The court recognized the disconnection of water supply as a nuisance, affirming the landlord's duty to provide essential utility services.

Judgment

Mohd Saari Yusoff J:

In his statement of claim, the plaintiff prays for the following:

1.1 an injunction that the defendants, its agents and/or servants reconnect the water supply to the said premises;

1.2 thereafter, an injunction that the defendants, its agents and/or its servants be restrained in anyway whatsoever from shutting off the water supply to the said premises so long as the plaintiff makes full payment of his apportioned share of the water charges to the said premises;

1.3 special damages as prayed for in the statement of claim;

1.4 general damages as this Honourable Court deems just and reasonable;

1.5 costs; and

1.6 interest on the judgment sum at the rate of 8% per annum from the date this Honourable Court deems fit to the date of full payment and/or realisation.

In the counter-claim, the defendants pray for the following:

2.1 a declaration that the plaintiff is liable to pay RM0.21 per sq. ft. as maintenance fees instead of the RM0.16 the plaintiff has been paying;

2.2 an order that the plaintiff do pay the defendants the sum of RM2,554.98 being the overdue maintenance fees;

2.3 contractual rate of interest at 12% per annum on all outstanding sums due; and

2.4 costs.

Background

The plaintiff is the owner of an apartment A-2-5 ("the said premises") in a development known as Bayu Beach Resort Port Dickson ("the said resort"). The 1st defendant is the developer of the said resort. The 2nd defendant was appointed by the 1st defendant to manage and maintain the common properties, facilities and services of the said resort which consisted of three blocks.

The plaintiff entered into a sale and purchase agreement dated 29 January 1992 with the 1st defendant and another for the purchase the said premises. Further, on 21 September 1992 the same parties entered into a management agreement in respect of the management and maintenance of common properties, facilities and services of the said resort.

Issues

The following are for determination:

i) Whether the cutting off water supply to the said premises by the defendant constitutes a nuisance. If so, whether the plaintiff is entitled for damages.

ii) Whether the new maintenance charges imposed by the defendants at rate of RM0.21 per sq. ft. was fair and justified.

The agreed facts in this case are as follows:

6.1 It is an express or implied term that it shall be the duty of the defendants to supply water to the said premises. The defendants would normally purchase the water from the Jabatan Bekalan Air in bulk and subsequently apportion payment of the water supply to each parcel in accordance to the reading of the respective parcel water meter;

6.2 On or about 29 September 1993, the plaintiff paid to the 1st defendant the deposit for water and electricity of RM300 and RM500 respectively;

6.3 Pursuant to cl. 18 in the sale and purchase agreement and 8.07 in the management agreement, the plaintiff was required to pay maintenance charges in respect of his proportion of cost of the management and maintenance of common properties, facilities and services of the said resort;

6.4 Vide the letter dated 29 September 1994, the 1st defendant informed the plaintiff that the maintenance charges payable by the plaintiff would be revised from RM0.16 to RM0.21 with effect from 18 August 1994;

6.5 By reason of the plaintiffs non-payment of the full RM0.21, the water supply to the said premises was disconnected on or before 22 November 1997.

On First Issue

On liability, I find the following in Unlawful Interference With Land by David Elvin and Jonathan Karas illuminating and constructive, which states at p. 240:

Some nuisance consist in an interference with the enjoyment of property falling short of physical interference and without causing physical damage, for instance the nuisance may consist of noise of smell. The amount of the damages recoverable for such nuisances may be hard to quantify. However, even in the ab