OIB PROPERTIES (C) SDN BHD v Persatuan Penduduk Taman Myra Meranti, Puchong, Selangor (disaman melalui pengerusinya BALARAMA KRSHNA A/L RAMALOO (BA-22NCvC-237-06/2022)

Based on the correspondences sighted, the Defendant cited numerous reasons for its actions. The back and forth between the Plaintiff and the Defendant led to the filing of this action with an injunction application against the Defendant. At this point, the Defendant relented and undertook on 27-6-2022 to allow unconditional entry in exchange for the withdrawal of the injunction application ). [7] As all access roads in Phases 1 and 2 were still legally and beneficially owned by the Plaintiff, the Plaintiff based its claim in private nuisance, i.e. that the Defendant had unreasonably refused the Plaintiff and/or its contractors, entry to Jalan MM2 to carry out the HDD works and land, causing loss. [8] The Defendant filed its defence on 29-7-2022 and with leave, also pleaded a counterclaim in nuisance on 5-4-2023. The Defendant set out the alleged nuisance and damage caused by the HDD works, namely obstruction of part of access roads, potholes and uneven roads, underground water leakage, damage to pavements, fences, landscape and greenery, damage to the TNB substation, power interruption, scratches to vehicles, health issues due to air and noise pollution as well as security risk to children at the playground, all of which were said to Analysis and findings [9] As a cause of action, common law nuisance requires an act or some right over or in connection with land. Whether an act or omission is a nuisance is a question of fact. The primary consideration is the reasonableness of the act or omission in all the circumstances of the particular case. This was clearly explained in Ong Koh Hou v Perbadanan Bandar & Anor [2009] 8 MLJ 616: [11] It would appear therefore that the primary consideration is the question of reasonableness. In this regard, whether an act constitutes a nuisance cannot be determined by an abstract consideration of the act itself, but by reference to all the circumstance of the particular case; the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it is done maliciously on the reasonable exercise of rights; and the effect of its commission, that is whether it is continuous; so that it is a question of fact whether or not a nuisance has been committed (see Winfield and Jolowicz on Tort (15th Ed), at p 497; Stone v Bolton & Ors [1949] 1 All ER 237). [Emphasis added] [10] The Court of Appeal decision in Au Kean Hoe v Persatuan [2014] 3 MLJ 719 ( is instructive. In that case, the appellant owned a house in a housing estate but refused to contribute monthly maintenance and security charges. The respondent resident association and its members resolved that such defaulters may not enjoy the security services provided, and inter alia, had to self-operate the boom gates that controlled access to the housing estate. The appellant claimed that the boom gates and guard house were a nuisance and sued the respondent resident association for their removal.

The Court of Appeal in Au Kean Hoe considered other nuisance cases involving obstruction of access to property and held, among other findings, that the boom gates were a reasonable obstruction that did not prevent or obstruct the appellant from accessing his property altogether. The inconvenience to the appellant who had to raise the boom gates himself to enter/exit the estate was outweighed by the common benefit of additional security that they afforded to the whole community. [12] Thus, the tort of nuisance has expanded beyond the classic case of noise and noxious fumes and can include any form of indirect interference with the use and enjoyment of property. For private nuisance, the Court must balance the rights of property owners to the enjoyment and use of their properties against the rights of others to carry on lawful activities that may be perceived as annoying, causing inconvenience or otherwise objectionable. Preliminary pleading point [13] The Defendant raised a pleading point, possibly because counsel for the Plaintiff could not readily respond to a query from the Court during the trial when asked was. The words , or words Statement of Claim. [14] Relying on Ranjan Paramalingam & Anor v Persatuan Penduduk Taman Bangsar Kuala Lumpur [2023] 1 MLJ 459 ( ), the Defendant argued that no pleading or particulars of nuisance could be discerned from the Statement of Claim and that the claim should accordingly be dismissed.

Ranjan concerned a complaint about the d illegal security business, involving the unlawful acquisition and misuse of residents personal data, ostensibly for purposes of its guarded neighbourhood security scheme. The pleading point raised in Ranjan is specific to the pleadings in that case. The Court found that the facts pleaded did not support a plea of public or private nuisance as contended by the Plaintiff because it was alleged in several paragraphs of the amended statement of claim and finally claimed in the main prayer, that the defendant had engaged in an illegal activity by operating the security business. [16] This is an apt case to caution against embarrassing pleadings. There is no place for strategic ambiguity in litigation. A good statement of claim identifies the legal issues and sets out the material facts in a concise, structured and intelligible manner to disclose the intended cause of action with precision. The practice of simply narrating facts in a Statement of Claim to read like an affidavit is common among practitioners and should be called out. [17] In this case, it is unclear whether the Statement of Claim was intended as a plea of nuisance, but the narrative of facts sets out sufficient material to support the plea. The following are the essential facts pleaded:

