JUDGMENT

Arziah Mohamed Apandi JC:

I. Introduction

[1] This is an appeal against the decision of the learned Magistrate who dismissed the Plaintiff's claim for damages arising from water leakage at the Plaintiff's unit C1-21-1 at St Mary Residences, Kuala Lumpur.

[2] Having carefully considered the evidence and submissions of both parties, I allowed the appeal after finding that the Plaintiff had proved his case on the balance of probabilities. The Defendant, on the other hand, failed to discharge the burden of disproving the Plaintiff's claim. For convenience, the parties will be referred to as they were in the court of first instance.

II. Background Facts

[3] The Plaintiff is a Singaporean citizen and owner of condominium unit C1-21-1 at St Mary Residences. The Defendant is the management body that operates St Mary Residences in Kuala Lumpur.

[4] On 30 July 2021, the Defendant notified the Plaintiff about water flowing out from the Plaintiff's unit. The Plaintiff responded on 2 August 2021, requesting that the Defendant address the leakage. The Defendant immediately engaged a contractor to inspect and resolve the issue.

[5] Thereafter, on 11 August 2021, the Defendant informed the Plaintiff that a contractor had been engaged to identify the water leak source. Following the inspection on 13 August 2021, the contractor proposed turning off the water supply to the powder room for 2 days to monitor and identify the leak. On 17 August 2021, the Plaintiff authorised the Defendant to hack into the unit's walls to locate the source.

[6] On 20 August 2021, the contractor found that sewage water was not flowing properly due to a possible clog in Unit C1-20-2 (the Lower Unit). The contractor advised that the sewer pipe required immediate repair. However, the owner of the Lower Unit was abroad and did not consent to the Defendant inspecting or repairing the sewerage pipes in his absence, despite the Defendant's efforts to persuade him.

[7] Following the Plaintiff's approval on 23 August 2021, emergency repair works commenced on 27 August 2021. The contractor - (a) repaired and replaced the broken sewer pipe; (b) attempted to unclog the Lower Unit but found water still not flowing; (c) proposed unclogging the Lower Unit to facilitate water flow and identify foreign materials; and (d) advised that the Lower Unit owner was abroad and refused consent for inspection/repair despite the Defendant's best efforts.

[8] On 7 September 2021, the Defendant reported the incident to Great Eastern General Insurance (Malaysia) Berhad ("the Insurers"), who would inspect the Plaintiff's unit. The Defendant followed up extensively with the Insurers via multiple emails from 14 September 2021 to 8 February 2022 regarding the Plaintiff's claim for damages and alleged rental loss. On 9 February 2022, the Insurers rejected the claim as it fell beyond the policy coverage. The Defendant sought clarification on the rejection reasons on 25 February 2022.

[9] The Defendant continued liaising with the original contractor about urgent repair works from 4 March until 10 March 2022. However, on 11 March 2022, the contractor stated it could not proceed due to other project commitments. The Defendant then obtained a quote from VT Reno Sdn Bhd ("the 2nd Contractor") for approximately RM23,440.00, which was approved. All repair works to the Plaintiff's unit were completed by 25 April 2022.

[10] After receiving the Plaintiff's solicitors' letter dated 3 July 2023, the Defendant contacted the Insurers by telephone, requesting reconsideration of the Plaintiff's claim for loss of rental. On 19 September 2023, the Insurers again rejected the claim for 12 months of lost rental, stating it was "not directly due to the present incident and does not fall within the ambit of coverage of the policy". This was communicated to the Plaintiff via email on 20 September 2023.

III. The Claim

[11] The Plaintiff contends that the water leakage originated from the outer walls/pipes in the common area.

[12] The