Wong Kin Tai v. Kou Mei Juan t/a Mei Fook Jade & Jewellery Co.

CACV000192/1984

Coram: Sir Alan Huggins, V.-P ., Cons & Fuad, JJ.A

Date of Hearing: 25.1.85, 14.2.85 & 9.4.85

Date of Judgment: 9.4.85

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. I shall not repeat what I said on 14th February. The claim was in trespass and in nuisance. The judge dealt only with the claim in trespass. On the facts as now agreed before us there was no trespass, although there had been a trespass some years ago. Before us the case was argued on the basis of nuisance. Clearly the judgment could not stand on the basis of a trespass. We took no objection to the argument as it was presented, because the parties were both unrepresented and we treated the matter as though there had been a Respondent's Notice. However, had nuisance been fully argued in the court below it would have been met by an estoppel, because the Plaintiff was one of the owners in the building and was bound by the action of the Incorporated Owners. The Owners had let the structure to the Defendant, although we say nothing about the terms upon which the letting was made, and there is no evidence before us that the tenancy has ever been terminated.

2. The result is that we think the appeal must be allowed. Neither of the injunctions granted was necessary to prevent a repetition of the former trespass. They are set aside and the order for payment of damages for trespass must also be set aside. We set aside the order made by the judge for costs. We make no order for the costs of this appeal.

9th April 1985

Representation:

Appellant in person

Respondent in person