Edgar Joseph Jr J:

This case concerns a dispute between neighbours about acts of alleged trespass and nuisance to land and also about an alleged contractual right of way and, as might be expected of such a dispute, it generated a considerable degree of acrimony ending in a long drawn out, complex and expensive law suit.

Before me, the plaintiffs' claims, stated broadly and summarily, were for general damages for trespass, nuisance and injury to their two plots of land allegedly caused by the development activities of the first defendant, Low Yat Holdings Sdn. Bhd. - since 6 June 1983 renamed Mount Pleasure Corporation Sdn. Bhd. and amended accordingly - ("the defendant company") and its contractor the second defendant, on neighbouring land, resulting in obstruction of access from these lots to the public highway. The plaintiffs further claimed (1) exemplary and aggravated damages, (2) specific performance of the contractual right of way in order to obtain for themselves a right of carriageway as aforesaid and an injunction in aid thereof. Alternatively, the plaintiffs claimed a declaration that they were entitled to an equitable easement in respect of this right of carriageway.

The defendants denied the allegations of trespass and nuisance and relied on inevitable accident and the plea of abatement of nuisance. So far as the claim for specific performance was concerned, the defendants contended that the plaintiffs' claims were barred by abandonment, acquiescence, delay, waiver and limitation.

The material facts, being somewhat complicated, I shall begin at the beginning, by mentioning by way of background, certain introductory facts.

In 1958, one T.V. Templeton died and left surviving him three children - a son Alfred Templeton, and two daughters, Rita and Phyllis Templeton - the three plaintiffs herein, respectively. He also left amongst his assets eight lots of land situated in Batu Ferringhi, to which the three plaintiffs succeeded. On one of these - Lot 48 (previously known as Lot 64 (10)) - stood the family house which was to figure prominently, at the trial.

During his lifetime, the deceased Templeton sold some other lots adjoining the eight lots, from time to time; they appear as Lots 49 to 54 in the plan, being at p. 49 of the agreed bundle (AB), which depicts an area known as Mount Pleasure - so named by the deceased. The plan also depicts what the first plaintiff Alfred Templeton has described as "the roadway" or "the old road", subsequently referred to as "the existing road", being the area shaded or dotted therein which was also to figure prominently at the trial.

According to the first plaintiff, when the deceased Templeton subdivided the Mount Pleasure property, he provided for a roadway to service all the subdivided lots including the lots sold and, indeed, he had had "an understanding" with the purchasers thereof to that effect. The first plaintiff added that some of the lots sold fronted the main Batu Ferringhi Road and so had to have a rear access road.

Sometime after the death of the deceased - it was not in evidence when this was - the first and the second plaintiffs emigrated to Perth, Australia, whilst the third plaintiff remained and still remains in this country. As for the family house, the first plaintiff himself testified that "it had been vacant since 1960 and in time had been vandalised and by 1980 had become a very run down house".

Be that as it may, the history of events which called for the consideration of the Court begins with a Sale and Purchase Agreement in writing, dated 12 July 1971 ("the Sale and Purchase Agreement") expressed to be "binding upon the heirs, assigns and personal representatives of the parties", whereby the plaintiffs as the trustees of the will trusts of the estate of the deceased Templeton had agreed to sell five plots of land known as Holding Nos. 63(1) (later renumbered as Lot 394), 64(1) (later renumbered as Lot 39), 78(1), 78(2) and 80 to one Dato Low Yau Ch