Ho Nyet Foong v Lb Land Sdn Bhd (C-02(IM)-1957-11/2023)

Suatu injunksi untuk menahan Defendan dengan serta merta, sama ada secara sendiri, kontraktornya, ejennya, pengkhidmatnya atau lain-lain yang berkaitan daripada melakukan tindakan-tindakan berikut sehingga penyelesaian penuh dan muktamad tindakan di sini atau perintah selanjutnya:

Daripada melaksanakan kerja-kerja menyemburkan racun serangga dan baja buatan dan bahan kimia dengan menggunakan pam motor atas hartanah Defendan yang dikenali sebagai PM 3043, Lot 11042 dan GM 5984, Lot 10931, kedua-dua dalam Mukim Gali di sepanjang kawasan yang Page 3 of 10 bersempadan dengan tanah projek Plaintif seperti di dalam butiran (b) permohonan Plaintif di Kandungan 3

Bagi maksud meleraikan segala kekaburan, injunksi ini adalah untuk dilaksanakan dengan syarat seperti dinyatakan dalam perenggan 2(a) dengan syarat larangan tersebut hanya terpakai bagi maksud 20 meter antara sempadan tanah Plaintif dengan sempadan tanah milik Defendan.

Demi memperkukuhkan akujanji, sejumlah RM50,000.00 perlu didepositkan oleh Plaintif dalam tempoh masa 14 hari dari tarikh perintah ke dalam Mahkamah dan jika gagal membuat demikian, injunksi itu akan luput.

Bahawa kos permohonan ini dijadikan kos di dalam kausa.

Suatu notis menurut Aturan 45 Kaedah 7(4) Kaedah-Kaedah Mahkamah 2012 diendorskan di salinan perintah ini.” [2] On 4.12.2024, this Court, after having considered the oral and written submissions of the counsels for the respective parties, in a unanimous decision allowed the appellant’s appeal and ordered that the High Court order dated 6.11.2023 be set aside. The reasons for the decision of this Court are set out as below. Salient Facts [3] The appellant is the registered proprietor of two pieces of agriculture land (“the appellant’s land”) which are adjacent to the respondent’s land. Page 4 of 10 The said appellant’s land has been used as a durian orchard for over 40 years. [4] The respondent acquired its land sometime in October 2015 and decided to develop the said land into a residential housing estate. The respondent had constructed eight units of two-and-a-half storey semi-detached house on its land. [5] Sometime in early 2023, the respondent complained that the appellant and/or her agents (workers) had “physically interfered with the respondent’s housing project by spraying poisonous insecticide and fertilizer and chemicals with the use of a motorized pump” on the appellant’s land. The respondent averred that it was a nuisance that those poisonous insecticide, fertilizer and chemicals were “injurious to health, or indecent or offensive to the senses or an obstruction to the free use of the respondent’s housing project and injurious to the health of the respondent’s workers.” The respondent had particularized the nuisance caused by the appellant (or her agent) in its statement of claim as follows: “7.1 There is interference by act or omission with the Plaintiff’s use or enjoyment of the said housing project (or some rights or in connection with the said housing project);

7.2 There is disregard of the rights of the neighbour (the Plaintiff) as to the comfortable enjoyment of life and property;

7.3 The said nuisance is likely to cause obnoxious smell to injure the health of the neighbours and to diminish the value of the property (the said housing project) as it will discourage the potential purchasers from buying and occupying the building constructed on the said Lot.

