repeatedly undone.
- Trespass extended even to airspace, with cranes, scaffolding, and mixers projecting into plaintiffs’ land.
- The defendants’ own pleadings admitted that there was “no access to Lot 230 except through Lot 449,” effectively confirming reliance on trespass.
Because of this defiant and persistent conduct, the court held that ordinary damages were not enough and that punitive measures (exemplary damages) were justified.
Legal Principles on Damages in Trespass
From this case, several key principles emerge on how Malaysian courts calculate damages in trespass claims:
- Special damages must be strictly proven with documentary evidence.
- General damages are discretionary – awarded for inconvenience, loss of enjoyment, or interference with property rights.
- Exemplary damages may be awarded where the trespass is deliberate, persistent, and oppressive.
- Interest is awarded to ensure fair compensation until full payment.
- Even if trespass has ceased, damages remain payable for the period of unlawful occupation or interference.
Reminders for Landowners and Developers
This judgment sends a strong message, which are:-
- For landowners, it shows that courts will fully compensate both actual losses and intangible harm caused by trespass.
- For developers and contractors, it is a warning that ignoring land boundaries and municipal orders can lead to heavy financial liability, including punitive damages.
Conclusion
In Zeus Enterprise & Tan Heritage v Gan Heow Kit, the High Court awarded over RM314,000 plus interest against the defendants. The calculation of damages demonstrates that Malaysian courts take trespass seriously, awarding not only compensation for proven losses but also punitive sums to deter misconduct.
This case is now a guiding precedent on how damages for trespass are quantified in Malaysia, balancing fairness to landowners while punishing deliberate encroachment.
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Disclaimer: The above proposition is subject to actual facts and circumstances and shall never be referred as the actual law without seeking legal advice. Consult us for more information!