KUALA LUMPUR – An application by a homeowner and his tenant to declare that the guarded neighbourhood scheme in their housing area was illegal has been dismissed by the Court of Appeal.
The appellate court ruled that Ranjan Paramalingam as the property owner and tenant Jude Micory Lobijin had failed to prove that the Bangsar Park Residents Association (BPRA) committed private and public nuisance.
The two plaintiffs had also failed to prove that BPRA had breached the Personal Data Protection Act (PDPA) 2010 while operating the scheme’s security arrangements, the court said in its written judgement dated January 10.
Ranjan and Jude had sued BPRA over the guarded neighbourhood scheme started in 2017. BPRA brought Kuala Lumpur City Hall (DBKL) and KL mayor as third parties in the suit.
In its written judgement, the Court of Appeal said it upheld the high court’s ruling which dismissed Ranjan and Jude’s claim.
The lower court ruled that they failed to prove that the residents’ association had committed any act of nuisance by constructing boom gates and a guardhouse at the entrance of the neighbourhood since 2017.
The three-member bench, chaired by Datuk Che Mohd Ruzima Ghazali and comprising judges Datuk Has Zanah Mehat and Datuk See Mee Chun, said the homeowner and tenant also could not prove that BPRA was engaging in illegal business with security companies.
“The pleaded facts on the tort of nuisance allegedly committed by the defendant were not at all clear and on the issue of the pleading alone, the claim ought to be dismissed,” the appellate judges said.
The high court had ruled that DBKL had given its approval to the residents association to implement and operate the guarded neighbourhood scheme based on the guidelines for such communities issued by the Housing and Local Government Ministry.
“The issues raised by the plaintiffs with regard to the scheme and in particular, the obstruction caused by the setting up of the boom gate, were erased upon its approval being granted by the local authority.
“Living in a robust society where safety and security are the prime concerns, one has to balance individuals’ inconveniences against the communities’ interests so long as such interference does not go beyond discomfort or inconvenience that exceeds reasonable limits.
“The presence of the guardhouse and boom gates in the guarded neighbourhood area has no discernible impact on the average person’s comfort or convenience of living.
“Thus, there is no nuisance caused by the defendant to the plaintiffs or the public with respect to the enjoyment of their property in the guarded neighbourhood area,” excerpts of the court’s judgement read.
No breach of personal data
On the allegation of a personal data breach, the court held that there was no proof that the residents’ association and the security guards had performed processing of personal data and commercial transactions as defined under the act.
“On the contrary, the evidence shows that the security guards take or record personal information for the purpose of keeping records for safety reasons only.
“There is also no evidence from the plaintiffs’ witnesses to say that they knew for a fact that the defendant or the security guards misused or sold any of the personal information they kept to other business entities as alleged.
“Moreover, even if the plaintiffs’ allegations against the defendant on the issue of the PDPA is true and can be substantiated with relevant facts, we still find that the plaintiffs’ claim on this issue is not amenable under the law,” said the appellate bench.
The court added that Ranjan and Jude should have instead lodged a report or complaint to the Personal Data Protection Department commissioner to investigate.
“Thus, the non-compliance with the PDPA cannot and should not be a cause of action in a civil suit.
“The plaintiffs’ claim based on PDPA is not sustainable either on fact or law.”
The court dismissed the appeal with costs, ordering the plaintiffs to pay RM10,000 to BPRA.
Bastian Vendargon and Anne Verdargon appeared for the appellants while Ameerul Aizat Noor Haslan and Muhd Nur Aiman Toharudin were counsels for the residents’ association. – The Vibes, March 11, 2023
