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1666
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Chow Vanice
 Dato Manokaran Veraya v Perbadanan Pengurusan Apartmen Kayangan
and another appeal [2018] MLJU 1666
Malayan Law Journal Unreported

COURT OF APPEAL (PUTRAJAYA)

LIM YEE LAN, SURAYA OTHMAN AND YEOH WEE SIAM JJCA
CIVIL APPEAL NOS C-02(NCVC)(W)-198–01 OF 2017 AND C-02(NCVC)(W)-393–03 OF 2017
29 November 2018

MR Kumar (Moses Susayan and N Yohendra with him) (Netto & Yohendra) in Civil Appeal No C-02(NCVC)(W)-
198–01 of 2017 for the appellant.
Ho Koko Yiew (Erin Woong with him) (Balendran Chong) in Civil Appeal No C-02(NCVC)(W)-393–03 of 2017
for the appellant.
Ho Koko Yiew (Erin Woong with him) (Balendran Chong) in Civil Appeal No C-02(NCVC)(W)-198–01 of 2017
for the respondent.
MR Kumar (Moses Susayan and N Yohendra with him) (Netto & Yohendra) in Civil Appeal No C-02(NCVC)(W)-
393–03 of 2017 for the respondent.

Suraya Othman JCA:

JUDGMENT OF THE COURT

INTRODUCTION

[1] There are two appeals before us which were consolidated and heard together by virtue of this Court’s order on
25.4.2017. The appeals are as follows:
(a) Appeal No. C-02(NCVC)(W)-198-01/2017 (“Appeal 198”), appeal by Dato’ Manokaran Veraya, who was
the plaintiff in the High Court; and
(b) Appeal No. C-02(NCVC)(W)-393-04/2017 (“Appeal 393”), appeal by Perbadanan Pengurusan Apartmen
Kayangan who was the 3rd Defendant in the High Court.

[2] For ease of reference, parties will be referred to as they were in the High Court i.e. Dato Manokaran Veraya as
the Plaintiff and Perbadanan Pengurusan Apartmen Kayangan as the 3rd Defendant.

[3] The consolidated appeals emanate from the High Court’s decision given on 13.12.2016. Appeal 198 is an
appeal by the Plaintiff against the High Court’s decision in dismissing the Plaintiff’s claim against the 3rd Defendant
for nuisance, and allowing the 3rd Defendant’s counter-claim for the outstanding maintenance charges in the sum
of RM 56,578.79. As for Appeal 393, it is an appeal by the 3rd Defendant against the High Court’s order that the
existing Common Area Construction be demolished and removed permanently.
BACKGROUND FACTS

[4] The Plaintiff is the legal and beneficial owner of an apartment unit known as Unit No: KY 1424 Kayangan
Apartments, Genting Highlands, Pahang Darul Makmur (“the said apartment”)

[5] In the Original Action, the Plaintiff’s claim was primarily against the 1st, 2nd and 4th Defendants, who were the
occupiers/tenants of Unit KY 11424 as well as the 5th Defendant, who is the owner of Unit KY 11424 (“Relevant
Defendants”). The cause of action against the Relevant Defendants was premised on nuisance and trespass
suffered by the Plaintiff as a result of the conversion of a residential unit (“Unit KY 11424”) into a restaurant
(“Restaurant”).

[6] The claim against the Relevant Defendants was subsequently resolved by way of a Consent Order where the
said Relevant Defendants agreed to cease operating the Restaurant.

[7] The 3rd Defendant was brought into the Original Action on the allegation that it had breached its duty as the

Chow Vanice
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management corporation, purportedly for its failure and neglect to cause the said Restaurant to cease operation.
Subsequently, the 3rd Defendant instituted a counter-claim against the Plaintiff, claiming for the payment of service
and maintenance charges and other arrears.

[8] The Plaintiff responded vide a counter-claim to the counter-claim of the 3rd Defendant, inter alia, pleading that
the 3rd Defendant had allowed the lobby of Kayangan Apartments (“the Building”) to be unlawfully converted for
commercial use i.e. the Restaurant and a mini market.

[9] The denouement of the parties’ claim and counter-claim against each other was disposed of partly in favour of
the Plaintiff and partly in favour of the 3rd Defendant. The learned High Court Judge (“learned Judge”) decided as
follows:
(a) That the 3rd Defendant did not have the power to lawfully convert the common lobby of the building into a
Restaurant and mini market premises for commercial use and to derive an income from it;
(b) That the 3rd Defendant is ordered to restore the lobby area of the building to its original condition as per
the Sale and Purchase Agreement between the owner and developer;
(c) That the 3rd Defendant is to restore the main entrance of the building to its original condition as per the
Sale and Purchase Agreement between the owner and developer;
(d) That the 3rd Defendant is given three months from the date of the Judgment to restore the lobby and main
entrance of the building to its original condition;
(e) That all costs relating to restoring the lobby and the main entrances to its original condition is to be borne
by the 3rd Defendant.
(f) That the Plaintiff’s claim for damages and exemplary damages is dismissed, and the Court made no
findings as regards to the Plaintiff’s claim for the tort of nuisance.
(g) That the 3rd Defendant’s counter-claim for the Plaintiff to pay the maintenance charges as of 16.8.2013 to
the 3rd Defendant in the sum of RM56,578.79 inclusive of interest at 3% per annum from the date of filing
the counter-claim until full realization, is allowed;
(h) That the 3rd Defendant’s counter-claim for damages and exemplary damages against the plaintiff are not
allowed; and
(i) That both parties are to bear their own costs.

FINDINGS OF THE HIGH COURT

[10] The findings of the learned Judge in her grounds of Judgment (“GOJ”) can be summarised as follows:
(a) The 3rd Defendant’s submission that they had obtained the authorisation to convert the common area in
the building from the Bentong Municipal Council is doubtful.
(b) SD2 who was responsible in approving the 3rd Defendant’s application, in his evidence in Court, stated
that his decision in approving such application was based on a complete reliance on the endorsement
made by the architect, Puan Ruziati, as well as by looking at the plan.
(c) SD2 was completely in the dark on the fact that the 3rd Defendant’s application, which was approved by
him, was to convert the common area of the Building into a Restaurant and a mini market.
(d) SD2 failed to state the reason why he approved the 3rd Defendant’s application. In other words, SD2 has
approved the 3rd Defendant’s application without knowing the valid reason in doing so.
(e) The assertion that the 3rd Defendant has obtained the support from the residents of the Building in the
Annual General Meeting (“AGM”) held on 15.6.2010 for the conversion of the apartment into a Restaurant
was made without valid proof. What was proved was that on that date the residents were informed by the
chairman of the approval given by the Bentong Municipal Council to convert the common area into a
Restaurant and a mini market.
(f) The 3rd Defendant had also failed to adduce any evidence to support its contention that the costs to
construct the Restaurant and the mini market were collected from the residents of the Building to show that
the residents were in full support of the conversion.
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(g) There is no existing law that permits the 3rd Defendant to renovate and to convert the common area into a
business premise with the intention to generate income from them.
(h) A common area as spelt out in section 8(2)(a) of the Building and Common Property (Maintenance and
Management) Act 2007 (Act 663) is the area for the common use of the resident of the Building, and not a
property of the 3rd Defendant.
(i) The Court is in agreement with the Plaintiff’s submission that the 3rd Defendant is in breach of the original
sale and purchase agreement between the developer and the original purchaser, and the Plaintiff, as the
subsequent purchaser, is also subject to the terms of the original sale and purchase agreement.
(j) Therefore, the 3rd Defendant is to restore the common area (i.e. the lobby and the main entrance) to its
original position within three months from the date of the High Court’s Order.
(k) Upon perusing the sale and purchase agreement, the Court also finds that there is no provision to exempt
the Plaintiff from paying the maintenance charges in the event that the 3rd Defendant failed to carry out its
duty in managing the Building.

SUBMISSION OF PARTIES

Plaintiff’s Submission

[11] The Plaintiff contended that no maintenance/management and service charges ought to be paid to the 3rd
Defendant as the 3rd Defendant had breached its duties and obligations to maintain/manage and to provide
services to the said Building and as such, the learned Judge erred in ordering the Plaintiff to pay maintenance &
service charges, service tax, insurance, water charges, quit rent and interest in the sum of RM56,578.79 to the 3rd
Defendant.

[12] The Plaintiff’s pleaded case against the 3rd Defendant’s counter-claim for the maintenance and related
charges and the reasons for non-payment of the same, was primarily as follows:
(a) as the 3rd Defendant had discontinued the supply of water and electricity to the Plaintiff’s apartment from
the year 2003, the Plaintiff could not inhabit the said apartment since then;
(b) that since the Plaintiff was not able to occupy the said apartment by reason of the disconnection of the
aforesaid utilities, the 3rd Defendant was not entitled to claim for any service charges against the Plaintiff;
(c) in any event, the 3rd Defendant did not maintain the Building and had left it in a dilapidated, run down and
filthy state;
(d) in addition to that, the 3rd Defendant allowed part of the lobby area to be illegally converted into a
Restaurant and mini market;
(e) the 3rd Defendant had closed the main grand entrance of the building to accommodate the Restaurant and
mini market and had opened two small side entrances;
(f) the 3rd Defendant also allowed twenty to thirty construction workers to occupy individual units in excess of
the occupancy per unit allowed by law;
(g) the Restaurant and mini market are opened to the public and non- residents thereby compromising the
security of the premises; and
(h) there is no maintenance of the common areas tenanted to the Restaurant and mini market owners.

