Jewel View Sdn Bhd v Indah Water Konsortium Sdn Bhd (WA-12BNCvC-106-08/2024)

This was an appeal by the appellant against the decision of the learned Sessions Court Judge (‘SCJ’) made on 12.8.2024 in allowing the respondent’s claim for the outstanding sum of RM323,588.48 as at 30.9.2021 with interest at the rate of 5% per annum on the said sum from the date of judgment until full and final settlement and costs of RM7,000.00.

After having considered the Record of Appeal and the written submissions of the parties, including the oral clarification on the documentary evidence, it was my finding that there were no appealable errors by the SCJ and therefore, the appellant’s appeal was dismissed.

The appellant is aggrieved by my decision. These are my full grounds of judgment for purposes of the appellant’s appeal to the Court of Appeal.

The parties shall hereinafter be referred to as they were in the court below.

The plaintiff is a company incorporated under the Companies Act 1965 and fully owned by the Ministry of Finance (Incorporated) with its business address at No. 44, Jalan Dungun, Damansara Heights, 50490 Kuala Lumpur.

The defendant is similarly a company incorporated under Malaysian law with a registered address at LG-030, LG Floor, Dynasty Shoppers Alley, Dynasty Hotel, 218 Jalan Ipoh, 51200 Kuala Lumpur and a business address at 52-56, Jalan Tun Ismail, 50400 Kuala Lumpur.

The defendant is the owner, trustee or user of the property with the address at 52-54, Hotel Grand Pacific, Jalan Ipoh, 51200 Kuala Lumpur (‘Premises’) and has sewerage Account No. 20904447 (‘Account’) with the plaintiff.

The plaintiff’s claim against the defendant was for outstanding sewerage charges in the sum of RM323,588.48 for sewerage services which the plaintiff alleged was supplied to the Premises under the Account from 30.6.2004 until 30.9.2021.

According to the plaintiff, the Premises are described as “commercial premises” under regulation 2 of the Sewerage Services (Charges) Regulations 1994 (‘1994 Regulations’), which means “any premise used wholly or partly for trade, business, provision of services or facilities or any other activity, whether for profit or otherwise”, and the annual valuation by Dewan Bandaraya Kuala Lumpur (‘DBKL’).

At the trial, the plaintiff called two witnesses namely Zahari Bin Awang, Senior Executive (Customer, Billing and Collection Department) (PW1) and Sarmanedi Bin Syafri, Manager (Network Department) (PW2) while the defendant called its Manager, Zulkarnain Bin Sulaiman (DW1).

All appeals to the High Court shall be by way of re-hearing (see O. 55, r. 2 of the RC 2012 and s 29 of the Courts of Judicature Act 1964 (Revised 1972) [Act 91]).

In Muhammad Shahir Bin Khalid And 2 Ors. v Ko Kang Min & Anor [2025] AMEJ 1247, this Court set out the law on appellate interference in these words: “[31] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58, the Court of Appeal illuminated on the occasions when appellate interference is warranted in the following passage from the judgment: “[20] … these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87);

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2

where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [32] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, I had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].”.

In determining all the grounds of appeal, I was guided by the above-mentioned legal principles.

On the hearing date, the Court enquired as to the grounds of appeal in the Memorandum of Appeal (‘MoA’) which differed from the grounds as submitted in the defendant’s Written Submission (encl. 12).

The defendant’s counsel explained that the MoA was filed before the SCJ’s Grounds of Judgment dated 11.11.2024 (‘GoJ’) was made available to the defendant and that an amended MoA was not subsequently filed.

The main grounds of appeal were subsequently set out in the Joint Scott Schedule (encl. 21), namely, that the SCJ had erred in law and/ or in fact in her determination of the issues as to whether –

the defendant is a registered user of the plaintiff’s services;

the plaintiff provided connected sewerage services to the defendant’s premises; and

the plaintiff is entitled to claim the total outstanding amount of RM323,588.48.

Each ground of appeal shall be discussed in turn below. 1st Ground: Whether the SCJ had erred in law and/ or in fact in her determination on the issue of the defendant being a registered user of the plaintiff’s services

The SCJ’s analysis on this issue is in paragraphs 10 to 12 of the GoJ where, essentially, she found that –

the defendant is deemed a registered user under s 67 of the Water Services Industry Act 2006 [Act 655] (‘WSIA 2006’) which provides that: “Contract for the provision of sewerage services

(1) The owner, management corporation or occupier of any premises to whom sewerage services is provided shall be deemed, upon the provision of sewerage services to that premises, to have contracted with the service licensee providing sewerage services for the provision of sewerage services.

