Nuisance claims must be properly pleaded; contractual obligations govern access to utility services, and failure to sign required agreements negates claims against developers.

[1] The plaintiffs had been staying in the Meru Valley Resort ("resort") in Ipoh for a while in a rented place before they decided to buy one of their own. It is a new concept of living in a Golf Resort within a gated and guarded community developed by the defendant, a housing developer. There are common property, areas and facilities that all who are residents there could enjoy.

[2] The plaintiffs bought a vacant land known as Lot No 259 ("the said land") in the resort from a previous owner vide a sale and purchase agreement dated 7 December 2009. The plaintiffs wanted to tap into the water supply provided by the defendant. The defendant said that the plaintiffs must first sign a deed of mutual covenant where matters of utility services, guard and security services, use of common facilities and terms for the construction of one's home in the resort are set out. The plaintiffs refused and yet insisted that they are entitled to the water supply in any event and that it would be the tort of nuisance that the developer would have committed if it continued to prevent them from having access to the water supply.

[3] Both sides refused to budge and we see here how a simple disagreement has deteriorated to a dispute that has come before the court for determination and disposal.

Problem

[4] The plaintiffs' argument is an ingenious one. They said that the defendant is not a licensed holder of the water supply system within the resort and as such is not clothed with any authority in law to stop the plaintiffs from tapping into the water system.

[5] The defendant contended that it had constructed the water supply system as the developer of the resort and pending the handing over of the system to the state water authority, in this case the Lembaga Air Perak ("LAP"), it is legally obliged to supply and maintain the water system subject to terms. The legal basis for the contractual duty that the developer has to provide maintenance services and utility (including water supply) to all residents in the resort until the appropriate authorities take over the same is by virtue of the relevant clauses in the original sale and purchase agreement ("Original S&P") signed between the developer and the original previous owner.

[6] The defendant further contended that as the plaintiffs have opted to purchase a vacant lot within the resort to build their house, they are bound by the terms and conditions with respect to the common facilities enjoyed by all in the community living concept. The terms of the original S&P with respect to the payment of water for instance would bind all the purchasers whether they had bought their lot from the developer direct or through a sub-sale.

Prayer

[7] The plaintiffs had filed this suit seeking, inter alia:

i. A declaration that the defendant is not a license holder for a water supply system and does not have any right in law to stop the plaintiffs from getting water supply to the said land;

ii. An injunction against defendant and/or its workers and/or its agents from stopping the plaintiffs to start work on the connection of the water supply to the said land;

iii. General damages

a. at the rate of 8% per annum from 18 November 2010 on the purchase price, ie RM872,508.00;

b. RM5,000.00 per month from the date of the writ, ie 9 September 2011 being the rental unnecessary incurred;

iv. Exemplary damages of RM500,000.00;

v. Interest and cost.

[8] The defendant had counterclaimed as below:

i. RM3,578.53 being the maintenance cha