KONG PENG PEW & ORS V. MERU VALLEY
RESORT BHD
HIGH COURT MALAYA, IPOH
[CIVIL SUIT NO: 22-192-2001]
BALIA YUSOF JC
20 MAY 2003
CIVIL PROCEDURE:
Injunction- Interlocutory mandatory injunction - Whether grant of
interlocutory mandatory injunction ought to be for unusually sharp and clear
cases - Cutting off of water supply - Whether act complained of was unlawful
and should be restrained
CIVIL PROCEDURE: Injunction - Order of injunction - Application for -
Cutting off of water supply - Whether act complained of was unlawful and
should be restrained
JUDGMENT
BaliaYusof JC
The plaintiffs filed an
application seeking for the following relief namely:
(a) an interlocutory
injunction directing the defendant and/or their agents and or their
servants to connect the water supply to all the plaintiffs' premises;
(b) an injunction to
restrain the defendant and/or their agents and/or their servants from
disconnecting the water supply to all the plaintiffs' premises;
(c) costs and such other
reliefs as deem fit by this court.
The plaintiffs bought
houses from the defendant, a development company, established under the
Companies Act 1965 who is the developer of the housing scheme called Golf
view Terrace in Ipoh. The tenth plaintiff, Lee Mau Joo subsequently withdrew
from the action. By a sale and purchase agreement signed between the
plaintiffs and the defendant at various dates it was agreed amongst others
that the defendant as vendor shall provide all the necessary water,
electricity and sewerage mains. Clause 17 of the said agreement provides for
the obligation of the defendants in respect of this subject matter and for
convenience it would be necessary for me to quote the said cl. 17 in toto
which provides s follows:
17. #9; Water, Electricity, Gas Piping,
Telephone Trucking.
(1) The vendor shall
at its own cost and expense lay or cause to be laid all necessary water,
electricity and sewerage mains, gas piping (if any) and internal
telephone trucking and cabling (if any), to serve the said Building and
at its own cost and expense undertake to apply for the connection of the
internal water, electricity, sanitary and gas installation (if any) of
the said Building to the water, electricity and sewerage mains of the
Appropriate Authority, and the gas mains of the relevant authority.
(2) The Purchaser
shall be liable for and shall pay, within fourteen (14) days after the
receipt of a notice requesting for the payment from the vendor, the
deposits for installation of water, electricity and gas meters and the
Vendor shall bear all other cost, if any.
(3) The Purchaser may
apply for telephone service and shall be liable for and shall pay the
deposit for such service.
To date it is alleged by
the plaintiffs that the defendant has still not made the internal
connections for the supply of water with the relevant authority, in this
case the Lembaga Air Perak and instead water is supplied to the plaintiffs'
premises from the defendant's source. The defendant subsequently imposed
maintenance charges on the plaintiffs for
maintenance services listed in exh. KPP4 of the plaintiffs' affidavit in
encl. 3 which lists the following services to be provided to the plaintiffs
namely; security services, clearing of common drains, clearing of common
areas and garbage collection, grass cutting and street lighting. All these
services together with the cost for staff maintenance total up to RM120 per
month per unit of household in the said housing project. Disputes arose
between the plaintiffs and the defendant over the imposition of this
maintenance charges/services resulting in the defendant cutting off the
water supply to the plaintiffs' houses prompting the plaintiffs to file an
action against the defendant over the dispute on the said
maintenance charges/services. Pending the
disposal of that action the plaintiffs now seek the reliefs as stated in the
earlier part of this judgment.
It is contended by the
plaintiffs that by the provisions of cl. 14, 16 and 17 of the agreements, it
is the obligations of the defendant to provide for the infrastructure and
the services and that the defendant has no right to cut the water supply to
their premises. The plaintiffs further contend that cl. 16 of the said
agreement which provides for maintenance services does not include the
supply of water as one of the items envisaged by thesaid clause. The said cl.
16 provides as follows:
16. Maintenance of Services
The vendor shall
provide services, including refuse collection, cleaning of public drains
and grass cutting on the road reserves, as from the date of handing over
of vacant possession until the same are taken over by the Appropriate
Authority but until they are so taken over the Purchaser shall, from the
date he takes vacant possession of the said property, contribute from
time to time a fair and justifiable proportion of the cost and expense
of such services, such apportionment to be made by a quantity surveyor
appointed by the Vendor.
Prior to the cutting off
of the water supply to the plaintiffs' premises, the plaintiffs has all
along paid for the water supply to the defendant as evidenced from exh.
"KPP9 and KPP10" in encl.3 and is still willing to do so but was refused by
the defendant. The said exh."KPP9" clearly shows that the supply of water is
separately itemised and does not form part of the maintenance fee. From this
narration of facts, it is contended by the plaintiffs that the action of the
defendant in cutting off the water supply is unjustified, unwarranted and
illegal. They are now seeking redress from this court for their rights to be
supplied with water to be restored by way of the mandatory injunction which
is being sought for.