[13] The Plaintiff submitted that maintenance and service charges are calculated on the basis that the entire
common area is to be maintained. In this case, the entire lobby had been tenanted out to the exclusive use of 3rd
parties and were therefore not maintained by the 3rd Defendant. This fact must be taken into account in the
calculation of the maintenance and service charges charged to the Plaintiff. Upon a proper account being taken, it
would be clear that the Plaintiff is not liable to pay the sum of RM56,578.79 as claimed by the 3rd Defendant in their
letter dated 26.8.2013.

[14] The Plaintiff had pleaded the tort of nuisance at paragraph 10 of the Amended Reply to the 3rd Defendant’s
Defence. The Plaintiff complained that because of the commercial use of the lobby, the lobby area is noisy and
sometimes crowded. Further, the smell and smoke from the Restaurant permeates the lift area and into the
Plaintiff’s apartment which is located on the 1st floor.
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[15] According to the Plaintiff, the noise, smoke and smell from the Restaurant was most acute in his apartment as
his was on the 1st floor. The Plaintiff therefore could not occupy his apartment even though he had spent over
RM200,000.00 in renovating his apartment.

[16] The Plaintiff also submitted that the learned Judge erred in not making a finding that the acts of the 3rd
Defendant in constructing the said Restaurant and mini market had caused a nuisance in law to the Plaintiff and
consequently the learned Judge erred in not ordering damages to be assessed as prayed for in the Plaintiff’s
counter-claim.

[17] The approval by the local town council on the construction of the said Restaurant and the mini market or even
the resolution by the AGM are irrelevant in law to deprive the Plaintiff of his rights to the common property, both
under the Strata Titles Act 1985 and the sale and purchase agreement (executed between the developer and the
original purchaser and which said agreement had been assigned to the Plaintiff).
3rd Defendant’s Submission

[18] The 3rd Defendant, on the other hand, submitted that the learned Judge had erred in holding that the
Common Area Construction did not fall within the duties and powers conferred upon the Management Body under
the provisions of section 8 of Common Property (Maintenance & Management) (Act 2007) (then in force), where
such provisions are in fact non-exhaustive.

[19] The 3rd Defendant relied on the provisions of sections 42(1) and 42(2) of the Strata Titles Act 1985 (Act 318)
(pre-amendment, then in force) currently replaced/superseded by section 17B of the (amended) Strata Titles Act
1985. Section 42 deals with the ownership of the common property and the custody of the issue document of title.
On that account, by virtue of the provisions of section 42(1) and (2), the 3rd Defendant is the proprietor of the
common property.

[20] The 3rd Defendant also relied on the provisions of paragraph 3 of the Third Schedule, Strata Titles Act 1985
(Act 318) which provides for the powers of the management corporation over the common property. The 3rd
Defendant insisted that the construction was legal since they had obtained the requisite approval for the Common
Area Construction vide the Approval Letter dated 16.2.2010 (“Approval Letter”) issued by Majlis Perbandaran
Bentong (“MPB”) through one Encik Syed Mohd Nor bin Syed Jaafar, who had testified at trial as SD2. SD2 had
duly testified and confirmed MPB’s receipt of the 3rd Defendant application and MPB’s issuance of the Approval
Letter to the 3rd Defendant. It was the 3rd Defendant’s submission that the learned Judge had erred both in law and
in fact when her Ladyship saw it fit to disregard the approval so granted by MPB, by giving undue emphasis to
material gleaned from the cross examination of SD2, i.e. material which suggested that SD2 may not have had
complete personal knowledge of all aspects of the 3rd Defendant’s application when SD2 had exercised his
discretion to approve the same.

