Tam Shun Lau Shui Har v. Li Wai Lun and Another

DCCJ2394/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2394 OF 2010

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BETWEEN

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Before: H H Judge Lok in Chambers (Open to the public)

Date of Hearing: 3 January 2011

Date of Decision: 3 January 2011

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D E C I S I O N

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1.This is an application by the Defendants to strike out the Plaintiffs’ claim on the ground that it discloses no reasonable cause of action, it is frivolous or vexatious, or otherwise an abuse of the process of the court.

2.The facts of this case are rather simple.  The Plaintiffs are the owners of a flat of a certain building in Mong Kok.  The Defendants were the former owners of the flat which was immediately above the Plaintiffs’ flat.   It is the Plaintiffs’ case that the Defendants had operated a dancing school in their flat.  Since there was excessive noise caused by the operation of the dancing lessons, the Plaintiffs commenced the present action of nuisance against the Defendants to claim for an injunction and other consequential damages.

3.The Plaintiffs commenced the present action on 13 July 2010.  On the same day, the Plaintiffs applied to the court for an interim injunction to restrain the Defendants to continue to operate the dancing lessons in the Defendants’ flat. On 27 July 2010, the Defendants gave an undertaking to the court that they would not hold classes in the Defendants’ flat from 1130 hours to 12 noon on the next day.  Actually, the Defendants intended to sell their flat and the sale of the flat was actually completed on 3 September 2010.

4.By reason of the development of the case, the Plaintiffs did not pursue the claim for injunction against the Defendants.  In the previous directions hearing, I have referred the parties to mediation with a view to settle the minor dispute between them.  Quite surprisingly, the mediation was not successful and the parties, quite insensibly, want to resolve their dispute through expensive litigation.

5.The Defendants then took out a summons to strike out the claim.  According to Mr Wong, counsel for the Defendants, the Defendants’ application is based on the following two grounds.  Firstly, the Plaintiffs have not produced any objective test or investigation result to show that the noise caused by the dancing lessons was excessive.  Secondly, the Plaintiffs have been living in the flat for a long time and the Defendants had been operating a dancing school in the flat since 1992.  By not making any complaint relating to noise prior to 2008, the Plaintiffs have acquiesced the nuisance resulting from the operation of the dancing lessons in the Defendants’ flat.

6.Although the parties, in particular the Defendants, have submitted lengthy written submissions to the court, I am of the view that the application is indeed a simple one.

7.It is trite law that the court will only strike out a claim in a clear and obvious case.

8.Regarding the first ground for the striking out application relied on by the Defendants, the issue is a simple one:  whether it is necessary for a complainant of noise nuisance to produce objective tests and investigation result before he can maintain a claim for nuisance.

9.In this regard, Mr Wong has referred me to a number of cases.  In these cases, the court has emphasised that in a crowded community like Hong Kong, a resident in a multi-storey building had to tolerate a certain degree of noise produced in the neighbourhood.  In those cases,  the parties had relied on the results of objective tests and the court had also indicated a guideline as to what amounted to excessive noise.  However, there is nothing in those authorities which support the proposition that a Plaintiff of a noise nuisance claim must produce objective tests or objective investigation result before he can maintain a claim for nuisance.

10.Obviously, without objective test results, the court will be in a more difficult position to determine whether the noise produced by the dancing lessons in the Defendants’ flat was excessive and the Plaintiffs would therefore have more difficulty in discharging the necessary burden of proof.  However, whether the noise caused by the Defendants’ dancing lessons was excessive to the extent that it amounted to nuisance is a matter which should be fully investigated at the trial.  The Plaintiffs can rely on the oral testimony as to the noise level produced by the dancing lessons, and it would then be up to the trial judge to determine whether a case for nuisance has been made out.

11.Mr Wong submits that without objective tests or investigation result it would be most difficult for the Defendants to defend the claim.  However, the Defendants are free to cross-examine the Plaintiffs at the trial.  The Defendants can also rely on the absence of test result or investigation result with a view to argue that the Plaintiffs have failed to discharge the necessary burden of proof.  In any event, these matters cannot be determined in an interlocutory application and should therefore be fully investigated at the trial.  Hence, the Defendants’ first ground fails.

12.Regarding the acquiescence issue, the second-named Plaintiff has filed an affirmation to explain why they had not made any complaint to the Incorporate Owners and the Management Office of the building before 2008.  Prior to 2003, both Plaintiffs were actually working and it was only after their retirement in 2003 that they spent more time in the flat in the day time.  Further, since both Plaintiffs became older, they found it more difficult to tolerate the noise produced by the dancing lessons.  Prior to 2008, they had tried to resolve their dispute with the Defendants personally but was not successful.  The Plaintiffs therefore started to make complaints to the Incorporate Owners and the Management Office of the building in 2008.

13.The Defendants have rightly conceded that mere inactivity is not enough to amount to an unequivocal representation that the Plaintiffs would not enforce their strict legal right.  In my judgment, whether the Plaintiffs have acquiesced the nuisance is very much a fact-sensitive issue.  It depends on the level of the noise experienced by the Plaintiffs at different points in time.  It also depends on the perception of the Plaintiffs of the problem at different points in time.  At this stage, it is suffice for me to say that such issue should be fully investigated at the trial and it is not appropriate for the court to conclude at this interlocutory stage that such defence is bound to succeed. Hence, the Defendants’ second ground for the striking out application also fails.

14.Based on the aforesaid, I refuse the Defendants’ application to strike out the Plaintiff’s claim and I will therefore listen to the parties’ submissions on the appropriate directions to be given in relation to the conduct of this case and costs.

Mr Jonathan Kwan, instructed by Messrs Leung, Tam & Wong, for the Plaintiffs

Mr Patrick Wong, instructed by Joseph P K Pang & Co., for the Defendants