An agreement referred to in subsection

shall be in the form and substance which is in compliance with any rules made by the Commission under section 180.”. Reference was also made to the decision in Yong Seng Yeow v Indah Water Konsortium Sdn Bhd [2010] 3 CLJ 711;

the defendant admitted owning the Premises since 1998 as per DW1’s answer to Question 5 in the Witness Statement as quoted below: “Defendan telah membeli bangunan Hotel Grand Pacific tersebut pada sekitar tahun 1998 dan pada awalnya pembetungan dibuat secara persendirian dengan menggunakan tangka [sic] septic persendirian yang diuruskan secara langsung oleh pihak Hotel, Hanya selepas tahun 2011 pembentungan dibuat secara langsung oleh pihak Plaintif dengan membuat penyambungan dengan saluran pembentungan milik Dynasty Hotel yang bersebelahan dengan Hotel Defendan. Maka pihak Plaintif terlibat secara langsung dengan Defendan setelah penyambungan dibuat sekitar tahun 2011.”; and

the defendant did not adduce any evidence that ownership of the Premises was transferred to Kenneison Brothers Ltd. (‘KBL’) Furthermore, the defendant failed to notify the plaintiff of a change of ownership and hence, the defendant continued to be liable for the payment of sewerage charges. In this regard, regulation 12 of the 1994 Regulations reads as follows: “Notice of transfer of ownership of premises

12.

Any user who sells or transfers any premises in respect of which sewerage charges have been incurred for sewerage services as provided under the Act, shall continue to be liable for the payment of all such sewerage charges payable in respect of the premises unless prior notice has been given to the sewerage services contractor of such sale or transfer.

Nothing in this regulation shall affect the liability of the purchaser or transferee to pay sewerage charges as a user in respect of the premises referred to in subregulation (1) or the right of the sewerage services contractor to recover those sewerage charges from the purchaser or transferee.”.

The Defendant submitted that the registered owner for the Said Account as stated in the plaintiff’s sewerage bills from July 2004 to February 2007 was KBL with an address at Batu Caves, Selangor and these bills were sent to KBL and not to the Defendant’s business address. Additionally, the defendant did not receive any bills during the period of the Movement Control Order to prevent the spread of the COVID-19 pandemic on 18.3.2020 (‘MCO’) due to business closure. Operations were resumed in 2022.

Moreover, PW1 had testified that the defendant’s name was only reflected in the sewerage bill from March 2007. Hence, it was the defendant’s position that the plaintiff failed to prove when the defendant became a registered user of the plaintiff’s services.

Based on the documentary evidence, the bills for the period from June 2004 – February 2007 were addressed to KBL (see pp 388 - 419, encl. 9) and for the month of March 2007 (p 146, encl. 7) and from April 2017 – September 2021 (pp 267 - 320, encl. 8) were addressed to the defendant at the Premises. The defendant had made payments from its Maybank account for the period from April 2009 until October 2009 (p 323, encl. 8).

By DW1’s own admission, the defendant bought the Premises in 1998. Hence, the SCJ made no error in her finding that the defendant is deemed a registered user under s 67 of the WSIA 2006 and, under regulation 12 of the 1994 Regulations, the defendant shall continue to be liable for the payment of all sewerage charges payable in respect of the Premises unless prior notice has been given by the defendant to the plaintiff of any sale or transfer of the Premises to KBL or any other entity.

During the clarification session, the defendant’s counsel stated that KBL was the seller of the Premises. This fact was not pleaded in the Defence and KBL’s name was first brought up during the cross-examination of PW1. PW1 had stated that KBL’s name and address appear on the bills for the period from June 2004 – February 2007 based on the old records kept by the plaintiff.

Further, by the defendant’s conduct of paying the sewerage bills in 2009, its contention that the sewerage connection was only in 2011 or 2012 is not true.

Upon review of the oral and documentary evidence, it is my considered view that the SCJ was not plainly wrong in arriving at the conclusion that the defendant was a registered user of the plaintiff’s services at the material time. 2nd Ground: Whether the SCJ had erred in law and/ or in fact in her determination on the issue of the plaintiff providing connected sewerage services to the defendant’s premises

The SCJ’s analysis and findings are in paragraphs 13, 15 and 16 of the GoJ (there is an error in the numbering as paragraph 14 was omitted). Essentially, the SCJ relied on the documentary evidence consisting of the IGIS Map (pp 136 and 137, encl. 7) and the video recording and CCTV report (p 376, encl. 8) in making a finding that the sewerage pipes in the Premises were connected to the public sewerage system under the supervision and maintenance of the plaintiff.

The defendant again relied on DW1’s evidence that the defendant did not require the plaintiff’s sewerage services from 1998 to 2011 or 2012 because the defendant had its own septic tank which was located underground in the kitchen area of the Premises. It was only after a leakage occurred that the septic system was then connected to a sewerage pipeline linked with the Premises.

The defendant submitted that the plaintiff failed to provide any records of when the sewerage connection was established. The records in the BRAINS system did not list or state the registered customer name for the Said Account. When cross-examined, PW1confirmed that the BRAINS system could not detect whether the Premises had its own septic tank while during re-examination, PW2 said that, based on the IGIS Map, he believed the area could not have a septic tank system.

Under s 65 of the WSIA 2006, the sewerage services offered by the plaintiff are for premises connected to the public sewerage system. Hence, since the Defendant used its own septic tank, it argued that it should not be charged for sewerage services when none were provided. Furthermore, as the WSIA 2006 was enacted in that year, it should not have a retrospective effect on the Defendant.

After having reviewed the Record of Appeal and the submissions of the parties, in my opinion, the SCJ did not err in relying on the documentary evidence as mentioned earlier to support her finding that the plaintiff did provide connected sewerage services to the Premises at the material time. The plaintiff had produced sufficient oral and documentary evidence to prove its contention on a balance of probabilities. The onus of poof then shifts to the defendant to prove its assertion that sewerage connection was only in 2011 or 2012. However, the defendant did not provide any evidence of this.

The defendant’s argument on the alleged “retrospective effect” of WSIA 2006 is, with respect, clearly flawed. The WSIA 2006 came into operation on 1.1.2008 and the plaintiff’s claim under the sewerage bills which were issued prior to that date was made pursuant to the Sewerage Services Act 1993 [Act 508]. The issue of retrospective operation of WSIA 2006 does not arise at all. 3rd Ground: Whether the SCJ had erred in law and/ or in fact in deciding that the plaintiff is entitled to claim the total outstanding amount of RM323,588.48

The SCJ’s reasoning can be seen in paragraphs 17 – 25 of the GoJ. Some of the matters covered in the SCJ’s analysis have been discussed under the 1st Ground and the 2nd Ground. In gist, the SCJ was of the view that –

the Defendant received the bills after 2007 and failed to dispute the same at the material time;

the impact of the MCO must be rejected as sewerage charges are based on statutory obligations which require the Defendant to pay for the services provided, irrespective of usage levels or actual usage;

non-usage of the sewerage services during MCO did not frustrate the contract; and

the Defendant was liable to pay the outstanding amount, after deduction of the rebate, as provided under s 88 of the WSIA 2006 and regulation 11 of the 1994 Regulations as follows: “Recovery of money due

88.

Any sum of money in respect of—

water supplied or services rendered in connection with such supply; or

the provision of sewerage services, shall be payable, within thirty days from the date of presentation of the bill, to the service licensee and if such sum is not so paid, the sum shall be recoverable by the service licensee through civil action in court.

A written statement by an employee of a licensee duly certified by the licensee or any person authorized by the licensee specifying the amount due shall be prima facie evidence of the payment that has to be made by the consumer under subsection (1).

The exercise of powers conferred by this section shall be without prejudice to the powers of the licensee under section 89.” “Recovery of sewerage charges

The owner and occupier of a premise to which sewerage services has been provided by a sewerage services contractor under these Regulations shall be jointly and severally liable to pay the sewerage charges, provided the owner of the premise shall, in the absence of any agreement to the contrary, be entitled to recover from the occupier of the said premise any such charges paid by him at the time of occupation by the occupier.”.

The defendant contended that the SCJ erred in law and/ or in fact by –

failing to consider the impact and factors of the MCO which affected the defendant and forced a temporary closure of its hotel business operations;

rejecting the issue of unjust enrichment by the plaintiff for imposing the same charges during the MCO period even though the hotel was closed and water and sewerage usage was minimal;

failing to consider the issue of frustration of contract under sub-s 57(2) of the Contract Act 1950 due to the impact of the Covid-19 pandemic on the defendant; and

not considering ancillary issues, specifically the increase in sewerage tariffs which were disproportionate to the defendant’s revenue, and road repair or upgrade works that affected the defendant’s business.

In my assessment, the SCJ was not plainly wrong in her findings. The obligation to pay sewerage charges remains valid under the statutory provisions, regardless of the impact of the Covid-19 pandemic. While the government provided certain rebates, there was no exemption from the liability to pay for sewerage charges. The defendant did not plead that its inability to pay sewerage charges amounts to frustration of the contract. In any event, and in the circumstances of this case, such inability does not constitute frustration of the contract.

The defendant’s real grievance lies in the charges during the MCO period and its own financial constraints to make payment. Through the “Skim MOTAC”, partial exemption was given to the defendant. This was pleaded in the Amended Statement of Claim as follows, to which the defendant chose not to amend its Defence. “14. Selanjutnya. Defendan telah membuat suatu permohonan kepada Plaintif untuk pengecualian jumlah caj pembetungan kerana Defendan merupakan pengendali Hotel yang terjejas teruk kerana pandemik Covid-19.