[21] The 3rd Defendant had dealt with the authorities in good faith and without any knowledge as to their internal
proceedings and processes (or at least, there was no evidence or any suggestion that the 3rd Defendant had not
dealt with the authorities in good faith).The learned Judge was therefore wrong to have deliberated on the
soundness of the internal decision-making process of MPB in issuing the Approval Letter to the 3rd Defendant. In
addition, SD2 was not standing on trial on the correctness of the protocol or mechanics of how SD2, in his
representative capacity of the local authority, came to give approval to the 3rd Defendant for the Common Area
Construction. The validity of the approval obtained from MPB, at all material times, was never an issue to be tried or
was ever meant to require determination.

[22] The learned Judge also held that at the 3rd AGM, the apartment unit owners were merely “informed” of the
Common Area Construction, as opposed to them having been approached for their “approval”. In deriving this
proposition, the 3rd Defendant submitted that the learned Judge placed a misguided emphasis on the notion that
the 3rd Defendant had sought and obtained the approval of the local authority (in February 2010) ahead of the
approval from the apartment unit owners. The minutes of the AGM clearly showed that during the AGM, due
approval from apartment unit owners were sought in respect of the proposal for the Common Area Construction
through a motion that was put to a vote, and that it was approved unanimously by those present and voting.

[23] It is further submitted by the 3rd Defendant that the learned Judge had failed to appreciate and to give
emphasis on the fact that the Plaintiff did not attend the 3rd AGM to object to the proposal for the Common Area
Construction despite due notices to attend the 3rd AGM having been sent out to all the residents of the Building,
including the Plaintiff. As such, the Plaintiff’s failure to attend the 3rd AGM and his failure to oppose the proposal
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during the 3rd AGM would ordinarily translate to a waiver of his right to object to the Common Area Construction.
Accordingly, the Plaintiff is equally estopped from raising his objections at this stage, a good three years after the
Common Area Construction had long been completed.

[24] The 3rd Defendant defended their action by submitting that there is nothing in the provisions of the relevant
statutes that prohibit the 3rd Defendant from deriving lawful income from the Common Area Construction to fund
the maintenance of the Building when the purpose of the same is for the benefit of the apartment residents.

[25] The 3rd Defendant argued that as the proprietor of the common property it possesses the rightful and needed
authority to introduce future improvements or enhancements to the common property for the benefit of the
apartment unit owners as a whole. What is equally important to note is that the complaint against the Common Area
Construction by the Plaintiff was only introduced for the first time in the year 2013 after the Developer had informed
the Plaintiff that the Strata Titles will not be released to his Loan Solicitors for purposes of perfection of the transfer
and charge, unless and until the Plaintiff had settled all arrears in his maintenance charges due and owing to
Kayangan management corporation since the year 2003. The 3rd Defendant contended that it is settled law that
evidence of laches, acquiescence and delay would tantamount to a waiver of the rights of a prospective litigant to
take legal proceedings. Since no complaints were made by the Plaintiff until a good three (3) years after the
Common Area Construction had been completed, the complaint is nothing but an afterthought.

[26] The 3rd Defendant also submitted that the Plaintiff’s allegations of poor maintenance or non-maintenance by
the management corporation is not a justification for non-payment pursuant to the statutory requirement
DECISION OF THIS COURT

Conversion Of Common Area Into A Commercial Area

[27] In both appeals before us, it is not disputed that the construction of the Restaurant and the mini market were
approved by the relevant local authority. Be that as it may, it is inevitable for this Court to delve into events
preceding this approval. The position of the law at that time is governed by the Strata Titles Act 1985 (Act 318) (pre-
amendment, then in force), which requires an authorisation in the form of a unanimous resolution from the parcel
owners should any Management Corporation (“MC”) decide to alter the current state of the common property area.

[28] Section 4 of the Strata Titles Act 1985 (Act 318) defines “common property” as follows:

‘ “Common property” means so much of the lot as is not comprised in any parcel (including any accessory parcel), or any
provisional block as shown in an approved strata plan.’

[29] Section 42 of the Act, prior to the amendment, provides:

(1) The management corporation shall, on coming into existence, become the proprietor of the common property and
be the custodian of the issue document of title of the lot.

(2) The management corporation shall have in relation to the common property the powers conferred by the National
Land Code on a proprietor in relation to his land:

Provided that—

(i) except where it is specifically provided otherwise in this Act, those powers may be exercised only on the
authority of a unanimous resolution; and

(ii) the corporation shall not have power to transfer any portion of the common property which forms part of the
building or of the land on which the building stands”.

[emphasis added]

[30] Paragraph 3 of the Third Schedule, prior to the amendment, provides:

“The corporation shall control, manage and administer the common property for the benefit of all the proprietors:
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Provided that the corporation may, by agreement with a particular proprietor, grant him exclusive use and enjoyment of part
of the common property or special privileges in respect of the common property or part of it.”

