Chin Moy Yen & 6 Lagi v Chai Weng Sing & 4 Lagi (B-02(NCVC)(W)-1163-06/2017)

CHIN MOY YEN

CHAN MAN CHUNG

AUDREY CHAN LEE NEE

CLAUDIA CHAN QIAN NEE

CALVIN CHAN SHUEN TENG

CASSANDRA CHAN YAN NEE

ANASTASSIA CHAN BEI NEE (I.C. NO.: 070828-14-1318) … APPELLANTS

CHAI WENG SING (I.C. NO.: 650108-08-5865) 2

TAN SHEAU KANG

TOH KHIM HWA

TAN BOON KING

FLORA GREEN MANAGEMENT CORPORATION … RESPONDENTS [In the Matter of the High Court of Malaya at Shah Alam Originating Summons No.: 22NCVC-421-08/2015 Between

Chin Moy Yen (I.C. No.: 660520-05-5480)

Chan Man Chung (I.C. No.: 670719-05-5559)

Audrey Chan Lee Nee (I.C. No.: 931125-14-5170)

Claudia Chan Qian Nee (I.C. No.: 960815-56-5108)

Calvin Chan Shuen Teng (I.C. No.: 980828-43-5271) Minor, Chan Man Chung (Father as Next Friend)

Cassandra Chan Yan Nee (I.C. No.: 010822-14-1072) Minor, Chan Man Chung (Father as Next Friend)

Anastassia Chan Bei Nee (I.C. No.: 070828-14-1318) Minor, Chan Man Chung (Father as Next Friend) … Plaintiffs And 3

Chai Weng Sing (I.C. No.: 650108-08-5865)

Tan Sheau Kang (I.C. No.: 860621-56-5064)

Toh Khim Hwa (I.C. No.: 640330-02-5135)

Tan Boon King (I.C. No.: 660327-03-5541)

Flora Green Management Corporation … Defendants CORAM: HAMID SULTAN BIN ABU BACKER, JCA BADARIAH BINTI SAHAMID, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The appellants who are a family of seven, sued the respondents in nuisance and trespass. The action was strenuously defended by the respondents. Following a full trial, the appellants’ action was dismissed with costs. [2] In the appeal before us, we not only heard parties extensively but we directed them to conduct specific research and make further submissions on the issue of liability of landlords, an issue which is highly relevant for some of the respondents. Thereafter, upon very careful consideration of the grounds of decision, the appeal records and the 4 comprehensive oral and written submissions of all parties, the appeal was unanimously, allowed. We found that the learned Judge had fallen into error in finding that the appellants had not proven their case on the civil burden of a balance of probabilities. We found that there was actually overwhelming evidence to the contrary and we were fully satisfied and convinced that the appellants had in fact successfully made out their claim in law and on the facts against all the respondents. The appellants’ claim was consequently, allowed. Factual background [3] Flora Green Condominium, Bandar Sungai Long, Selangor is located adjacent to one of the universities in the country, Universiti Tunku Abdul Rahman [UTAR]. The 1st and 2nd appellants are the registered proprietors of unit C-14-1 at Flora Green Condominium [C-14- 1]. These appellants, together with their children, the 3rd to the 7th appellants, reside at C-14-1. [4] The 1st respondent was the registered proprietor of three penthouse units at Flora Green Condominium [Flora Green]: C-P-1, C-P- 2 and C-P-3. C-P-1 is located directly above the appellants’ unit, C-14-