7.4 There are things likely to do mischief as to the poisonous insecticide and chemical used if not stopped or restrained.” [6] The respondent further pleaded as follows: “8. The said housing project had been completed and the Plaintiff has as at to date obtained the Certificate of Completion and Compliance and is in the midst of launching the said housing project which will be affected for the reasons as aforesaid, if the Defendant, and/or her servant or agent or representative is not restrained from carrying out the nuisance caused.” Decision of the High Court [7] The learned High Court judge found in favour of the respondent’s application in that there was a serious question to be tried, damages would not be an adequate compensation and that the balance of convenience lies in favour of the respondent and there was a need to maintain status quo. Analysis of this Court [8] On the issue of serious question to be tried, this court is of the view that there is no serious question to be tried. In the first place, the appellant has been cultivating her said orchard for decades, and there was no Page 6 of 10 complaint by the owners from the neighboring lands with respect to the activities of spraying of fertilizer and insecticides on the appellant’s land. [9] The respondent acquired its land in 2015. The respondent did not make any complaint to the appellant about the activities of spraying of fertilizer and insecticides on the appellant’s land at that time. There was also no complaint during the construction of the respondent’s housing project. The complaint only came after the respondent had completed its housing project, and it seems the sales of the respondent’s housing project was not well received. The respondent put the blame on the method employed by the appellant in administering the insecticide, fertilizer and chemicals to her plants (durian trees) in the orchard. The respondent ought to know that the adjacent land was and still is an orchard (durian tree plantation), and that the appellant had been spraying fertilizer and insecticides on her land at the time the respondent acquired its land. [10] The respondent averred the insecticide used by the appellant was poisonous. However, the officer(s) from Raub District Council had carried out an inspection on the appellant’s orchard on 31.1.2023, and could not find any poisonous activity had been carried out by the appellant or her agents or workers. [11] The respondent had constructed its houses right next to the appellant’s orchard. It is foreseeable that the smell of insecticide, fertilizer and other chemicals would be apparent to people on land next to the orchard. In this case, the respondent is a company, not a person. Therefore, there is no basis for the respondent’s complaint that the respondent’s comfortable enjoyment of life and property was interfered with, or that its health was injured by “obnoxious smell”. There is no Page 7 of 10 evidence that the respondent’s workers had suffered any health issue because of the chemicals used in the appellant’s land. [12] Based on the respondent pleaded case, the sales of the respondent’s project would be affected by the so called “nuisance”. Even if it is true, the respondent could not sell its houses, there is no damage caused to a person or property of the respondent, therefore, the loss, even if it is proven, would be pure economic loss. [13] Whether the respondent could succeed in its claim for tort of nuisance is still questionable. However, even if a serious question to be tried could be made up, this Court is of the considered view that damages would be adequate compensation. As explained above, if there is any loss, the respondent’s claim is purely a claim for pure economic loss. There is no damage to property or injury to any person. Monetary damages would be an adequate compensation for loss in the nature of pure economic loss. [14] With regard to the issue of balance of convenience, this Court finds it lies in favour of the appellant for the following reasons. [15] If the appellant is prevented by an injunction from administering the insecticide using a motorized pump, then the durian fruits on the appellant’s land could be exposed to harm by insects, and the trees could be attacked by pests, diseases and fungus. If this is prolonged over a period of time, it may affect the trees’ ability to bear fruits or the trees’ health and growth. The damage caused to the trees would be irreversible and it could be too late by the time the court action is disposed of. Page 8 of 10 [16] Ultimately, the respondent’s complaint is that potential purchasers would be discouraged from buying its houses. If the appellant continues to use a motorized pump to spray insecticide, fertilizer or chemical to the trees in her own land, the speculative harm alleged by the respondent is that potential buyers may be discouraged from purchasing the respondent’s houses. This Court is of the view that the respondent ought to have foreseen the risk that potential purchasers would be concerned about buying houses next to an orchard in which fertilizer and insecticides are used even before the respondent acquired the land next to the appellant’s orchard for purpose of a housing development. Such risk would have been present regardless whether the injunction sought for is allowed or not. The said risk is not related to refusal of the injunction relief sought by the respondent. [17] Based on the above, this Court finds that the balance of convenience lies with the appellant in that the interlocutory injunction should not have been granted pending the disposal of the respondent’s action. [18] For the record, the respondent has filed a cross-appeal seeking to amend the High Court Order dated 6.11.2023, particularly item (3), to the effect that the said “20 meters” to be amended to “50 meters”. As a result of this Court exercising its appellate jurisdiction to allow the appellant’s appeal, therefore, the cross-appeal filed by the respondent would become academic. Page 9 of 10 Conclusion [19] For the above reasons, the appellant’s appeal is allowed and the High Court Order dated 6.11.2023 is set aside. This Court further orders damages to be assessed as the interlocutory injunction (ex-parte and inter-parte) should not have granted in the first place. This Court further orders costs of RM20,000.00 to the appellant (subject to allocatur). -sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Date: 1.4.2025 Page 10 of 10 Counsel(s) for the appellant: Eugene Khoo Yean Shern (Yeoh Tze-Haw, Kum Hui Min and Hong Shu Han with him) Messrs. Yeoh Shim Siow & Lay Kuan Counsel(s) for the respondent: Bastian Pius (R. Sarengapani a/l K Rajoo and Adrian Kumar Vendargon with him)