KWONG YIU KEUNG STANLEY AND ANOTHER v. CHIU SIN SHUM AND ANOTHER

DCCJ 5745/2017

[2020] HKDC 626

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5745 OF 2017

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D E C I S I O N

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INTRODUCTION

1.  This is a noise nuisance claim made by the plaintiffs (“Ps”) against the defendants (“Ds”) who are upstairs and downstairs neighbours in a multi-storey building situated in a large private development. 

2.  The trial has been fixed to commence on 17 August 2020 before me, with an estimated length of 4 days.

3.  A couple of weeks prior to the Pre-trial Review (“PTR”) hearing on 6 July 2020, Ps took out a summons under Order 38, rules 36 & 37 and Order 3, rule 5 of the Rules of the District Court (“RDC”) (“Ps’ Summons”) to be dealt with at the PTR. 

4.  Under Ps’ Summons, Ps seek an order to request Ds to comply with the Order of Chief District Judge Ko dated 23 January 2020 by allowing Ps’ experts to conduct his part of the joint tests in the manner specified in the measurement methodology dated 1 June 2020 prepared by Ps’ expert within 7 days.  Ps further seek an order that Ds be barred from adducing acoustic expert evidence at trial should Ds fail to do so.    

5.  Having dealt with all the case management matters at the PTR, the only outstanding issue for me to deal with is in relation to the costs of Ps’ Summons as the subject matters stated in Ps’ Summons had been spent in that the parties were able to agree on the methodology and a new set of timetable for the experts to conduct the joint tests and to prepare the joint expert report prior to the trial.

BACKGROUND

6.  Ps are owners and residents of the premises (“Ps’ Premises”) situated immediately below Ds’ Premises in the same building.

7.  Ps commenced these proceedings in December 2017 against Ds arising from complaints that noise nuisance had been emanating from Ds’ Premises since about 2016, giving rise to the causes of action in nuisance and breach of Deed of Mutual Covenant: see Ps’ amended statement of claim §§5 and 7.

8.  Ds added their counterclaim by amendment to their defence seeking relief for several complaints of disturbances by Ps in July 2018: See Ds’ amended defence and counterclaim §§12-17. 

9.  By the order of Master David Chan dated 18 July 2019, the parties were given leave to adduce expert evidence.

10.  On 20 December 2019, by an inter parte summons, Ps applied for an interlocutory injunction (“the Injunction Summons”) allegedly owing to the worsening noise level coming from Ds’ Premises since September 2019.

11.  The court initially adjourned the Injunction Summons in early January 2020 and ordered the argument to be heard in March 2020.

12.  Subsequently, the court withdrew the said order and directed the parties to attend a direction hearing on 23 January 2020 whereby the Chief District Judge took the view that the matter could be more efficiently dealt with by standing over the Injunction Summons to trial; fixing an earlier date for trial; and directing the parties to conduct the joint tests then agreed to be done in early March 2020.

13.  According to Ps, the joint tests did not proceed as originally scheduled for a number of reasons:-

(a)  The Covid-19 pandemic outbreak;

(b)  Ds proposed for the first time Ps are required to vacate premises for 2 nights; and

(c)  Ds refused to allow Ps’ expert to carry out his proposed methodology.

14.  After many rounds of arguments between the parties by correspondence, the matter was once again referred to the court and the Chief District Judge gave his views by letters (respectively on 8 and 26 May 2020) suggesting the parties to reach a compromise: (see §4 of the affirmation of Ps’ solicitor filed on 19 June 2020 in support of Ps’ Summons) (“Ps’ Affirmation”).

15.  According to Ps, the parties were finally able to come to terms on the agreed conditions to go ahead with the joint tests on 5 June 2020: (see correspondence produced under Exhibit CCLE-5 of Ps’ Affirmation):-

(a)  Ps agreed to Ds’ revised methodology to only vacate the premises for 1 night;

(b)  Ds agreed to Ps’ methodology sent by its letter which stated inter alia that (i) Ps’ expert shall conduct his testing first and (ii) Ps’ expert shall require removal of protective covering; and

(c)  The joint tests shall take place beginning on 9 June 2020.

16.  It has been alleged by Ps that when Ps’ expert sought to begin his simulation test at Ds’ premises on 9 June 2020, Mr Chiu of Ds (“the 1^st named defendant”) and Ds’ expert refused to permit Ps’ expert to remove the protective coverings / children play mats on the floor.  After a standoff and with Ds apparently not willing to budge, the joint tests were called off by Ps by reason of Ds’ breach of the abovementioned agreed conditions: (see §§8-9 and exhibit CCLE-4 of Ps’ Affirmation).

17.  The parties resorted back to arguments by letters, with accusations made against each other. 

18.  All in all, an astonishing number of 31 letters had been exchanged between the parties’ solicitors between 10 February 2020 and 5 June 2020 on the issue of arranging a joint test by the parties’ experts: (see Exhibit CCLE-5 of Ps’ Affirmation).  14 further letters were exchanged between the parties from 9 June 2020 to 26 June 2020 after the aborted simulation test: (see PTR Bundle prepared by Ds’ solicitors).

19.  I wish to pause and mention here that I agree with Mr Felix Ng who represents Ds that Ps might have cited the wrong rules under Ps’ Summons.  As this is in the nature of an “unless order”, I agree with Mr Ng that the more appropriate rule to use for the application should be Order 42, rule 2 of the RDC.  However, as the parties were finally able to agree on the revised dates for the experts’ to conduct the tests before the PTR, the subject matters stated in Ps’ Summons have been spent and the citation has now become academic.           

DISCUSSION

20.  This is an unfortunate case where there was very little trust let alone cooperation amongst the parties concerned. While the court’s earlier directions to have the Injunction Summons stood over and have an early date of trial are well intended, they do require the parties’ goodwill and cooperation in order to agree on the methodology, inspections, testings and filing of the expert reports under a strict timetable.

21.  Regretfully, I see very little goodwill and cooperation existed between the parties or their experts on such issues.

Relevant matters to be taken into consideration

22.  Having read Ps’ Affirmation and in particular the correspondence exchanged between the parties from 10 February 2020 to 11 June 2020 (exhibited under CCLE-5 of Ps’ Affirmation), I agree with Mr Tony Chow for Ps that it is perhaps not meaningful to revisit the then reasons of why parties were unable to agree to conduct the joint tests on the original agreed dates.

23.  I find much of the squabbles between the parties at an earlier stage centred around trivial matters like whether Ps should be moved out of Ps’ Premises and if so whether for one night or two nights and which hotel they could stay in, etc.  The experts’ original proposed dates of carrying out the simulation tests were also frustrated by the coronavirus outbreak and the travel plans of the 2^nd named defendant and her young children overseas.  They are no longer relevant.

24.  A convenient starting point in my view should be from the time when the learned Chief District Judge gave further directions to the parties by letter on 26 May 2020 which inter alia contained the following:-

“(i) It is unfortunate that the timing of the joint test coincides with the outbreak of Covid-19. Given the common ground that a joint test is desirable, it is in the interest of both parties that some concession be made by each party to bring about the test. As the pandemic is easing, the initial concerns of the parties should have lessen and there is room for them to be more flexible and accommodating.

(ii) It is the duty of the experts to assist the court and such duty overrides any obligation to the party instructing him. The plaintiffs’ expert should reconsider their proposal in the light of the fact that the plaintiffs’ complaint is not tied to any particular time of day. The defendants’ expert should reconsider if anything less than their proposal may achieve the purpose stated in their letter dated 2/3.

(iii) There is an element of quid pro quo in the defendants’ proposal in that the defendants will be required to vacate their premises for the same period of time as the plaintiffs for the purpose of the test (see the method statement attached to the letter dated 28/2). Furthermore, the defendants have offered to pay reasonable costs for the plaintiffs’ accommodation on condition that such costs be costs in the cause (see the letter dated 2/3).

(iv) Given the trial scheduled for August 2020, parties should agree a new timetable for the test, the without prejudice meeting of the experts and the filing of the joint report.”

25.  On 27 May 2020, Ds’ former solicitors, Messrs Khoo & Co (“KC”) wrote to Ps’ solicitors, Messrs Cheng, Yeung & Co (“CY”) referring to the Chief District Judge’s directions above and enclosed their expert’s “revised method statement” (“Ds’ Revised Method Statement”). They proposed Ds’ expert monitoring test to be carried out first, to be followed by Ps expert’s simulation test.  In Ds’ Revised Method Statement, the children play mats which covered a large area of Ds’ Premises have been specifically mentioned:

“As children playmats have been installed at the existing floor of (Ds’ Premises), a test shall be conducted to measure the sound reduction performance of applying those playmats.

The testing procedures shall be:

•  an adult walking on the floor in the scenario of with and without the playmats at (Ds’ Premises).

•  Measure the sound pressure levels at (Ps’ Premises) in the scenario of with and without the playmats.”

26.  On 1 June 2020, CY replied to KC with the following proposal:-

“We are instructed that out client will agree to vacate their premises for one night as proposed by your clients’ expert for the purpose of the monitoring test on the condition that (i) the proposal of our clients’ expert as stated in the revised Measurement Methodology for Noise Simulation Test (copy enclosed) is also agreeable to your client; and (ii) our client’s reasonable expenses for alternate accommodation shall be costs in the cause of this action.” [underline as appeared in original text]

27.  Paragraph 4.4 of the revised Measurement Methodology for Noise Simulation Test proposed by Ps’ expert (“Ps’ Methodology Statement”) consisted of the following:-

“4.4 If any sound reduction implementations are identified regarding the items in the proposed domestic activities, the simulation shall be conducted once with such sound reduction implementations and once without. Sound reduction implementations may include play mats, floor mats, table/chair leg cushions etc.” [emphasis added]

28.  I would like to point out here that I do not find there is any real difference between Ps and Ds experts’ methodology when it comes to the simulation test, namely, both experts suggested that they should be tested once with the play mats / sound reduction implementations on and once without.  I also note that there was no mention of any particular order as to how the simulation test should be conducted, namely, whether with the mattings / sound reduction implementations on first or vice versa.  

29.  In their reply letter dated 3 June 2020, KC did not address the above issue further.  Instead, they were more concerned with which expert should carry out the tests first and the date/time they should carry out the tests.  Ds were also concerned with the choice of hotel and the cost involved.  In other words, they have not specifically dealt with the proposed methodology suggested by Ps’ expert attached to CY’s letter dated 1 June 2020 up to this stage.  At least, they have not raised any objection to it.

30.  In CY’s reply letter on the same day, they proposed Ps’ expert to conduct their simulation test on 6 June first (if 6 June not workable, they proposed 13 June) and to start the monitoring tests immediately thereafter or on the next day as proposed by Ds’ expert.

31.  On 4 June 2020, KC replied and raised further arguments as to whether the monitoring or simulation test should be carried out first.  They also raised further arguments as to which date the tests should start as the 1^st named defendant might have to take a day off from work and how he should be compensated.  They suggested the tests should commence on 9 June instead.  Again, nothing was mentioned about the methodology proposed by Ps’ expert contained in Ps’ Methodology Statement, in particular in relation to the removal of the floor mats. 

32.  Further arguments can be found in CY’s letter dated 4 June 2020 about the commencement date of the tests and whether the 1^st named defendant should be entitled to claim his loss of income.  At the end, CY acceded to the request that Ps’ expert would conduct the joint tests by commencing the simulation test first on 9 June 2020.

33.  On 5 June 2020, KC replied and further arguments on the commencing date were raised but at the end Ds agreed the 1^st named defendant would take a day off on 9 June in order to facilitate Ps’ expert to conduct the stimulation test.  But they reserved their rights to claim compensation of the loss of income of the 1^st named defendant.  Under the heading of “(A)s a recap of the schedule of the joint test” in that letter, it stated “9 June 2020 – simulation test; 10 June 2020 to 13 June 2020 – monitoring test”.  Nothing was mentioned about the fact that during the simulation test, Ps’ expert would not be allowed to remove the play mats.

34.  Then on the actual day of the simulation test on 9 June 2020, heated arguments took place between the parties which eventually led to the test being called off.

Findings of the court 

35.  What exactly happened on that day is not clear but judging from the correspondence exchanged between the parties immediately after the incident (and there were many) and the short video recording taken by Ps during the meeting, I find most likely it was the 1^st named defendant (or more likely it was Ds’ expert) who had refused Ps’ expert to carry out the simulation tests as mentioned in Ps’ Methodology Statement.  In particular, I find the 1^st named defendant and/or his expert had refused to remove the floor mats for the purpose of allowing Ps’ expert to conduct the tests.  This is despite the fact that removal of the children playmats / sound reduction implementations has been specifically mentioned in Ps’ Methodology Statement and of which Ds had never raised any objection to prior to 9 June 2020.  In fact, as said, Ds’ own expert in Ds’ Revised Method Statement has specifically mentioned the simulation test should be carried out “with and once without the playmats”. 