The 1st respondent owned all three units at different points in time, the details of which are not relevant for the moment. Save for C-P-1 which he sold on 9.2.2014, he still owns the other two units. The 1st respondent also co-owns C-P-3 with the 4th respondent. The 2nd respondent bought C-P-1 from the 1st respondent but sold it subsequently to the 3rd respondent, who remains the registered 5 proprietor of that unit until today. The 5th respondent is the Management Corporation, established under the Strata Management Act 2013. [5] It is the pleaded case of the appellants that during the period of June 2013 till September 2013, the 1st respondent illegally and without the proper and requisite approvals of the local authorities as required under the relevant laws, renovated all three of his units, partitioning and turning the penthouses into student accommodation. As mentioned, UTAR was in the vicinity. The appellants further claimed that the renovations were in breach of the House Rules of Flora Green Condominium. [6] The appellants claimed that as a result of these illegal renovations, which frequently carried on into late at night or the early hours of the morning, their unit was damaged. The damage was said to have been discovered in September/October 2013. [7] The appellants claimed that the renovations caused cracks on the walls and ceiling of their unit, with water leakage, unpleasant sewage smell and overflowing of sewage into the appellants’ unit. The appellants claimed that there was also excessive noise and vibrations during the renovations. [8] The appellants lodged a complaint with the local authority on 11.10.2013. On 29.4.2014, the local authority issued an order to demolish and a notice to compound. 6 [9] The appellants claimed that since then, the 1st respondent, his agents, tenants, employees and/or representatives began to harass them, make excessive noise and/or vibration and commit various other acts amounting to nuisance. The details of these other complaints are as set out at paragraph 35 of the Statement of Claim. Despite meetings, police reports and complaints to the local authority, the nuisance and trespass are said to have persisted. [10] The appellants claimed that as a result of all these nuisance and trespass, they have suffered severe inconvenience, disturbance and that they have also suffered continuous loss of sleep, continuous loss of use, comfort and enjoyment of their property, mental stress, pain and suffering, and damage. Specifically, the appellants alleged that the respondents’ unlawful renovations and wrongful use of C-P-1, C-P-2 and C-P-3 “postulated danger to the life [sic] of the plaintiffs and the residents living beneath” those units. As mentioned earlier, the appellants live directly below C-P-1. [11] The appellants’ claim against the 5th respondent is for breach of obligations, in particular those under the Strata Title Act 1985, Strata Management Act 2013 and the related By-Laws. Specifically, the appellants alleged that despite their complaints to the 5th respondent, the 5th respondent failed and/or refused to carry out its obligations, including failing to stop and/or prevent the 1st to the 4th respondents from renovating the three penthouses in question. [12] These are the responses of the respondents. 7 [13] Not only are the allegations of nuisance and trespass denied, the 1st and 4th respondents deny being the registered owners of C-P-1 at the material time alleged by the appellants. Hence, they could not possibly be responsible for any renovations carried out or any nuisance caused. [14] On the matter of tenanting to students, the 1st and 4th respondents pleaded that like many other owners of units at Flora Green, they rented out their premises to students studying at UTAR; and that such tenanting was approved at the AGM of the Management Corporation on 20.9.2014. As for the renovations, whilst denying that they were the owners at the material time, the 1st and 4th respondents nevertheless claimed that the renovations were carried out with approvals granted by the Management Corporation; and that the contractors were supervised at all times, by the guards at Flora Green. [15] On the matter of damage to the appellants’ unit, C-14-1, the 1st and 4th respondents denied that the damage was caused by them; and they recounted of other units at Flora Green having similar complaints. All complaints, however, were said to have been attended to by the contractors. [16] As for the complaints of harassment and noise, the 1st and 4th respondents pointed out that C-P-2 and C-P-3 were duplex units which could house at least 14 tenants each; and that their tenants had in fact complained of being frequently awoken in the middle of night either by the 1st appellant’s shouting at the tenants of C-P-1 or by the police calling on them following complaints by the appellants. 8 [17] The 2nd respondent’s specific plea is that she is not liable because first and foremost, she was not the registered owner of C-P-1 at the material time, having purchased the unit from the 1st respondent only on 26.10.2013. She also claimed that she was not responsible because she had since sold the unit to the 3rd respondent on 18.11.2014. [18] As for the illegal renovations, the 2nd respondent claimed that the partitions were demolished as soon as she learnt that they were done without the requisite approval of the local authorities; and that she had paid the compound fine imposed by the local authorities even though she was not responsible for the partitions. [19] On the appellants’ complaint of noise by the tenants, the 2nd respondent referred to the appellants’ refusal to bear part of the costs of purchasing a meter/equipment to measure the noise level, as proposed by the local authorities. That proposed equipment was however found to be unsuitable for residential purposes and was consequently, not fixed. [20] The 3rd respondent’s defence is substantially the same as that of the other respondents. The 3rd respondent denied renovating the premises; that letting the premises to students had already been approved at the AGM; that the cracks etc. were similarly experienced by other owners or residents and were not caused by the renovations carried out; that the damage had already been attended to, and that it was actually the appellants who were a nuisance to the tenants in all three penthouses, instead of the respondents or their tenants. 9 [21] Finally, the defence of the 5th respondent, the Management Corporation. Aside from denying the allegations of nuisance and breach of obligations, the 5th respondent claimed that it had, in any event, attended to all complaints made by the appellants, and that it was in no position to deal with illegal renovations since the matter fell within the jurisdiction of the local authorities. Decision of the High Court [22] After a full trial, the learned Judge dismissed the appellants’ claim finding the claim not proved. According to the learned Judge, the evidence was far from being sufficient and strong enough to prove that the respondents had committed nuisance or trespass. [23] At paragraph 12 of the grounds, dealing with the claim against the 1st respondent for trespass, the learned Judge understood the claim was in respect of the flow of sewage effluent from C-P-1 to C-14-1. At paragraph 13, after describing the seepage as “water seepage or leakage” due to renovation works to C-P-1, the learned Judge concluded that the trespass was no longer in existence at the time of the filing of the claim since the matter had been referred to and resolved by the local authority vide the local authority’s letter 25.8.2014. [24] The learned Judge further stated: “More importantly, the plaintiff had failed to prove any losses suffered from the alleged trespass which was no longer in existence at the time of filing of this action. Also, there was an obvious failure to prove that it was the acts or 10 omissions of D1 which had caused the alleged trespass as at the material time D1 was no longer the owner of C-P-1, and had no control whatsoever over the premises. No evidence to the contrary implicating D1 was adduced by any witness called by.” [25] On the complaint of “nuisance as a result of noise and disturbance emanating from unit C-P-1”, described by the learned Judge as the “crux of the claim”; the learned Judge found [paragraphs 15 to 23] that: i. the appellants did not produce any corroborative “material natural evidence” through a sound recording device which meant that there was no noise nuisance recorded; ii. the appellants were wrong to rely on the minutes of the meetings of the Management Corporation as that was hearsay evidence; iii. the appellants were unable to confirm the number of students in unit C-P-1; iv. the appellants had the wrong parties as the 3rd respondent only became owner of unit C-P-1 after the various incidents complained of; v. there was no evidence to substantiate the serious allegations against the 1st – 4th respondents that the nuisance lasted or persisted over 18 months; vi. there was no proof that the tenants in C-P-1 caused any nuisance or that the 3rd respondent authorized or approved the purported nuisance; vii. the allegations were directed at the occupants of C-P-1 only and never at C-P-3; 11 viii. at best, the appellants’ letter of complaint dated 29.8.2013 to the 5th respondent only showed that there were renovation works carried out during that period to C-P-3 but fell short of proving that the works were undertaken by D1 or D4 or both jointly; ix. as highlighted by the 4th respondent, C-P-3 was sold by the developer to the 1st respondent after a lapse of 12 years since delivery of vacant possession to the original owners; “Hence, there was every possibility of the developer having had to carry out notification works before delivery of the unit to D1 and D4. No other evidence in support, whether documentary evidence or otherwise, was adduced that D4 was responsible for the renovation that allegedly caused nuisance to P1-P7 during that particular period.” – see paragraph 22 of the grounds of judgment. [26] According to the learned Judge, the main issue was not the illegal renovations or occupation by tenants of the units owned by the respondents at one time or another, “but whether their acts or omissions had unreasonably interfered with or disturbed the plaintiffs’ use and enjoyment of their property and thus, caused nuisance to them. Renovations, illegal partitions and use as students’ hostels are essentially matters within the jurisdiction of the local authority (MPKJ) in the exercise of its enforcement powers of local government by laws and not for intervention by the Court. A civil action to enforce these laws against D1-D4 is in my view, erroneous and misplaced.” 12 [27] The learned Judge found that the appellants’ version and evidence “on the whole is far from sufficient and strong enough to prove that D1- D4 by their acts or omissions and committed the nuisance against the plaintiff at the material time as alleged in the particulars of nuisance.” [28] In short, both claims for trespass and nuisance were dismissed against all the respondents, be it in respect of the renovations or the noise from the occupants of the units concerned. The claim for trespass was disallowed for the particular reason that the discharge of sewer effluent had ceased by the time of trial and because the matter had been referred to the local authority. The learned Judge was of the view that the appellants ought to seek recourse against the local authority for failure to perform its statutory duties; that “breach of by-laws cannot by itself found a valid course of action in tort against a defendant” – see paragraph 25. Because of the dismissal of the claim for nuisance and trespass against the 1st – 4th respondents, the learned Judge then dismissed the claim against the 5th respondent, the Management Corporation. In his grounds, the learned Judge found the claim for breach of duties, in any event, not proved. Our findings and deliberations [29] With respect to the learned Judge, we disagree. We are of the unanimous view that there was overwhelming evidence of the existence of both torts and that the claim was more than satisfactorily proved on a balance of probabilities. This is regardless of the nature of the complaint, whether it was in respect of the renovations themselves and 13 the ensuing damage to the appellants’ premises, or the noise and various acts caused whilst the renovations were ongoing or the nuisance that was caused by the tenants who subsequently occupied the units; C-P-1, in particular. i. The claims in trespass and nuisance [30] The appellants’ claim is based on both the torts of nuisance and trespass. The underlying circumstances or complaints for the two claims are substantially similar, if not the same. This is evident from a careful perusal of paragraphs 15 to 36 of the Statement of Claim. [31] At paragraph 15, the appellants claimed that the 1st respondent had carried out or allowed renovations to be carried out to all three penthouses and that these renovations frequently went on till late in the night or early in the morning, causing excessive noise and vibration. Aside from that, the renovations caused physical damage to the appellants’ unit, the details of which were identified at paragraphs 17 and 18. [32] The appellants reported these matters to the local authority and paragraphs 19 to 34 deal with the action taken by the local authority, the removal of partitions by the 2nd respondent, the subsequent renovations to the three units, the tenanting of the renovated units to students and, the alleged continuance of the nuisance and trespass by the 1st to the 3rd respondents, his/her agents, tenants, employees or representatives. 14 [33] At paragraph 35, the appellants specifically pleaded:

The continuing nuisance and trespass to property were and are caused by the act and/or omission of the 1st, 2nd and/or 3rd defendants or his/her agents, tenants, employees and/or his/her representatives as hereafter set out: Particulars of nuisance a. caused or permitted excessive noise and vibration by, including but not limited to, stomping the floor, knocking the walls, dragging furniture and/or holding private functions till late at night or early in the morning; b. caused or permitted excessive noise and vibration by carrying out renovations works till late at night or early in the morning; c. failed to take necessary and/or reasonable steps to abate and/or stop the continuing excessive noise and vibration caused; d. failed to confine the renovation to hours stated in the House Rules; e. caused or permitted unpleasant sewage smell and the overflowing of sewage and water onto C-14-1; f. caused or permitted the disposal of sewage, water and rubbish onto C-14-1; g. failed to take necessary and/or reasonable steps and/or precautions to prevent the discard of waste onto C-14-1; h. caused or permitted damage to properties including vehicles, belonging to the appellants; i. failed to pay sufficient heed to the complaints of the appellants about such nuisance created by their tenants; j. failed to adhere to the By-Laws and/or relevant statute and regulations; k. failed to adhere to House Rules. 15 Particulars of trespass a. caused or permitted unpleasant sewage smell and the overflowing of sewage and water onto C-14-1; b. failed to take necessary and/or reasonable steps and/or precautions to fix sewage and piping line properly, which causes unpleasant sewage smell and overflowing of sewage to seep into C-14-1; c. caused or permitted disposal of sewage, water and rubbish onto C-14-1; d. failed to take necessary and/or reasonable steps and/or precautions to prevent the discard of waste onto C-14-1; e. failed to take necessary and/or reasonable steps and/or precautions against cracks on the wall of C-14-1. [34] As can be seen from the above highlighted portions of the pleadings, the complaints about the unpleasant sewage smell and overflowing of sewage and water leakage into C-14-1 allegedly due to the installation of an additional lavatory to the master bedroom of C-P-1 are common in the appellants’ allegations of nuisance and trespass. These complaints emanated from the renovations. [35] In addition are the complaints of the noise or disturbance caused in the course of carrying out the renovations, and the time when the renovations were carried out [late at night or early morning] as well as the resultant cracks to the wall and ceiling of C-14-1. [36] The appellants’ complaints were also not confined to the renovations alone. The complaints extended to and included the acts of 16 the occupants, that is, the student tenants of the three renovated penthouses, which are alleged to also amount to nuisance and trespass, in the manner particularized. [37] The appellants claimed that all these acts caused them inconvenience, disturbance, pain and suffering and, damage to their unit, C-14-1. The appellants further claimed that they suffered continuous harassment, loss of sleep, loss of use, comfort and enjoyment of their property and mental stress. In addition, the appellants claimed that the unauthorized and unapproved renovations postulated danger to the lives of the appellants and the other residents living beneath the three penthouses. [38] Since the appellants had pleaded common allegations in respect of both the tort of trespass and nuisance, it is essential that the differences and similarities between these two torts are first appreciated. The learned authors, Clerk & Lindsell on Torts, paragraph 19-01, page 1345, 21st Edition defined “trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another. The slightest crossing of the boundary is sufficient.” Trespass is actionable at the suit of the person in possession of the land. Such a claimant may sue for damages and/or an injunction to prevent the act complained of from continuing. [39] On the other hand, when it comes to nuisance, the same authors at paragraph 20-01, page 1396, explained that “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 17 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 “essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.” Thus, smells, speech, noise or smoke and the like “may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will depend on a variety of considerations and a balancing of conflicting interests.” [40] In the case of private nuisance, as opposed to public nuisance where the act is inter alia not warranted by law, the conduct or act of the defendant which results in the private nuisance is not necessarily unlawful. The defendant may be “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 building or works or vegetation upon it; or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.” [41] Lord Goff of Chieveley held in Hunter v Canary Wharf Ltd [1997] AC 655, that the term “nuisance is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.” An old case authority was relied on by Lord Goff, that is, the decision in Sturges v Bridgman (1879) 11 Ch D 852, 863, where Thesiger LJ observed that “whether something is a nuisance is a question to be determined, not merely by an abstract consideration of 18 the thing itself, but in reference to its circumstances”, that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. In the context of the present appeal, that would be in Flora Green Condominium as opposed to say, at one of the shopping complexes in the capital city such as Pavilion, Mid Valley or even OneUtama. [42] For an interference to amount to nuisance, while it may or may not be lawful or authorized and done on one’s own land or property, that act must interfere with the neighbour’s reasonable enjoyment of the neighbour’s land. The test of what is “reasonable” would “perhaps be what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society”, as opined by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903. [43] This principle of reasonableness or reasonable user recognizes and subscribes to the “principle of give and take as between neighbouring occupiers of land, under which ‘…those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action” – as per Lord Goff of Chieveley in Cambridge Water Company v Western Counties Leather plc [1994] 2 AC 264, 299. Consequently, whether a particular activity is or is not a nuisance, often involves an assessment of the locality in which the activity concerned is carried out. [44] It is also a question of degree, when an act which is an interference must be tolerated or forebear, or is said to exceed or breach 19 limits of reasonableness. The case of Stone v Bolton [1949] 1 All ER 337 illustrates this: “Private nuisance occurs when there is an act or omission which interferes with disturbs or annoys a person in the exercise or enjoyment of his ownership or occupation of land or some other right or interest used or enjoyed in connection with the land. Whether the interference complained of amounts to a nuisance is a question of degree. It is necessary to bear in mind that in organized society, one is expected to put up with a certain amount of discomfort and annoyance caused by the legitimate activities of one’s neighbours. Therefore, whether an action constitutes a nuisance must be determined by reference to all the surrounding circumstances of the case. The surrounding circumstances would include the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it is done maliciously or in the exercise of rights and the effect of its commission. [45] Reasonableness, therefore, is not assessed subjectively but, objectively – see Coventry and Others v Lawrence And Another (No. 2) [2014] UKSC 46; a decision which we return to later when considering the matter of culpability or liability of landlords for the torts of trespass or nuisance of their tenants. [46] For now, suffice to say that these principles on nuisance are shared in our Courts; and this can be seen in the Federal Court decision of Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors [1981] 2 MLJ 16 where Chang Min Tat FJ, delivering the judgment of the Court said: 20 “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. As Lawton LJ says in Kennaway v Thompson [1980] 3 WLR 361, 366 at page 366: “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 neighbour’s 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 lowing 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.” [47] Therefore, to be successful in a claim for the tort of nuisance including a nuisance by noise, as held by the Privy Council in Hiap Lee (Cheong Leong & Sons) Brickmakers Ltd v Weng Lok Mining Co Ltd [1974] 2 MLJ 1, the plaintiffs must prove, on a balance of probabilities, that respondents’ “use which he was making of his own land might interfere with the use or enjoyment by his neighbour of his land was something which the defendant might reasonably have foreseen.” 21 [48] Broadly, therefore, the distinction between trespass and nuisance is this, that “trespass is a direct entry on the land of another, and is actionable per se, without proof of special damage, but nuisance is the infringement of the claimant’s interest in property without direct entry by the defendant, and generally actionable only on proof of special damage.” Trespass will generally involve physical encroachment whereas nuisance may be committed without one leaving one’s property. [49] Although there was, to a large extent, a correct identification of the above principles, the learned Judge fell into error in the application of these principles to the facts, including identifying the relevant facts and allegations. Further, there was a misapprehension of the interface of the law of nuisance and trespass with the law on remedies as well as in the conclusion that the claims are unproved, when there was actually overwhelming evidence to the contrary. This then warranted appellate intervention on our part. ii. The claims against the 1st – 4th respondents [50] Dealing first with the complaints in relation to the tort of trespass. As pointed out earlier, the learned Judge understood this complaint as one made only in relation to the flow of sewage effluent or “water seepage or leakage” from C-P-1 into the appellants’ unit. 22 [51] The claim against the 1st to the 4th respondents was dismissed for the following principal reasons: i. there was no evidence to prove that the seepage and damage were due to renovations in C-P-1; ii. the complaint was no longer in existence having since been referred to the local authorities; iii. the respondents either no longer owned C-P-1 at the time of the claim or had yet to become its owner at the time of the alleged trespass. [52] In other words, it was a question of whether the right defendants were in Court to defend the claim in trespass and whether such a claim was nevertheless sustainable given that the matter had already been referred to the local authority. [53] The learned Judge had opined that the action against the first four respondents was also erroneous and misplaced as a civil action cannot be instituted against them to enforce the laws relating to the renovations and illegal partitions of the units and their use as student hostels as these are matters essentially within the jurisdiction of the local authority in the exercise of its enforcement powers of local government and “not for intervention by the Court.” [54] We find the conclusions reached unsustainable in the light of the following relevant and material evidence which were overlooked by the learned Judge. 23 [55] In the evidence led before the learned Judge, there were two instances of renovations to be accounted for. The existence of both renovations was never in any real contention. The first were the renovations carried out at the behest of the 1st respondent, to all three units that he owned. The second were the renovations that the 2nd respondent commissioned after taking over ownership of C-P-1 from the 1st respondent. The renovations to the three penthouses involved partitioning existing area or space so as to increase the number of rooms that the respondents wanted, together with the related electrical, piping and sewage works. The evidence also showed that there were still subsequent renovations carried out by the 3rd respondent in 2015, which renovations were still unapproved and which were alleged to have caused “extreme noise”. The partitions constructed this second time round were with concrete walls after the earlier partitions had been taken down by the 2nd respondent following the notice from MPKJ. [56] In relation to the first lot of renovations, the main complaint was the trespass caused by the seepage of water and sewage to the appellants’ unit from the renovations to C-P-1. The question of the existence of renovations to C-P-1 and that these renovations caused the water seepage or sewage effluent down to C-14-1 and thereby the damage to the appellants’ unit, was again, never really in dispute. See also the photos confirming the existence of damage as alleged. In fact, none of the respondents suggested that there was no partitioning or renovation work of any sort being done in the respective units. None of them suggested either that there was no seepage or damage to C-14-1 or that the damage was caused by the appellants themselves. 24 [57] Instead, what we have are the Defences filed which readily admit to the appellants’ claim of the existence of renovations. What the respondents plead and this is obvious from the Defences filed, is that the respondents cannot be prohibited from tenanting their premises; that because of the size of their penthouses which was twice the size of C- 14-1, the respondents were entitled to let out their premises to as many as 14 tenants since there were only 7 occupants at C-14-1; and that the tenanting to students had already been approved by the AGM of the Management Corporation. [58] At paragraphs 6(ix) and (x) of their Defence, the 1st and 4th respondents further pleaded that the appellants’ complaint was not peculiar to the appellants’ unit but was one experienced in other units and that the developer of Flora Green had attended to such complaints. The 2nd and 5th respondents made no specific plea on this other than a general denial. The 3rd respondent, on the other hand, pleaded that the complaint had already been attended to by the developers or the earlier owners of C-P-1 – see paragraph 6(vii) of Defence. [59] Thus, the upshot in this respect is that undisputedly, there were renovations as alleged. Undisputedly and contrary to the defence of the 1st and 4th respondents, these renovations were, at the material time, carried out without the proper authorization or approval of the local authority or even of the 5th respondent. As a result, the local authority concerned issued notices to the 1st respondent, instructing the removal of such illegal partitions. This may be seen in MPKJ’s notices dated 29.4.2014 and 25.8.2014 which firmly corroborates the appellants’ complaints and confirm the existence of the illegal renovations. 25 [60] The local authority conducted at least three meetings before its second letter of 25.8.2014. These meetings were held on 29.1.2014 [exhibit P2, pages 3098 to 3102]; 2.7.2014 [exhibit P6, pages 3153 to 3155]; and 12.8.2014 [exhibit P7 – pages 3162 to 3163]. [61] In the latter letter or notice issued by the local authority, it reads as follows: Majlis Perbandaran Kajang Menara MPKJ Jalan Cempaka Putih Off Jalan Semenyih 43000 Kajang SELANGOR DARUL EHSAN 25 Ogos 2014 SENARAI EDARAN SEPERTI DI LAMPIRAN Tuan, ADUAN KACAU GANGGU OLEH PELAJAR-PELAJAR DI UNIT C-P-1 DI KONDOMINIUM FLORA GREEN, BANDAR SUNGAI LONG Dengan hormatnya saya merujuk perkara di atas dan mesyuarat bertarikh 12 Ogos 2014.

