The Federal Court recently decided that a condition attached to the approved building plans had to be interpreted in an engineering context, and not in its plain language.
Jade Homes Sdn Bhd v Sivananthan a/l Krishnan [2021] 7 CLJ 487 concerned an apparent conflict between the building plans, and a condition attached to those plans, regarding what is to be built at the slope bordering the boundary between the plaintiff’s and his neighbour’s property. The building plans were approved with conditions by Majlis Perbandaran Kajang (MPKJ).
The building plans indicated that a slope and rubber wall is to be built (see para 19). Whereas condition 8 attached to the those plans – the plaintiff argues – required a reinforced concrete wall (RC wall) to be built (see paras 6, 55). Condition 8 stipulated the following – “Hendaklah mengadakan tapak dinding konkrit bertetulang bagi perbezaan aras platform yang melebihi 1200mm” (see para 78)
Interpret in Engineering Context, Not Literally
To resolve the conflict, the Federal Court held that condition 8 had to be interpreted in an engineering context, and not in its plain language (see para 81). That condition contained terms used by a particular class of people, namely the local authorities, MPKJ and those involved in the construction industry. As such, the court will give effect to the meaning in condition 8 used by that particular class of people, instead of any literal interpretation (see paras 89, 90).
Using the approach above, the Federal Court found that condition 8 required the building of a RC wall only when two platforms with a level difference exceeding 1200mm are immediately adjacent to each other (see para 81).
That interpretation in an engineering context was mainly based on the opinion evidence of an engineer (DW5) and an architect (DW6); see para 87.
Opinion Evidence by Non-Expert Witness
As a general rule, witnesses can only testify as to facts but not as to their opinion. A well known exception to the general rule is the evidence of expert witnesses, which can consist of their opinion.
Another exception is that non-expert witnesses are able to give opinion evidence, but in the limited circumstances prescribed in s 47 to 50 of the Evidence Act 1950 (see para 69). One of those limited circumstances is when the meaning of words used by a particular class of people is in issue. In that circumstance, a non-expert witness who has “special means of knowledge” can give his opinion on the meaning of the words involved.
Here, the Federal Court accepted the opinion of DW5 and DW6 on the meaning of condition 8. DW5 was a professional engineer, with more than 20 years’ experience in civil & structural works (see paras 19, 84). DW6 was an architect, and the superintendent officer of the project in question (see paras 21, 86). Being involved in the construction industry, DW5 and DW6 were regarded as persons having special means of knowledge on the meaning of the condition imposed by the local authorities (see para 90).
Jade Homes is a welcome decision, providing guidance on the approach for interpreting construction documents, and the role of non-expert opinion in that process.
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