[emphasis added]

[31] From the above provisions, it is clear that the MC, on coming into existence, becomes the proprietor of the
common property. The MC, by virtue of the provisions of section 42(1) and (2), as a proprietor, has powers similar
to those conferred on other proprietors in respect of their land conferred by the National Land Code. Further,
paragraph 3 of the Third Schedule provides for the powers of the MC over the common property in that the MC
shall control, manage and administer the common property. Consequently, the 3rd Defendant was therefore at all
times clothed with full authority to deal with the common property as a proprietor in relation to its land, which
necessarily included, in any event, such authority to implement the Common Area Construction. In this regard, the
case of Sianglory Sdn Bhd & Ors v Mayor Bandaraya Kota Kinabalu & Anor [2013] 7 MLJ 274 is particularly
instructive, wherein the Court held that by virtue of the said provision, as the proprietor, the management
corporation has the power to regulate what can be put on the common property. At pages 285 & 286, the Court in
Sianglory held as follows:

“[31] The ownership of common property is set out in s 15 of the Enactment clearly which states as follows:

(1) The management corporation on its establishment shall become the owner of the common property and the
custodian of the issue document of title to the land.

(2) The management corporation shall have in relation to the common property the powers conferred by the
provisions of the Land Ordinance on an owner in relation to his land …

That simply means the second defendant is in control of the external walls of the Wisma Pendidikan and as
custodian they have the power to regulate what can be put on the common property. That power of course is
subject to what the owners of Wisma Pendidikan decide…”

However, under the proviso to section 42 (2)(i), such powers may be exercised only on the authority of a
unanimous resolution and under paragraph 3 of the Third Schedule, for the benefit of all the proprietors.

[32] Having perused the minutes of the 3rd AGM dated 15.6.2010, we found that the chairman of the AGM had
informed the meeting that he had earlier obtained all the relevant approvals from the authorities on the construction
work of the Restaurant and the mini market which construction would commence in early July 2010. However, it
was not stated in the minutes of the meeting that there was any approval sought from members of the meeting to
convert the common area into a Restaurant and a mini market. We also found that there was no objection recorded
in the minutes of the meeting from any members opposing to the construction of the Restaurant and the mini
market.

[33] Under section 42(2)(i) of the Act, as stated earlier, a unanimous resolution is required for the MC to exercise
its rights over the common property. The position of the law then, under the Strata Titles Act 1985, prior to the
amendment, requires the attendance of half of the registered proprietors in the general meeting to constitute a valid
quorum. Rule 11(1) of the Second Schedule states that, “one half of the persons entitled to vote shall constitute a
quorum at a general meeting”. It is undisputed that there are eighty-nine (89) proprietors of the apartments. This
means that the minimum number of forty-five (45) proprietors must attend or be present in the general meeting to
constitute a valid quorum and to unanimously vote their agreement on the conversion of the lobby area into a
Restaurant and a mini market to satisfy the requirements of section 42(2)(i) on the unanimous resolution.

[34] On perusal of the minutes of the AGM, it showed that only twenty one (21) proprietors attended and voted by
poll at the AGM which was far from the minimum requirement of forty-five (45). Twenty-one (21) proprietors do not
form a valid quorum to initiate a general meeting, not to mention to pass any resolution. The AGM dated 15.6.2010
is thus unlawfully convened. The resolution thus passed in an unlawfully convened meeting is clearly illegal. There
is no valid quorum since only twenty-one (21) out of forty-five (45) proprietors were present to vote to convert the
common property (lobby) to a Restaurant and a mini market, thus not satisfying the requirement of section 42(2)(i)
of the Strata Titles Act for a unanimous resolution. Thus the approval obtained by the 3rd Defendant from the local
authority to construct the Restaurant and the mini market was a non-starter from the very beginning. This is so
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since the 3rd Defendant has no right even to apply for it in the first place. Therefore, the High Court’s decision to
order the demolition of the Restaurant and the mini market and to restore the lobby area into its original position is a
correct decision and we affirm that decision.
Maintenance Charges

[35] The maintenance charges were from the years 2003 until 2014 and the law applicable then is the Strata Titles
Act 1985 and not the Strata Management Act 2013 (Act 757), as contended by the Plaintiff since the Act 757 only
came into effect on 1.6.2015. The Plaintiff contended that no maintenance/management and service charges ought
to be paid to the 3rd Defendant as the 3rd Defendant had breached its duties and obligations to maintain/manage
and to provide services to the said Building and as such, the learned Judge had erred in ordering the Plaintiff to pay
maintenance & service charges, service tax, insurance, water charges, quit rent and interest in the sum of
RM56,578.79 to the 3rd Defendant. On perusal of section 52 of the Strata Titles Act 1985, it states that the MC of a
Building is empowered to charge maintenance charges on each registered proprietor, and if the proprietor refused
to pay those charges, the MC can recover any sums due from each proprietor of a parcel, including the Plaintiff, as
a debt due to it.

