The management corporation has rights under the Strata Titles Act 1985 to prevent renovation projects that affect common property without approval.

Abdul Hamid Mohamad J:

When this case first started three defendants were named:

(1) Perbadanan Pembangunan Bandar (2) Kerajaan Malaysia, and (3) Kerajaan Negeri Pulau Pinang.

The writ and statement of claim against the first defendant was struck out by this court. Appeal against that decision to the Court of Appeal was dismissed, leaving only the second and the third defendants. During the trial, the action against the third defendant was withdrawn leaving only the second defendant.

For convenience I shall refer to the original first defendant as "UDA", the original second defendant as "the defendant" and the original third defendant as "the State Government". The Ministry of Health a Ministry of the Government of Malaysia will be referred to as "the Ministry". The medical and health department, a department of the Ministry in Penang will be referred to as "the health department" and its director as "the director of health". Taman Bukit Jambul will be referred to as "the taman". Asas Dunia Sdn. Bhd. will be referred to as "Asas Dunia". The Jabatan Kerja Raya will be referred to as "JKR" and the Majlis Perbandaran Pulau Pinang as "MPPP".

The statement of claim is lengthy. I shall only give a very brief summary in this judgment. However, for easy understanding of the case, I shall also provide a chronology of events.

The plaintiff is a management corporation established under the Strata Titles Act 1985 in respect of the Taman. As such it is the owner of the common property of the taman. The plaintiff alleges that the defendant, through the Ministry and the JKR had done renovation to units owned by the defendant for the purpose of making a government health and dental clinic without the approval or consent of the plaintiff. In so doing the defendant had pulled down walls, encroached on the five-foot path and encroached on the common property, thus trespassing on the property of the plaintiff and causing nuisance to the residence. The plaintiff prays for various declarations, including causing voluntary waste, trespass, nuisance and that the second defendant is not entitled to use the said Blocks D and H (where the units bought by the second defendant are situated) for public purpose, i.e. government health and dental clinic. The plaintiff also prays for an order that the second defendant pull down the renovation and re-instate the structure of the said blocks. The plaintiff also prays for damages, interest and costs.

In brief the defence of the second defendant is that the second defendant had bought those units for the purpose of making government health and dental clinic for the public. The second defendant had obtained the approval and consent of the plaintiff before convening the renovation work. The defendant denies to causing structural changes, nuisance or guilty of trespass. The defendant also counterclaims for a declaration that the defendant be permitted to enter, move in the equipments and commence the services of the clinic. In the alternative, the defendant prays for the refund on the management fees of RM400 per month paid by the defendant to the plaintiff since July 1990. The defendant also prays for damages, interest and cost.

I shall now reproduce the chronology of events that are either undisputed or as found by me based on oral and documentary evidence, avoiding the more salient issues that need to be and will be discussed in greater detail later.

On 5 October 1985, UDA entered into joint-venture agreement with Asas Dunia to develop the land in question and build 1231 units of flats. According to the agreement, UDA is the owner of the land and Asas Dunia is the developer. Asas Dunia is to carry out the development at its own expense.

Asas Dunia is to have absolute control and discretion in respect of planning, execution and completion of the development. Asas Dunia is solely responsible