The Incorporated Owners of Kadoorie Avenue Mansion v. Rising Dragon International Ltd

LDBM 201/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 201 OF 2013

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BETWEEN

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D E C I S I O N

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1.This is the hearing of the respondent’s following two applications:

i)   The applicant do serve further and better particulars (“FBP”) of paragraph 16 of its Notice of Application pursuant to Rule 13 of the Lands Tribunal Rules, Cap 17 (“LTR”) (“FBP application”); and

ii)  Certain parts of the Notice of Application and Reply are to be struck out pursuant to O18, r19 of the Rules of High Court, Cap 4 (“RHC”) (“striking out application”).

2.The FBP application and striking out application are the respective subject matters of the respondent’s summonses dated 20^th August and 3^rd September 2004.

Brief background

3.The Applicant is the incorporated owners of a multi-storey building known as Kadoorie Avenue Mansion standing at 205-207 Prince Edward Road West, Kowloon. The respondent is the owner of Flat 10A Car Port No.16 and Main Roof A (“Roof A’) of the Mansion.

4.It is the applicant’s case that the respondent has installed a number of antennas and radio based stations (“RBS”) together with some structures on Roof A and common parts of the building, acting in breach of the Deed of Mutual Covenants (“DMC”), Building Management Ordinance, Cap 344 (“BMO”) and Government lease. The unauthorized structures, antennas and RBS also constitute a nuisance and have caused annoyance, damages or disturbance to other owners and occupiers of the Mansion. By this application, the applicant seeks declarations that the respondent is in breach of various provisions of the Government lease, DMC and BMO. It also asks for orders against the respondent to remove those installations and for injunctions restraining installation of any structure, antenna and RBS on the common parts and Roof A of the Mansion.

5.The respondent filed a Notice of Opposition on 30^th June 2014 putting up various grounds of defence including the applicant turning a blind eye to its own breaches of various provisions of the DMC and building plans thus not coming to court with a clean hand, there being prior compromise between the parties, delay and laches. It also fights back with a counterclaim for a declaration that the applicant has breached its duties under S.18 (1) of the BMO and for an injunction compelling it to carry out its duties.

FBP Application

6.The respondent first filed and served a request to provide FBP of the Notice of Application on 22 July 2014. The applicant’s answers were given on 5 August 2014. In so far as the FBP application is concerned, the respondent now takes the view that the applicant has only failed to properly answer Request No.1 despite the aforesaid answers.

Request No.1

7.Request No 1 deals with paragraph 16 of the Notice of Application. The relevant part of the paragraph which attracts the respondent’s request for FBP is the particulars pleaded in subparagraph (b).  The last sentence after subparagraph (d) is the subject matter of the striking out application. For completeness sake they are repeated below:

“16. Without any prior written consent of the Property Manager or the Applicant and/or without obtaining the requisite permit(s) or approval(s) from the relevant Government department(s) or authority(ies), the Respondent has in breach of the above pleaded Clauses as contained in the DMC and also Section 34I of BMO caused or otherwise permitted or allowed the following acts or things to be done on the Main Roof A, namely :-

(a) …; and

(b) the installation of not less than 5 mobile telephone and/or other antennas with cables and associated equipments on the exterior wall and/or parapet wall or common part of the Building, such installation affecting the maintenance or repairing of the common water pipes and might impair or damage the same;

(c) …

(d) …

Insofar as it may be necessary, the Application will rely on the doctrine of res ipsa loquitur”

8.According to Mr. Chong of counsel for the respondent, subparagraph (b) does not tell whether there were actual incidents in the past which affected maintenance and repair. The defendant would like to know better the applicant’s case and if necessary, may need to call factual witness and/or even adduce expert evidence to rebut the applicant’s case. That is why the Request No.1 was made. The request and the applicant’s answers which the respondent considered insufficient are set out below:

Request No.1

“(i) Please state the number of occasions as well as the details of each and every occasion when the installation of the antennas and associated equipments on Main Roof A had allegedly affected the maintenance or repair of the common water pipes;

(ii)  Please provide full particulars that how such installation had allegedly impaired or damaged the common water pipes including the exact locations and extent of damage or impairment to the common water pipes as alleged.”

Answers

“(i) The Applicant did not and does not keep any record of such occasions or incident. But with a number of antennas and/or their supporting poles or structures being affixed to parts of the inner surface of the parapet walls of the Main Roof A and the outer surface of the water tank situated on the roof top of the Building and over some of the water pipes or common water pipes also thereto affixed, repair and regular maintenance of the water pipes or common water pipes are rendered impossible or more difficult than it would otherwise be.

(ii) Answer (i) above is repeated.”(Emphasis in bold added by Mr. Chong in his submission)

9.The answers appear to confirm there having been such incidents in the past but no further particulars can be provided because the applicant kept no such record. Mr. Chong considers the answers insufficient. His submission can broadly be summarized as follows:

i)   Whether the applicant keeps any record is irrelevant and is no good answer because the applicant should make efforts to ascertain from, say, contractors, and other responsible personnel(s) for recollections of those incidents, if any.

ii)  The applicant is shifting its case: the case pleaded in the Application is that the maintenance or repairing is affected while the answers suggest maintenance or repairing is rendered impossible or more difficult. He submitted the former suggests repair was still possible but the latter means impossible[1].

iii)  The answers merely provide a general or theoretical scenario as to how the structures/antennas/RBS would render repair and maintenance impossible or more difficult instead of disclosing what exactly had happened in the past which the RBS damaged the pipes or their presence affected repair and maintenance.

10.Mr. Leung of counsel submits for the applicant that if there is no record, it means there is no recollection as well otherwise it would amount to record on the part of the applicant. He submits paragraph 16(b) never alleges there having been actual impairment or damages to common water pipes. It merely states that the installation of those structures/antennas/RBS might impair or damages the pipes. The particulars given by the applicant on 5 August 2014 are more than sufficient to deal with Request No.1.

11.At the hearing he confirms that the applicant will not be relying on any past incidents at trial to substantiate its case. It can be gathered from his submission that the applicant’s case is that once it is proved that there are installation of the structures/antennas/RBS on Roof A and/or the common part of the building, the real probability of pipes repair and maintenance being affected as pleaded will be apparent[2]. The alleged respondent’s response as to the finding of factual or even expert witnesses to rebut the applicant’s allegation in this regard are, according to Mr. Leung, somewhat “over the top”. In any event by the lengthy paragraphs 29 and 30 of the Notice of Opposition pleaded in response to paragraph 16 of the Notice of Application, the respondent, said Mr. Leung, is fully aware of what cases it is going to meet[3].

12.The starting point is O.18 r.12 RHC which provide:

“(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim …;

…

(3) The Court may order a party to serve on any other party particulars of any claim, … or other matter stated in his pleading … or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just … ;

…

(3B) No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

…”

13.I consider it fair to say that there is no dispute between parties on the principles applicable to ordering FBP as both counsel have either referred directly to the often-cited authorities in this area including Kwok Chin Wing v 21 Holdings Ltd[4], Sinoearn International Ltd v Hyundai-CCECC Joint Venture[5], Aktieselskabet Danik Skibsfinansiering v Wheelock Marden & Co. Ltd[6], or some other cases which approved basically the principles enunciated in the aforesaid authorities. The function of a properly particularized pleadings has been succinctly summarized in Wheelock Marden by Bokhary JA (as the learned NPJ then was) and set out in paragraph 18/12/1 of Hong Kong Civil Procedure 2015 Vo.1 at p.409:

“(1) to inform the order side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(2) to prevent the other side from being taken by surprise at the trial;

(3) to enable the other side to know with what evidence they ought to be prepared and to prepare for trial;

(4) to limit the generality of the pleadings, the claim and the evidence;

(5) to limit and define the issues to be tried, and as to which discovery is required;

(6)  to tie the hands of the party so that he cannot without leave go into any matters not included …”

14.O.18 r.12 (3B) RHC is introduced by the Civil Justice Reform. It provides that no order under r.12 (3) will be ordered unless it is necessary either (i) for disposing fairly of the cause or matter; or (ii) for saving costs. Accordingly relevance is not the test. Necessity for the stated purposes must also be shown. The burden of proof is on the party bringing the application[7], i.e. the respondent in the present case.

15.In the Tribunal’s judgment, paragraph 16(b) may give rise to doubts as to whether the applicant is relying on the mere fact of installation amounting to breach of DMC and BMO or that past events will also be relied on. If past events are relied on, it will only be fair for the applicant to plead the particulars so that the respondent can prepare its case in rebuttal, if so advised. Request No.1 is therefore relevant and necessary for ascertaining the scope of the applicant’s case  and thus for saving costs, though it will be, according to the tribunal’s judgment, a bit exaggerated and far-fetched to suggest expert needs be involved to consider whether maintenance and repair have been or will be affected.

16.The question is whether the answers already provided are sufficient.

17.This tribunal does not share Mr. Chong’s submission that the applicant’s answers suggest a shifted case – from a case where repair and maintenance are possible to impossible. The original pleading suggests the said installations affecting repair and maintenance. It will be a matter of degree when repair is affected but still made possible or to the extent of being rendered impossible.

18.However, this tribunal accepts Mr. Chong’s another contention that the answer is insufficient. The simple answer by the applicant is that they keep no record of any such repair. It is not apparent from the applicant’s case that there were no such incidents in the past. Neither is the applicant’s express case that the ascertainment of particulars too laborious for the time being but they will be supplying the same later. It is also not the express case of the applicant that they will not rely on past incidents until Mr. Leung’s confirmation at the hearing after talking to those instructing him. Reasonable opponent will therefore be left in doubt as to whether at the end of the day the other side will put in evidence of past events to substantiate the pleaded particulars until in the middle of the hearing.

19.Having said the above this tribunal, however, does not intend to ask the applicant to file FBP of the answers already provided. It is because Mr. Leung of counsel has already confirmed on the applicant’s behalf that it will not be relying on past incidents. In the circumstances, though the requested particulars are considered relevant and necessary to help clarify and define the applicant’s case, in light of Mr. Leung’s confirmation it is no longer necessary for FBP to be ordered. The primary concern of whether or not factual rebuttal evidence need be prepared has been duly addressed. The FBP together with the confirmation aforesaid has basically helped clarify paragraph 16 (b) and served the purposes set out in paragraph 13 above.

Striking Out Application

20.As set out in the striking out summons, there are 3 areas in the applicant’s pleadings which are considered bad by the respondent and liable to be struck out. In the course of the hearing Mr. Leung concedes on behalf applicant on one area and partly on the second. The 3 areas are discussed below.

Res ipsa loquitur

21.The applicant pleads in aid of the doctrine of res ipsa loquitur in paragraph 16 of the Notice of Application[8]. The respondent’s complaint is that this case is allegedly founded on, inter alia, breach of DMC, BMO but not negligence. As the doctrine is irrelevant it must be struck out for being bad in law.

22.Mr. Leung admits the applicant is not relying on the use of the phrase in the manner as it applies to negligence or breach of duty claim. Mr. Leung says it is only a short or fancy way of saying “the antennas installations built there speak for themselves”[9]. He, however, is unable to refer to authorities that this often-relied-on doctrine applies also to the causes of action now being sued on by the applicant. After several exchanges with the bench and taking of instruction from those instructing him, he confirmed, and this tribunal considers sensibly and correctly, that the applicant is not relying on the res ipsa loquitur doctrine pleaded.

23.In Sanfield Building Contractors Ltd v Li Kai Cheong[10], Bokhary PJ formulated the res ipsa loquitur rule in the following words:

“The important things to remember – and make clear – is that the expression [res ipsa loquitur] does not denote a doctrine but merely ‘a mode of inferential reasoning’ … This mode of inferred reasoning applies only to accidents of unknown causes. But it matters not that the immediate cause of an accident (eg. brake failure or a burst tyre) is known. As long as the cause on which the issue of liability actual turns (eg. why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause. The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the claimant or damaged his property. In such a situation, the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable care. The ‘essence’ of this was identified by Lord Radcliffe … It is, his Lordship said, that ‘an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence’.”

24.The learned authors of Tort Law and Practice in Hong Kong, Sweet & Maxwell, 3^rd ed, 2014 at §4.214-25 indentify several requirements for reliance of the res ipsa loquitur reasoning such as (i) accident does not ordinarily occur without defendant’s negligence; (ii) the thing that cause the damage being in the defendant’s exclusive control; (iii) cause of occurrence unknown; and (iv) latent defect, etc. It is apparent from the aforesaid formulation by Bokhary PJ and the propositions by the learned authors that the pleaded doctrine or mode of reasoning is not applicable to the present case in which the causes of action have nothing to do with tort or negligence. Even if there is no concession by the applicant, this tribunal would have struck out the last sentence of paragraph 16 on the ground it tend to prejudice, embarrass, or delay the fair trial of the action.

The Nuisance Issue

25.Paragraph 17 of the Application states: 

“Further, or in the alternative, the unauthorized erection or installation of such antennas and associated equipments on the Main Roof A as pleaded in Paragraph 16 hereof has become a nuisance and has caused annoyance, damage or disturbance to other owners, occupiers or inhabitants of the Building.

Particulars

(1) Though no acceptable scientific proof for the time being, mass news report throughout the years have widely published that the electromagnetic waive, microwaves or radiation emanated from mobile-phone antenna or associated equipment would or might cause the nearby person suffering from tinnitus, headache, and if exposed for long period of time, the same would or might endanger the central nervous system, immune system, cardiovascular, blood circulation system, or even worst, cause canner.

(2) The electromagnetic fields emitted from some of the antennas as pleaded in Paragraph 16 hereof are high and excessive and exceeds the limits for the general public.

(3)  The Applicant has received various complaints from other owners, occupiers or inhabitants of the Building about such unauthorized erection or installation of the said antennas and associated equipments as pleaded in Paragraph 16 hereof causing them to suffer from anxiety and depression as they fear that the electromagnetic waive, microwaves or radiation emanated therefrom would or might cause irreparable harm to their health.”

26.The request for FBP on this paragraph, particularly on paragraph 17(1) is understandable. It is because while one expressly acknowledges that there is no acceptable scientific proof for the alleged health hazards, one appears to rely on these unsubstantiated scientific evidence to prove one’s nuisance claim. The respondent made the following requests before applying for striking out:

“(1) Please provide copies of the mass news reports which allegedly reported that the electromagnetic wave, microwaves or radiation emanated from mobile-phone antenna or associated equipment would or might cause the nearby person to suffer from tinnitus, headache, and if exposed for long period of time, the same would or might endanger the central nervous system, immune system, cardiovascular, blood circulation system, or cause cancer;

(2) Please state what was the permissible limit of electromagnetic fields to emit from antennas;

(3) If there were report(s) showing there was excessive electromagnetic fields produced by any of the antennas, please produce copy(ies) of such report(s);

(4) Please identify which owners, occupiers or inhabitants of the Building made complaints;

(5) For each of these complaints, please state whether the complaint was made orally, in writing or otherwise;

(6) If any of the complaints was in writing, please provide copy(ies) of the complaint documents(s);

(7) If any of the complaints was orally made, please state the manner in which each of the oral complaint was made, in particular:-

(i) When was the complaint made;

(ii) Was the complaint made by the Complainant himself/herself or through somebody on his/her behalf;

(iii) If the complaint was made by somebody on the Complainant’s behalf, the identity of the agent of the Complainant;

(iv)  What was exactly said in such complaint.”

27.The applicant provides the following answers:

“(1) Copies of news reports are hereto attached.

(2) The transmitting frequencies of the antennas are in the 900 MHz, 1800 MHz and above 2000 MHz. According to the “Guidelines for Limiting Exposure to Time-Varying Electric, Magnetic and Electromagnetic Fields (up to 300 GHz)” published by the International Commission on Non-Ionizing Radiation Protection (ICNIRP) in 1998, the electric field limits for the frequency bands 900 MHz, 1800 MHz and above 2000 MHz are 41.3V/m, 58.3 V/m and 61.0 V/m respectively.

(3) A copy letter dated 26 June 2013 from the Office of The Communications Authority together with a Measurement Result is hereto attached.

(4) The Applicant did not keep a record of the complaints, but among other owners or residents of the Building who may also have done so, verbal complaints/concerns had been made/expressed by Chan Ting Wah and his wife of Flat 12A and Chen Elmer Yue Hsing of Flat 5B soon after the installation of the antennas in 1995 and written complaints/concerns about the antennas have also since the commencement of these proceedings been made/given by Ku Check Ng of Flat 2A, 陳英琪 of Flat 4B, Suen Nah Ping of Flat 10B and Chen Elmer Yue Hsing of Flat 5B in their letters all dated 30 July 2014. Further, the antennas were discussed at meetings of the management committee of the Applicant and meetings of owners of the Applicant and the majority of them attending supported the resolution of commencing legal proceedings against the Respondent for the removal of the antennas.

(5) Answer (4) above is repeated.

(6) The 4 letters all dated 30 July 2014 are hereto attached.

(7) (i) On a number of occasions since 1995 or thereabout;

(ii) With the exception of Chan Ting Wah’s wife, who made/expressed her complaint/concern to her husband, in each case, by the complainant himself;

(iii) Answer (7)(ii) above is repeated;

(iv)  With no record of the complaint, the Applicant cannot repeat what was exactly said in each of the complaints, but each complaint was about the possible harm that might be caused by the antennas to the health of those living in the Building.”

28.The respondent considers since there is express admission on the part of the applicant that they cannot prove scientifically any damages allegedly caused by the electromagnetic radiation, coupled with the fact that the applicant is not going to adduce expert evidence in this regard, paragraph 17 of the Notice of Application together with the answers should be struck out on the basis that they are scandalous, frivolous, vexatious, and may prejudice, embarrass or delay the fair trial of the action and/or otherwise are an abuse of process of the court.

29.In his oral submission, Mr. Leung informs the tribunal the applicant is no longer relying on paragraph 17(1) of the Notice of Application. The tribunal will therefore strike out the said subparagraph which the applicant will no longer rely on for the obvious reasons of saving costs. Mr. Leung, however, maintains paragraph 17(2) and (3) should remain.

30.It is Mr. Leung’s submission that striking out pleadings should only be made in “plain and obvious” case, and it is far from plain and obvious that the applicant would not succeed in establishing its case under paragraph 17. Mr. Leung’s case is that the proof of genuine fears on the part of the residents/owners of the Mansion, even though a subjective one, amounts to “disturbance”, “annoyance” or even “nuisance”[11].

31.From the particulars pleaded under paragraph 17 of the Notice of  Application, it is fair to say the applicant basically pleads the alleged adverse effects on health of the electromagnetic radiation, though unsubstantiated scientifically, constitutes a nuisance and has caused, inter alia, damage, disturbance and annoyance to resident/owners of the building. Nuisance, if proved, amounts to a breach of the DMC in the present case which the applicant is entitled to enforce. Damage, if proved, necessarily constitutes nuisance. It is, however, not clear from paragraph 17 whether the applicant is saying “disturbance” or “annoyance” is actionable per se. Neither is it apparent from the pleadings that these “disturbance” and “annoyance” constitute breaches of certain provisions of the DMC, nor these two heads are in fact coming under the umbrella of the nuisance claim. Mr. Leung’s submission does not serve to clarify this issue.

