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Elias Neil David And Another v Cheng Sui Chu And Others

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date09 January 2020
Neutral Citation[2020] HKCA 31
Year2020
Judgement NumberCAMP174/2019
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP174/2019 ELIAS NEIL DAVID AND ANOTHER v. CHENG SUI CHU AND OTHERS

CAMP 174/2019

[2020] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 174 OF 2019

(ON AN INTENDED APPEAL FROM DCCJ NO. 2148 of 2016)

________________________

BETWEEN
ELIAS NEIL DAVID 1st Plaintiff
LOCKWOOD JANE ELIZABETH MARY 2nd Plaintiff

and
CHENG SUI CHU 1st Defendant
WONG CHI HING 2nd Defendant
PERSONS DOING SUCH ACTS OR THINGS, IN OR ON LOT NO. 246 IN D.D. 8, CAUSING NUISANCE OR WHICH MAY BE OR BECOME A NUISANCE OR ANNOYANCE OR INCONVENIENCE TO OWNERS, OCCUPIERS OR USERS OF SECTION B OF LOT NO. 245 IN D.D. 8 3rd Defendant

__________________________

Before: Hon Cheung and Chu JJA in Court
Date of Judgment: 9 January 2020

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1. This is the 1st and 2nd defendants’ renewed application for leave to appeal against the judgment of Acting Chief District Judge Ko (as he then was, “the Judge”) given on 19 December 2018[1] (“the Judgment”), whereby they were ordered to pay damages to the 1st and 2nd plaintiffs in the sum of $40,000 and their counterclaim was dismissed.[2]

2. By a decision given on 15 July 2019[3] (“the Leave Decision”), the Judge refused to grant leave to the 1st and 2nd defendants (collectively “the defendants”) to appeal against the Judgment. By summons filed on 29 July 2019, the defendants sought to renew in this Court their application for leave to appeal.

3. Having considered the defendants’ written statement in support of the application, the plaintiff’s written statement in opposition and the materials placed before us, we are of the view that it is appropriate to exercise the power under Order 59, rule 2A(5)(a) of the Rules of the High Court, Cap 4A to determine the present application without a hearing on the basis of the written submissions only. We set out our decision below.

The dispute

4. The plaintiffs formerly were the owners of a house known as “House 61” in Tai Yeung Che, Tai Po. The adjacent house known as “House 60” was previously owned by a Ms Susan Fitzgerald (“Susan”).

5. The 1st defendant is the wife of the 2nd defendant. The 2nd defendant was one of the owners of a piece of land adjacent to House 60 and House 61 (“the Land”).

6. It is not disputed that on 27 May 2010, the 1st defendant, acting on behalf of the 2nd defendant, entered into an agreement with Susan (“the Head Lease”) to lease the Land to Susan for a term of 10 years. Under clauses 22 and 23 of the Head Lease, the first 5 years of the term was a fixed term, and starting from 1 January 2016, either party may by giving one-month notice in writing terminate the agreement.

7. The plaintiffs’ case is that Susan sub-let a portion of the Land to them. They had used the Land as the backyard of House 61 and cultivated it and made improvements thereon. It was also their pleaded case that they had on 26 February 2016 delivered up the portion of the Land to the defendants. They claimed that beginning early March 2016, the defendants committed the following acts of nuisance that affected their quiet enjoyment of House 61[4]:

(1) Erected barbed wire fence and hung dead fishes on the fence causing obnoxious smell to spread to House 61 and creating unpleasant sight for the plaintiffs;

(2) Dumped rubbishes, dead fishes, and other unknown chemical materials producing nauseating smells on the Land;

(3) Placed a large glass door on the Land that reflected light and flare into the study room of House 61;

(4) Ploughed up the Land and demolished all the plants thereon; and

(5) Put up signs on the Land.

8. The defendants, on the other hand, contended that the plaintiffs had since 1 January 2016 committed trespass as they were no longer entitled to use the portion of the Land adjacent to House 61. The defendants’ pleaded case was in two alternatives. The first is that there was an oral agreement between the 1st defendant and Susan under which Susan would not sub-let the Land, and the sub-lease created by her was a breach of the oral agreement and was accordingly invalid[5] (“first alternative case”). The second is that in about March 2015, Susan agreed with the 1st defendant to terminate the Head Lease upon the expiry of the fixed term on 31 December 2015[6] (“second alternative case”).

