Jack Gordon Leslie Smith and Another v. Tam Michael Wing Wah and Another

HCA 2638/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2638 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Gill in Chambers

Date of Hearing: 4 June 2007

Date of Judgment: 13 June 2007

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J U D G M E N T

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1.This is an application for interlocutory injunctive relief. 

2.A regrettable feature of the case is that it is a dispute between neighbours.  The Smiths own and live in a semi-detached house with a garden in a private residential development called Habitat in Sai Kung.  Their house number is B6.  They bought it in 1976. 

3.The Tams are comparative newcomers to Habitat, having bought and moved into their house in 2000.  Their house number is B5.  The houses are not only adjoining but they share a party wall.  Their gardens are also adjacent.

4.In common with all the other owners in Habitat, the Smiths and Tams are parties to a deed of mutual covenant (the DMC).  Clause 4 binds them to covenants set out in the second schedule designed for the common good of the owners and occupiers.  For the purpose of the matter before me, clause (g) of the second schedule is pertinent.  By its terms the parties are obliged:

“(g)   Not to do or suffer anything to be done on their respective dwelling houses and their respective adjoining gardens and car parking spaces which causes or is likely to cause a nuisance annoyance or inconvenience to the owners or occupiers of any of the other dwelling houses.”

5.This case is about alleged breaches of that clause in the DMC.

The History

6.From about mid-2002, on Mrs Smith’s account, disputes began to emerge between the families.  She says the Tams undertook certain alterations to their house which the Smiths found to be intrusive and in breach of certain provisions of the DMC.  Those alterations and that complaint are material but not to the matter now before me.  What is, is the allegation that the Tams installed four loudspeakers in their garden and then from time to time proceeded to play amplified music at high volume, disturbing the Smiths’ quiet enjoyment of their home.  According to Mrs Smith, requests to turn down the volume were ignored, and the nuisance persisted.

7.Mrs Smith averred that this persistent conduct wore her down to the extent that she became physically and mentally unwell, and in June 2003 was diagnosed to be suffering from a major depressive episode with anxiety, requiring treatment and medication.  Her doctor wrote to that effect by open letter of March 2005.

8.Mrs Smith began to monitor those occasions when the music was played at excessive volume between September and November 2004, and recorded that during this period they had to suffer from this intrusive conduct on 14 days.  On two occasions they called the police, but upon the arrival of the police the volume was turned down.

9.The Smiths sought legal assistance from Lily Fenn & Partners (LFP) and when a letter before action brought no result LFP issued a writ in December 2004.  Amongst other remedies sought was an injunction to restrain the Tams from repeating or continuing the nuisance complained of or any nuisance of like kind.

10.On Mrs Smith’s account the playing of loud music continued without abatement.  Further, a fresh nuisance emerged. 

11.The Smiths discovered cigarette butts had found their way on to a canvas awning above French windows leading from their house to the garden which had burned holes in the canvas before expiring.  Mr Tam is a smoker and the only one living in the vicinity; coupled with the other issues he became a suspect. 

12.And there was some corroboration. 

13.Mrs Smith deposed to an event on an occasion when darkness had fallen:

“I saw [Mr Tam] throw an arc of red ash across to our canopy area which is only a few feet away from his balcony … so I verily believe that the cigarette ends were thrown into our premises by Mr Tam …”

14.Meanwhile, with the music at high volume being played unabated, the Smiths engaged a noise monitoring service to measure the noise level and duration at their house and this was conducted between 1 February and 2 March 2005.  The monitoring revealed noise levels which ‘spiked’ to significant volume above a recognized level of background noise on days and at times when the Smiths by their own record noted excessively high noise levels amplified through the Tams’ garden loudspeakers.

15.Based on this performance the Smiths through LFP applied for interlocutory injunctions to restrain noise levels exceeding 60dB(A) between 7 a.m. and 11 p.m. and 50dB(A) from 11 p.m. to 7 a.m., and the throwing of cigarette butts and/or other rubbish on to their property.  This was filed in April 2005 and supported by affidavits from both Mr and Mrs Smith and the acoustics engineer called Hong Koon Wai.

