Subsection
(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 22 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. 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 23 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: 24 “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 25 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 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 26 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 27 [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. -signed-Dated: 29th November, 2018 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 28 CASE(S) REFERRED TO: