Tunku Norella Suriani Bt Tunku Yusoff & Ors v Kumpulan Sierramas (M) Sdn Bhd & Anor 

1.1 Introduction / Facts of the Case 

The plaintiff and the second defendant were house owners and the residents of the Sierramas west housing estate which was developed by the first defendant. All the house purchasers, including the plaintiff and the second defendant has signed deeds of mutual covenants (DMC) with the first defendant as condition of the precedent to their purchase of house in the estate.

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In the schedule of the DMC were property development and construction guidelines intended to ensure that any building constructed was respectful to the neighbours and the surroundings open spaces. The Plaintiff claimed that the second Defendant had committed private nuisance by interfering with their quiet enjoyment of their land INTER ALIA by regular and frequent open burning of prayer offerings that caused ash and smoke to be blown into neighbouring houses. The plaintiff complained to the first defendant about the second defendant’s breaches of the DMC and guidelines but the first defendant failed to act on the complaints. 

1.2 Statement of Issues / Grounds of appeal 

Whether the second defendant practiced of open burning at his house which caused unpleasant and noxious smells of smoke which escaped and caused ashes to be blown to neighbouring house is a private nuisance?

1.3 The Presiding Court :  HIGH COURT (KUALA LUMPUR) 

1.4 The Presiding Judge:  ROSILAH YOP JC

1.5 Arguments From Both Parties

1.The first defendant had failed, refused and/or neglected to take any or any appropriate action in respect of the various complaints against the second defendant.

2.The second defendant had carried out hazardous activities on his property, including but not limited to, undertaking regular and frequent open burning.

3.The second defendant had permitted noise or sound of cracking of the whip, of which is similar to that of letting off fire crackers.

4.The second defendant appeared to have allowed his premised to be used for purpose other than for single family residential purpose.

5.The second defendant allowed number of vehicles to be parked at or around the common facility area in such a way as to block the free movement of vehicles of some of the house owners and  / or residents, including the plaintiffs herein.

6.The second defendant had constructed a prayer altar in an obtrusive location. 

1.6  Decision of the Court and Judgement

Judgement for this case led by Rosilah Yop JC, High Court in Kuala Lumpur. The High Court (Kuala Lumpur) allowed the plaintiff\'s can claim against both Defendants. Where in the judgment of the second Defendant court has violated clause 3.1 (e) and clause 7.5 (k) in the deed of agreement, where clause 3.1 (e) explains activities that are not at risk, attack or illegal towards the property and will not do anything that may or may be a nuisance or disturbance to other buyers.

Here it is clear that the second Defendant had open burning by holding a two-month prayer ceremony to cause disturbance. Whereas Clause 7.5 (k) clarifies places of worship that need to be separated from a distance and from that place and placed in an unstructured place, where the second Defendant has admitted that the place of worship is visible to all.

Where, the place of worship is only 1.12 meters from the property line and 2 meters from the first Plaintiff\'s house in a prominent position resulting in a breach of the contract as listed in Clause 7.5 (k) in the development guideline where the second Defendant and the Plaintiff have signed the Defendant\'s contract fail adhere to C1 7.5 (k) in DML.

The defendant did not say how the type and size of the place of worship. In clause 7.5 (a) to (j) describes the garbage trash transactions, where to hang clothing, air conditioner writers, external water filters, roller water heaters, soil fixtures and garden. And there is no difference between building or installing to place a place of worship.

Where in Section 5 of the National Land Code it has no application in this action, the Deed of Association and fair and coordinating guidelines lie at the absolute discretion of the First Defendant. However, the Plaintiff was unhappy, unfair and unfair against the investigation imposed on the Defendant.

Agreement deeds and guidelines have been imposed on all buyers. It is because the deed of agreement and the guidelines are the terms of the sale and purchase made by them. The first defendant has failed or ignored to take any action against the second defendant, where the grounds are acceptable, the second defendant has signed a joint agreement (DMC) separately. the evidence given by the first defendant that the intentions for Sierremant Properties West Development and construction guidelines are to ensure that each building is built to respect neighbors and surrounding open spaces by setting a harmonious community.

However, there is no legitimate and reasonable construction for the purposes of religious worship in buyer compounds. pursuant to clause 22.5, the first defendant explains that the seller may take such action as it deems fit to seek assistance in respect of any breach by this deed buyer including therapies not limited to (a) relief injunction; release of orders; (b) release of declaration (c) recovery damages.

Pursuant to clause 22.7 deeds of mutual covenants, the first defendant is an authorized person to enter any property to pledge improper default. Where the first defendant did not enforce the conditions of deeds of mutual covenants against the second defendant. They only listened to the facts from the defendants and the first defendant did not produce a report as evidence of the court. In submitting the report, the first defendant has closed the evidence and therefore, under Act 114 (g) of the evidence act 1950 explains if it was not submitted and this means it did not specify any such matter to one or more. In which case (g) any person who refuses or refuses to produce a document relating to a contract in which the person considers that the contract is not so important.

1.7 Ratio Decidendi 

1.8 Applicable Rules

In this case there is a relevant section of the law, which is, Section 29 Contracts Act 1950, states that the agreement in the detention of the legal process is invalid. This is because, each of the agreements in which the parties are limited to the implementation or enforcement of their rights in contractual agreements or ordinary law proceedings in the ordinary Tribunal or something that causes the time being barred which may enforce its rights shall be invalid until such time. There are three characteristics of the element to state the existence of arbitration.

Arbitration is a way of settling a dispute through a third party where it has an agreement on both parties to the conflict. There are three characteristics to declare the first arbitration, there is a dispute between two or more. Second, there is an agreement between them (stated in the original or original contract or at the time of the dispute) to refer to disputes by arbitration for decision. Third, the facts or parties will legally bind the decision. For the second element in arbitration, the Plaintiff and second defendant also contract exists with them. This because they are already sign House Agreement Deed.  

Second section that related with this case are, Section 114 (g) Evidence Act 1950 says that, that is where the Court may consider the existence of something about certain facts. This is evident because, the Court may consider and think that any existence of the fact may have occurred. As an example in this Act clarifies the passage in clause (g) that the Court may consider that such evidence may be presented or stated, but it is not submitted and this means it does not state any such thing to one or more but it will also not benefit or convenience to the person who stated the matter.

In addition, this clause (g) also clarifies where a person refuses or does not want to produce a document that is related to a contract where one thinks that the contract is not so important that it may be charged. However, the document or contract is likely to be a medium for expressing feelings and sometimes it may pollute the family\'s reputation as a result of the breach of this contract. For this case, the plaintiff complained that the defendants had failed to take action on their behalf and the plaintiff said there was a breach of the deed of agreement in their contract of agreement.

Third section that related with this case are, National Land Code Act 56 of 1965 & Regulations provides that a few of interpretation Section 5, the interpretation of the first is stating that \"collision\" is related to any condition, covenant or agreement and includes any default. In this case, the Plaintiff states that the Second Defendant has committed and breached the treaty as set out in the Deed of Agreement where the second Defendant committed a personal disturbance by disturbing the enjoyment of the residents of the Sierramas Estate. The first collision is that the prayer ceremonies are made openly causing
the ash and smoke to enter the neighbors\' houses. Secondly, the Defendants sound loud noise like firecrackers. Third, place a place of worship in an area that disturbs people.

1.9 Conclusion / Commentary

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