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2009 MarsdenLR 134
HIGH COURT, KUALA LUMPUR
ONG KOH HOU – Appellant
Versus
PERBADANAN PEMBANGUNAN BANDAR & ANOR – Respondent
[Civil Suit No: S6-22-106-2003]
JUDGMENT
On 19 October 1993, the Plaintiff purchased a penthouse at the Angkasa Impian Condominium. The purchase price was RM849,904.00. The 1st Defendant was the developer of the condominium whilst the 2nd Defendant was the property manager or management agent appointed by the 1st Defendant to maintain, up keep and administer the said condominium in a reasonably good state of repair and maintenance for the enjoyment of use by the residents.
After vacant possession was handed over and renovations completed, the plaintiff moved into his penthouse around the end of 1997. After occupying the premises for only about 2 weeks, the plaintiff moved out. He said that he could not stand the noise disturbance or nuisance from a water pump located above the penthouse and other contributing problems. These were all listed out in a letter dated 1 June 1998. The plaintiff is now claiming damages for loss of use of his penthouse, depreciation in value of the penthouse, loss of rental and other losses.
What is the allegation against the Defendants? The complaints of the plaintiff were all set out in a letter dated 1 June 1998. The major complaint of the Plaintiff is in relation to a defective water pump. There were other complaints concerning poor TV reception, presence of mosquitoes and lack of cleanliness at the lobby area. I considered these matters too trivial and minor to be worthy of consideration.
What was wrong with the water pump? The problem of the defective water pump is evidenced by documents from the 1st Defendant's consultants. The consultant's view was contained on a letter dated 5 March 1999 of which the relevant parts stated as follows:
"1. The booster pumpsets were found to be operating satisfactorily. There was adequate pressure developed for flow into the roof storage tank and no excessive vibration & sound were noted during its operation.
2. However, when the pump stops, a distinct "banging" sound is heard. This, in our opinion, is due to the rapid closure (slamming action) of the check valve installed at the pump discharge.
3. To overcome this problem in an effective way (technically and economically), we recommend that the installed water/flap check valves be replaced with silent, anti-hammer & non-slam type check valves."
According to the plaintiff, this banging sound occurred persistently throughout the day at approximately twice each hour.
Who was responsible for this state of affairs? There was no doubt that the 1st Defendant, being the developer of the condominium, was obliged under section 6.3 of the Sale and Purchase Agreement with the Plaintiff to remedy any defect. This water pump problem arose at the very onset after the building was completed. It was the 1st Defendant who installed the water pump. So there cannot be any doubt that they are responsible for the defective water pump.
What about the 2nd Defendants? Are they also responsible? They claim that this was a structural or building problem and not a maintenance issue. SD3, the asset manager of the Plaintiff, told the Court that it was a design fault. As such, it was the developers who had to attend to the problem. The documents produced as evidence appear to suggest that the 1st Defendant accepted this contention. The 1st Defendant appeared to accept the responsibility to rectify the defective pump. I would think in all the circumstances in this case that the problem with the banging noise from the defective water pump emanated from the 1st Defendant's failure to ensure that a proper water pump was installed in the first place. It was not a question of lack of maintenance or failure on the part of the 2nd Defendant to rectify it. The 2nd Defendant had no funds to do so anyway. To utilize the funds from the maintenance account would have been grossly unfair to the owners of the condominiums as the problem arose at the inception due to the fault of the developer/1st Defendant and not through any improper maintenance on the part of the 2nd Defendant. For these reason