Plaintif dengan kerjasama Kementerian Pelancongan, Seni dan Budaya (“MOTAC”) telah menyediakan satu skim bagi mengecualikan caj pembetungan bagi industri perhotelan yang terjejas dengan pandemik Covid-19 (“Skim MOTAC”). Plaintif dengan kerjasama Kementerian Pelancongan. Seni dan Budaya (“MOTAC”) telah bersetuju ke atas suatu skim yang memberikan pengecualian sebahagian caj pembetungan bagi industri perhotelan yang terjejas dengan pandemik Covid-19 (“Skim MOTAC”).

Plaintif telah bersetuju memberikan pengecualian caj pembetungan sebanyak RM21,600.00 kepada Defendan dibawah Skim

Oleh itu, jumlah yang dituntut oleh Plaintif selepas pengecualian caj pembetungan sebanyak RM21,600.00 adalah berjumlah RM323,588,48 setakat 30.9.2021.”.

Furthermore, the defendant did not write to the plaintiff at the material time, as is expected of those in business or commerce relations, to complain or raise the matters which were put forth as defences at the trial. As held by the SCJ: “[23] SD1 di dalam keterangannya telah bersetuju bahawa jumlah yang telah dituntut oleh Plaintif ada betul. Defendan telah gagal untuk mengemukakan sebarang pembuktian untuk menunjukkan bahawa mereka tidak bersetuju dan mempertikaikan bil-bil yang telah diisukan kepada mereka. Defendan juga telah gagal untuk memberikan sebarang pembuktian untuk menunjukkan bahawa mereka tidak besetuju dan mempertikaikan mutu perkhidmatan yang telah diberikan oleh Plaintif tersebut. Sehubungan dengan itu, di atas kegagalan Defendan untuk memberikan pembuktian tersebut, maka Plaintif di anggap telah bersetuju dengan isi kandungan bil-bil tersebut. Plaintif tidak boleh kini mengatakan bahawa mereka tidak bersetuju dengan isi kandungan bil-bil tersebut apabila mereka telah memilih untuk berdiam diri. Ini merupakan prinsip yang telah diputuskan di dalam kes YONG SENG YEOW (SUPRA) …”.

On a final note, during the clarification session, I had enquired regarding the relevance of the Statements of Account issued by Air Selangor (‘Said Statements’). The plaintiff’s counsel elucidated that her client’s claim was for basic charges, which was dependent on the annual valuation by DBKL, and for access charges, which was based on the Said Statements. Under the 1994 Regulations, if the Said Statements were not available for a particular year, the plaintiff was allowed to use the previous year’s Statements as illustrated at p 321, encl. where the word “Rev” shows that an adjustment has been made.

The SCJ had alluded to the components of the charges imposed on commercial premises in the following excerpt from the GoJ: “[21] Adalah merupakan kes Plaintif selaras dengan Peraturan 4(1)(b)(ii) Peraturan-Peraturan Caj Perkhidmatan Pembetungan 1994 bahawa terdapat 2 komponen caj yang dikenakan untuk premis-premis komersil, yakni :-

Caj Asas; dan

(ii) Caj pengguna melebihi 100m3. [22] Adalah juga merupakan kes Plaintif bahawa caj asas adalah berdasarkan nilai tahunan premis oleh Dewan Bandaraya Kuala Lumpur (selepas ini dirujuk sebagai “DBKL”) dan kadar caj asas akan berubah mengikut penilaian nilai tahunan tersebut. Bagi caj pengguna melebihi 100m3, ianya ditentukan melalui perincian oleh Pengurusan Air Selangor Sdn Bhd (“Air Selangor”) secara tahunan kepada Plaintif (mukasurat 239 Ikatan Dokumen Bersama D). Mahkamah ini telah meneliti tangkapan dari “BRAINS System” (mukasurat 239 Ikatan Dokumen Bersama D) yang menunjukkan perubahan nilai tahunan premis tersebut dari RM648,000.00 kepada RM1,117,320.00 untuk tahun 2016. Berdasarkan Jadual Kedua Peraturan-Peraturan Caj Perkhidmatan Pembetungan 1994, premis yang mempunyai nilai tahunan di antara RM1,000,000.00 sehingga RM3,000,000.00 adalah berada di dalam Kategori 18. 57. Ini bermakna Caj Asas yang dikenakan oleh Plainitf kepada Defendan adalah sebanyak RM4,320.00.”.

In the final analysis, I was satisfied that there was no appealable error by the SCJ as regards her findings and conclusions in relation to the 3rd Ground of Appeal.

Premised on the abovesaid considerations, the appeal was dismissed with costs of RM7,000.00, subject to allocatur. Dated: 19.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Appellant : Nik Nurul Atiqah Binti Nik Yusof Messrs. Faizah, Lim & Associates Solicitors for the Respondent : Tengku Mohd Hazwanhisyam bin Tengku Zulkarnaini (Nurul Eizatul Nasri with him)