“52. The Recovery of Sum as Debt Due to Management Corporation

(1) The payment of any amount lawfully incurred by the management corporation in the course of the exercise of any
of its powers or functions or carrying out of its duties or obligations shall by virtue of this section be guaranteed by
the proprietors for the time being constituting the management corporation, each proprietor being liable under
such guarantee only for such proportion of the money so incurred as the share units of his parcel or the
provisional share units of his provisional block bear to the aggregate share units.
(2) Where any proprietor has not discharged or fully discharged his liability for the purpose of subsection (1), the
management corporation shall be entitled to recover from the proprietor in any court of competent jurisdiction as a
debt due to it.”

[emphasis added]

[36] Further, the statutory basis for the 3rd Defendant to collect maintenance charges is provided, inter alia, in
sections 41A(1), 45(1),(3),(4) and (5), and 52 of the Strata Titles Act 1985 which are as follows:

“41A. Determination of contribution payable during initial period.

(1) Where the first annual general meeting of a management corporation has not yet been convened, the proprietor of the
parcels or provisional blocks, if any, in the subdivided building or land, whichever is applicable shall, commencing from the
opening of the book of the strata register, pay to the management corporation any sum determined by the original
proprietor as the contributions payable by the proprietors to the management fund of the management corporation.”;

“45. Management fund.

(1) The management corporation shall establish a management fund sufficient in the opinion of the management
corporation to meet the administrative expenses as may be incurred for the purposes of controlling, managing and
administering the common property, paying rent, rates and premiums of insurance and discharging any other
obligation of the management corporation.
(2) ......

(3) Subject to s 41A, for the purpose of establishing and maintaining the management fund the management
corporation may at a general meeting:-

(a) determine from time to time the amount to be raised for the purposes mentioned in subsection (1);

(b) raise the amounts so determined by levying contributions on the proprietors in proportion to the share units or
provisional share units of their respective parcels or provisional blocks; and

(c) determine the amount of interest payable by a proprietor in respect of late contributions which shall not exceed
the rate of ten per cent per annum.
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(4) On application by or on behalf of a person who is a proprietor of a parcel, or by or on behalf of a prospective

purchaser of a parcel that is offered for sale, or by or on behalf of the charge or prospective charge of a parcel,
the management corporation shall issue to that person a certificate certifying:-
(a) the amount determined, pursuant to subsection (3), as the contributions of that proprietor;

(b) the time and manner of payment of the amount determined by it pursuant to that subsection;

(c) the extent, if any, to which the contribution has been paid;

(d) the amount (if any) then recoverable by the management corporation in respect of the parcel, pursuant to
subsection (5) of s 43;

(e) the sum standing to the credit of the management fund and the amount out of that fund committed or reserved
for any expenses already incurred by the management corporation; and

(f) whether or not the management corporation has incurred any expenditure or is about to perform any repairs,
work or act in respect of which a liability is likely to be incurred by the proprietor of the parcel under any
provision of this Part and, if so, the estimated amount of the expenditure or the general nature of the repairs,
work or act, and as against the management corporation and in favour of any person (including the member)
relying in good faith on such certificate, that certificate shall be conclusive evidence of the matters certified
therein.
(5) Any contribution levied under subsection (3) in respect of a parcel shall be due and payable on the passing of a
resolution to that effect by the management corporation and in accordance with the terms of that resolution, and
may be recovered as a debt from a proprietor of, or his successor in title to, the parcel.”

“52. The Recovery of Sum as Debt Due to Management Corporation

(1) The payment of any amount lawfully incurred by the management corporation in the course of the exercise of any
of its powers or functions or carrying out of its duties or obligations shall by virtue of this section be guaranteed by
the proprietors for the time being constituting the management corporation, each proprietor being liable under
such guarantee only for such proportion of the money so incurred as the share units of his parcel or the
provisional share units of his provisional block bear to the aggregate share units.
(2) Where any proprietor has not discharged or fully discharged his liability for the purpose of subsection (1), the
management corporation shall be entitled to recover from the proprietor in any court of competent jurisdiction as a
debt due to it.
(3) Where for reasons of insufficiency of fund to meet the sum guaranteed under subsection (1), the management
corporation may at an annual general meeting or at an extraordinary general meeting determine the amount to be
contributed by each proprietor and decide any other issue or matter relating to the settlement of the said sum.”

