The right to seek injunctive relief remains with the party retaining possessory rights over common property, even post sale of parcels.

Siti Norma Yaakob JCA:

Summary proceedings under O. 14 of the Rules of the High Court 1980 ("the Rules") were successfully pursued by the plaintiff in the court below and judgment in the nature of two forms of injunction (one mandatory and the other prohibitive) as well as reliefs for damages to be assessed and costs to be taxed were ordered against the defendant. It was to appeal against these orders that the defendant are now cited as the appellant in this appeal before us.

The factual background of this appeal is in no way disputed. The respondent are housing developers and between 1989 to 1993, they were developing their property, Lots 1997 to Lots 2021, Bandar Perai, Seberang Perai Tengah, Penang, held under Qualified Titles No. H.S.(D) 1307 to H.S(D) 1331, with the construction of a block of three-storey commercial building known as Taman Inderawasih, Phase 3 C1, consisting of 41 units of shop and office space and had sold subdivided parcels in the said building to various purchasers. Pending the issuance of strata titles to the said purchasers, the respondent were responsible for the maintenance and management of the building. With that in mind, they had, on 1 January 1993, appointed a real estate agent, Messrs. Jurunilai Bersekutu ("the Property Manager") to manage the common property of the said building but payment of their service charges were made by the owners of the individual parcels, pending the establishment of a management corporation under the Strata Titles Act 1985 .

In early December 1997, the Property Manager discovered that the appellant, a telecommunications company, had erected a cabin equipped with transmission lines to serve as a broadcasting station on a portion of the roof of the building and had restricted access to the roof by placing iron grills and a locked gate on the stairway leading to the roof, without the respondent's consent. The appellant admitted this was so but they denied they were trespassers as they contend that they had the permission by way of a tenancy agreement with two brothers, purchasers of the three relevant parcels over which the structures were erected upon payment of a rental of RM2,300 per month to the said purchasers. That being their stand the appellant refused to abide with the respondent's written demand contained in their solicitors' letter dated 19 February 1998, to remove the structures or to cease further acts of trespass on the respondent's property. This led to the respondent filing a writ action on 26 March 1998, seeking reliefs that have since been embodied in the judgment obtained in the O. 14 proceedings that we have stated earlier.

For completeness, we need to mention that the mandatory injunction directs the appellant to dismantle and remove all the structures and appurtenances that they had installed on the roof of the respondent's building within seven days of the date of the order. The restraining order prohibits the appellant from further acts of trespass into the respondent's property and the compensatory relief ordered to be assessed was the damages sustained by the respondent as a result of the presence of the illegal structures.

We also need to point out that before the O. 14 proceedings were commenced in the court below, the respondent had, following the filing of their writ action, applied for the same reliefs as sought for in the O. 14 proceedings. However they managed to obtain an interim injunction compelling the appellant to remove the iron grills blocking the stairway to the roof, as the same judge who heard the O. 14 proceedings, directed the matter of the removal of the structures on the roof be given an early date for trial. However just days before the trial date, the respondent filed the O. 14 proceedings and before us, two issues were raised by the appellant one procedural and the other on a point of law based on th