FACULTY OF LAW

FUNDAMENTAL LEGAL SKILLS (LAW 449)

ASSESSMENT 1 (CASE STUDY)

TITLE :
Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987

PREPARED BY : LWB01F GROUP 3

NAME STUDENT ID

NUR AISHAH BINTI ABDULLAH 2024553815

NURFARAH NAJWA BINTI MOHD FARID 2024745867

MELANIE ANNASTASIA ROSLAN 2024545291

MUHAMMAD AMSYAR BIN KU AHMAD ADZAM 2024542055

MUHAMMAD AZHARI BIN MUHAMMAD AZRI 2024349955

PREPARED FOR:

DR. SU'AIDA BINTI SAFEI

SUBMISSION DATE:

03 MAY 2024
 TABLE OF CONTENT

CONTENT PAGE

(A) SUMMARY OF THE FACTS 2

(B) SUMMARY OF THE DECISION OF THE JUDGE(S) 2
(C ) RATIO DECIDENDI OF THE CASE 2
PRIVATE NUISANCE BY THE DEFENDANT TO PLAINTIFF. 2
THE WRONG APPLICATION OF LAW BY THE HIGH COURT BEING REVERT BY
THE COURT OF APPEAL. 3
(D) OBITER DICTA OF THE CASE 3
(E) CRITIQUE OF THE CASE 3
I. Is the case an application of existing law? 3
II. What are the socio, economic and/or political implications of this case? 4

1
(A) SUMMARY OF THE FACTS

The plaintiff, a property developer, appealed against the defendant, a pig-rearing company
owner, over the High Court's rejection of their claim for injunctive relief and damages based on
private nuisance. Both parties are neighbouring landowners, with the plaintiff converting their
land into a mixed-use development while the defendant's pig farm remained operational. The
plaintiff argued that the odour from the pig farm affected property sales, seeking a perpetual
injunction, damages, and costs. The trial court ruled in favour of the defendant, attributing
responsibility for the nuisance to the plaintiff due to the pre-existing pig farm. On appeal, the
plaintiff alleged errors in the judge's failure to consider the change in land use, location's
suitability in light of state initiatives such as the Simunjan Pig Farming Area (PFA), and the
Defendant's violation of condition 8 of their licence. Furthermore, the Plaintiff challenges the
misapplication of the "egg shell skull principle" and seeks injunctive relief and damages for the
private nuisance caused by the Defendant's acts. Therefore, the court allowed the Plaintiff's
appeal.

(B) SUMMARY OF THE DECISION OF THE JUDGE(S)

The Court of Appeal allowed the appeal in part, specifically in respect of the injunction as
prayed for in the Plaintiff's Statement of Claim. They found that the Defendant's pig farm
emanated a strong stench that reached the Plaintiff's land, particularly the shophouses and
residential units, and that the Defendant had committed the tort of private nuisance. Therefore,
the Court's decision was to grant the injunctive relief prayed for by the Plaintiff, but not to award
specific or general damages. The Court of Appeal justified its decision to allow the injunctive
relief but not specific or general damages in the case Wah Shen Development Sdn Bhd v Success
Portfolio Sdn Bhd by stating that there were merits in the appeal, and they found that the
Defendant had committed the tort of private nuisance. Additionally, the Court found that the
Defendant's pig farm emanated a strong stench that reached the Plaintiff's land, and the
Defendant had created a private nuisance to the Plaintiff. Therefore, the Court allowed the appeal
in part, specifically in respect of the injunction as prayed for in the Plaintiff's Statement of Claim,
but made no order in respect of specific or general damages.

(C ) RATIO DECIDENDI OF THE CASE

PRIVATE NUISANCE BY THE DEFENDANT TO PLAINTIFF.

The learned judge decided that an interference with the use and enjoyment of land. It constitutes
a nuisance that includes sounds, smell and vibrations which unduly interfere with the Plaintiff’s
enjoyment of his land.1

The learned judge had visited the plaintiff’s land and openly found that the Defendant’s pig farm
had emanated a strong smell that is unfavourable. With that evidence private nuisance has been
occurred by the Defendant to the Plaintiff.2

1
Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987 (Page 3 Para 17)
2
Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987 (Page 4 & 5 Para 19)

2
The learned judge had found that Defendant had breached their licence condition to plant trees
that would buffer the smell. This breach of licence by the defendant was construed as an
omission where is it relevant factor of the tort of private nuisance.3

THE WRONG APPLICATION OF LAW BY THE HIGH COURT BEING REVERT BY

THE COURT OF APPEAL.