32.It is noted thatin a recent decision of this tribunal in The Incorporated Owners of Fanling Centre v Wong Yu Ting Terence[12], the incorporated owners sued for breach of a number of provisions of its DMC, including a covenant that “no owner do cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance or cause damage to the other owners and occupiers” (emphasis added). In that case, on complaints of an owner whose daughter had unfortunately got brain tumour, the incorporated owners sued the respondent who erected a number of radio antennas on the roof for causing, inter alia, nuisance or disturbance to other owners of the building. No expert opinion was adduced to prove causation between the tumour and the antennas. The incorporated owners succeeded in obtaining mandatory orders for removal of the antennas. Proof of there being no peace of mind in the complainant was accepted and held to be sufficient to amount to a breach of the said covenant. The tribunal in that case considered the worries held should be reasonably held. The decision was upheld when the Court of Appeal refused to grant to appeal[13].

33.In the said decision, the learned deputy judge relied on a passage in the Halsbury’s Law of Hong Kong[14] which states that:

“Where the covenant is against any act which may lead to ‘annoyance, nuisance or damage’, it is wider, and is broken by anything which disturbs the reasonable peace of mind of an adjoining occupier. The disturbance needs not amount to physical detriment to comfort, nor need the adjoining occupier be a tenant of the same landlord” (Emphasis added)

34.No DMC was exhibited in the present case. From a perusal of the pleadings, it appears that the applicant is relying on, among other provisions, clause 8(d) of the DMC in particular which stipulates owners covenant with each other the following:

“Not to commit or suffer to be committed on the said Premises or the said Building anything which should become a nuisance to the other co-owners …”

35.The provision of the DMC in the present case is different and is obviously more restrictive in scope than that of The Incorporated Owners of Fanling Centre. Only nuisance constitutes a breach and any act short of nuisance appears insufficient. This tribunal considers The Incorporated Owners of Fanling Centre therefore not applicable as the covenant sued on in that case is of a wider scope. That is why this tribunal raises the query that it is not apparent from paragraph 17 of the Notice of Application as to whether the applicant is saying proof of “annoyance” or “disturbance” to other owners/residents breach of DMC.

36.In the tribunal’s judgment, disturbance and annoyance are not causes of action. One needs to establish the element of “disturbance of”, or “annoyance to” before one can successfully set up nuisance. Once set up it amounts to a breach of DMC. In Clerk & Lindsell on Torts, Sweet & Maxwell (20^th ed, 2010), at para 20.01, nuisance (or private nuisance) is defined as follows:

“The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. … Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of : (a) [public nuisance], or (b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when in private nuisance.” (Emphasis added)

37.So by paragraph 17, the applicant is basically pleading nuisance caused by the radiation emanated from the antennas and RBS amounting to a breach of DMC. According to the classification in Clerk & Lindsell on Torts, nuisance of this kind belongs to the third class, namely, “unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land”[15].

38.In the present case, the applicant admits that there is no scientifically acceptable evidence to show causation of any alleged harmful effect to the radiation emanated from the RBS. It sees fit to abandon paragraph 17(1). The question is therefore whether mere fear (thus causing disturbance to and annoyance of owners/residents or no peace of mind as in The Incorporated Owners of Fanling Centre) of the possible harmful effect of the radiation, though without scientific proof but honest and perhaps reasonable, is sufficient to substantiate a nuisance claim as a matter of law. Both counsel make no submission on the matter. It appears from Mr. Leung’s submission that if the applicant can prove residents/owners fearing of the effect of the radio waves generated by the antennas/RBS on their well-being, that amounts to “disturbance” and ‘annoyance”, and may amount to “nuisance”[16]. He refers this tribunal to no authorities.

39.With respect I disagree.

40.In the English court of appeal decision in Birmingham Development Co. Tyler[17], one of the many complaints by the plaintiff was that a brick wall erected on the adjoining land owned by the defendant was considered unsafe and would collapse onto the plaintiff’s site, thus presenting a danger to the latter’s workers entering a part of the plaintiff’s land adjoining the said wall. The defendant’s failure to abate resulted in the plaintiff stopping work on its own site. An injunction was applied. The English Court of appeal upheld the dismissal of the injunction by the first instance’s court.

41.Although as a matter of evidence the plaintiff in Birmingham Development Co. Tyler failed to discharge its burden of proof to establish the wall being actually dangerous and presented a risk, Rimer LJ, in his decision, proceeded on the basis that the plaintiff had a genuine, honest and reasonable subjective fear that the wall would collapse. The central issue identified by the learned judge was a proposition put forth by the plaintiff’s counsel: in order to establish nuisance it was not necessary for the plaintiff to prove an actual danger emanating from the defendant’s land causing interference or fear[18].

42.The learned judge answered the said question in the negative. Rimer LJ did not rule out “fear’ alone could found a case on nuisance as he considered that a claimant would have a case in nuisance if a house bordered his own property and its state of dilapidation was such that it presented a real danger of collapsing onto his property[19] (emphasis added). He elaborated:

“[20]Honest, perhaps reasonable, fear of danger is not enough. What is required before a nuisance can be proved is a well-founded fear, which means proving on the probabilities the reality of the danger that has given rise to the fear.”

“[21]The … cases show that it is not enough for a Claimant who asserts that his neighbour’s property or activities are dangerous to prove that he is frightened by them. What is required is proof that the fear is well-founded: that is, that the property or activities are actually dangerous, although it is not necessary to do more than prove that on the balance of probabilities.”(Emphasis added by Rimer LJ)

43.So subjective fear itself is insufficient. It must be well-founded and the activities complained of and causing the fear, i.e. the erection of antennas and RBS with telephone micro-waves emanating therefrom in the present case, must be shown to be actually dangerous to health on a balance of probability. It is the applicant’s own case that there is no scientific proof to link the alleged health hazards and the radiation. After abandonment of paragraph 17(1), apart from stating the electromagnetic field limits published by ICNIRP, what are left are no more than various complaints by owners/residents that they fear the radiation but these worries and fear, though genuine, will not be supported by any objective evidence. These complaints serve no useful purpose to advance the applicant’s case. If the applicant knowingly pleads a case which it will not or is unable to adduce acceptable evidence to substantiate, in the tribunal’s judgment it is scandalous and tends to embarrass his opponent. Further in response to the said pleadings the respondent may wish to put in evidence in rebuttal, thus delaying the fair trial of the real issues in the present case. In the tribunal’s judgment, paragraph 17, including subparagraph (1), should be struck out.  

The Alleged Approval Issues

44.It is the respondent’s case that the applicant fails to enforce the DMC by allowing several unlawful acts to carry on within the building. The unlawful acts complained of are:

i)   The unlawful conversion of car parking spaces from 10 to 9[22];

ii)  The unlawful erection of illegal or unauthorized structure at the far end of the car park[23]; and

iii)  The unlawful erection of a watchman house[24].

45.In its Reply and Defence to Counterclaim, the applicant pleaded in subparagraph (c) of the respective paragraphs 6, 7 and 9 that the conversion of the car parking spaces or structures (as the case may be) were “approved by all the individual flat owners of the Building or otherwise not objected to by any of them until February 2013”. Apparently considered bad plea, the respondent raises request for FBP in respect of the approval pleaded in the 3 subparagraphs. The applicant answers each of the requests by three separate answers in almost identical terms as follows:

“The Applicant has no record (oral or written) of the approval of all or any of the individual flat owners to the [conversion/cover/the watchman room]. The Applicant says that the approval was tacit and/or implied and is evidence by the fact that there was no record of any objection made by any individual flat owners until February 2013 by the Respondent.”

46.Mr. Chong takes the view that since the applicant is an owners’ incorporation, its operation should be governed by the BMO. Any approval by owners must therefore be by owners’ resolution contained in meeting minutes which the applicant is now unable to produce. Further, the pleas of “approval”, “not objected to”, “no record”, “tacit approval” or “implied approval” are apparently internally inconsistent. The FBP provided rendered the original pleadings irrelevant and meaningless[25]. They therefore should be struck out on the grounds that they are “scandalous, frivolous, vexatious, may prejudice embarrass or delay the fair trial of the action, or otherwise an abuse of process”.

47.It is trite that the court should only exercise the power to strike out pleadings in plain and obvious cases. Disputed facts were to be resolved in favour of the party sought to be struck out. The claim must be obviously unsustainable, the pleading unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out: see para 18/19/4 of Hong Kong Civil Procedure 2015 Vo.1 at p.435.

48.In the tribunal’s judgment, the aforesaid pleas, though with a lot of room for improvement, are broadly speaking, not inconsistent with each other. The fact that there was no record kept of any approval, as a matter of logic, does not necessarily follow that there is no approval. Approval of course can be evidenced by written resolution. However, it can also be inferred from documents other than proper resolution(s). What case the applicant can achieve eventually is a matter of evidence at trial. Whether the BMO will deem there being no approval because there being no resolution is an issue which the respondent has not yet properly made out.

49.It is further noted from the records of management committee exhibited by one Mr. Chan on behalf of the applicant the following:

i)   In a meeting on 26 June 1980, it was recorded, inter alia,  the following:

“(8) 管理室外牆紙皮石要更換

(10) 後屋外設輕便有蓋車位, 由9户户主負担費用

(English translation: (8) The mosaic tiles of the external wall of watchman room needs replacement.

(10) A small and convenient covered car park was set up at the back of the building, the expenses to be shared by 9 owners)”

ii)  In a meeting on 4 November 1980, it was recorded inter alia, the following:

“(4) 委員會通過屋後蓋美觀車房, 由有關户主負責費用, 圖則由委員會審核.

(English translation: (4) The management committee resolved that a beautiful car park is to be constructed at the back of the building, expenses of which are to be shared by relevant owner(s), and the plan is to be approved by the management committee.)”

iii)  In a meeting on 16 July 1981, it was also recorded inter alia, the following:

“林先生更提議將後面九個車位改為八個, 因涉及法律問題, 將延至九月 (sic: 仝) 人大會討論

(English Translation: Mr. Lam further proposed to convert the 9 car parks at the back to 8. Since legal problem is encountered, the [proposed conversion] will be adjourned for discussion of the owners meeting in September.)”

50.It can therefore be seen from the above that the management committee had already had full knowledge of there being 9 car parks as early as 1980. There appeared to have been discussion of the committee to further convert them from 9 to 8 in 1981 and they agreed to put the matter to the owners’ meeting for further discussion. It is therefore arguable that the then car parks condition (9 instead of 10) would be acceptable to the owners otherwise the committee would not have referred the matter to them for discussion with a view to a further modification. At least it is arguable that members of the management committee and all those in attendance had accepted the then car park condition (9 instead of 10). Further, the management committee agreed to incur expenses to re-make the external wall of the watchman room. It is at least arguable if the watchman room was built without approval the management committee would not have recorded any improvement work about it. Further, the construction of an extra covered car park even received the approval of the management committee.

51.Accordingly, it cannot be said for sure at this stage that the pleas set out in paragraph 46 above are inconsistent or bound to fail at trial. In the circumstances, this tribunal do not consider the respondent has make out a good case for striking out the approval pleas of the applicant discussed above.

Conclusion and Orders

52.By reasons of the above, the tribunal makes the following orders:

FBP application:

i)   there be no order made of the application;

ii)  there be a costs nisi that the applicant do pay costs of the respondent on District Court scale, together with certificate for counsel, such order be made absolute if no application to vary the same is made within 14 days from today;

Striking out application:

iii)  paragraph 1 of the striking out summons be dismissed;

iv)  the last sentence in paragraph 16 of the Notice of Application, namely “Insofar as it may be necessary, the Applicant will rely on the doctrine of res ipsa loquitur.” be struck out;

v)  the entire paragraph 17 of the Notice of Application and the answers filed in connection with it be stuck out;

vi)  there be a costs nisi that the applicant do pay one-third of the respondent’s costs of the application on District Court scale, together with certificate for counsel, such order be made absolute if no application to vary the same is made within 14 days from today; and

vii)  for the purpose of taxation, one-third of the hearing time be appropriated to the hearing of the FBP summons and two-third to the striking out summons.

Mr Paul HM Leung, instructed by Chan & Tsui, for the applicant

Mr Patrick Chong, instructed by Hui & Lam, for the respondent