The Plaintiff remained the legal and beneficial proprietor of the roads and amenities at TMM until they are surrendered to the authorities (para 13(b) Statement of Claim)

entry to the access roads to carry out the HDD works by 15, 19, 20 Statement of Claim)

The Defendant behaved unreasonably (throughout the Statement of Claim) alleged nuisance [18] The the Defendant interfered with the by the following actions:

physical confrontations between security personnel acting on instructions of the Defendant, and , to prevent them entry to Jalan MM2 on 30/5/2022, 1/6/2022 and 2/6/2022

an e-mail complaint on 7/6/2022 from the Defendant to TNB about alleged electrical safety issues associated with the HDD works, prompting TNB to cancel its KMK for the Plaintiff to start HDD works on 8/6/2022.

despite an undertaking to unconditionally allow the HDD works to proceed, physical confrontation between security personnel on 4/11/2022, prompting TNB to demobilize and only return for cable laying on 14/11/2022 [19] This Court considered the reasonableness of the actions based on the cited reasons, namely:

the unresolved issues of defects with the houses delivered in

the decision of the Plaintiff to lay cables for Phase 3 after handover of Phases 1 and 2 ( Inconvenience )

the safety and security concerns with the HDD works ( ). [20] Defects Issue: The Defendant demanded that the Plaintiff must first resolve the Defects Issue. On the facts, this Court finds it unreasonable for the Defendant to hold the Plaintiff to ransom over this issue when there are other proper and lawful avenues to address it. The houses in Phases 1 and 2 were still under the contractual defects liability period and the issue of defects was then already the subject of separate litigation. [21] Inconvenience Issue: The Defendant raised a valid question on why the Plaintiff did not lay the pipes for the cables during the construction of Phases 1 and 2. Perhaps this was poor planning on the part of the Plaintiff or perhaps this was due to other pressing considerations, but the HDD method of underground cable laying was obviously less disruptive and more expensive compared to open road excavation to connect the TNB substation to Phase 3 of the development. Further, Jalan MM2 runs own evidence is not a main thoroughfare but normally used for security patrolling by the TMM guards and as alternative access by the residents. The Defendant failed to persuade the Court that on the facts as they stand, that the inconvenience caused by the HDD works to the residents in Phases 1 and 2 of TMM outweighed the competing imperative of energizing Phase 3 of the development, whatever the reasons. As it was stressed in Au Kean Hoe, it is not unreasonable interference if mere inconvenience is caused. [22] Safety Issue: On this point, several attempts were made to introduce the fact that there were safety issues with electrical work done for Phases 1 and 2. However, the cabling of Phase 3 to the TNB substation did not connect to any house in Phases 1 and 2 and the contractor undertaking the HDD works was a different contractor. This was just another angle of the same Defects Issue. There was ultimately no concrete factual or evidential basis for any safety issues with the HDD works, even after the works were concluded. No structural damage to the houses in Phases 1 and 2 or any safety incidents caused by the HDD works were reported or put in evidence. [23] The Defendant also sought to argue in post-trial submissions that the HDD works was carried out illegally because no approval was obtained by the Plaintiff from Majlis Perbandaran Sepang to carry out such works under Section 46(1)(a) of the Street, Drainage and Building Act

The Court disregarded this argument because it was not pleaded and no evidence was led on it nor was the issue put to the relevant [24] interfered with , the interference was unreasonable and therefore, an actionable nuisance. Assessment of damages [25] Damages in an action for nuisance should be such as to compensate for whatever loss results to the Plaintiff as a foreseeable consequence of the Defendant's wrongful act. Typically, an award of damages for private nuisance compensates for loss of the amenity value of the land affected. In this case, the Plaintiff is claiming pure economic losses in the nature of special damages, premised on the delay factor . [26] As originally notified via the email dated 26.05.2022, HDD works were expected to commence on 30-5-2022 with the KMK valid until 26-6-