Adalah dimaklumkan bahawa setelah meneliti aduan kacau ganggu oleh pelajar-pelajar di unit G-1 di Kondominium Flora Green, pentadbiran ini mendapati perkara berikut –

2.1 Undang-undang kecil yang sedang berkuatkuasa di Kondominium Flora Green berhubung isu kacau ganggu adalah umum dan sekiranya berlaku gangguan secara berulang tiada tindakan yang boleh diambil oleh perbadanan pengurusan.

2.2 Terdapat beberapa pihak yang berkaitan isu ini enggan mengeluarkan laporan semasa siasatan dijalankan.

2.3 Pihak Universiti Tunku Abdul Rahman (UTAR) kurang memberi kerjasama dari segi pengawalan pelajar-pelajar dan tiada perancangan masa depan untuk menyediakan hostel yang lebih selesa dan baik untuk pelajar-pelajar UTAR. 26

2.4 Pihak Jabatan Alam Sekitar tidak mempunyai garis panduan untuk mengukur tahap kacau ganggu bagi premis kediaman.

Sehubungan itu, adalah menjadi tanggungjawab Perbadanan Pengurusan untuk mengawal selia bangunan pengurusan, pentadbiran dan penggunaan harta bersama. Undang-Undang Kecil di bawah seksyen 44 Akta Hakmilik Strata 1985 (Akta 318) dan Jadual Ketiga Akta 318. Berdasarkan Seksyen 44(3) bahawa undang-undang kecil yang sedang berkuatkuasa hendaklah mengikat Perbadanan Pengurusan dan pemilik seolah-olah menjadi perjanjian yang disempurnakan dengan sewajarnya; a) pada pihak Perbadanan Pengurusan dengan setiap pemilik; dan b) pada pihak setiap pemilik dengan tiap-tiap pemilik lain dan dengan Perbadanan Pengurusan. supaya mematuhi dan melaksanakan segala peruntukan undang-undang kecil itu.

Memandangkan isu kacau ganggu bunyi bising ini masih belum dapat diselesaikan pentadbiran ini menasihatkan mana-mana pihak yang terkilan untuk membawa isu ini ke Mahkamah berdasarkan peruntukan Akta 318 Seksyen 44(7) bahawa Perbadanan Pengurusan atau mana-mana pemilik adalah berhak untuk memohon kepada Mahkamah yang mempunyai bidang kurnia berwibawa;-

(a) Untuk mendapatkan perintah bagi menguatkuasakan perlaksanaan atau mencegah pelanggaran terhadap mana-mana undang-undang kecil oleh; atau

(b) Untuk mendapatkan kembali ganti rugi kerana apa-apa kerugian atau kecederaan kepada mana-mana orang atau harta yang berbangkit daripada perlanggaran terhadap mana-mana undang-undang kecil daripada, mana-mana orang yang terikat untuk mematuhinya. Perbadanan Pengurusan atau pentadbir dan Mahkamah boleh membuat apa-apa perintah sebagaimana yang difikirkan patut oleh Mahkamah terhadap mana-mana orang itu, Perbadanan Pengurusan atau ahli-ahli majlisnya, atau pentadbir.

Pentadbiran ini telah berusaha sedaya upaya untuk membantu menyelesaikan isu ini. Walaubagaimanapun pada ketika ini perlu memaklumkan bahawa tugas utama pentadbiran ini adalah untuk memberi khidmat nasihat kepada jawatankuasa Badan Pengurusan Bersama dan Ahli Majlis Perbadanan Pengurusan.

