Water Leakage From a Neighbouring Shoplot: Owner Recovers RM33,325 in Repair Costs and Lost Rent

Case Background & Strategy

If water leaking from a neighbour’s renovated premises keeps damaging your property in Malaysia, you can sue for the cost of repairs and for lost rent, and a fresh claim for continuing damage is not barred simply because an earlier claim was brought over the same leak. In Dynaciate Engineering Sdn Bhd lwn Freedom Entertainment Sdn Bhd [2022] MLJU 134, our partner Khoo Ai Theng acted for the shoplot owner, Dynaciate Engineering Sdn Bhd, and the court awarded RM33,325 after a full trial.

Case at a Glance

The Problem: A Leak That Kept Coming Back

Our client, Dynaciate Engineering Sdn Bhd, owned a three-storey shoplot in Taman Mount Austin, Johor Bahru, with tenants running a kindergarten and an education business on the lower floors. The neighbouring shoplot, owned by Freedom Entertainment Sdn Bhd, was renovated for a karaoke centre, with additional toilets and a kitchen, and water soon began leaking through the shared wall into our client’s premises, which had no plumbing of their own on the affected floors. An earlier claim for the damage up to November 2019 ended in a default judgment, which the neighbour paid.

But the leak did not stop. Our client had to carry out further repairs costing RM24,300, and its tenants withheld RM9,025 in rent because they could not use the premises during the works. The neighbour argued that the second claim was res judicata and an abuse of process, objected to the documents and the expert evidence, and said our client had not proved its losses.

Our Strategy: A Continuing Wrong, Proved With the Right Evidence

We framed the claim as one for fresh damage caused after the earlier judgment, over a different period, by a leak the neighbour had never fixed, and we pleaded the earlier suit openly. We called a contractor with ten years of experience in construction and plumbing, who had inspected both premises and could explain where the water came from, together with witnesses who proved each item of repair cost and the lost rent, supported by the agreed bundle of documents.

The Court’s Decision

The court accepted our client’s case on every issue. Documents placed in Part B of the agreed bundle, whose authenticity was not disputed, could be admitted as exhibits without calling their makers. Res judicata did not apply: although both suits concerned the same leak, the second claim covered damage after November 2019, the leak was continuing, and the earlier case had ended in a default judgment that the neighbour paid without challenge.

The contractor qualified as an expert through his experience, and his evidence showed that the water came from the neighbour’s higher, renovated premises and would keep recurring until the neighbour repaired its plumbing. The repair costs and lost rent were proved. The court awarded RM33,325, with interest at 5% a year and costs.

The Law in Brief: Res Judicata and Continuing Damage

Res judicata prevents parties from relitigating a cause of action or issue that has already been decided, and in its wider form it covers points that could and should have been raised in the earlier proceedings. It does not bar a claim for new damage arising after the earlier judgment where the wrongful state of affairs continues.

Under section 45 of the Evidence Act 1950, the opinion of a person specially skilled in a field is relevant, and that skill may come from practical experience rather than formal qualifications. Under Order 34 of the Rules of Court 2012, parties may agree the authenticity of documents in Part B while disputing their contents, so the maker need not be called.

Key Takeaways

• A neighbour whose renovation causes continuing leakage can be liable for repairs and lost rent.
• A second claim for fresh damage after an earlier judgment is not automatically res judicata.
• An experienced contractor can give expert evidence on the cause of a leak.
• Keep invoices, photographs and records of withheld rent to prove your losses.
• Agreeing the authenticity of documents in Part B can avoid calling every maker as a witness.

Frequently Asked Questions

Related reading: Order 89 vacant possession: landowner recovers land from occupiers; more of our legal victories.

Dealing with leakage or damage from a neighbouring property? Book a consultation with NZSK so we can review your evidence and advise on a claim. Learn more about our property disputes practice.

Messrs Ng, Zainurul, Seke & Khoo (NZSK) is a Malaysian law firm with offices in Mont Kiara, Kuala Lumpur and Puchong, Selangor. Partner Khoo Ai Theng, an Advocate & Solicitor of the High Court of Malaya since 2014, acts in property and civil disputes from the Magistrates’ Court to the appellate courts.