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2021 MarsdenLR 1978
HIGH COURT MALAYA KUALA LUMPUR
LEE CHIN YONG – Appellant
Versus
MEDICAL DEFENCE MALAYSIA BERHAD; DATUK BANDAR KUALA LUMPUR (THIRD PARTY) – Respondent
[Suit No: WA-23NCVC-44-07-2020]
DBKL cannot be held liable for sewerage system issues as only SPAN has jurisdiction over such matters under the Water Services Industry Act.
Headnote:(A) Suruhanjaya Perkhidmatan Air Negara Act 2006 – Section 3 – Street, Drainage and Building Act 1974 – Section 70 – Water Services Industry Act 2006 – Sections 3 and 45 – Blockage in sewerage system – DBKL issued a Development Order without jurisdiction over sewerage matters; negligence claims dismissed because DBKL is not responsible for sewerage approvals under the applicable legislation. (Paras 18, 19, 28, 35, 41, 58, 84)
(B) Duty of Care – The court found DBKL had no duty to inspect existing sewerage systems prior to the issuance of the Development Order; claims against DBKL dismissed as unsustainable. (Paras 18, 19, 20, 21)
(C) Final Decision – Action against DBKL struck out, with costs awarded in favor of DBKL. (Paras 84)
JUDGMENT
[1] The 1st Third Party ("Indah Water") is a national sewerage company entrusted to develop and maintain the sewerage system (including the underground sewerage system) in Malaysia. Indah Water also provide sewerage services such as the collection, conveyance, treatment and disposal of sewage, and includes the operation and maintenance of a sewerage system and the desludging of septic tank.
[2] The 2nd Third Party ("SPAN") is a body established under s 3 of the Suruhanjaya Perkhidmatan Air Negara Act 2006 . SPAN is vested with powers to supervise and regulate water supply services and sewerage services, and to enforce the water supply and sewerage services laws.
[3] The 3rd Third Party ("DBKL") is a body responsible for administration and management of public health, waste disposal, urban planning, environmental protection, economic and social development and general maintenance for urban infrastructure of the Federal Territory of Kuala Lumpur.
[4] DBKL filed an application vide encl 48 ("Encl 48") to set aside the Defendant's ("D") Third Party Notice dated 30 July 2020 and Statement of Claim dated 23 September 2020. Enclosure 48 is made under O 16 r 6 and O 18 r 19(1)(a), (b), (c) and (d) of the Rules of 2012.
[5] D had also instituted third party action against Indah Water and SPAN. However, D has since discontinued its action against Indah Water and SPAN, without liberty to file afresh.
[6] I allowed Encl 48 and set aside D's third party proceedings against DBKL. These are the grounds of my decision.
Background
[7] The main suit involves a dispute between two neighbours ie the Plaintiff ("P") and D. P and D are both purchasers of properties on the secondary market ie bungalow houses in Taman Bandaraya, Kuala Lumpur. Their properties are situated back to back.
[8] The dispute arose as a result of a blockage located within the piping of the underground sewerage system which connects their property to each other. The underground sewerage pipe from D's property go through P's property underground before reaching the main sewerage pipe maintained by Indah Water underground on the main road of Lorong Kemaris 4, Taman Bandaraya, Kuala Lumpur.
[9] P commenced a suit against D claiming no easement was ever granted for D to flow the sewage from D's property through P's property. P avers that due to the blockage, D's sewage is being discharged directly into P's property.
[10] In its Statement of Defence, D asserts that the sewerage system problem started after the renovation work done on P's property. D pleaded that the blockage was due to the said renovation work which caused D's property to be deprived of access to the existing sewerage system. D avers that the connected sewerage system of D's property to P's property has existed since their properties were built.
[11] D in turn lodged a counterclaim against P. In its Counterclaim, D sought a declaration order that P is to repair the sewerage system at his property and rectify the blockage to ensure the flow of sewage from D's property to the public sewerage system is restored. D also prayed for special damages, general damages and exemplary damages.
[12] D commenced these third party proceedings against DBKL because it approved and issued a Development Order in February 2012 to P to demolish and rebuild his property. The Development Order was issued by DBKL pursuant to s 70 of the Street, Drainage and Building Act 1974 ("SDB Act").
The Parties' Case
[13] D's complaint is that DBKL was negligent in issuing the Development Order because:
(a) DBKL failed to inspect the existing sewerage system in P's property before issuing the Development Order;
(b) DBKL failed to assess the impact that the sewerage system in P's property may have on environment before issuing the Development Order; and
(c) DBKL issued P a Certificate of Fitness for Occupation following the renovation work despite the blockage.
[14] DBKL contends that D has no maintainable cause of action against it because:
(