Selain itu, pentadbiran ini telah membantu untuk menyelesaikan aduan berkaitan pemasangan “partition”, kebocoran di bilik air utama CP-14 dan 27 penyalahgunaan kediaman menjadi hostel. Dengan ini, pentadbiran ini menasihatkan Perbadanan Pengurusan untuk membuat pindaan undang-undang kecil dan menasihatkan pengadu untuk mendapatkan khidmat peguam. Sekian, harap maklum. “SELESA, SELAMAT, MAJU & AKTIF” “BERKHIDMAT UNTUK NEGARA” Saya yang menurut perintah, t.t. (SITI ROSEMAWAR BINTI MOHD SAHI) Pengarah Unit Pesuruhjaya Bangunan b.p. Pesuruhjaya Bangunan Majlis Perbandaran Kajang [62] This letter offers independent and credible evidence of the existence of renovations in C-P-1 and the damage caused by the renovations to the appellants’ unit, not just in the nature of the sewage, water but in the cracks to the walls that had been proved by way of photos taken at the relevant time. There would have been nothing to resolve in this regard if there were no renovations to begin with – see paragraph 6 of the letter. [63] As stated, this letter is issued following a meeting on 12.8.2014. This meeting was a “mesyuarat susulan aduan kacau ganggu oleh pelajar-pelajar di unit C-P-1 Kondominium Flora Green, Bandar Sungai Long”. At an even earlier meeting of 2.7.2014, the meeting was informed that the partitions in C-P-1 had been demolished by the owner – see paragraph 2.1.1 at page 3154. However, the meeting was also advised of other unlawful partitions since made to C-P-1, C-P-2, C-P-3, B-4-3 and B-11-3 – see paragraph 2.2.1 of the minutes at page 3155; 28 confirming thence the existence of the renovations and the complaints of related nuisance. [64] Then, there is the evidence of material witnesses which the learned Judge appears to have overlooked or even disregarded. [65] First, the police report of Ng Young Hock [Ng], the contractor who, on the instructions of the owner, a Chinese gentleman named “Sam”, had done renovations to all three units, C-P-1, C-P-2 and C-P-3 [see page 35 of the Core Bundle]. From the notes of evidence, the 1st respondent was also known as “Sam”, thus, linking the 1st respondent to the renovations complained of. Ng’s evidence including his police report show that renovations were carried out in all three units as early as September 2013, and that such renovations were upon the instructions of the 1st respondent. [66] These pieces of evidence actually support the appellant’s contentions that although the 1st respondent may have claimed that he only took vacant possession in September, he had in fact, already commenced renovations to C-P-1 prior to that date. There were indeed, renovations to the 1st respondent’s unit of the type as described by the appellants. This, then, disproves the 1st respondent’s contention that he was improperly brought in as a party to the claim. In any event, the 1st respondent did not allege that the renovations were carried out by the developer without his consent, or that C-P-1 was bought, as renovated. [67] In our view, the existence of the renovations, whether by partitions or installing more washrooms within the respondents’ units was actually 29 satisfactorily established as a fact by the appellants. We find that the appellants’ complaint about the seepage of water and sewage effluent from C-P-1 into and the resulting damage to C-P-14 was also proven to have been from the renovation works conducted at the 1st respondent’s unit at the material time. The renovated units were then let out to students. The various tenancy agreements tendered at the trial bear this out. We have viewed these agreements and find that these agreements show that the three units were indeed tenanted to the same person who in turn sub-tenanted to quite a few students for each penthouse. [68] Therefore, insofar as the claim in trespass is concerned, there were in fact incontrovertible evidence led by the appellants; and the learned Judge was wrong in finding otherwise. [69] At this point, it would be convenient to deal with the question of whether the learned Judge was correct in holding that because the matter had been resolved by the local authority, the claim was no longer maintainable and that it was for the appellants to sue the local authority, if dissatisfied – see paragraph 25 of the grounds of decision. [70] With respect, we must disagree with the learned Judge. We find that his Lordship was very much persuaded, erroneously we must say, by arguments on the law on injunctions. The learned Judge was of the view that because the appellants were seeking the remedy of an injunction in the various terms mentioned at paragraph 41 of the Statement of Claim, the claim failed as the appellants’ complaints in this respect were no longer in existence at the time of filing of the action and had already been attended to. This is aside from finding that the 30 appellants had failed to establish their case against the right respondent, a decision which we find, with respect, plainly wrong given the evidence before the Court and as discussed earlier. [71] The matter of remedies, and which appropriate remedy ought to be ordered is a relevant consideration after liability of the claim has been established according to the standard of proof. In the instant appeal, the appellants had sought a range of remedies including injunctions and damages. While the order of injunction may no longer be appropriate in respect of the first set of renovations, due to the interventions by the local authority, the remedy of damages remains available and ought to have been awarded when liability was established. On the particular facts, we find damages to be the appropriate remedy, especially for past trespass and past nuisance, both of which had already occurred by the time of trial. We shall return to the matter of quantum of damages after we have dealt with the other aspects of the claim. [72] Thus, although the 1st respondent had yet to be registered as the owner of all three units at the time the first set of renovations were carried out, that is, from June 2013 till September 2013, the evidence showed that the renovations were upon his instructions. His liability remains despite the re-sale. As for the 2nd and 3rd respondents, they remain liable as long as trespass is established and not remedied. These respondents’ defence that they are not liable for the trespass is also not tenable in that the liability of these respondents remain – see Lord Atkin’s judgment in Sedleigh-Denfield v O’Callaghan [supra] at page 360 endorsing the earlier decision of Broder v Saillard (1876) 2 Ch D 692. 31 [73] Moving next to the claim for nuisance and this forms the substantial bulk of the appellants’ complaints; these complaints relate to the manner in which the renovations to all the three penthouses were carried out, their effect and consequence on the appellants’ unit, C-14-1; and the noise or nuisance that was caused by the tenants or occupants of the units concerned. These renovations were all upon the authorization and instruction of these respondents. [74] In this regard, the particular complaints is the noise caused by and the “unfriendly hours” of the renovations are the subject of complaints in the nuisance part of the appellants’ claim in relation to the renovations. Although the 2nd respondent had removed the partitions that were referred to earlier when dealing with the issue of trespass following the warning by the local authority, the 2nd respondent continued to let out C-P-1 to students. Subsequently, the 2nd respondent’s unit was again renovated with works involving partitioning, electrical, piping and sewage works. [75] This aspect of the appellants’ claim stands regardless of the findings and position of their claim in respect of the noise nuisance. And this is regardless of the fact that the matter may have been referred to the local authority. Not only were the renovations unlawful, they persisted and there was ample evidence to prove the existence of the trespass and the nuisance in the terms complained of. The claim on this score alone ought to have been allowed; regardless of the findings on the other aspect of the nuisance claim. 32 [76] The other aspect of the nuisance claim involves the occupants of the three renovated penthouses. All three penthouses were tenanted to students even till the time of filing of the claim. The allegation is that the respondents’ tenants created disturbance and intolerable noise levels and the like, the details of which were set out in the earlier part of this judgment, and that such nuisance continued unabated despite their complaints. [77] Now, the noise and various complaints themselves are probably innocuous, very much matters that many of us would have to put up with as part of civil society and being good neighbours and neighbourliness. However, the appellants’ complaints pertain to such noise and disturbance breaching the respondents’ duty of care and amounting to nuisance, particularly as the renovations were not done at reasonable hours, given that Flora Green Condominium is for all intents and purposes, a residential development. [78] Although these complaints started with C-P-1 belonging initially to the 1st respondent before its ownership passed to the 2nd and then to the 3rd respondent, the complaint is nevertheless not confined to that single unit. The complaints extend to all three units as all three units were renovated under similar circumstances, that is, into student accommodation and let to students, and that such torts persisted. [79] On the allegation of nuisance by reason of the noise and disturbance that were generated by the activities of the occupants of the units concerned, we also found the claim proved. Again, we found a substantial body of contemporaneous documentary evidence which 33 corroborated the appellants’ case and which were not evaluated whether properly or at all, by the learned Judge. Amongst such evidence are the following: i. police report dated 12.9.2013 lodged by Ng Young Hock [Ng], the contractor who had renovated all 3 penthouses; ii. police report dated 23.10.2014 by the 2nd appellant; iii. police report dated 31.10.2013 made by the 1st appellant against Sam Chai (the 1st respondent); iv. photos taken by the officers from MPKJ following complaints in October 2013 [see evidence of Siti Rosemawar binti Mohd Sahi, Director at Department of Commissioner of Building, MPKJ (PW3)] – page 3097; iv. warning notice dated 29.4.2014 issued by MPKJ [page 87]; vi. emails sent by Julie Lim Sow Fan and Donald Heath protesting inter alia to Flora Green being used as a student hostel instead of “a residential area” and requiring the 5th respondent to take action. [80] The respondents had contended that “material natural evidence” needed to be tended to corroborate the allegation of the appellants. With respect, we disagree with the learned Judge, that we did not find it necessary for the appellants to prove by way of scientific or technical evidence that the noise generated was beyond tolerable levels. On the contrary, we are of the unanimous view that the presence of “noise” which breached levels of tolerance of decent society and community and which amounted to nuisance was amply proved. 34 [81] A total of 22 witnesses had testified at the trial. The appellants called 8 witnesses while the respondents called the remaining 16. The parties themselves testified; the appellants as PW5 [Anastassia Chan Bei Nee, the 7th appellant and one of the children]; PW6 [the 1st appellant]; and PW8 [the 2nd appellant]. The 1st and 3rd respondents testified respectively as DW10 and DW9. The 2nd and 4th respondents did not testify. Not all the evidence given was properly or adequately evaluated. It is the responsibility of the trial judge to evaluate and where discarding or accepting certain pieces of evidence, to provide reasons. [82] Amongst the witnesses who testified for the respondent was Sarjan Amir Aris [DW1]. He had testified that the 1st appellant had made numerous police reports, the first being in 2011. These police reports alleged the existence of noise nuisance between the hours of midnight and 5.00 in the morning. The 1st appellant is also alleged to have called DW1 on his hand-phone so many times and regardless the time of night to the extent that DW1 stopped answering her calls. DW1 testified that no other occupier at Flora Green complained of noise. DW1 claimed that each report by the 1st appellant was investigated by him or his team; and each time, they did not find any noise nuisance. DW1 further claimed to have reported every incident of report by the 1st appellant to his superiors. [83] This evidence was accepted by the learned Judge without weighing DW1’s evidence against the testimony of his superior, Supt Abdul Ghani who testified as PW1 and who told the Court that he was not kept informed by DW1. DW1’s evidence, as was the testimony of 35 the two other police officers called [DW2 and DW8], ran counter to the documentary evidence in the form of minutes of meeting conducted by the local authority on 29.1.2014 wherein these same officers attended and confirmed the presence of nuisance. There was no evaluation of these police reports and the minutes of meeting which in fact confirm that the appellants did complain to the police at the material time, that the complaints were not imagined or exaggerated, that such meetings would not have been held but for the existence of the nuisance. The involvement and efforts of the university where the tenants studied further fortified the truth of the appellants’ allegations. [84] The respondents had also called the student tenants to testify on the noise nuisance, namely DW3, DW4 and DW5. These witnesses who were tenants of the three penthouses, denied the allegations. Their police reports however, showed that the appellants had, at the material time, complained to the police about the noise that they had made. Those reports were lodged at all odd hours of the night, or the early hours of the morning and which DW1 had claimed he had investigated. [85] We have already made our observations on DW1’s evidence. As for the evidence of DW3, DW4 and DW5, we note that the learned Judge had agreed with the respondents that the appellants’ complaints were only directed at the occupants of C-P-1 and “never directed at C-P-