It is trite law that the
grantof interlocutory mandatory injunction demands a higher standard than
the test statedin the American Cynamidcase. The plaintiff must show
an unusually sharpand clear case. In MBf Holdings Bhd v. East Asiatic
Company (Malaysia) Bhd[1995] 4 CLJ 73, KC Vohrah J at p. 76 stated:
The ordinary American
Cynamid principles are not applicable in an application for a
mandatory injunction. In the case of a mandatory interlocutory injunction
for its grant there must be a high degree of assurance that at the trial
it will appear that the injunction was rightly granted (Shepherd Homes
Ltd v. Sadham[1971] Ch 340; Locabail International France Ltd v.
Aqroexport[1986] 1 WLR 657). This is far more than is required for a
prohibitory injunction to which the American Cynamid principles
apply.
The relevant passage
referred to by His Lordship in Shepherd Homes Ltd v. Sandham (supra)is
from the judgment of Megarry J which is as follows:
In a normal case the
court must, inter alia, feel a high degree of assurance that at the
trial it will appear that the injunction was rightly granted; and this is
a higher standard than is required for a prohibitory injunction.
In my view, in exercising
the discretion whether or not to grant the relief, the issue before this
court revolves mainly on the legality of the defendant's action in cutting
off the water supply to the plaintiffs' premises. As contended by the
defendant, the supply of water forms part and parcel of the maintenance
services envisaged in cl. 16 of the agreement which in their view is
included as one of the services to be provided by them to which the
plaintiff must contribute to the cost of providing those services. Having
perused cl. 16 of the agreement and taking into account the agreement as a
whole in particular cl. 17 which deals with the provision of water,
electricity, gas piping and telephone, I am of the view that although cl. 16
is worded in such a way as to be non-exclusive as regards the services to be
provided by the defendant, the supply of water is certainly not intended to
come within that clause. I have come to this conclusion after a close
scrutiny of the said two clauses and the supporting documents exhibited in
the plaintiffs' affidavit in particular exhs. KPP4, KPP9and KPP10 of encl.
3. The plaintiffs has therefore shown an unusually strong and clear case
against the defendant in so far the issue of water supply and the respective
obligations of the parties in respect of it. The dispute between the parties
is regarding maintenance services and in my view as water supply does not
come under the category of services as envisaged by cl. 16 of the agreement,
there is no legitimate reason for the defendant to take it up as an issue
and force it on the plaintiffs.
In exercising its
discretion togrant an interlocutory mandatory injunction, this court must
also place other considerations as to the hardships caused to the parties
and the nature of the injury and inconvenience which will be caused to the
applicant if he does not obtain the relief. It is incumbent upon this court
to consider how the interest of the parties may best be protected, bearing
in mind both the position of the parties subsequently at the formal hearing
and also questions of hardship and inconvenience in the meantime, and will
take into account any other relevant considerations which may arise. One of
these consideration will be the degree of probability with which it appears
to be established that the applicant will ultimately succeed at the final
hearing. The stronger the case of the applicant that the matters complained
of are unlawful, the more likely it is that it will be found to be just and
equitable that his interest be protected bythe immediate issue of an
injunction. Thus in Bank Islam Malaysia Bhd v. Tinta Press Sdn Bhd & Ors[1985]
1 LNS 73; [1986] 1 MLJ 25, Zakaria Yatim J in referring to the caseof
Gibb & Co v. Malaysia Building Society Bhd[1982] 1 CLJ 185; [1982] CLJ
(Rep) 99; [1982] 1 MLJ 271 said at p.257 the following:
The criteria for
granting interlocutory mandatory injunction before trial have been laid
down by the Federal Court in Gibb & Co v. Malaysia Building Society Bhd[1982]
1 CLJ 185; [1982] CLJ (Rep) 99; [1982] 1 MLJ 271. In that case the court
said:
... The case however
must be unusually sharp and clear ... and the court must feel a high
degree of assurance that at the trial a similar injunction would
probably be granted but we should observe that questions of degree are
involved which depend inter alia upon considerations of hardship
to the parties ... The stronger the case of the applicant that the
matters complained of are unlawful, the more likely it is that it will
be found to be just and equitable that his interests be protected by the
immediate issue of an injunction ... Other matters of particular
importance are, on the one hand, the ease or difficulty with which there
can be compliance with a mandatory order and the extent of hardship
which compliance will cause the respondent and, on the other hand, the
nature of the injury and inconvenience which will be caused to the
applicant if he does not obtain protection at once ... If there is
plainly no defence to the action, and the only object in raising a
defence is delay, an injunction should issue even if it gives the
applicant his whole remedy before the trial.
In my view the plaintiffs
has demonstrated to this court an unusually sharp and clear case in so far
as their entitlement to the supply of water to their respective premises and
I also found that the act complained of is unlawful and must be restrained.
