Steve bought a bungalow house in Desa Aman, a newly developed residential area just

outside the commercial district of Seremban Empat. He enjoyed the quiet and serene
environment and he occasionally attended musical concerts in the city. Shariff also
bought a bungalow next to Steve’s house and converted it into a boutique café.
Shariff’s cafe operates from 10 a.m. till 2 a.m. every day. However, for the past six
months, the cafe started to hire a live band to play at the cafe from 8 p.m. to 12 a.m.
The loud noise and the smell from the cafe has caused Steve to have sleepless nights.
Consequently, Steve has started experiencing severe headache and nausea almost every
morning. Due to fatigue, he has begun to lose focus at his workplace and is afraid that
he will be fired.

Advise him on the aspects of preliminary matters that he needs to consider before any
legal proceedings can be commenced.

(20 marks)

Answer :

Parties to the Suit:

Issue:
Whether Steve and Shariff satisfy the requirement of parties to the suit?

Law:
There must be two parties for parties to the suit which is plaintiff and defendant. Plaintiff
is the party that initiates the lawsuit and files the statement of claim including remedies
with the court while Defendant is the party that has to defend the claim by the Plaintiff
against him. The two parties need to fulfill two conditions in order to be parties to the
suit. The first condition is sui juris, in which both parties need to be 18 and above which
is the age of majority according to Age of Majority Act 1971. The second condition is
compos mentis, where both parties need to be in sound mind and are able to understand
and form rational judgement to the effect of litigation on them.And assuming that
Shariff’s cafe is a company, they must be registered under The Company Act 1965.

Application:
The parties to the suit in this case are Steve and Shariff. The plaintiff in this case is Steve
because he is the one that wants to initiate the lawsuit against Shariff.
Whereas Shariff is the defendant as he have to defend the claim by Steve against him.
Both parties are at the age of majority which fulfill the sui juris and are in sound mind
which is compos mentis.

Conclusion:
The conclusion is, if the case were to be brought to court, Steve will be the plaintiff while
Shariff will be the defendant as they fulfill the requirements needed to be parties to the
suit.

Locus Standi

Issue:
Whether Steve has the locus standi to sue Shariff?

Law:
Locus standi is a Latin word that means ‘place to stand’. Locus Standi is the right to
appear or bring an action or to be heard in court or to address the Court on a matter
before it. To determine locus standi, plaintiff needs to be adversely affected by the
defendant’s by proving at least real and genuine interest in the subject matter. According
to Atip bin Ali v. Josephine Doris Nunis (1987) where the action should fail as there
was no locus standi. The only person defamed, Datuk Seri Rahim Thamby Cik had the
locus standi.

Application:
By virtue of Malaysian Trades Union Congress v Government of Malaysia [2014],
Steve may have a real and genuine interest in this case. The loud noise and the smell
coming from Shariff’s cafe has caused Steve to have sleepless night. Consequently, he
has begun to lose focus at his workplace due to fatigue and has a risk of getting fired.
Therefore, Steve will be adversely affected by Shariff’s action as he may lose his job.

Conclusion:
The conclusion is that Steve may have the locus standi.

Cause of Action

Issue:
Whether the cause of action is completed?

Law:
It must be completed in order to bring the case to the court. In the case of Lim Kean v.
Choon Khoon [1970] 1 MLJ 158, Yong J said, “a cause of action normally accrues when
there is a person who can sue and another who can be sued, and when all facts have
happened which are material to be proved to entitled the P to succeed”.

Application:
By the virtue of Lim Kean v Choon Khoon, Shariff does owe the duty to take care of
Steve as his cafe is next to Steve’s house According to the neighbour principle, “You
must take reasonable care to avoid acts or omissions which you can reasonably foresee
would likely to injure your neighbour.” Therefore, there is a breach of duty when the loud
noise due to the live band that the cafe hired and the smell from the cafe had caused Steve
to have sleepless nights. As a result, Steve started to experience severe headaches and
nausea almost every morning and also started to lose focus at his workplace which might
cause him to get fired.

Conclusion:
Therefore, the cause of action may have been completed.

Limitation Period

Issue:
Whether the limitation period is still valid?

Law:
Limitation period refers to the period within which the suit must be brought to the court.
For action of tort and contract, according to Section 6 (1) of Limitation Act 1953, action
must be taken 6 years from cause of action completes. It must start from wrongful act
happen not when Plaintiff discovered the wrongful act. By virtue of Pirelli Cable Works
v. Oscar (1983), where the court held that the cause of action accrued at the date when
the cracks on the chimney occurred and not when the plaintiff could diligently have
discovered it. However , since the date when the plaintiff discovered it was over the
limitation periods, the plaintiff’s action was time-barred.

Application:
Steve can take legal action against Shariff within 6 years of limitation period. The
limitation period starts when Steve starts to experience severe headache and nausea
almost every morning.

Conclusion:
In short, the limitation period may be valid, if Steve were to sue Shariff before the 6 years
of limitation period ends.

Remedies

Issue:
Whether Steve is entitled to ask for remedies such as injunction?

Law:
Remedies is any method available under the law to obtain redress for the infringement of
rights. There are various remedies available such as damages, rescission of contract,
specific performance, injunction and quantum meruit. Damages are money compensation
for any loss or damage resulted from the wrongful act. Rescission of contract is under
certain circumstances, Plaintiff can ask for the contract to be cancelled especially if the
breach goes to the root of agreement. Next, specific performance is the order of the court
for certain act to be performed specifically according to the agreement. Injunction is an
order of the court for a party to or not to do something. Lastly, quantum meruit is award
made where one party has completed all or part of his side of the bargain before the
other’s breach.

Application:
The remedies that may be suited for the case is injunction which is an order of the court
for a party to or not to do something. In this case, the court may order Shariff to not let
the live band perform at night.

Conclusion:
Therefore, the best remedy for Steve may be, injunction.