JUDGEMENT

JOYCE LIM J:

1. The enjoyment of an adjoining land is the first issue to look at. Relating to our
current care, Joginder Singh (JS) and Puncak Emas Sdn. Bhd (PBSB) are the
registered owners of adjoining landed properties in the township of Seremban.
2. In general, the underlying theme is that adjoining landowners are expected to use
their property reasonably without unduly interfering with the rights of the owners of
contiguous land. Actions taken by a landowner that appropriate adjoining land or
substantially deprive an adjoining owner of the reasonable enjoyment of his or her
property is an unlawful use of one’s property. The enjoyment should not
unreasonably interfere or disturb the rights of adjoining landholders or create a
private nuisance.
3. Section 44(1) of the National Land Code provided the natural rights of a land
owner, which :
“the exclusive use and enjoyment of so much of the column of airspace above the
surface of the land, and so much of the land below that surface, as is reasonably
necessary to the lawful use and enjoyment of the land;”
4. In the case of Corbett v Hill (1870) also states that:
“The rights of the surface owner extend upwards to the sky and downward to the
centre of the earth.”
5. In Abbinett v. Fox (1985), the general law is observed that a landowner is entitled
to use his/her property in a manner that maximizes his or her enjoyment. However,
the enjoyment must not unreasonably interfere or disturb the rights of adjoining
landholders or create a private nuisance.
6. Therefore, PBSB is allowed to enjoy his land but it must not interfere and cause
nuisance to JS. However, the plaintiff’s solicitor further submitted that the issue of
nuisance caused by PBSB towards JS.
7. To establish private nuisance under law of torts, the plaintiff must prove substantial
interference. Plaintiff needs to either there is interference with the use, enjoyment
and comfort of the land or prove there is physical damage to the land or property.
8. Relating to the negligent and the case of Wisma Punca Emas Sdn Bhd v Dr
Donal [1987] 1 MLJ 393 SC, the Superior court held:
 “Negligence is not a requirement in a nuisance case. All that is necessary is proof
of special damages which would be damage to his property due to the activities of
Defendant on the adjoining land. The Cause of action in this case was founded on
the natural right of support, in the context of this case, it was the same as saying the
claim was based on nuisance. Appeal dismissed.”
9. The damages caused by defendant to the plaintiff in our current case can be showed
at the substantial amount of money spent in remedial works on the plaintiff’s land
and this data is provided by an expert’s report and quotation therefore it is reliable.
10. In the case of Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd;
HONG HING THAI ENTERPRISE SDN BHD (THIRD PARTY), [2011] 4
MLJ 354, which is a case on nuisance and negligence, the court held, quoting
Clerk & Lindsell on Torts, that the question of issuing an injunction arises when it
has been decided that there is an actual or imminent nuisance to stop or prevent. In
Cheong Fatt Tze Mansion Sdn Bhd’s case, injunction was granted to prevent further
damage to the building. Applying the principles to our current case, a mandatory
injunction is necessary to immediate stop all works on defendant’s land to prevent
further damage to the plaintiff’s land.
11. The next issue is the burden of proof by plaintiff to prove that defendant has carried
out the development works without relevant of lawful authorities. According to
s.101 Evidence Act 1950 (EA), it provides that:
“whoever desires the court to give judgement in their favour, shall have the burden
to prove the case which achieve the required standard of proof. With regards to the
present case, it is a civil case, thus, JS, who is the plaintiff, shall bears the legal
burden to prove the case on the balance of probabilities as per s.101 EA”
12. The defendant further submitted that the plaintiff failed to give supporting evidence
and it was just a bare assertion.
13. The plaintiff on the other hand has supported by the case of Chin Moy Yen &
Others v Chai Weng Sing & Others[2019] 1 LNS 940, the Court of Appeal held
that:
“for private nuisance, the conduct or act of defendant needs not be unlawful. The
defendant may be doing something lawful on his land but still is a nuisance when
the consequences of his acts extend to his neighbour in one of three ways, (1)
encroachment to his neighbour’s land (2) causing physical damage to his
 neighbour’s land or (3) unduly interfering with his neighbour in the comfortable
and convenient enjoyment of his land.”
14. Therefore, although the defendant is doing lawful action which is doing the
development works with relevant authorities, it also leads to private nuisance if the
defendant has caused the consequences above.
15. The last issue of our present case is whether the mode of commencement for this
case is originating summon or by writ.
16. Order 5 Rule 2 Rules of court states that proceedings in which a substantial
dispute of fact is likely to arise shall be begun by writ. Order 5 Rule3 Rules of
Court states the proceedings in which application is to be made to court under
written law shall be begun by Originating Summons.
17. The Defendant contends that the mode of commencement of the Plaintiff's action by
way of Originating Summons is scandalous, frivolous or vexatious and is
procedurally wrong which is an abuse of the process of Court.
18. It is the Defendants' submissions that the Plaintiffs' claim involves substantial
dispute as to facts and triable issues which are not suitable to be determined by way
of affidavit evidence. The Defendants submit that the Plaintiffs should have
instituted this action by way of Writ Summons pursuant to Order 5 Rule 2 of the
Rules of Court 2012 and not by way of Originating Summons. Reference is made
to Order 5 Rule 2 which states:-
"Proceedings which shall be begun by writ (Order 5, Rule 2) 2, Proceedings in
which a substantial dispute of fact is likely to arise shall be begun by writ".
19. In the case of Re National Union of Commercial Workers, the case involves
determination of serious questions of fact and the action should not have been
commenced by Originating Summons.
20. Where there is a wrong process used, Order 28 rule 8 Rules of Court states that
when a proceeding is filed with Originating Summons but it should have filed in
writ, the court may order the proceeding to continue as it begun by writ.
21. As regards the issue whether a substantial dispute of facts is likely to arise, I am of
the considered view that this issue can only be effectually and completely
determined after affidavit in reply to the Plaintiff's Affidavit is filed by the
Defendant. However, no affidavit in reply has been filed in respect of the affidavit
in support of the Originating Summons at the time of the hearing of this application.
22. Since the affidavits filed by the Plaintiffs do disclose a reasonable cause of action
against the Defendant and there are serious questions to be tried, I consider the
mode of commencement is correct.
23. With this reason, I hereby allow the plaintiff’s suit.