HOTEL CONTINENTAL SDN BHD v CHEONG FATT TZE MANSION SDN

BHD
[2002] 3 MLJ 529
COURT OF APPEAL (KUALA LUMPUR)
MOKHTAR SIDIN, MOHD SAARI AND ALAUDDIN JJCA
CIVIL APPEAL NO P-02-337 OF 1996
5 July 2002
Fact Of The Case
The appellants, Continental Hotel were in the process of building an extension to the Hotel
which involved some piling works. By virtue of the appellants' continuous piling works,
the respondents, Cheong Fatt Tze Mansion claim that severe cracks have appeared on the
walls of the Mansion due directly to the ex-cessive vibrations created by piling employed.
The respondents obtained an ex parte order of injunction and an interlocutory in-junction
to restrain the appellants from permitting piling and to continue any vibration or nuisance
of a like kind pending the determination of an alternative system of piling. The appellants
filed an application to set aside the ex parte injunction. The learned judge granted an order
for an injunction as prayed for by the respondents and dismissed the appellants' application.
The appellants appealed.
Issues
1. Whether appellants' acts constitute in law an actionable nuisance?
2. Whether appellants' application to set aside ex parte injunction allowed in order to
resume piling works?
3. Whether damages are an adequate remedy considering the premises is a heritage building
and should not be put to further risk of irreparable damage if piling works persist?

Respondent’s Submission
1) The respondent previously have purchased the Mansion on the price of RM2.75m
and later expanded to a sum of RM3m for restoration purpose, with the aim of
maintaining the Mansion into heritage building.
2) The respondents claim that there is a severe cracks appeared on the walls of the
Mansion due to the excessive vibrations created by construction process of pilling
works from appellant’s building, the Hotel.
3) Unless there is an alternative way for the pilling work, the safety and structural
stability of the Mansion will otherwise be affected. Plus, the reasonableness of the
 age and foundation of the building during that era should taken into account in order
to measure the stableness of the building.
4) The appellant refused the respondent on his request of pending the adoption of an
alternative pilling system to avoid such damage on the Mansion. Thus, the
respondent has no choice other than seek for an injunction.

Appellant’s Submission
(1) The learned judge erred in law and in fact in granting to the respondents the ex parte
injunction against the appellants and or their servants from continuing with the piling work
and, further, in dismissing the appellants' application to set aside the ex parte injunction (A
judicial proceeding, order, or injunction is said to be ex parte when it is taken or granted
at the instance and for the benefit of one party only and without notice to or contestation
by, any person adversely interested). In holding so, the learned judge failed to consider that
there was no material before him to justify granting of the ex parte injunction.
(2) In granting the above injunction and in dismissing the appellants' application, the
learned judge erred in law and in fact in holding that there was no non-disclosure of
material facts by the respondents in their application for the said injunction.
(3) The learned judge erred in fact in finding that the cracks appearing on the respondent's
building were severe cracks and structural in nature while there was no evidence to support
such a finding.
(4) The learned judge erred in law and in fact in assuming and holding that unless an
alternative system of piling to be adopted, the safety and structural stability of the
respondents' building would be endangered.
(5) The learned judge erred in law and in fact in holding that the sufficiency of the
respondents' undertaking as to damages in regard to the injunction was not a factor or a
factor of less weight to be given, in deciding on whether the injunction should be issued or
continued.
(6) The learned judge erred in law and in fact by concluding that there were serious issues
to be decided at the trial.
(7) The learned judge erred in law and in fact when he decided the balance of convenience
(the question is to balance the relief given to the plaintiff against the injury that will be
done to the defendant) lies in favour of the respondents.

Judgement
By referring to the submitted issues, the judge is totally agree with the decision that been
made by the learned judge and held to dismissed the appellant’s appeal.
On the first three grounds advance by the appellants, based on the report given by the
respondent’s engineer had sufficiently shown a clear nexus between the appellants' piling
works had cause cracks in the Mansion, thus, the learned judge found that there was no
material non-disclosure on the part of the respondents when they sought the ex parte order.
As a matter of fact, the respondents' application for the both injunctions was grounded on
their complaint over the various cracks in the Mansion arising from the piling works carried
out by the appellants. And the crack was obviously a fresh ones (no dirt marks or fungus
and serious in nature) and supported by the respondent's consultation given report. The
report prepared by the appellants' engineer had implicitly acknowledged that the cracks
were new.
Having the advantage of all documentary evidence available and coupled with all the
reasons had already enumerated, the judge view that the learned judge had made strong
and correct findings of facts with which they agree and find there is no need to interfere.
On the fourth ground of appeal regarding the safety and structural ability of respondent's
mansion, the judge find that based on the available evidence before the learned judge is
justified in assuming and holding that unless an alternative system of piling be adopted if
not the respondents' building would be endangered.
Regarding the sufficient of damage suffered by the respondent ought to grand the
injunction or not, the judge view that the essential justice of the case rather than the
plaintiffs' financial means was ought to be the court's pre-eminent concern by using the
decision of Edgar Joseph in the case of Cheng Hang Guan & Ors v Perumahan Farlim
(Penang) Sdn Bhd & Ors [1988] 3 MLJ 90.
Based on all evidence available, the learned judge is more than justified in coming to the
conclusion that not only that there are serious questions to be tried but also that the
respondents have in fact made out a prima facie case for an actionable nuisance against the
appellants.
Once it is shown that the appellants' acts constitute in law an actionable nuisance it is no
defence to say that the appellants had taken all reasonable precautions to prevent it (see
Rapier v London Tramways Company (1893) 2 Cl 588).
Although (as claimed by the appellants) the piling works are of a temporary duration it
does not exclude the respondent's right to an injunction if the interference is an actionable
nuisance causing physical damage to the respondents' property (see Stone v Bolton [1950]
1 KB 201).
On the last ground, in all the circumstances of the case and after considering the law the
judge find that the learned judge was also right in deciding the balance of convenience and
justice in favour of the respondents.
Lastly, the judge also find that damages could not possibly be an adequate remedy
considering that the said premises is a heritage building and that the respondents should
not be put to further risk of irreparable damage if the piling works were allowed to go on.
Thus, the appellants' application was dismissed with cost.

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