16.I should say at this, the outset, that the Tams responded to the writ by denying all allegations of committing acts of nuisance or annoyance; in particular, the playing of music at a volume that was excessively high.  In fact, two of the four speakers installed in the garden no longer functioned, and the remaining two were capable of an output that was very low. 

17.In opposition to the interlocutory injunctions applied for, they made affidavits to the effect that the speakers in turn either no longer worked or had low output only.  They denied playing loud music.  They do not like loud music.  They enjoy only soft music, and only played it softly.

18.Mr Tam categorically denied throwing cigarette butts on to the Smiths’ property.

A Temporary Respite

19.Following the filing of evidence in support of and in opposition to the interlocutory injunctions applied for the parties agreed for the same to be adjourned sine die and this was ordered in June 2005.  The reason for this, according to Mr Smith, was that by then the Tams had stopped offending in the manner alleged.

Fresh Allegations

20.Then it was, on Mr Smith’s account, that all that came to an end in December 2006.  There was a new round of disturbances of the peace. 

21.In an affidavit of March 2007 Mr Smith deposed that from December 2006 the Tams resumed the broadcasting of music at high volume, this time by amplified background music and karaoke singing.

22.The Tams in December acquired and set up karaoke equipment which was installed in a room overlooking a courtyard common to both houses, and a few feet from the Smiths’ study and kitchen.  On the Smiths’ account they operated the karaoke at excessive volume repeatedly.  Once again there was loud and intrusive music, but this time round it was louder and more intrusive than before.

23.Mr Smith monitored this activity and recorded the dates upon which the further nuisance was carried out and the duration.  He noted between 3 December 2006 and 22 March 2007 there were more than 40 occasions when the Tams sang and played music at excessive volume.  On occasion the window of the room in which the equipment had been set up was open; he could see the speakers were directly facing his house.  Sometimes the singing and music was for a few minutes only, sometimes it carried on for hours.

24.It was his considered view that this was deliberate and malicious behaviour, for sometimes it started up only when he and his wife having ventured away from the home, had returned. 

25.Now it is that on medical advice the Smiths leave the house as much as possible and as funds permit and stay elsewhere to escape the violations.  He maintains the Tams further exacerbate their offending by concentrating their singing into the open area between the houses to maximize the noise and so that only the Smiths are particularly affected.

26.Mrs Smith in a further affidavit confirmed her husband’s account and then gave new evidence on the matter of the cigarette butts.  Those that had arrived on their awning and in their garden they had collected and sent for analysis of the DNA of the smoker, along with butts also gathered that Mr Tam had been seen to smoke and then discard, for comparison. 

27.Mr Tam had earlier denied being responsible for the nuisance of throwing the butts, but refused outright to provide a DNA sample.  But meanwhile, forensic tests carried out on the butts retrieved supported the proposition that Mr Tam was or could be the source of at least some of the butts recovered.

28.To all these allegations Mr Tam repeated his absolute denials as before.  Acknowledging that he had acquired a karaoke system in December and that this had been operated thereafter, he averred that he sang because he found it relaxing, and a means to unwind.  Neither he nor any other person did so at high volume, nor was it done deliberately so as to offend the Smiths.

29.He also acknowledged that he is a smoker, and when indulging would step out into the garden or on to the balcony.  But he categorically denied that he had flicked butts over on to the Smiths’ property.

The Application is Set Down

30.With the problems and disputes thus re-emerging, the Smiths instructed LFP to send another warning letter.  When the misconduct persisted, and the trial still being some distance away, the Smiths elected to bring on for hearing their application for the interim injunctions.

The Legal Principles

31.These are well settled and do not need repeating.  Ms Tam SC representing the Smiths spelt out the step-by-step process in an application for an interlocutory restraining injunction that emerged from the judgment of the hallmark case known as American Cyanamid, rehearsed in the White Book at 29/1 to 29/1/48. 

32.It is pertinent to note that whilst the granting of an injunction remains at the discretion of the court, that part of the process going to the balance of convenience that emerged from American Cyanamid need not be considered if the application is made to restrain ongoing breach of an express negative covenant; see the White Book at 29/1/31.

33.Where, thus, as in this instance, there is allegation of such a breach, it becomes necessary only for the complainant to satisfy the court there is a serious question to be tried; that the matter is not frivolous or vexatious, and that there is a real prospect of success after trial.

Discussion

34.In their respective submissions to me counsel for the parties, that is Ms Tam for the Smiths and Ms Li SC leading Ms Ng for the Tams, dealt at length with the issue of whether or not there had been made out a serious question to be tried.

35.Dealing first with the matter of interference by noise, Ms Li took me to a passage in Clerk v Lindsell on Torts whereby it is spelt out that for a nuisance of this kind to be actionable it must be such as to be a real interference with the comfort or convenience of living in accordance with the standards of the average individual.  Thus the overly sensitive person, whose tolerance may be much less, cannot expect protection beyond a reasonable level.

36.Ms Li submitted that the standards imposed by the Smiths was arbitrary and reflected an overly sensitive approach; that the levels proposed in the summons could easily be exceeded by background noise levels associated with the sort of environment that the inhabitants of Habitat live in.  And those levels could be exceeded unintentionally, say by accident or a dog barking and so on. 

37.In support of this proposition she pointed out that no other resident in Habitat had complained about the Tams in the way that the Smiths have over such a long period of time been complaining.

38.She submitted further that the injunction sought made no provision for “give and take” that should be a feature of harmonious living in such a community; the occasional party where, for a period of the day or evening, acceptable levels of noise might be exceeded, by one or other or both sides. 

39.Ms Tam met the issue of noise level with a revised formula in the proposed form of order, such that the Tams be restricted to a particular noise level above the background noise level experienced in the community, using as the appropriate yardstick that adopted by the acoustics expert the Smiths had engaged.

40.Ms Tam also pointed out that whilst the Tams’ conduct as alleged exceeded the benchmark of what comprises a nuisance, the express negative covenant is so framed as to include annoyance and inconvenience with a consequently lower threshold; see Shepherd v Turner [2006] EWCA Civ.8.

My Finding

41.I have no hesitation in finding that there is a serious question to be tried; that the Smiths have demonstrated there is a prospect of their succeeding after trial in getting the remedy they now seek on a pro tem basis.

42.There is the forensic evidence of the acoustics officer which supports their cause.  Of course I have to bear in mind that the investigation carried out was to measure the sound emanating from the Tams’ outdoor speakers and there has been no subsequent investigation concerning the more recent complaints coming from the karaoke system.

43.But the assertions that the noise is if anything even more injurious is enough to counter the proposition that Ms Li put forward; namely, that the Tams should not be punished because the Smiths may have unreasonable expectations of silence, or at least quietness, within the confines of their home.

44.That there are no other complainants is a matter which in fact favours the claimants rather than the defendants.  The configuration of Habitat is such that the Tams have no other immediate neighbours.  Further, the karaoke is performed from a room in the house which overlooks the open area between the houses of the parties and is very close to the living areas occupied by the Smiths.

45.On the issue of throwing cigarette butts; Miss Li submitted that whatever evidence the Smiths now have about the source of the butts, an interlocutory injunction is no longer appropriate because there has been no resumption of this nuisance.  The fact that the Smiths have DNA evidence that Mr Tam may have been responsible for this misconduct is a matter for trial and damages, not an unwarranted interlocutory restraint.

46.However there is evidence, in the shape of that contained in an affidavit recently filed by the Smiths’ maid, a Ms Dargantes, that the presence of cigarette butts in the Smiths’ property is an ongoing problem.  Coupled with previous alleged conduct by Mr Tam and the forensic evidence now to hand, I find it established that there is a serious question to be tried on the issue of improper disposal of butts and/or rubbish as well.

The Result

47.This is an appropriate case for the exercise of my discretion to grant the injunctions asked for pending trial.  I do so accordingly in the form proposed by Ms Tam, refining as it does, to a more precise level than that originally applied for, the level at which the amount of noise becomes unacceptable.

48.The costs order proposed is that the Smiths’ costs should be in the cause.  Nisi, that is the order I now make.  And there shall be liberty to apply.

Ms W Tam SC, instructed by Messrs Lily Fenn & Partners, for the 1^st and 2^nd Plaintiffs

Miss G Li SC leading Ms M Ng, instructed by Messrs King & Co., for the 1^st and 2^nd Defendants