36.  In CY’s first letter dated 9 June 2020 which was sent immediately after the incident, it has been alleged that the 1^st named defendant had specifically mentioned to Ps’ expert that the floor mats had all along existed inside Ds’ premises and he would not allow the same be removed for the simulation test.  This was not denied by Ds as in KC’s reply letter on the same day. In fact, they recorded that Ps’ expert intended to remove the floor mats inside Ds’ Premises for the simulation tests.  However, Ds’ excuse was that “the floors mats are attached to the floor, we are instructed by our client that the floor mats will be damaged once it is (sic) removed.”: (See KC letter to CY dated 9 June 2020 (which was mistyped as “6 September 2020”)).  They suggested Ps’ expert to carry out the test in areas which were not covered by the floor mats if they wanted.

37.  There were subsequent exchanges of correspondence between the parties’ solicitors where further accusations being made against each other.  I do not propose to reiterate them here as I find most of them were Ds trying to find excuses to shift the blame to Ps after the event. 

38.  Having taken all the evidence into account, I find the main reason why the simulation test was called off on 9 June 2020 was due to the refusal of the 1^st named defendant and/or his expert in allowing Ps’ expert to conduct the simulation test as agreed under Ps’ Methodology Statement.

39.  I do not find the subsequent excuse put forward by Ds that the removal of the existing mats would damage the mats as they were held in place by “sticky tapes” convincing at all.  Nor do I find Ds expert’s reason that the removal of the floor mats would alter the room acoustic response and structure response of the simulation test convincing: (see Ds’ present solicitors Messrs A Lee & Partners’ (“ALP”) letter to CY dated 19 June 2020).

40.  In my view, had the above been the real reasons for refusing Ps’ expert to conduct the simulation test, I would expect that they would have been, firstly, mentioned in Ds’ Revised Method Statement which was sent to Ps on 27 May 2020.  They were not.  Secondly, that both Ds and his solicitors would have raised such objections in one of the many letters they had written to Ps’ solicitors between 1 and 5 June 2020 before the simulation test was carried out on 9 June 2020.  They were not. 

41.  In my view, by not referring to or raising any objection to Ps’ Methodology Statement which formed part of the condition put forward by Ps on 1 June 2020 in CY’s letter, it must be taken that Ds had accepted the proposed methodology put forward by Ps’ expert before the simulation test scheduled on 9 June 2020.  As part of Ps expert’s methodology requested the removal of the sound reduction implementations or mattings (which as I have mentioned above had also been proposed by Ds’ expert himself under Ds’ Revised Method Statement), I do not see on what basis Ds could object to them.  I also do not see how Ds’ expert could make the very serious accusation against Ps’ expert at the meeting that he was trying to “falsify” (「做假」)[1] the data just because he wanted to measure the sound levels with the mattings removed first: (See the video footage recording the conversations between the parties taken at Ds’ Premises on 9 June 2020 under Exhibit CCLE-4.     

CONCLUSION

42.  In conclusion, I find the reason of why the simulation test could not proceed was due to the refusal on the part of the 1^st named defendant and/or Ds’ expert to let Ps’ expert to carry out the simulation test with the removal of the floor mats.  I therefore hold that it was reasonable for Ps to issue Ps’ Summons to seek the court’s directions on the matter.  Since the simulation test was frustrated by the 1^st named defendant and Ds’ expert’s unreasonable behaviour, I find Ds should be made to pay the costs of Ps’ Summons, such costs to be taxed if not agreed, with certificate for counsel.    

43.  In closing, I would like to make the following remarks. Conducting acoustic tests is a highly technical and specialized matter.  It is best to leave them to the experts to sort out the details regarding the methodology and practicalities involved without the participation of the lay clients.  Whenever possible, such methodology should be set out in writing and agreed by the parties’ experts and their legal representatives prior to the tests themselves.  Once they are agreed, the experts should stick to the agreed methodology.  The lay clients should not participate in the discussions save to provide practical arrangements like vacating the premises or removing the furniture and/or floor coverings as and when required by the experts.  If the experts do not agree with each other on the methods used during the tests, or if any one of them considers that the other is not following the methodology agreed, instead of getting themselves into a verbal argument (as happened in this case) or abandoning the tests (which also happened in this case), he should record this in the expert report, whether it is a single or joint report.

44.  I regret to see that in this case the experts on both sides had allowed their lay clients to take active parts on how the tests should be conducted on the date of the simulation test itself.  That is not ideal and should not have been allowed in the first place.