The learned Judge has agreed to the submission from the Plaintiff to appeal due to an erred in
law by the Judge in High Court. Where the learned High Court Judge stated that the Plaintiff had
brought the nuisance to themselves. But from the Court of Appeal 's findings, the Defendants
was the one who committed the tort of private nuisance.4

The incorrect usage of the “egg shell principle” was misused by the learned Judge from the High
Court.5

(D) OBITER DICTA OF THE CASE

There are no obiter dicta present in the case.

(E) CRITIQUE OF THE CASE

I. Is the case an application of existing law?

Yes, the case of Wah Shen Development Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU
987 applies the law of private nuisance, which involves unlawful interference with a person’s
use, comfort, and enjoyment of their land.6 The principles of private nuisance, including factors
determining whether an activity constitutes a nuisance, are well established. In Malaysia, there
are no specific acts or provisions regarding private nuisance, so English Common Law, Judicial
Decisions, and certain Local Statutes are the applicable sources. For instance, the case of Woon
Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd[1992] 3 CLJ (Rep)7 illustrates the
emphasis on private nuisance, where the High Court granted an injunction against a company for
harmful activities affecting residents.

While there are provisions for nuisance in general, particularly public nuisance, such as Section
80 of the Local Government Act 1976,8 which mandates the removal of public nuisances and
legal action against those responsible, and Section 268 of the Penal Code,9 which describes
public nuisance as improper actions causing injury, danger, or annoyance to the public or
violating public rights.

3
Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987 (Page 4 Para 21)
4
Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987 (Page 4 Para 23)
5
Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987 (Page 4 Para 23)
6
Norchaya Talib, Law of Torts in Malaysia (Sweet & Maxwell Asia 2nd Edition)
7
Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd[1992] 3 CLJ (Rep)
8
Local Government Act 1976, s 80
9
Penal Code, s 268

3
In the case of Wah Shen Development Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987,
there was a misjudgment by the High Court Judge who overlooked private nuisance. The
defendant's pig rearing business caused offensive odours, which disturbed the plaintiff's
enjoyment of their land, affecting their property development business and resulting in damages.

II. What are the socio, economic and/or political implications of this case?
SOCIO
Public nuisance often carries a significant effect toward socio. Referring to the article “ Do the
rules of private nuisance breach the principles of environmental justice?” goes into greater detail
on the implications of relying on compensation rather than injection itself.10 The study
emphasised the implications of using compensation rather than injunctions in private nuisance
procedures, particularly in environmental justice. Enabling unlawful intrusive activity to
continue with compensation shifts the balance of authority in favour of the offenders,
contributing to environmental disparities. Furthermore, normalising unauthorised conduct
through compensation may cause a snowball effect of increased disruption, threatening both
individual liberty and society as a whole. Judges are given advice to take this into account
carefully and not let permits for development overrule private rights when deciding nuisance
complaints. In the case of Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd, it can be seen that
the judge of the court of appeals has called upon the dismissal of the high court because the
judge has taken into account the fact that there was a merit in this case and ordered the injunctive
relief due to the private nuisance that has been suffered by the plaintiff.

LEGAL IMPLICATIONS
Robert J. Johnson's article on Remedies and Defences discusses the prerequisites for providing
remedies for private nuisance cases. Landowners can seek nominal damages and injunctive relief
to prevent the recurrence of a nuisance, with the decision based on factors like the severity of the
nuisance and the risk of permanent damage.11

In a similar vein, Malaysian environmental law has evolved to address nuisances through
legislation like the Environmental Quality Act 197412 and the Environmental Impact Assessment
(EIA) process. The EIA process has been recognised in recent years as helping decision makers
"implement" the notion of sustainable development by helping them consider the location,
quantity, and quality of development as well as how it would affect natural resource
conservation.13 Early laws focused on specific nuisances, such as the Straits Settlement
Ordinance No.3 of 1894,14 which targeted natural resource depletion. This paved the way for
more comprehensive legislation like the Waters Enactment 1920 (Act 418),15 which tackled river
disruption nuisances.

10
Sam Porter “Do the rules of private nuisance breach the principles of environmental justice?”, (2019), Environmental Law Review 21(1)
<https://journals.sagepub.com/doi/10.1177/1461452918817052> accessed 1 May 2024
11
Robert, J , Johnson “Remedies and Defences”,(1966), Scholarly Commons,
<https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1999&context=cklawreview> accessed 2 May 2024
12
Environmental Quality Act 1974
13
Ainul Jaria “Challenges in implementing and enforcing environmental protection measures in Malaysia by Ainul Jaria Bt Maidin - The Malaysian Bar”, (2005),
Malaysian Bar
<https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/challenges-in-implementing-and-enforcing-environmental-protection-measures-in-
malaysia-by-ainul-jaria-bt-maidin> accessed 30 April 2024
14
Straits Settlement Ordinance No. 3 of 1894
15
Water Enactment 1920 (Act 418)

4
The case of Wah Shen Development Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987
illustrates the application of nuisance law in Malaysia. Here, a pig-rearing business causing
offensive odours was deemed a private nuisance with potential to become a public nuisance.
Court intervention was deemed necessary to prevent broader harm to the public and the
environment.

In conclusion, both Johnson's article and the development of Malaysian environmental law
underscore the importance of nuisance law in providing remedies and addressing environmental
harm. They highlight the legal mechanisms available, such as injunctive relief and the EIA
process, to protect against nuisances and promote environmental sustainability.

POLITICAL IMPLICATION
The Sarawak government's grant of RM30 million for the building of three new pig raising
facilities has important political ramifications.16 First and foremost, it indicates the government's
involvement in helping the agricultural industry, including the swine business, which is vital to
the state's income. The project intends to boost efficiency in agriculture and create opportunities
for local farmers, increasing the sector's value to Sarawak's GDP. Additionally, the project
addresses possible private nuisance issues arising from pig raising activities. The government
hopes to mitigate problems to surrounding communities by establishing designated farming areas
with adequate facilities. This method is consistent with legal precedents highlighting the need of
reducing the effect of agricultural activities on adjacent properties in order to avoid private
nuisance complaints.

Furthermore, the investment made by the government demonstrates its commitment to

sustainable growth and environmental protection. By supplying modern infrastructure and
supporting ethical farming techniques, it can impose greater regulations regarding the
environment while minimising issues like pig farming pollution and waste management.

In relation to Wah Shen Development Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987,
the plaintiff's claim in a private nuisance case against the defendant's pig farm was initially
dismissed in the High Court. However, on appeal, the plaintiff succeeded in obtaining an
injunction. This case underscores the importance of addressing private nuisance issues, such as
odours from livestock farms, which can significantly affect neighbouring properties. Government
initiatives, such as the construction of modern pig raising facilities, can help mitigate such
disputes by addressing environmental concerns and reducing the likelihood of future nuisance
claims.

In a nutshell, the distribution of funding represents a comprehensive approach to addressing

economic and social concerns. The government wants to encourage sustainable growth and
development in the agricultural sector while protecting the well-being of local communities by
assisting the expansion of the swine industry while resolving potential private nuisance and
environmental issues.

16
The Borneo Post, “Dr Rundi: Govt allocates RM30 mln to develop 3 more pig farming areas in Sarawak”, Borneo Post Online (Sarawak, 25 May 2022)
<https://www.theborneopost.com/2022/05/25/dr-rundi-govt-allocates-rm30-mln-to-develop-3-more-pig-farming-areas-in-sarawak/> accessed 1 May 2024

5
BIBLIOGRAPHY

Cases

1. Wah Shen Sdn Bhd v Success Portfolio Sdn Bhd [2018] MLJU 987
2. Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd[1992] 3 CLJ (Rep)

Legislation
1. Local Government Act 1976, s 80
2. Penal Code, s 268
3. Environmental Quality Act 1974
4. Straits Settlement Ordinance No. 3 of 1894
5. Water Enactment 1920 (Act 418)

Books
1. Norchaya Talib, Law of Torts in Malaysia (Sweet & Maxwell Asia 2nd Edition)
Internet Resources

1. Sam Porter “Do the rules of private nuisance breach the principles of environmental
justice?”, (2019), Environmental Law Review 21(1)
<https://journals.sagepub.com/doi/10.1177/1461452918817052> accessed 1 May 2024
2. Robert, J , Johnson “Remedies and Defences”,(1966), Scholarly Commons,
<https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1999&context=cklawrevi
ew> accessed 2 May 2024
3. Ainul Jaria “Challenges in implementing and enforcing environmental protection
measures in Malaysia by Ainul Jaria Bt Maidin - The Malaysian Bar”, (2005), Malaysian
Bar
<https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/chall
enges-in-implementing-and-enforcing-environmental-protection-measures-in-malaysia-b
y-ainul-jaria-bt-maidin> accessed 30 April 2024
4. The Borneo Post, “Dr Rundi: Govt allocates RM30 mln to develop 3 more pig farming
areas in Sarawak”, Borneo Post Online (Sarawak, 25 May 2022)
<https://www.theborneopost.com/2022/05/25/dr-rundi-govt-allocates-rm30-mln-to-devel
op-3-more-pig-farming-areas-in-sarawak/> accessed 1 May 2024