No evidence was tendered whether through witnesses or documents on this issue pointing to nuisance by residents of C-P-3 at the material time.” 36 [86] But, in rejecting the appellants’ case, the learned Judge failed to have proper regard and to take into consideration the material and highly relevant evidence of PW2, Ng Choon Ming. PW2 was a neighbour of the appellants but who had since moved out of Flora Green as the “living condition was unbearable”. PW2 had testified that Flora Green was meant to be a residential condo but many of the owners had converted their units into student hostel to provide accommodation for students from UTAR, located across the street. As a result, Flora Green became “overcrowded with students … and the students create a lot of noise and there were renovation noises as well.” The noises “sounded like dragging of furniture or something very heavy that fell on the floor” were created late at night until early in the morning. PW2, lived in C-13-1 with his then pregnant wife, could hear those noises from his unit “as the noise was loud enough to wake my wife and I up from our sleep”. When the noise was heard from C-14-1, “the noises I heard from C-P-1 were very loud”. [87] PW2 also confirmed the writing of letters to the 5th respondent, the local authorities and the Chief Minister of Selangor. According to PW2, the 5th respondent did nothing because “majority of the people sitting in the 5th defendant are supporting the cause of renting the units as a student hostel. As such the 5th defendant refused to take any action against the students or the owners but condoned the act of erecting more unlawful partitions”. [88] Again, like the other pieces of material evidence pointed out, this evidence was not weighed by the learned Judge. Had this and the other pieces of evidence led by the appellants been properly considered, it 37 would have led to the irresistible conclusion that the real probability of truth is in the appellants’ case. As testified by the appellants, the objection was not to renting the premises to students but that the illegal renovations were not carried out properly but at unearthly hours; and that the tenanting of the penthouses to students should not jeopardize their peaceful enjoyment of the use of their own property or to the extent of turning Flora Green into a student hostel. It was where their enjoyment had been compromised that the law must step in to prevent or curtail such breaches or interferences. And it is in this respect that the learned Judge erred in appreciating the essence of the appellants’ claim and for which this Court is compelled to intervene. Contrary to the findings and conclusions reached by the learned Judge, there was overwhelming evidence led by the appellants to prove their claim both in trespass as well as in nuisance. [89] All the evidence led by the appellants, if properly evaluated by the learned Judge would have met the objective reasonableness test as opined by the Federal Court in Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors [supra]. The appellants’ complaints were not imagined but were real; the noise and nuisance created not just by the renovations [as seen from the contractors’ own police reports] but by the residents in the three penthouse units were of such volume, intensity, persistence or regularity [as can be seen from the almost regular police reports made by all parties] that any reasonable standard will consider such conduct and acts complained of, a nuisance. The matters complained of by the appellants were not mere irritation or hyper sensitivity to the respondents’ acts or conduct, but acts of nuisance which had traversed beyond lines of tolerance and decency; especially 38 when regard is given to the type of residence that Flora Green Condominiums is supposed to be. Those acts or conduct had breached the principle of reasonableness or reasonable user and had interfered with the appellants’ reasonable enjoyment of their property, their home. [90] At this point, we must deal with the liability of the 1st to the 4th respondents in respect of the noise or nuisance caused by their tenants; on top of the nuisance caused by the renovations that they had instructed to be carried out. That liability stands regardless. [91] In this regard, the learned Judge had refused to find the respondents liable on the basis that the appellants had not established that the 3rd respondent had “authorized or approved of the purported nuisance caused by the residents of C-P-1 at the material time;” that the tortfeasors had not been identified and made parties to the claim. Furthermore, according to the learned Judge, a landlord who has not participated in the impugned act cannot be vicariously liable for any act or omission that constitutes nuisance except in certain circumstances which did not exist in the instant case. The decision in Lawrence and Another v Fen Tigers Ltd & Ors (No. 2) [2014] 3 WLR 555; [2014] UKSC 46 was cited in support and accepted by the trial judge. This point was actually relevant to all four respondents, and not just the 3rd respondent. [92] In Lawrence v Fen Tigers, it was held that a landlord would not be liable for nuisance caused by the tenant of property unless the landlord either could be said to have authorized the nuisance by letting the property or had participated directly in the commission of the 39 nuisance; that it was not enough that the landlord had been aware of the nuisance but took no steps to prevent it. In order to succeed on the basis of authorization, a claimant will have to show a high degree of probability that the letting of the property would result in nuisance, that liability on the basis of direct participation in the nuisance was largely a question of fact for the trial judge. The first four respondents contended that the learned Judge was right in holding that there was no evidence of authorization or approval by them of the acts complained of; that they are not the tortfeasors of the alleged noise nuisance; and that the tenants who caused the noise nuisance have in fact not been identified and made parties to the action. The case of Sedleigh-Denfield v O’Callaghan [supra] cited by the appellants was argued by the respondents to be distinguishable in that the tortfeasors were clearly identified in that case and that there was evidence of continuous nuisance, both elements being absent in the present appeal. [93] There are actually two Supreme Court decisions concerning this dispute. The first may be found in Lawrence and Another v Fen Tigers Ltd & Ors [2014] UKSC 13, the second in Lawrence and Another v Fen Tigers Ltd & Ors (No. 2) [2014] UKSC 46. [94] The facts are these. In February 1975, planning permission was granted to one Terence Waters for the construction of a stadium on agricultural land which he owned. The planning permission granted allowed Waters to use the stadium for “speedway racing and associated facilities for a period of 10 years. After construction, the stadium was leased to Fen Tigers Ltd by Waters. In 1985, the planning permission was renewed on a permanent basis. 40 [95] In 1984, though not permitted, stockcar and banger racing started at the stadium. However, due to the 10 years of such use, Waters applied for a Certificate of Lawfulness of Existing Use or Development, under section 191 of the Town and Country Planning Act 1990, as substituted by section 10(1) of the Planning and Compensation Act 1991, contending that such use had become immune from planning control enforcement. In fact, greyhound racing also started at the stadium in 1992. The certificate was issued in July 1997. [96] At the rear of the stadium was an undulating motocross track (“track”), built for a particular type of motorbike racing and practice. Personal planning permission for such activities was granted in May 1992 for a year. This permission was renewed from time to time, on conditions which sought to control their frequency, and the amount of sound emitted from such activities. In 2002, this permission also became permanent, subject to the same conditions as before. The use of the track was limited to a certain number of days within prescribed hours, and the maximum noise level allowed over any hour at the boundary of the track was also spelt out. [97] In August 2005, Waters’ son acquired the stadium. His son then leased the stadium to one Carl Harris. Haris entered into an arrangement with one David Coventry on the operation of the business of the stadium. In April 2008, David and his brother took over the lease and the stadium. 41 [98] All this time, Fen Tigers Ltd continued to promote speedway racing at the stadium. However, in July 2010, Fen went into liquidation. In September 2003, Waters’ son, co-owner of the track with two others, granted a 10-year lease to Moto-Land UK Ltd to operate the track. [99] In January 2006, Katherine Lawrence and Raymond Shields, the appellants, bought a bungalow known as “Fenland” located some 850 yards away from a stadium. Fenland, built in the 1950s, was surrounded by agricultural land. The appellants purchased Fenland from Mr. and Mrs. Relton who owned and lived in it since 1984. [100] In April 2006, the appellants became concerned over the noise coming from the motocross events at the track. They complained to the local council, and wrote to both the occupiers, operators and landlord of the stadium, threatening legal action. The complaints resulted in noise abatement notices and the carrying out of attenuation works or works to mitigate noise emanation. The notices stipulated that the activities at both the stadium and the track each constituted a statutory nuisance. [101] Meanwhile, the appellants sued the occupiers of the stadium and track, as well as the landlord and predecessor landlord, seeking inter alia an injunction to restrain the nuisance. However, before the claim went to trial, Fenland was extensively damaged in a fire which rendered it uninhabitable. It was not rebuilt by the time of trial and decision; and the appellants no longer lived there. [102] The landlord was alleged to have done nothing to persuade the tenants to stop or reduce the nuisance; erected instead a hay-bale wall 42 on the boundary of the track with Fenland; liaised with the local council in respect of the noise issues; appealed against the noise abatement notices; and coordinated responses to the noise complaints. [103] After examining the relevant legislation, principles and case law, the trial judge drew several interesting conclusions. On the issue of whether it was “possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, or, to put it another way, to transmit sound waves over neighbouring law”, the learned Judge answered in the negative; that no such right could be acquired as a matter of law; and even if he was wrong, the interruption in use in 1991 and 1992, would have been fatal to a prescriptive claim. Although of the view that the defence of “coming to the nuisance” may be available in certain circumstances where there is a change of use of the land by the claimant, the trial judge rejected that defence on the facts. The Court also did not find the planning permissions granted to have any bearing due to their “personal nature” and the fact that there was limited permitted use of the stadium and track. [104] The appellants’ claim against the occupiers was consequently allowed. However, the trial judge did not find the landlord liable principally because the leases contained covenants against nuisance. [105] On the matter of remedies, the trial judge was minded to grant an injunction to restrain the tenants from carrying on activities at both the stadium and the track which emitted more than a specified level of noise. The Court was inclined to provisionally fix the decibel levels but because Fenland was unoccupied, the injunction was then suspended. Damages 43 for past nuisance was then assessed and awarded. After that decision was handed down, a further hearing took place before the judge who then inter alia fixed different levels of noise that may be emitted, and gave the parties further the right to apply to vary the terms of the injunction. [106] The decision was reversed on appeal by the Court of Appeal. In the first appeal that went to the Supreme Court and reported in Lawrence and Another v Fen Tigers Ltd & Ors [2014] AC 822; [2014] UKSC 13, the principal issue was whether there was a right to commit nuisance by prescription, whether the grant of the planning permission could be relied on as a defence to a nuisance claim. [107] The Supreme Court disagreed with the Court of Appeal and reinstated the decision of the Court of first instance. The Supreme Court held that there was no question of the tenants being able to rely on the fact that the appellants came to the nuisance or any other similar argument. The appellants used Fenland as a residence, and that was the same purpose to which it had been put to use even before the activities on the track and the stadium had started. Although the Supreme Court disagreed with the trial judge’s findings that the planning permissions were irrelevant, the Supreme Court did not consider such failure undermined the trial judge’s conclusion that the activities on the track and the stadium constituted a nuisance. While the use of the track and the stadium was not inappropriate, the noise emitted was; and the planning permissions did not cover matters such as the level of noise permitted. On the facts in that appeal, it was of course, possible that the 44 track activities be carried out without a nuisance being necessarily caused. [108] Following its decision, the Supreme Court restored the order of injunction that was granted by the trial judge; the Supreme Court was not inclined to award damages in its place since the trial judge was not invited to consider that remedy [see paragraph 149]. The Supreme Court did not find the circumstances most exceptional to warrant its consideration of the issue and grant an award of damages. Such a decision was dependent on a number of issues, amongst which was the behavior and attitude of the parties, a matter which the trial judge was particularly well-positioned to assess since there was much oral evidence given. [109] In the second appeal at the Supreme Court, reported in Lawrence and Another v Fen Tigers Ltd & Ors (No. 2) [2014] 3 WLR 555; [2014] UKSC 46, the Supreme Court identified four further or consequential issues that arose following from its earlier decision. For the purpose of our instant appeal, it is the matter of whether landlords are also liable for the nuisance of their tenants or lessees. [110] According to the Supreme Court, this is a question of fact; and on the limited facts before the Court in that appeal, the Supreme Court concluded that the landlord was not liable. Despite the landlord’s awareness of the tenant’s intended activities, it was not inevitable or a close to inevitable consequence of the grant of the lease that a nuisance will be caused by the tenant. Following Southwark v London Borough Council v Mills [2001] 1 AC 1; Smith v Scott [1973] Ch 314, the fact 45 that the landlord was a party to an appeal to the local council against the abatement notice, that he takes a course that is available to him and in aid of his economic interests does not, in the view of the Supreme Court, amount to authorization or participation in the nuisance. The Supreme Court further held that the presence of the covenant in the lease was also unlikely to assist the landlord in avoiding liability; it is a question of whether there is an inevitability or near inevitability of the letting creating a nuisance that will render a landlord liable. [111] It is the submission of the respondents that the Supreme Court’s decision in Lawrence and Another v Fen Tigers Ltd & Ors (No. 2) is to be preferred, that aside from the fact that the nuisance is not proved, that the tenants were not identified and sued, they, the landlords cannot be pinned with liability for the tort of nuisance committed by their tenants simply by reason of them tenanting the penthouses. As held in Lawrence and Another v Fen Tigers Ltd & Ors (No. 2), the appellants must prove that nuisance was “an inevitability or near inevitability of the letting”. [112] We are of the view that we need not go as far as what was pronounced in Lawrence and Another v Fen Tigers Ltd & Ors (No. 2). Having carefully considered both decisions of the Supreme Court decision in Lawrence and Another v Fen Tigers Ltd & Ors as well as the House of Lords’ earlier decision in Sedleigh-Denfield v O’Callaghan [supra] we start, first of all, with an important statement of law propounded in Salmond on Torts, 5th Edn, pp 258-265. This proposition of law was approved by Scrutton LJ in a powerful dissenting 46 judgment in Joe Edwards Ltd v Birmingham Navigations [1924] 1 KB 341; that statement being: “When a nuisance has been created by the act of a trespasser or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement.” [113] In Sedleigh-Denfield, without attempting exclusive definitions, Viscount Maugham sought to throw some light on the words “continues or adopts” by occupiers of the acts of trespassers and the like. An occupier may be said to have continued with the nuisance “if, with knowledge or presumed knowledge of its existence, he fails to take any reasonable means to bring it to an end, though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.” He is equally liable if he is in the position to put an effective end to the nuisance and he fails to do so. On the facts in Sedleigh-Denfield, the House of Lords found that there was failure to abate the nuisance in which case, the respondent was held liable, the decisions of both the Court of Appeal and the High Court were reversed. [114] The Supreme Court in Lawrence & Another v Fen Tigers Ltd & Ors cited the decision of Sedleigh-Denfield, but only in respect of Lord Wright’s test on finding occupiers or owners’ liability for unauthorized acts which have interfered with the neighbour’s reasonable enjoyment of his land or which unduly interferes with the other’s enjoyment of his land, that “a useful test is perhaps what is reasonable according to the 47 ordinary usages of mankind living in society, or more correctly in a particular society.” [115] But, if the House of Lords’ decision in Sedleigh-Denfield is properly examined, it will be seen that the House of Lords had actually opined that though an occupier is not prima facie responsible for nuisance created without his knowledge or consent, that the occupier is liable if “…he had knowledge, or means of knowledge, that he knew, or should have known, of the nuisance in time to correct it and obviate its mischievous effects.” That correction or remedy must be done without undue delay “when he became aware of it or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that, with ordinary care in the management of his property, he should have realized the risk of its existence. This principle was affirmed in Barker v Herbert [1911] 2 KB 633.” [116] In the facts and circumstances