After the KMK was cancelled on 8-6-2022, a second KMK was issued on 22.06.2022 with a new time line for the HDD works to commence on 22.06.2022 and complete on 22.07.2022. [27] The Defendant gave the Undertaking on 27-6-2022. Based on the HDD works finally commenced on 4-7-2022 and completed on 30-9-2022. Cabling works which were delayed between 4- 11-2022 and 14-11-2022, were finally completed by TNB by the end of December 2022. Using these dates, the delay periods directly occasioned 5 days (30-5-2022 to 4-7-2022) and 10 days (4-11-2022 to 14-11-2022). [28] with its main contractor, Phase 3 of TMM was supposed to complete by 8-5-2022 before any issue with the HDD works arose, proving that the project was already delayed for reasons unrelated to the Defendant. However, the Plaintiff asserted without a delay analysis on the alleged consequential effects of the 45-day delay such as the encountering of inclement weather, that there was a total of 6-month delay until the Certificate of Compliance and Completion ( ) for Phase 3 of TMM was achieved on 31-3-2023. [29] The Plaintiff therefore attributed the 6-month delay wholly to the claimed the following heads of damage: Description Amount (RM) V.O. claimed by HDD contractor, Novel Utility Sdn Bhd 220,520.00 Losses suffered due the increase in premix prices as per the Variation Orders submitted by premix road Work contractor, Kah Seang Construction 79,073.28 LAD claim by the 2 units of Shoplot 63,956.99 Waiver of late payment charges in respect of the 16 units of property purchased by API Hightech Sdn Bhd 580,983.91 Additional 6 months office overheads/ staff salaries 195,300.00 [30] The nature of these claims being capable of specific quantification, they are special damages that ought to have been particularised and must in any case be specifically proved. Evidence of such damages was nevertheless led at the trial without objection and dealt with in some detail. Apart from the question of proof about the underlying premise for attributing 6 months o considered the recoverability of each head of loss and the proof of quantum offered. Variation Order Novel Utility Sdn Bhd [31] The Plaintiff would have been entitled to recover idling and mobilization/demobilization costs for the incidents on 30-5-2022 and 1-6- 2022 and 2-6-2022, but the proof of loss claimed was questionable. [32] According to the Plaintiff, the contract value for HDD works carried out by Novel Utility Sdn Bhd as the HDD contractor was RM445,200.00 based on the contract between OIB Construction Sdn Bhd and Novel Utility Sdn Bhd and the claims totalling RM220,520.00 represented the value of variation orders caused by the delay. [33] However, this Court noted that contract was not adduced in evidence and there is accordingly no corroborating evidence for what is said to be the original contract sum. The Defendant also highlighted that the TNB approved HDD contractor was Muara Perkasa Sdn Bhd, not Novel Utility Sdn Bhd. [34] In any case The Plaintiff produced progress claim invoices and related documents, but these indicated that the Contract Value including V.O. Work was RM239,100.00 and that RM220,520.00 represented 92.23% of the Contract Value as shown: [35] There is no description of the variation order that the invoice related to. In construction, delays do not ordinarily result in a variation if the same work is required to be done. There were no delay notifications, description of delay costs claims and essentially no supporting documents ordinarily available to support a variation order caused by mobilization and demobilization and idling of machinery due to delays. There was also no evidence of payment of said RM220,520.00 by the Plaintiff to OIB Construction Sdn Bhd. Increase in Premix price Kah Seang Construction [36] The Plaintiff would also have been entitled to recover the additional cost of premix paid for work in December 2022 as opposed to July 2022 if it could be proved that such cost differentials were actually suffered. The proof of loss claimed on this head was however, also questionable. [37] The Plaintiff produced various claims by Kah Seang Construction and in particular, what appears to be progress payment 3/8431 dated 12- 5-2023 by OIB Construction Sdn Bhd to Kah Seang Construction for the sum of RM79,073.28. The Plaintiff claims that this is the additional cost of premix between 2022 and 2023 that OIB Construction Sdn Bhd had to pay and attributed this to the Defendant for the delay in the HDD works because post-HDD and cabling, parts of Jalan MM2 presumably required resurfacing. [38] However, the description of the 12-5-2023 invoice relied on by the Plaintiff Phase 3 progress claim no.3 Infra (External Works)/Road - Premix VO, Supply and install for Road Premix Works for Road Extension The description bore no resemblance to HDD road resurfacing and it was not explained how this proved that premix cost had increased by RM79,073.28 between 2022 and 2023. [39] As with the payment to Novel Utility Sdn Bhd claimed by the Plaintiff, the contract between OIB Construction Sdn Bhd and Kah Seang Construction was not adduced in evidence and contrary to the evidence given by the Plaintiff, the Contract Value including V.O. Work for Kah Supply & Install for Road Premix Works for Road Extension to Neighbourhood Land and RM79,073.28 represented 98.78% of that Contract Value as shown: [40] If the sum RM79,073.28 represented the increase in premix price between 2022 and 2023 that borne by the Plaintiff, this Court would have expected to see clearer documentary evidence. There were no premix quotations, bills of quantities with measurements showing the rates and the quantities for the HDD related road resurfacing work done. There were also no evidence that the sum RM79,073.28 was paid by the Plaintiff to OIB Construction Sdn Bhd. LAD payments to purchasers [41] The Plaintiff computed contractual LAD payable to the purchasers based on the sale and purchase agreements adduced for 2 purchasers on the basis of a 6-month delay. For this head of loss, the quantification is straightforward but there was no proof of payment of any LAD to these purchasers. Waiver of late payment interest [42] According to the Plaintiff and a witness appearing on behalf of API Hightech Sdn Bhd (PW-5), they entered into bulk sale and purchase agreements for the remaining 16 units of shoplots on 28-2-2022, based that it would endeavor to deliver vacant possession by 30-9-2022. [43] Apparently, API Hightech Sdn Bhd did not pay the balance purchase price in response to the delay in delivery of vacant possession and the Plaintiff agreed to waive late payment interest amounting to RM580,983.91 as a set off for compensation said to be payable to API Hightech Sdn Bhd for the delay in delivery of vacant possession. [44] The Defendant argued that the Plaintiff had departed from the terms of the sale and purchase agreements which stipulated for vacant possession to be delivered by 28-2-2024 and not 30-9-2022. There was accordingly no legal basis for API Hightech Sdn Bhd to delay payment of the balance purchase price or claim compensation. Considering all this, this Court finds that this head of damage is not reasonably foreseeable and cannot be recovered. Additional Staff Salaries [45] The Plaintiff claims 6 Months Office Overheads/Staff Salaries amounting to RM195,300.00. The Defendant submitted and the Court agrees that there was no evidence direct or exclusive assignment to the Phase 3 and like the other heads of loss, were not proved to be losses of the Plaintiff since the staff were paid by OIB Construction Sdn Bhd. [46] In the final analysis, the Court was not satisfied with:

the 6 months or 180-day delay in achieving CCC for Phase 3 of TMM was connected exclusively to the 45-day delay that was directly attributable to the Defendant in the absence of a proper delay analysis

of damages as it was unsubstantiated and appeared speculative at best. [47] As the Plaintiff failed to discharge the burden of proving the liquidated sums claimed which, as noted, are in the nature of special damages, the liquidated damages claim fails. Since private nuisance is a tort of strict liability, the Court grants nominal damages for the 45-day of obstruction in the sum of RM10,000.00. Counterclaim for nuisance [48] The counterclaim for nuisance was pursued by the Defendant suing through it Chairman as the sole counterclaim plaintiff and sole witness offering evidence at the trial. He owned a property but was not himself resident at TMM at the time. The Plaintiff contended that the Defendant had no locus standi to sue for nuisance, and the Defendant countered that this was not a pleaded defence. [49] In Bumiputra - Commerce Bank Bhd v Augusto Pompeo Romei & Anor [2014] 3 MLJ 672, the Court of Appeal held that a court will not have jurisdiction to adjudicate the dispute, where a party does not have locus standi to bring the action: This court was keen to hear arguments by counsel for the appellant and the respondents on this fundamental issue of locus standi which went to the jurisdiction of the trial court and to the heart of the matter. The court cannot agree with counsel for the respondents that just because the issue of locus standi was not included as an issue to be tried, it necessarily meant that it was implied that the respondents did have the locus standi. [25] Where a party does not have the locus standi to bring an action, the court will not have the jurisdiction to determine the issue. In the case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719; [1995] 3 CLJ 520, the Court of Appeal held as follows: Viewed from this standpoint, the justice of a case will ordinarily lie in favour of permitting a plea of illegality to be taken for the first time on appeal because it is unjust that a party who has broken the law should succeed. Similarly, justice would, in the usual way, favour the admission of a point that goes to the jurisdiction of the trial court because neither consent nor waiver may confer jurisdiction where none exists: and it is not in the interests of justice that a judgment of a court lacking jurisdiction should be permitted to stand [Emphasis added] [50] In this case, the Defendant sued as the Residents Association, a registered society and independent entity separate from the residents. It did not sue in a representative capacity on behalf of identified residents who were in fact aggrieved by the same nuisance. A claim in nuisance is personal and therefore, this Court agrees that the Defendant had no locus standi or capacity to sue on behalf of the residents. [51] Even if the Defendant had locus standi to sue, the counterclaim cannot stand because no credible evidence was furnished of any loss of enjoyment of property rights. This finding is inevitable on grounds that no resident of TMM was called to testify to that effect. There was no evidence air and noise pollution from the HDD works, or any unreasonable obstruction of part of Jalan MM2 during HDD works. [52] There was admittedly damage to the road affected by HDD works complaints from the residents or from the Defendant. Conclusions [53] .00. counterclaim are awarded to the Plaintiff in the sum RM30,000.00. Bertarikh : 12 Jun 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: Soo San San (with Gabriel Daniel and Sabrina Chu Soo Woon), Messrs Paul Ong & Associates Untuk Defendan: Sharmila Ravindran (with Neha Navalashini Sominaidu), Messrs