9. As to the plaintiffs’ complaint of nuisance, the defendants case is that[7]:

(1) They admitted the erection of barbed wire fence and salted fishes were hung on it, but denied the salted fishes had emitted any obnoxious or nauseating smell;

(2) They admitted they had buried dead fishes on the Land, but denied that this gave off any nauseating smell. They also admitted applying fertilizer on the Land, but said they stopped doing this since 26 April 2016;

(3) They admitted a door with mirror was placed on the Land, which they averred was to scare off or prevent birds from damaging the crops on the Land;

(4) Ploughing up the Land was a reasonable use of the land and did not cause nuisance; and

(5) The signs were not intended to cause nuisance.

10. The defendants counterclaimed for damages occasioned by the plaintiffs’ demolition of the barbed wire fence and the wooden fence between January and February 2016.[8]

The Judgment

11. The trial lasted five days, during which the Judge heard evidence from both plaintiffs, Susan, the 1st and 2nd defendants, the 1st defendant’s nephew, and the current owner of House 60.

12. At [34] of the Judgment, the Judge identified four issues that were required determination, namely:

(1) Whether the plaintiffs are liable in trespass;

(2) Whether the plaintiffs are liable for removing the fence;

(3) Whether the defendants are liable in nuisance; and

(4) If any of the above was answered in the affirmative, the quantum of damages to be awarded.

13. On Issue (1) trespass, in addition to the first and second alternative cases as set out in [8] above, trial counsel for the defendants sought to raise a third alternative case (“third alternative case”) in the closing submission, namely, the 1st defendant had in March 2015, with Susan’s consent, served a notice to quit to terminate the Head Lease on 31 January 2016. The Judge refused to allow the defendants to run argument, given that it was neither pleaded nor put to Susan during cross-examination.

14. The Judge did not accept the first alternative case that there was an oral agreement between the 1st defendant and Susan prohibiting subletting of the Land. The Judge accepted Susan’s evidence that the defendants raised no objection to the sub-letting, and further held that the defendants would have waived the breach, if any, by receiving rent from Susan after the sub-lease between Susan and the plaintiffs was created.

15. The Judge also rejected the second alternative case that the 1st defendant and Susan had agreed to terminate the Head Lease on 31 December 2015. The Judge considered this to be inconsistent with the WhatsApp exchanges between the 1st defendant and Susan on 16 March 2015. The Judge was of the view that the WhatsApp exchanges did not indicate there was prior conversation between them on early termination of the Head Lease. The Judge found that terminating the agreement on 31 December 2015 was only a suggestion of the 1st defendant, who was under a misapprehension that the Head Lease ended on 31 December 2015 with an option to renew for another 5 years. The Judge also did not accept the argument that Susan’s payment of eight months’ rent up to 31 December 2015 was indicative of her agreeing to terminate the Head Lease upon the expiry of the fixed term.

16. On Issue (2) the removal of the fences by the plaintiffs, the Judge held that the defendants failed to establish any right over the fences. As the defendants had no immediate right to possession over the fences, and no right to claim reinstatement of the fences, the counterclaim was dismissed.

17. On issue (3) nuisance, the Judge held that the plaintiffs failed to prove nuisance in respect of the rubbishes dumped on the Land, the putting up of signs on the Land, and the ploughing on the Land. The Judge, however, found that the hanging of dead fishes that produced an unpleasant sight and gave off an obnoxious smell had substantially interfered with the plaintiffs’ enjoyment of House 61. Based on the 1st defendant’s admission, the Judge found the defendants to have use fish guts to make “fertilizer” on the Land. Relying on the Incident Report prepared by Hong Kong Fire Services, the Judge further found that three buckets of excreta emitting obnoxious smell were found on the Land. The Judge held this to have interfered with the plaintiffs’ use and enjoyment of House 61 for a few days. The Judge concluded that the defendants had committed acts of nuisance. Having considered the authorities, the Judge awarded damages in the sum of $40,000.

The defendants’ application for leave to appeal

18. In the draft notice of appeal attached to the summons, the defendants advanced the following grounds of the appeal, which are the same as those argued before the Judge in their application for leave to appeal:

(1) The Judge erred in finding there was no agreement between the defendants and Susan to terminate the Head Lease by the end of 2015.

(2) The Judge erred in ruling that there was no plea of the defendants’ notice to terminate the agreement on 1 February 2016.

(3) If either (or both) of the above grounds was/were made out, the Judge erred in finding the defendants had no right to claim for reinstatement of the fences.

(4) The Judge erred in holding that the hanging of salted fishes constituted an act of nuisance.

(5) The Judge erred in...

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