[emphasis added]

[37] As stated earlier, the Plaintiff argued that the 3rd Defendant has no right to charge him maintenance charges
since he did not enjoy the benefits of the maintenance and services provided by the 3rd Defendant. The Plaintiff
submitted that he did not occupy his parcel from 2003 until 2014 since the 3rd Defendant had failed to discharge its
responsibility to maintain the Building which was in a filthy and dilapidated state. Though it is not disputed by the
3rd Defendant that the Building was not well maintained, it is unfortunate for the Plaintiff that the position of the
applicable law at the material time was not on his side. The provisions of the law, as stated above, were very clear
in that the responsibility to pay the maintenance charges falls upon the registered proprietor, regardless of whether
one occupied his parcel or not. The Plaintiff, as the registered proprietor of his parcel was not exempted from his
responsibility to pay the charges on the mere reason that the 3rd Defendant had failed to discharge its obligations
diligently. If the Plaintiff is dissatisfied with the 3rd Defendant’s failure to maintain the Building, he can always
initiate a claim against the 3rd Defendant for breach of its statutory duty but he cannot, in the circumstances, evade
his responsibility to pay the maintenance charges.

[38] Further, upon perusing the sale and purchase agreement, we also found that there is no provision to exempt
the Plaintiff from paying the maintenance charges in the event that the 3rd Defendant failed to carry out its duty in
managing the Building. It is to be noted that the Plaintiff’s complaint on the 3rd Defendant’s failure only arose after
the 3rd Defendant had issued a letter demanding such payment from the Plaintiff. This showed that the Plaintiff’s
complaint is an afterthought.
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The Tort Of Nuisance

[39] The learned Judge had dismissed the Plaintiff’s claim for general and exemplary damages and made no
finding with regards to the Plaintiff’s claim under the tort of nuisance. The learned Judge had then ordered the 3rd
Defendant to demolish the Restaurant and the mini market. In view of this, and the fact that the evidence of
nuisance was unrebutted, the Plaintiff submitted that the learned Judge had erred in not finding that the 3rd
Defendant, in constructing the Restaurant and mini market had caused a nuisance to the Plaintiff and consequently
to make an order for damages to be assessed as prayed for at paragraph 21.5 of the Plaintiff’s counter-claim.

[40] The Plaintiff complained that due to the commercial use of the lobby, the lobby area was noisy and sometimes
crowded. Further, the smell and smoke from the Restaurant permeates into the lift area and into the Plaintiff’s
apartment which is located on the 1st floor. The Plaintiff alleged that the noise, smoke and smell from the
Restaurant was most acute as his apartment was located on the 1st floor. Due to this, the Plaintiff could not occupy
his apartment even though he had spent over RM200,000.00 renovating his apartment.

[41] In considering whether the complaints are actionable, a reference to Clerk and Lindsell on Torts (12th Edition),
at paragraphs 1211 and 1213, which define nuisance as follows, is instructive:

“The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.… Nuisance is
an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of
(a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of
land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.”

“The acts which constitute public nuisances are all of them unlawful acts. In private nuisance, on the other hand, the acts
constituting the nuisance are not necessarily or usually unlawful. A private nuisance may be and usually is caused by a
person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the
consequences of his acts are not confined to his own land but extend to the land of his neighbour by (1) causing an
encroachment on his neighbour’s land, when it closely resembles trespass, (2) causing physical damage to his neighbour’s
land or buildings or works or vegetation upon it, or (3) unduly interfering with his neighbour in the comfortable and
convenient enjoyment of his land.”

[42] A case on point on nuisance from noise is the Federal Court’s case of Syarikat Perniagaan Selangor Sdn.
Bhd. v Fahro Rozi Mohdi & Ors [1981] 2 MLJ 16 where Chang Min Tat, FJ, in delivering the judgment of the Court,
observed that a certain amount of noise in urban society is inevitable. His Lordship state:

“Noise in urban society there inevitably will be. Anyone living in town must expect to have to put up with a certain volume of
noise from his neighbours and he, in turn, must have the right to make a certain amount of noise in the enjoyment of his
property. But it is just as clear that no one has the right to create a volume of noise of such intensity and no one should be
asked to put up with such a volume which by any reasonable standard becomes a nuisance.”

[43] In Kennaway v Thompson [1980] 3 WLR 361, at page 366 Lawton L.J. state that “Intervention by injunction is
only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can
be expected to bear”

“Now nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours. Those
living in towns may be irritated by their neighbours’ noisy radios or incompetent playing of musical instruments and they in
turn may be inconvenienced by the noise created by our guests slamming car doors and chattering after a late party. Even
in the country the mooing of a sick cow or the early morning crowing of a farmyard cock may interfere with sleep and
comfort. Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other
occupiers in the neighbourhood can be expected to bear. The neighbour who is complaining must remember, too, that the
other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.”

[44] In our view, from the cases above, a certain amount of noise is acceptable in an urban, modern society and
intervention, by injunction, is only justified when the irritating noise causes inconvenience beyond what other
occupiers in the neighbourhood can be expected to bear. Thus, noises from the crowd in the lobby area is
acceptable and not an actionable nuisance. Such noises are expected, especially when the Plaintiff’s unit is located
on the 1st floor, which is the nearest floor to the lobby area. The Plaintiff, in the circumstances, cannot expect a
tranquil environment when he bought the apartment unit on such a floor. He is not the only proprietor of the Building
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and the increase of sound (noises) will come with the increase of the crowd coming to the Building everyday. In this
respect, the law of nuisance is not sympathetic to a Plaintiff who is extra/over sensitive, whether the sensitivity is
related to the Plaintiff himself or to his property.

[45] The Plaintiff had previously brought the Restaurant operators into this suit and claimed for damages due to the
nuisance from the smoke, noise and smell emanating from the Restaurant. Parties had subsequently settled the
matter and entered into a consent judgment where the Restaurant operators (as Defendants in the original suit)
agreed to cease operating the Restaurant. Be that as it may, the Plaintiff pursued its claim for damages against the
3rd Defendant as MC for breach of its duty and for its failure and neglect in allowing the Restaurant operators to
operate the Restaurant without restraining them. Regarding this issue, it is important to note that not every
interference with a property will be actionable under the law of nuisance. In fact, there should be some appreciable
harm, even in cases of property damage. This principle applies generally to all nuisance claims and the courts will
consider, among others, the duration and intensity or seriousness of the activity complained of. Therefore, for the
law of nuisance to be actionable, it should be something which is more than temporary. In our case, the nuisance
was temporary and had ceased.

[46] The Plaintiff admitted that his parcel was vacant and unoccupied from 2003 until 2014. His reason was that he
was prevented by the 3rd Defendant from occupying his unit when the 3rd Defendant cut off the electricity and
water supply to his unit. From the evidence elicited, the 3rd Defendant’s action was due to the Plaintiff’s failure to
settle his arrears in maintenance charges. The Plaintiff had never denied the non-payment of these charges. He
was just disputing his responsibility to pay them. The alleged noise, smell and smoke that permeated from the
Restaurant were never the reasons why the Plaintiff did not occupy his parcel. The Plaintiff’s unit was left vacant
and unattended for a period of eleven (11) years and it was not reasonable for him to expect that he can just re-
enter the unit in 2014, expecting the unit to look brand new.

[47] There was also no evidence adduced by the Plaintiff to support his contention that the renovation works that
he did to his unit was due to the effect of the smoke and smell emanating from the Restaurant. The emission of
smoke and fumes, noise, vibration and other forms of pollution into the atmosphere will not constitute actionable
nuisance at common law unless it is proven that they are actually harmful to the Plaintiff’s property, or in some way
affecting the reasonable enjoyment of it. The Plaintiff had left his unit vacant for eleven (11) years and logically, to
make the unit habitable again, it is unavoidable for the Plaintiff to do some restoration or renovation works. He
certainly cannot put the blame on the 3rd Defendant when he was put to extra expenses due to his own doing. For
these reasons, we are of the view that the Plaintiff’s claim against the 3rd Defendant for nuisance cannot be
sustained.

[48] For the foregoing reasons, we find no merit in these two appeals to warrant our appellate intervention. The
learned Judge is not plainly wrong in coming to her decision to dismiss both appeals (see the cases of Gan Yook
Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; UEM Group Berhad v Genisys Intergrated
Pte Ltd [2010] 9 CLJ 785; Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Nor Shahabudin & Anor [2010] 4
MLJ 577; and Dream Property Sdn Bhd v Atlas Holding Sdn Bhd [2015] 2 CLJ 453 on the plainly wrong principle).
Accordingly, both appeals are dismissed and the High Court’s decision is affirmed. We made no order as to costs
and deposits are to be refunded to the respective Appellants.

End of Document