KUALA LUMPUR: The South City Plaza joint management body (JMB) has failed to stop the construction of a giant billboard near its vicinity, which it claims will bring a nuisance to its residents and businesses.
This was after the High Court in Shah Alam affirmed the lower court's decision to dismiss the JMB's lawsuit against Regal Opportunity Sdn Bhd, the company responsible for the construction of the advertising structure.
The defendant (Regal Opportunity) sought to construct a billboard structure measuring 10.668 metres by 15.24 metres, which is equivalent to half the size of a tennis court.
The plaintiff (JMB) alleged that the billboard would be erected in the South City Plaza Complex area when viewed from the highway.
The plaintiff asserted that there were two billboard structures in the vicinity, with the defendant's billboard positioned in close proximity to South City Plaza, roughly 30.58 metres from both the South City Plaza Complex and its residential area, The Academia.
"The billboard structure will obstruct the view of a significant portion of the South City Plaza shopping centre from the perspective of the highway.
"The obstruction to the view of the shopping mall will result in those passing by the highway not being able to see advertisements of the shops in the mall. This will adversely affect their businesses.
"The Academia, a condominium located above the South City Plaza building, will be affected by the billboard structure, which will have overly bright lights and obstruct the view.
"The owners or tenants will suffer inconvenience and this constitutes a nuisance," claimed the plaintiff.
The defendant argued that the billboard was intended to be located at the back of the South City Plaza complex and not at the main entrance of the building.
The defendant asserted that the billboard was meant to be built on government-owned land with the necessary permit and it had nothing to do with the plaintiff.
"The cause of action based on tort had never occurred and the claim by the plaintiff was speculative and mala fide (bad faith).
"The plaintiff had initiated similar legal proceedings through judicial review at the High Court on Nov 29, 2018, and lost.
"The High Court ruled that the plaintiff lacked the standing to bring the case and the defendant possessed the required permits and approvals from the relevant authorities," said the company.
The company stated that the decision was upheld by the Court of Appeal on Oct 30, last year, thereby rendering the issues raised in the lawsuit res judicata.
High Court Judge Dr Choong Yeow Choy stated in his judgment that the lower court did not act inappropriately by considering the earlier decision of the High Court in a judicial review when deciding on the current matter.
He said the issues resolved in the judicial review application were identical to those presented in the current suit and appeal.
"The Sessions Court made references and relied heavily on the decision of the High Court in the judicial review application.
"The matters raised in the judicial review application are closely connected to those in this lawsuit. Therefore, the learned Sessions Court Judge was within his rights and did not make any factual or legal errors when he referred to and heavily relied on the High Court's findings.
"While the proverbial second bite at the cherry may not be applicable here, when the plaintiff filed the two actions in the Sessions Court and in the High Court, it does not detract from the fact that the plaintiff has failed to establish its claim against the defendant," he said.
The court also affirmed the RM300,000 awarded for special damages to the company in their counterclaim against the JMB.