of the present appeal, the nuisance is two-fold; that which was created by the respondents themselves through the unlawful renovations of the penthouses that they had instructed and authorized; and through their tenants who occupied the penthouses, after they were renovated. In the first respect, the liability of the respondents is clear, and we have already deliberated on this earlier. As for the second respect, other than denials and the objections that the 48 tortfeasors have not been cited as parties, there is no evidence of any efforts undertaken by the respondents to abate the nuisance created by their tenants. [117] This is vastly different from the facts pertaining in Lawrence & Another v Fen Tigers Ltd & Ors where there was evidence of the landlord staking hay bales at the boundary of the track with Fenland in an effort to reduce the noise emission. There were no such efforts in the instant appeal. Neither was there a question of illegality of use in Lawrence & Another v Fen Tigers Ltd & Ors, unlike the facts in this appeal. Instead, there was evidence of planning permission granted; the first of the two appeals concerned that issue, whether nuisance was no longer a valid complaint by reason of prescription. Here, not only is the existence of the unlawful renovations established, so was the occupancy of the renovated penthouses as student accommodation. The occupation of Flora Green Condominiums as residence took a very different complexion by the nature and character of that residency as put to use by the respondents. The illegally renovated penthouses were really at the end of the day, commercially tenanted as evident from the tenancy agreements. Tenancy was with the same person, a nigh impossibility if that tenant was to occupy all three penthouses as her abode. [118] The evidence in the instant appeal proved that the respondents were fully aware of the complaints of the appellants; having themselves made police reports to deny the existence of the complaints. In the police reports lodged by the contractors engaged by the respondents, it is also clearly evident that there were unlawful renovations carried out at 49 the material time; that the renovations were carried out in the manner complained of, that such renovations had since stopped as a result of the appellants’ police reports. Given that nuisance in the terms complained of has been satisfactorily proved, that the respondents were fully aware of the nuisance complained of but had taken the hardline that there was none at all; and since there is a complete absence of any abatement action by the respondents, we find the Supreme Court decision of Lawrence & Another v Fen Tigers Ltd & Ors to be of no assistance to the respondents. The respondents, as landlords, thus, remain liable for the nuisance created by their authorized tenants. [119] There is yet another aspect to the respondents’ liability for the nuisance, whether directly and indirectly caused by them, and we will deal with it when dealing with the appeal in respect of the 5th respondent since the issue is common. iii. Claim against the 5th respondent [120] Moving then to the appeal against the dismissal of their claim against the 5th respondent. The learned Judge similarly found the claim against them not proved. The learned Judge understood the appellants’ case here is that the 5th respondent had failed to discharge their duties and responsibilities as a management corporation. Because the claim against the first four respondents had failed, the claim consequently failed. The learned Judge further held that the appellants’ evidence in its totality “did not establish the continuing occurrence of the alleged nuisance and trespass by the residents of the units complained against 50 and importantly in respect of D5 as the MC, that D5 had failed to perform its duties satisfactorily and to respond [sic] responsibility to the numerous complaints by PW1.” The Court found the evidence to have shown the 5th respondent as having responded “satisfactorily by conducting investigations and taking a variety of steps to resolve the situation”; that it was not a case of the 5th respondent having “completely ignored or neglected the complaints and concerns of owners of C-14-1”. The evidence was in the learned Judge’s view “insufficient to prove dereliction of duties as a responsible MC”. [121] We must, again, even in this respect, disagree with the learned Judge. [122] The issue here is the statutory regime established under inter alia the Strata Management Act 2013 [2013 Act] and the Regulations, Bylaws and House Rules enacted or passed under the 2013 Act. The 2013 Act together with its Regulations and Bylaws bind all the parties before the Court. Pursuant to the 3rd Schedule of the Regulations made under the 2013 Act, the respondents “shall not use or permit to be used his parcel in such a manner or for such a purpose as to cause nuisance or danger to any other proprietor or the families of such proprietor”; “or to use their respective parcels contrary to the terms of use.” [123] The effect of these statutory provisions is to recognize the common law duty of care with regard to neighbours in communal living, casting on all owners of the various parcels of Flora Green Condominium, including the appellants, the duty and responsibility of ensuring that there is inter alia, no nuisance. There is no distinction 51 provided in these laws that owners are absolved where the tort is caused by some third party, whether these owners licensed, leased or tenanted their parcels to third parties; or that affected neighbours like the appellants have to prove inevitability or near inevitability before liability is established. [124] In our view, the statutory regime effectively means that the responsibility for nuisance caused by third parties occupying tenanted parcels remain with the owners qua landlords. We agree with the submissions of the appellants that with the huge advent of AirBnB tenants or even as is the case here, the occupation of the penthouses by students almost as a student hostel from the extent of partitions which the respondents themselves instructed or authorized, where identity and details of occupancy are frequently out of the reaches of neighbours such as the appellants, Parliament has seen it fit that the duty and thereby the liability remains with the respondents and with the 5th respondent. This is an entirely different position from that posited in Lawrence & Another v Fen Tigers Ltd & Ors and which we will only apply with caution, but certainly not in the particular circumstances and statutory regime presented in this appeal. [125] The learned Judge was thus plainly in error in dismissing the appellants’ claim against the respondents. iv. Remedies [126] Dealing finally with the matter of remedies. We had earlier observed that the claim was dismissed inter alia on the basis that the 52 trespass and the nuisance caused by the illegal renovations had purportedly abated. This is erroneous for the reasons already discussed. [127] However, as is well illustrated in the first of the two decisions of Lawrence & Another v Fen Tigers Ltd & Ors, the appropriate remedy is very much fact-centric. The awards for the past nuisance were clearly upheld on appeal by the Supreme Court. In the circumstances of this appeal, given those reasons, while injunction may no longer be a suitable remedy, damages surely for past trespass and nuisance remain, and it is in that regard that the learned Judge is plainly erroneous. [128] In this appeal, aside from the past trespass and nuisance, the continuing nuisance in the manner alleged have been, in our unanimous view, more than satisfactorily proved. There is overwhelming evidence of nuisance due to the multiple illegal renovations and to the noise. The learned Judge was plainly wrong in rejecting the evidence led by the appellants. [129] Thus, taking the circumstances as a whole, we are of the view that the following award of damages in favour of the appellants is both adequate and reasonable: i. a sum of RM50,000.00 against the 1st respondent; ii. a sum of RM20,000.00 each against the 2nd – 4th respondents; iii. a sum of RM10,000.00 against the 5th respondent. 53 [130] We further order that such awards of damages shall carry interest at the rate of 5% per annum from the date of judgment of the High Court to the date of realization. Conclusion [131] For the reasons adumbrated above, we find merits in the appellants’ appeal. Consequently, the appeal is allowed with costs; the decision of the High Court is set aside, and the order for damages is entered against each of the respondents in the terms pronounced. Dated: 10th July 2019 (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 54 Counsel/Solicitors For the appellant: Lai Chee Hoe (Pan Yit Leng, Lim Soo Ching with him) Messrs Chee Hoe & Associates D-06-06, Plaza Mont’ Kiara No. 2, Jalan Kiara, Mont’ Kiara 50480 Kuala Lumpur For the 1st and 4th respondents: Loi Lai Mee (Yu Woon Yee with her) Messrs Loi Tan & Associates No.1, Jalan Arif, Taman Connaught Cheras 56000 Kuala Lumpur For the 2nd respondent: Srileena Messrs Srileena & Sui Level 8, Tower 8, Avenue 5 The Horizon Phase 2, Bangsar South No. 8, Jalan Kerinchi 59200 Kuala Lumpur For the 3rd respondent: Nagarajan Periasamy (Vinoshni Narayanasamy with him) Messrs Nagarajan Peri & Co. No. 40A, Tingkat 1 Jalan Tukang 43000 Kajang Selangor For the 5th respondent: Lawrence Lee Messrs Lawrence Lee & Hoong Suite B3-5-13A, Solaris Dutamas No. 1, Jalan Dutamas 1 50480 Kuala Lumpur