Leisure Farm Corporation v Chow Tat Chow & Anor [2019] MLJU 1349

Federal Court

Brief facts

Plaintiff was a developer of an estate - Leisure Farm Resort, in Johor. 1st Defendant was one of t
he purchasers of the Leisure Farm Resort. However, 2nd Defendant had sold his piece of land in
Leisure Farm Resort to the 2nd Defendant. The 2nd Defendant makes the counterclaim against P
laintiff for obstructing access to his property due to his refusal to pay the Maintenance charges de
manded by the Plaintiff. The boom gates and the gate to the precinct were put in place by Plaintif
f, a private developer. These were restrictions to the use of roads that are not owned by Plaintiff.
The defendant cannot gain access to his property without having to submit to the procedures put i
n place by the Plaintiff and he cannot gain access to the precinct where his property is located unl
ess the Plaintiff’s security personnel allows him to do so using an access card. These restrictions
were not put in place and managed by the residents’ association. There was also no evidence that
the guardhouse, boom gates, and gate to the precinct were put in place with the approval or autho
rization of the local authority.

Legal issue

Whether the act of Plaintiff which obstructs the access of 2nd Defendant to his own house constit
ute a private nuisance and can obtain damages together with injunction from the court?

Decision of the court

The court held that the plaintiff does not have the authority to interfere the second defendant usin
g the roads going to and from its property within Leisure Farm Resort. The impediments
(obstructions) placed to the second defendant’s access to his property amounts to an actionable n
uisance. Thus, the court had restrained the plaintiff from obstructing the second defendant from o
btaining access to and from his property

Ratio decidendi

The court had referred and compared the current case to the Court of Appeal’s judgement in Au
Kean Hoe v Persatuan Penduduk D’villa Equestrian [2015] 4 MLJ 204, where (Judge )Abdul
Aziz Abd Rahim JCA had explained (the factors to consider whether an act can be considered
nuisance or not which include) that : “Whether such an act does constitute a nuisance must be d
etermined not merely by an abstract consideration of the act itself, but by reference to all the cir
cumstances of the particular case, including, for example, the time of committing it, that is whet
her it is done wantonly or in the reasonable exercise of rights; and the effect of its commission ,
that is,whether those effects are transitory or permanent, occasional or continuous so that the
question of a nuisance or no nuisance is one of fact.”

In Federal Court, Judge Zulkefli CJ (Malaya) in Au Kean Hoe stated that a complaint of merely i
nconvenience, not of obstruction, was not considered as nuisance. Furthermore, it was held not n
uisance because the boom gates and guardhouse in that case were erected with the approval of th
e Majlis Bandaraya Petaling Jaya and the structures were authorised structures under the Street,
Drainage and Building Act 1974 and the Local Government Act 1976.

However in the current case, the boom gates and the gate to the precinct of the second defendant’
s property were put by the plaintiff, a private developer which did not own the roads restricted. T
here was also no evidence that the guardhouse, boom gates and gate to the precinct were placed o
ver there with the approval or authorisation of the local authority. The current court had viewed s
uch acts as usurping the powers granted by legislation on the local authority and (the plaintiff is
considered) assuming itself as having the authority to restrict persons from having access to their
properties unless they contract with and make payments to the plaintiff, and submit to the proced
ure the plaintiff had devised.

In the current court’s view, the second defendant’s act of (i) erecting and maintaining a guardhou
se with a boom gate and (ii) placing a gate en route to the precinct to where the second defendan
t’s property is located, was clearly an act of obstructing the second defendant’s access to his prop
erty. Furthermore, the second defendant was denied of his entrance to its property if he did not c
omply with the Plaintiff’s requirement to register and to leave a document of identification with t
he security guards. Different from the case of Au Kean Hoe , the second defendant cannot allow
himself to enter the precinct of his property because the boom gate and the gate would not open
without an access card and he was not allowed one. The current court had viewed the plaintiff's a
ct as an obstruction.