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ANTARA
ANGELANE ENG
... PERAYU
DAN
Antara
Bandar Eco-Setia Sdn Bhd
... Plaintiff
Dan
Angelane Eng
... Defendan]
CORAM:
1
ANANTHAM KASINATHER, JCA
DELIVERING JUDGMENT OF THE COURT
BACKGROUND FACTS
2
b) Promote harmonious use and enjoyment of facilities
and services;
3. The provisions in the DMC relevant to this appeal are the rules
and regulations set out in the Design, Building and Construction
Guidelines (Building Guidelines) appended as Schedule 5 to
the DMC. The Building Guidelines required the appellant inter
alia to construct the bungalow house on her vacant lot to a
particular height. The height of the house from the top of the
roof to the original ground level was not to exceed 12 meters.
To ensure compliance with the DMC, purchasers of vacant lots
were required to submit building plans to the respondent prior
the commencement of the construction of the proposed
bungalow on the vacant lot. The further requirement being that
the subsequent construction must be in accordance with the
approved plans.
3
4. Section 9 of the DMC permitted the appellant to exceed the
aforesaid height limit of 12 meters inter alia in respect of
buildings in Precinct 3 upon obtaining the consent of a Review
Panel established by the respondent pursuant to the DMC. The
Review Panel was authorized to grant a relaxation of the
building height on a case by case basis.
4
the respondent. The evidence revealed that some 40 houses
out of the total number of 66 completed houses in Precinct 3
have exceeded the height limit of 12 meters, with the
respondent only having commenced legal action against some
10 of the owners. The appellant produced the survey plan and
photographs of these houses to substantiate this claim.
5
the respondent authorised the appellant to move in by 20th
December 2009.
10. The breach on the part of the appellant was first brought to the
attention of the respondent by other purchasers in March 2009
(see page 459 of Jilid 2 (2). The Learned Trial Judge
acknowledged that by June 2009, the main frame and other
structural works including the super structure of the building
had been constructed and was close to completion. The
respondent upon being so alerted, caused its staff to conduct a
site inspection to investigate the nature and extent of the
breach. Following such inspection, according to the Learned
Trial Judge, the appellant was adviced that the construction of
the house was not in accordance with the approved plans
during a meeting between the parties on 12th June 2009.
6
11. The Learned Trial Judge observed that the respondent after the
receipt of the appellants letter of appeal of 14th September
2009 containing its explanation for this breach, proceeded to
order the appellant to suspend all construction work vide its
letter of 31st December 2009. The Learned Trial Judge then
proceeded to make the following finding of fact:
12. Relying on the above finding of fact, the Learned Trial Judge
proceeded to reject the defences of equitable estoppel and
acquiescence and instead ruled:
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both contracting parties, regardless of its harshness
or unreasonableness.
14. Accordingly, the Learned Trial Judge inter alia granted specific
performance of the Building Guidelines by requiring the
construction of the building on the appellants lot to be limited to
the maximum approved height of 12.192 meters and,
additionally, granted a mandatory injunction requiring the
appellant to demolish so much of the building that exceeded the
maximum approved limit of 12.192 meters within three months
of the order of Court.
APPELLANTS CASE
15. Before us learned counsel for the appellant submitted that the
judgment of the Learned Trial Judge was flawed because Her
Ladyship made an error on a fact critical to the application of
the equitable doctrine of estoppel and acquiesce. According to
counsel, it is not true that the completion of the roof to the
offending height was subsequent to the issue of the stop notice
on 31st December 2009. It was also the submission of counsel
that proceeding from this false premise, Her Ladyship assumed
that the appellant had completed the roof in complete disregard
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of the stop work notice, thereby causing Her Ladyship to
exercise her discretion in terms of the order for specific
performance sought by the respondent.
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24th June 2009. In fact, following the letter of 24th June 2009,
the appellant had lodged a notice of appeal on 14th September
2009 with the Review Panel and submitted a revised plan
incorporating the pitched roof to the offending height approved
by the MBSA. Learned counsel for the appellant submitted that
due to this error on the part of the Learned Trial Judge, Her
Ladyship failed to adequately address the equitable defences of
estoppel, acquiescence and laches relied upon by the
appellant. Neither did the Learned Trial Judge take into account
the fact that the primary remedy pursued by the respondent in
the form of a declaration and specific performance were
equitable in nature and consequently attracted the equitable
defences relied upon by the appellant.
RESPONDENTS CASE
19. Learned counsel for the respondent submitted that once the
appellant acknowledged that it was bound by the terms of the
mutual deed of covenants, then, it must follow that she was
under an obligation to comply with the terms of the same. In
this respect, according to counsel, the appellant had signed the
declaration agreeing to be bound by the terms and conditions of
the mutual deed of covenants. Learned counsel for the
respondent submitted that since the appellant does not dispute
being bound by the terms of the DMC and also admits to not
having complied with the terms of DMC, the Learned Trial
Judge was right in law to order the relief sought by the
respondent under the Specific Relief Act 1950.
22. This error on the part of the Learned Trial Judge is critical
bearing in mind that the equitable defences of estoppel,
acquiescence and laches are primarily based on the conduct of
the parties. For instance, estoppel is widely understood to
operate in equity;
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23. Acquiescence is generally understood in two senses. In Glasson
v. Fuller [1922] SASR 148 Poole J had alluded to the different
meaning of the terms when he said:
24. Applying the aforesaid principles of law to the facts of this case,
it must follow that the defences of estoppel and acquiescence
will not avail the appellant if she undertook the construction of
the roof to the offending height after the service upon her of the
stop work notice. On the other hand, these equitable defences
will avail the appellant if there is evidence that between the
period of the commencement of the construction of the roof to
the offending height and being allowed into possession of the
house by the respondent, the respondent conducted itself in a
manner which caused the appellant to reasonably conclude that
the respondent will not enforce the building guidelines to the
letter by requiring the appellant to either limit the height of her
building to the originally approved limit of 12.97 meters or
require the appellant to demolish the offending roof of the
building upon being allowed unconditional possession of the
completed house.
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specific performance.Based on the following
pronouncements of Sir Samuel Griffith in Cashman
v 7 North Golden Gate Mining Co. [1897] 7 QLJ 152:
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the Learned Trial Judge ought to have considered
the equitable defences raised by the appellant
before granting specific performance for the
demolition of the roof;
24
originally approved height limit (see Q and A 30 at
174 AR);
25
their houses beyond the approved limit, without any
action having been taken against them;
A: No.
26
(See Q and A 30 page 174 Jilid 2 (1)
Bahagian B)
CONCLUSION
28. In our judgment, if the Learned Trial Judge had properly and
fairly considered the equitable defences raised by the appellant,
the Learned Trial Judge would have come to a different
conclusion from that in Her Ladyships judgment. In our opinion,
the error committed by the Learned Trial Judge in dismissing
these defences summarily on the premise that they were not
relevant because the respondents claim was one based in
contract, is an error of law which warrants appellate
intervention.
Sgd.
ANANTHAM KASINATHER
JUDGE
COURT OF APPEAL MALAYSIA
PUTRAJAYA
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COUNSEL FOR THE APPELLANT:
Mr. M. Rajendran Navaratnam
(together with Ms. Choo Mun Wei)
Tetuan MK Chen & Leong
Peguambela & Peguamcara
Suite B-9-2, Plaza Mont Kiara
50480 Kuala Lumpur
REFERENCE: