Tsang Chi Ming v. Broadway-nassau Investments Ltd and Another
Read the full judgment text of DCCJ 1704/2007 on BabelCite. This District Court judgment.
1. The Plaintiff (“P”), owner of a golden retriever (“the dog”) seeks a declaratory relief challenging the building management company’s (“D1”) authority in disallowing him to keep his dog in his flat. D1 in turn seeks an injunction against P keeping the dog.
Cited by 5 cases · Cites 3 cases
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DCCJ 1704/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1704 OF 2007 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge Charles T. C. Wong in Court Dates of Hearing: 13th, 16th to 18th June 2008 Date of Handing down of Judgment: 30th September 2008
----------------- Head Notes ----------------- Building Management - Power of building manager to make House Rules under the DMC. - Whether House Rules need to be registered under Land Registration Ordinance (Cap.128). - The legal status of House Rules - Whether the prohibition of the keeping of dogs is in conflict with the DMC. - Whether the prohibition of the keeping of dogs interferes with owner/occupant’s right to exclusive use occupation and enjoyment of their flats. - Whether the prohibition of the keeping of dogs is in conflict with the owner/occupant’s right to pass access areas and other common parts of the building. DCCJ 1704/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1704 OF 2007 ------------------------
BETWEEN
------------------------ Coram: Deputy District Judge Charles T. C. Wong in Court Dates of Hearing: 13th, 16th to 18th June 2008 Date of Handing down of Judgment: 30th September 2008
----------------- JUDGMENT ----------------- 1.The Plaintiff (“P”), owner of a golden retriever (“the dog”) seeks a declaratory relief challenging the building management company’s (“D1”) authority in disallowing him to keep his dog in his flat. D1 in turn seeks an injunction against P keeping the dog. 2.This case raises legal issues on the validity and binding nature of “House Rules” on the owners/occupants of an Estate made by the management company responsible for the management and upkeep of its common areas. The parties 3.P was the tenant and occupier of Flat A, 9/F, (“9A”) No. 1 Mount Sterling Mall, Mei Foo Sun Chuen (“Mei Foo”). D1 was and still is the Management Company of Mei Foo responsible for the management of the Estate. 4.The second Defendant was and still is the incorporated owners of Mei Foo (“D2”). The Plaintiff’s locus standi 5.Mei Foo is one of the earliest private residential estates in Hong Kong. It consists of 99 blocks with a total of 14,000 units. The population of Mei Foo exceeds 50,000. There are eight stages in Mei Foo, Stages I to VIII. The premises in issue is located at Stage VII and was occupied by P, as a tenant from early 2004 to 31st of March 2008. 6.P has since March 2008 moved residence to Stage III of the Estate. This raises the issue of P’s locus standi in proceeding with this action. 7.Ds’ Counsel Mr. Suen confirmed at the early stages of this hearing that the Defence does not take issue as to P’s locus standi. 8.Since P has moved out of the premises, the parties respective application for relief in respect of P’s keeping the dog in 9A becomes academic. 9.The parties nevertheless submits that trial should continue. As the matter raises an important matter which may affect the 50,000 residents in Mei Foo. D1 estimates that there are approximately 600 dogs kept by residents in Mei Foo. 10.Whilst the issues before me have become academic, I accept that I should continue with the trial even merely for the purpose of the determination of costs. Ta Tung China & Arts ltd V. Fontana Restaurant Ltd & Others [1999] 1 HKLRD at 404. andYick Fung Holdings Limited V. Sandwood Limited DCCJ 1355 of 2007 considered. Background 11.Since June 2004, P started to keep the dog in 9A. In April 2005 and May 2005, D1 demanded in writing that P removed his dog from his residence or legal proceedings against P will be instituted. 12.P then moved his dog from 9A to stay with his friends in the New Territories. 13.The dog became home sick and refused to eat and was in ill health. 14.After 10 days, P moved the dog back to 9A. 15.D1 repeatedly demanded removal of the dog from 9A. 16.On the 2nd of August 2005 P received a letter from D2’s solicitors, Messrs. Huen and Partners. The solicitors claimed that the keeping of the dog in the residence was unlawful and in breach of Rule 3 of the House Rules of the Estate, also citing Clause 3(1) under the Second Schedule of the Stage VII Deed of Mutual Covenant (“DMC”) that “each owner shall comply with the house rules which may be made from time to time by the manager”. 17.In August 2005, P asked for an extension of 1 – 2 months to enable him to make arrangements for the permanent removal of the dog from 9A and in the meantime considered the DMC. 18.D2 granted P an extension for 1 month. 19.P after considering the DMC, refused to comply with D1’s demand and commenced the present action. 20.The following are undisputed or not disputable:
The source of authority for D1 to make the house rules 21.Dl is the management company responsible for the management of the common areas of the Estate. Dl was formally “Mei Foo Investments Ltd.” which has been the manager of the Estate under the DMC registered in Land Registry memorial no. 1326006 (“the Stage VII DMC”). 22.Dl first created a provision in the House Rules that prohibits the owners of the Estate to keep dogs on 1st June 1972. Subsequently in the Amended House Rules made by Dl on 1st June 1974 and 1st June 1984 there was provision to that effect. On 1st March 1993, Dl amended the House Rules to the present version (“the House Rules”) and Rule 3 (“Rule 3”) of the House Rules prohibits the keeping of dogs by owners of the Estate. 23.D2 is the Incorporated Owners and was incorporated on 12th June 1998. D2 appointed Dl as the management company of the Estate by entering into management agreements with Dl regularly since 2000. The current management agreement was signed on 19th March 2007 (“the Management Agreement”). Other management agreements signed between Dl and D2 were previously on 29th June 2000, 30th September 2002 and 29th January 2005. 24.The validity of the DMC of Stage VII is not challenged. It is not disputed that Dl as the manager of the Estate had the power under the Stage VII DMC to make rules to regulate the management of the Estate. 25.The authority to make Rule 3 originated from the power delegated to Dl under the following provisions in the DMC of Stage VII:
26.The Second Schedule of the Stage VII DMC clearly establishes the ambit of D1 in terms of the management of the Estate, and under Clause 4 “[binds] each owner (is) to observe and perform the covenants, provisions and restrictions set out in the Second Schedule hereto”. 27.I accept Mr. Suen for the Ds’ submission that the DMC did not delegate such power to any other entity, management committee or the Incorporated Owners, nor did the DMC qualify the power delegated to the Manager by any requirement for approval or consent there from. There is therefore no basis in P’s challenge that the House Rules were not made with the approval or consent of any entity, management committee or the IO of Stage VII. 28.The crux of the dispute is narrowed down to the validity of Rule 3 of the House Rules as amended on 1st March 1993 as it applies to Mei Foo Stage VII. Rule 3 of the House Rules29.Rule 3 is published in 2 languages, Chinese and English. No provisions could be found in the House Rules as to which language version prevails. 30.The Chinese version of Rule 3 states:「豢養家畜：任何犬隻，不論體型大小，均不得在本邨飼養。失明人士之導盲犬在特殊情況及事先獲得管業處批準下可獲准飼養。而此類導盲犬之擁有人必須妥善打理犬隻，以確保不會對其他居民造成滋擾。」 31.The English version of Rule 3 states, “Pets: No dogs, no matter how small, are to be brought or kept on the estate. Guide dogs for the blind people may, in certain circumstances, be allowed subject to prior approval of the Estate Management Office. Where permission is granted to the blind people under the above exception, the owner of the guide dog must exercise reasonable care to ensure no nuisance is caused to other residents.” Binding nature of the DMC and the House Rules made there under 32.It is not in dispute that the provisions in the DMC are binding on all subsequent owners. 33.S.39(1) of the Conveyancing and Property Ordinance, Cap.219 (“CPO”) provides that:
34.The covenant in Sch.2, para.3(l) of the DMC of Stage VII (i.e. to comply with the House Rules which may be made from time to time by Dl) relates to the land. On the basis of s.39(1) of CPO, such covenant is enforceable against subsequent owners. The failure to register the House Rules renders it non-binding?35.Ms. Chit for P submits that the House Rules is not binding on P as the House Rules were not registered at the Land Registry. 36.It s not disputed that the House Rules were not registered under the Land Registry. Ms. Chan, for D1 explained that was not done because Dl was not legally advised to do so. Ms. Chit submits that by legislation, any non-registration of DMC will render its covenants null and void to all intents and purposes as against any subsequent bona fide purchaser for valuable consideration (s.3(2) Land Registration Ordinance Cap. 128). Since under s.2(1) of the LRO there is no restriction to the registration of the House Rules as instruments in writing, which may affect any parcels of ground, tenements, or premises in Hong Kong, the non-registration of the House rules renders it to be null and void. Thus the non-registration of the House Rules at the Land Registry rendered it not binding on P. 37.Mr. Suen on the other hand argued that even if, the House Rules have to be registered with the Land Registry, s.3(2) of the Land Registration Ordinance provides that an instrument not so registered shall, as against any subsequent bona fide purchaser or mortgagee for valuable consideration of the same parcels of ground, tenements, or premises, be absolutely null and void to all intents. He further submits that a purchaser having actual or constructive notice of the House Rules would remain bound by it. 38.In this regard, Mr. Suen submits that there is ample evidence that owners must have actual or constructive notice of the rule against keeping of dogs in the estate:
Does all the owners/purchasers have notice of the House rules when purchasing the flats in Mei Foo? 39.Ms. Chan for D1’s states that the owners will be given a copy of the owner’s hand book/ House Rules at the management office when they start paying management fees. This would be subsequent to the signing of the conveyancing documents. This is evidence against any notion that owners had knowledge of the House Rules when they purchased the flat. 40.Ds further produces a copy of the Amendment of House Rules dated 11th July 1979 to support their case that the owners of 9A had notice of he amendments. The notice states, “Mei Foo Investment Limited have been giving very careful consideration to the increasing magnitude of the problem which are arising as a result of purchasers being allowed to keep dogs in Mei Foo Apartments. ………. It is decided that the House Rules will be amended to include the following:-
41.This document appears to have been signed by Lo Yuk Ha, one of the owner/purchaser of 9A. 42.9A was nevertheless purchased under the joint tenancy of Lam Che Keung and Lo Yuk Ha. There is no evidence that Lam Che Keung had notice of the Amended House Rules. 43.This only goes to show that unless there is registration of the House Rules at the Land Registry, one cannot assure the purchasers have notice of the House Rules at the time of purchase of the property. 44.Having said this, I find that the non-registration of the House Rules does not affect its validity, as the creation of the House Rules by Dl was empowered by Clauses 1 (1) and (4) of the Second Schedule of the Stage VII DMC and thus binding on P. 45.I accept Mr. Suen’s submission that there is no need for the House Rules to be registered with the Land Registry. The DMC of Stage VII (which was registered) expressly referred to the House Rules as may be made by Dl from time to time (Sch.2, para.3(l)). Hence, any owner having obtained a copy of the DMC would and should have realized the existence of the House Rules and that he could obtain details from Dl as the Manager. The fact that P himself did not make inquiry of such House Rules when he started keeping a dog at Stage VII in 2004 cannot afford him any excuse. Broadway-Nassau Investments Limited v Lo Kwok Wan Tony & Anor, LDBM 225/2001, 4.9.2001, §13 considered. 46.On this point, I accept Mr. Suen’s submission that when owners entered into the sale and purchase agreement and when reading the DMC would have had knowledge of the existence of the power of the management company to make rules under the DMC and their obligation to be bound by these rules; albeit they may not have a copy of these rules before them at the time of the transaction. 47.Whilst it may be good practice that House Rules be registered so as to ensure subsequent purchasers do have a notice of the House Rules when purchasing the flats, I find that the failure to register the House Rules does not render the House Rules null and void. Enforcement of the DMC and the House Rules 48.I also accept Mr. Suen’s submission that since it is an express covenant under the DMC of Stage VII for the owners to comply with the House Rules, the basis for enforcement of the House Rules originates from the power by the Manager and the IO to enforce a covenant in the DMC itself (i.e. C1.4 and Sch.2 para.3(1) of the DMC of Stage VII). 49.Mr. Suen submits that it is incorrect to suggest that Sch.2, Para. 1(4) of the DMC is the only source of Dl’s powers to make House Rules. Such paragraph specifically deals with the power of Dl to make, vary or annul any rules relating to the use of the Common Parts and Access Area. Sch.2, para.3(1) of the DMC provides that each owner shall comply with the house rules, which may be made from time to time by the Manager hereunder (i.e. not confined to those relating to the use of the Common Parts and Access Area). Mr. Suen submits that the mandate of Dl is wider and it was appointed to manage and provide services in respect of the Building and had full and unrestricted authority to bind each owner in all matters relating to the management of the Building or the Section. Hence, apart from the rules specifically mentioned under Sch.2, para.l (4), Dl shall also have the power to make House Rules generally. In Paganetto v The Management Corporation Strata Title No 1075[1988] 2 MLJ 8, Chao Hick Tin JC said (at p4):
50.Mr. Suen submits that the power of the Manager or the IO is not confined to the common parts of a building. Since Dl as the Manager was charged under the duty to manage the Building (not only the common parts) under the DMC, the Manager also has a power to enforce the DMC which is plainly not confined to common parts (the enforcement of house rules being one of them). 51.As regards D2, Mr. Suen further argued that D2 may choose to act on behalf of owners in respect of any other matter in which the owners have a common interest pursuant to s.18(2)(g) of the BMO and what is a common interest is a question of fact in each case but it is not limited to the common areas of the building. Mr. Suen submits that there is therefore nothing to stop Dl from making house rules in respect of the Building, quite apart from its powers under Sch.2, para.1(4) of the DMC. 52.Whilst I accept that the compliance with the House Rules should not differ from the compliance with an express covenant contained in the DMC itself, it does not necessary follow that the House Rules cannot be challenged on the basis of validity. The Legal status of the House Rules 53.Since the House Rules made is to a large extent dependant on the exercise of good Judgment and discretion of D1, as the owners do not take part in the process of making of the rules. The owners when entering the DMC and delegating power to D1, could not have intended that all House Rules made by the manager equated the provisions of DMC. For instance, in case the House Rules made are in conflict with the terms set out in the DMC, the terms of DMC must prevail. In my Judgment, House Rules are legally subsidiaries of the DMC and are inherently inferior to the DMC. It follows that any House Rule(s) that contradict terms set out in the DMC should be invalidated to allow the DMC to take preference. Did D1 have power to make Rule 3? 54.Under Clause 4 Sch. 2 DMC, D1’s power to make House Rules is limited to the making of rules relating to the use of the common parts and the Access area. 55.The Chinese version of Rule 3 is as follows:
56.The meaning of “豢養” is to feed/to rear/to keep. (“豢”音 “患”). I accept Ms. Chit’s submission that the heading of the Chinese version “豢養家畜” means to feed or to rear domestic animal. 57.In the Chinese version of Rule 3 prohibits “飼養”, which means to rear/to raise. 58.In the English version, dogs are not allowed “to be brought or kept on the estate”. 59.Mr. Suen sought to argue that the English version of Rule 3 of the House Rules does not restrict the keeping of dogs in owner’s units. 60.Rule 3 makes reference to “本邨” or “the estate”. Having in mind that other provisions in the House Rules have clear indication as to which particular area the rules were to be applied. For instance, Rule l makes reference to “Podium & Promenade” and Rule 2 “Common Area”. If Rule 3 had intended to mean no dogs allowed in the common area or access, the maker of Rule 3 would not have used the term “豢養家畜” or “飼養”. I am of the view that a reasonable person when reading the Chinese version of Rule 3 would understand the Chinese version of Rule 3 to cover the whole of the Estate including the units of the owners. 61.Moreover, Ms. Chan (陳慧愉), the Chief Property Asset Manager of D1, was of the view that under Rule 3 D1 had power to prohibit owners within the Estate to keep dogs in their flats. According to Ms. Chan, Dl would enforce Rule 3 against a dog owner resident so long as there were persistent complaints from other owner(s), regardless of whether that particular dog had caused nuisance to other owners. Dl would give oral or written warning to that dog owner to remove the dog from the flat. If that dog is not removed, then D1 would take legal proceedings. Due to limited manpower, Dl would exercise discretion as whether actions would be taken. In Ms. Chan’s mind, there is no doubt that Rule 3 prohibits the keeping of dog(s) inside the owners’ unit. 62.Taking into account the evidence of Ms. Chan (陳慧愉); the demand letters from D1 to P, and the notice to owners as to the Amendment of House Rules dated 11th July 1979, I find that D1 had operated on the basis that D1 had authority under Rule 3 to prohibit owners to keep dogs within their own units. 63.In my Judgment, a reasonable person when reading Rule 3 would have little doubt that it prohibits the keeping and/or raising of the dogs in Mei Foo, including the owner’s unit. I therefore find that Rule 3 was made to prohibit the keeping and/or raising of the dogs in the estate including the owner’s unit. 64.Dl’s power to make, vary and annul rules were limited to rules relating to the use of common parts and access area. (Clause 1(4) Second Schedule of the Stage VII DMC). 65.Common parts and access area were defined in Clauses 14(8) and 14(6) of the Stage VII DMC respectively, which does not include owner’s units. I find that by prohibiting owners to keep dogs within their own unit, D1 when making Rule 3 have exceeded its authority under the DMC. Thus, I find that the making of Rule 3 was beyond the power given to D1 to make rules under the DMC and D1 when making Rule 3 was acting ultra vires. Rule 3 in conflict with other provisions of the DMC? Clause 1 of the DMC 66.Clause 1 of the Stage VII DMC guaranteed owners the full right and privilege to the exclusive use occupation and enjoyment of his unit. Keeping pets, be it gold fish, rabbits, cats or dogs have become quite a common and essential element for some Hong Kong residents. D1 estimates that despite the no dogs allowed policy, there are approximately 600 dogs kept by residents in Mei Foo. 67.In my Judgment keeping a pet in one’s premises is within the right and privilege of the owner/occupant in enjoying his premises. By prohibiting the owners/occupants from keeping dogs in their flats, I find that Rule 3 does interfere with the owners’/occupiers’ right to exclusive use occupation and enjoyment of their flats provided under Clause 1 of the DMC. The fact that some dogs may cause nuisance to other residents is no justification for adopting a broadbrush approach in disallowing all owners to keep dogs (however small). In particular, when taking into account Clause 9(1) DMC have already provided means/measures against possible nuisance that may be caused by dogs. 68.In this regard, I have considered the decision of The Incorporated Owners of Nos. 3-3E Wang Fung Terrance and Law Chi Wing, DCCJ 230/2006, Marlene Ng J. (unreported, 28th March, 2006). In that case, the incorporated owners applied for summary Judgment against the removal of dog from the premises. The dog owner had plans to move the dog to Ireland and consented to remove the dog from the premises. Marlene Ng J. nevertheless had to consider the merits of the case for the determination of the costs. Marlene Ng J. remarked that by prohibiting the owners/residents from keeping dogs in their flats arguably interferes with the owners’/occupiers’ right to exclusive use occupation and enjoyment of their flats provided under Clause 1 of the DMC. Clause 3(1) and 3(2) of the DMC 69.Under Clause 3(1) “Each Owner shall …..the following rights privileges and obligations namely:- (i) Full right and liberty to go pass and repass over and along the podium entrances staircases landings passages and lifts in the Building and foot-paths within the Section for all purposes connected with the proper use and enjoyment thereof;
70.It is not possible to keep a dog without walking it. The owner/occupants in exercising their right to exclusive use occupation and enjoyment of their flats, they ought to have reasonable access and usage of the common parts as access with their pet, which in my Judgment is also within the owners rights as set out in Clauses 3(1) and 3(2) of the DMC as reasonable access and proper use and enjoyment of the common parts. It is D1’s duty to manage and if necessary to regulate, rather than to prohibit the reasonable usage of common area by owners/residents with their pets. 71.I therefore find Rule 3 to be inconsistent with Clauses 1, 3(1) and 3(2) of the DMC and therefore invalid. Action against dogs that causes nuisance Under Clause 9(1)(iii) of DMC
72.The invalidating of Rule 3 does not prevent D1 from taking action against dog owner residents who’s dog(s) are proved to be a nuisance under Clause 9(1)(iii) of DMC. Was the dog in issue a nuisance? 73.It is Ds’ case that P’s dog provided a nuisance to other residents of the Estate, placing P in breach of Clause 9(1)(iii) of the Stage VII DMC and/or s.341 of BMO. 74.Ds relies on two incident reports from P’s fellow residents, two entries in the security guard log book and one written complaint. 75.The written complaint filed by a Mrs. Wong, stated that P used the lift with his dog, which was not masked or leashed, made it impossible for her to use it at the same time. P has admitted that he would on occasion use the public lift with his dog. However, he maintains that if there were other residents intending to use the lift, he would always request permission from them first before entering with his dog. P states that if others residents refuses him access, he would concede and if he was already inside, he would vacate the lift. 76.P recalls that this Mrs. Wong did not only find his dog objectionable, she had also at occasions made remarks about site workers using the lift with her. P states that he had seen Mrs. Wong demand to use the lift before the site workers despite they had been waiting there first. Mrs. Wong have not given evidence in these proceedings and I am unable to hear from her and not in the position to determine whether her written complaint against the dog provides more of a reflection on her character than on the nuisance of P’s dog. 77.The first incident report dated the 4th June 2007 concerned an event that purportedly took place on the 10th July 2006. The report, filed by a Mr. Yeung (楊信榮), the staff of D1 was in regard to a dispute between P and a resident couple Mr. and Mrs. Chan. Mr. Yeung wrote that P’s dog rushed into the lift whilst the couple were exiting, much to their surprise. P rejects this allegation, claiming the dog was standing with him just outside the lift when the couple started to reprimand him for using the public services with his pet. 78.According to Mr. Yeung, an intense argument between P and the Chans took place. Mr. Yeung admits that at the time he was not aware of the whereabouts of the dog. Presumably it was not causing much of a commotion in comparison. Like Mrs. Wong, the Chans have not given evidence and are not available for cross-examination. 79.I see the argument against P using the public services with his dog if it caused inconvenience to fellow residents. However, considering the number of times P must have used the lift with the dog during his tenancy there are remarkably few complaints about the dog using the lift. 80.The very limited number of complaints suggests that the dog was not that much of a nuisance. That is in particularly when P had vacated the lift for those who preferred not to use it with them inside. 81.The second report filed on the 16th of July 2007 recorded a quarrel between P and the same Mrs. Wong, who after their dispute contacted the police to come for a preliminary investigation of P and the animal. So far as the evidence before me shows, the argument between P and Mrs. Wong in this occasion was over the subject of whether P was allowed to keep the dog. The dog played no part in the quarrel. I find that had there been any disorder or breach of peace in this occasion, it was solely caused by the homo sapiens. 82.The police acted on the complaint and reminded P to mask the dog and the inquiry was not pursued any further. 83.P gave evidence that his golden retriever weighed between 20-27 kg. It is P’s evidence that his dog was a friendly, approachable animal that rarely barked and got on well with both the children of the neighbours on his floor and his friends in the New Territories. A child from next door would hug and play with the Dog. The dog has also joined a “dog doctor” training scheme, with a view to qualify for in-patient visits. 84.Having considered all evidence before me, in particular the absence of complaints from P’s immediate neighbours, there is insufficient proof to substantiate the case of the dog being a nuisance that constituted any breach under s.9 (1)(iii) of the Stage VII DMC. The Binding nature of the removal agreement of the dog between P and Ds 85.On the 8th August 2005, P sent a letter to D1’s solicitors, Messrs. Huen and Partners asking for 1 to 2 months to make arrangements for the permanent removal of the dog. In a letter dated 31st August 2005 Messrs. Huen and Partners replied that D2 would grant an extension of 1 month from the date therein to which P replied in a letter dated the 5th of September 2005 that the dog would be removed within that time frame. 86.As P subsequently discovered that there was no reference to the prohibition of dogs in the Stage VII DMC, he did not remove the dog. 87.I find that when P made the promise to remove the dog, it was either based on the understandable misconception or he was led to believe that the Ds had the authority and that there was legal basis for Ds to remove his dog from the premises. I find that there was no binding agreement on P to remove the dog. The Plaintiff’s claim for damages Any damages suffered by P and/or his family 88.At 9A lived the P, his wife, his daughter and his mother-in-law. P states that he and his family were under tremendous mental distress after being threatened legal proceedings by Dl and D2. P’s mother-in-law who is about 80 years old was once too worried that she was hospitalized due to her high blood pressure. 89.P related several incidences of harassment by the security guards of the Estate, who would allegedly warn P to remove his dog in a hostile, threatening manner. P claims that disagreeable methods such as the ringing of his doorbell past midnight and the loitering of security guards outside his unit were used to provoke the dog and had contributed to both his and his family’s mental stress. Whether P and/or his family suffered mental and emotional stress due to alleged harassment from Ds 1 and 2 90.It is P’s claim that due to the intimidating methods employed by Ds to enforce the removal of his dog both he and his family members have suffered a considerable degree of mental stress. However, there has been no evidence of medical evaluation of P’s mother-in-law’s condition. P’s mother-in-law had not given evidence. There is insufficient materials before me to determine whether P’s mother-in-law’s hospitalization was indeed caused by the incident. 91.Having said this, I accept P’s evidence that D1’s staff had tried to use distasteful means that amounted to harassment to enforce the removal of P’s dog. I accept that there must have been some stress and nuisance caused to P and his family. I award damages at $8,000 for P and his family for the nuisance caused by Ds. Interest shall be at 2% from the date of the service of the writ to the date of Judgment and thereafter at judgment rate. Conclusion 92.There will be Judgment for a declaration that Rule 3 of the House Rules is invalid. An award of damages at $8,000 with interest at 2% from the date of the service of the writ till the date of Judgment and thereafter at judgment rate against Ds to P for the nuisance caused to P and his family. In my Judgment, Ds have not made out a case of P’s dog being a nuisance and P was neither in breach of the House Rules nor the DMC in keeping the dog. Ds’ counter-claim is accordingly dismissed. I further find P’s agreeing to remove the dog not binding on him. 93.For the aforesaid reasons, the merits of this case is with P and I make costs order nisi to P with certificate for counsel, to be made absolute after 14 days from the date of this Judgment. 94.I wish to thank both counsel for their valuable assistance.
Representation: Miss. Noelle Chit, instructed by Messrs. Hau, Lau, Li & Yeung, for the Plaintiff Mr. Jenkin Suen, instructed by Messrs. Li, Kwok & Law, for the 1st and 2nd Defendants |
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