The hardship endured by the plaintiffs and the inconvenience caused to them
far outweigh the difficulty of the defendant in complying with the mandatory
order of restoring the water supply to the plaintiffs. In my considered
view, the risk of injustice caused to the plaintiffs is far greater if their
application is refused and to this effect this court is prepared to consider
their application even if this court does not feel a high degree of
assurance about their chances in establishing their rights. In this context,
I find support in a passage from the judgment in Bandaraya Development
Bhd v. Ang Yoke Lin Construction Sdn Bhd[1993] 2 CLJ 53which says:
If it appears to the
court that, exceptionally, the case is one in which withholding a
mandatory interlocutory injunction would in fact carry a greater risk of
injustice than granting it even though the court does not feel a 'high
degree of assurance' about the plaintiffs' chances of establishing his
rights, there cannot be any rational basis for withholding the injunction.
Echoing a similar view,
ZakariaYatim J too in H & R Johnson (Malaysia) Bhd v. H & R Johnson Tiles
Ltd & Anor[1995] 2 CLJ 581in referring to the English Court of Appeals
case of Leisure Data v. Bell[1988] FSR 367, said:
Mandatory injunction
more drastic in its effect than prohibitory injunction. The case had to be
unusually strong and clear before mandatory injunction be granted at the
interlocutory stage. The court of appeal decided where the practical
reality of a situation was such it was necessary for some form of
mandatory order to be made in the interim, the court would make the order
whether or not the high standard of a probability of success at trial was
made out.
Such is the approach taken
bythe courts of this country in exercising its discretion whether or not to
grant an interlocutory mandatory injunction. As Justice Abdul Malik Ishak J
puts it in Shamsudin Shaik Jamaludin v. Kenwood Electronics Technologies
(M) Sdn Bhd[1999] 8 CLJ 544, the court will not wring its hand and shirk
from its duty under the law when it becomes necessary to order a mandatory
injunction notwithstanding the fact that such an action has to be made ad
interim and notwithstanding the fact that the high degree of probability of
success at the trial has not been made out.
I now consider the case of
the defendant who has put up a number of issues in opposing this
application. It was contended that the failure of the plaintiffs to name the
co-owners of the houses as plaintiffs and the failure to include and name
the Lembaga Air Perak as a party to this application is fatal to the
plaintiffs' case. No doubt that in the case of some of the plaintiffs, there
are co-owners to the said houses but I found no merit whatsoever in this
argument and suffice for me to say that the non-inclusion of the
abovementioned parties does not in any way affect the rights of the
plaintiffs to maintain this action and furthermore, Lembaga Air Perak is
certainly an irrelevant party to the dispute between the parties. Learned
counsel for the defendant was too preoccupied with the American Cynamid
test which at the outset of this judgment I have already reiterated as
inappropriate in the instant case. As such the issue of whether damages is
an adequate remedy and the sufficiency of the plaintiffs' undertaking ought
not be a determining factor in the granting of the plaintiffs' application.
On the issue of delay on the part of the plaintiffs in filing the action ,if
at all there is a delay in this case, the plaintiffs has through their
averments in paras. 24-30 of encl. 3 sufficiently explained the reasons for
such delay and upon perusing those facts this court finds them to be
reasonable. The parties were clearly negotiating over the matter in their
efforts to settle the dispute and this takes time. For that reason the
plaintiffs has taken some time before finally deciding to go on with their
action. In any event mere unreasonable delay is not in itself sufficient to
lead to a refusal of relief, there must be a further consideration, such as
prejudicing of the position of the defendant by reason of the delay in
question, so that it becomes 'practically unjust' to grant the remedy that
is sought. (Equitable Remedies, 4th edn, p. 480).
Finally as stated by
AbdoolcaderJ in Wah Loong (Jelapang) Tin Mine Sdn Bhd v. Chia Ngan Yiok[1975]
1 LNS 190; [1975] 2 MLJ 109 at p. 111:
... a plaintiff is not
entitled to an interlocutory injunction simply because he shows that
prima facie he has a right and shows an arguable case that the
defendant has infringed that right. The whole case should be looked at and
the remedy by interlocutory injunction should be left flexible and
discretionary ... a plaintiff has to prove, first a strong prima facie
claim to his right or rights, and secondly an arguable case that the
defendant has impugned that right or is about to impugn it. Thirdly, Lord
Denning MR said:
In considering whether
to grant an interlocutory injunction, the right course of a judge is to
look at the whole case. He must have regard not only to the strength of
the claim but also to the strength of the defence, and then decide what
is best to be done.
Megaw LJ, said:
Each case must be
decided on a basis of fairness, justice and common sense in relation to
the whole issues of fact and law which are relevant to the particular
case.
On those authorities, I
find that the plaintiffs have shown a strong and clear claims to their
rights and that the defendant has infringed that right. The court has also
considered the strength of the defence and upon consideration of all those
relevant factors order that the injunction sought for by the plaintiffs be
granted.
I accordingly allowed the
application with costs. |