XCHRX LAI SAI KEE and Another v. YIM PING WAI

1997, No. A5351

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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D E C I S I O N

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1. This matter came on for hearing on Summons Day because there is an application for an interlocutory injunction. However, the Defendant has taken out an application under Order 18 r. 19 to strike out the Writ and Statement of Claim in the action on the basis that it discloses no reasonable cause of action or is frivolous or vexatious or is otherwise an abuse of the process. The Summons was not issued until the 5th June and so, of course, there was not two clear days' notice and indeed I was told the full reasons for the strike out application were not given to the Plaintiffs. But, after that was drawn to my attention, Mr. Tang, who appears for the Plaintiffs indicated, after taking instructions, that he did not wish to have an adjournment and was content to proceed to argue the matter this morning.

2. The cause of action of the two Plaintiffs is one of nuisance. They claim to be the owners of a shop and cockloft in Maple Street and Fuk Wa Street, Kowloon. The complaint is that the Defendant who is the proprietor of a licensed fixed pitch stall is carrying on business as a metal worker - he cuts, trims and sews metal bars, he solders them and paints them and colours them in different colours. He does this in a scavenging lane. It is said in para. 4 of the Statement of Claim that those actions create a great noise, spread a bad smell and produce fire, flames and sparks. In para. 3 of the Statement of Claim which is incidentally confirmed in the Plaintiffs' own affirmation, it is alleged that the Plaintiffs' premises is let out on a monthly rent and it sets out the history of those tenancies of the shop and cockloft. There is no need to set that out here.

3. The short point which has been taken by Mr. Cheung on behalf of the Defendant is that an action such as this in nuisance does not lie because the nuisance is of a temporary nature. Mr. Cheung cited the case of Jones v. Chappell 20 L.R. Equity Cases 539 and in particular the judgment of Sir George Jessel MR at page 543 where he said "The injury is a temporary nuisance because the source might be stopped and the steam engine might cease working at any moment. It is only an injury to the occupier and the landlord cannot bring an action because before his estate comes into possession, the nuisance may have ceased or the person committing it may choose to make it cease the moment the estate comes into possession".

4. As further illustration of what is regarded as a temporary nuisance as opposed to a permanent nuisance, Mr. Cheung also cited the case of Mumford v. Oxford, Worcester and Wolverhampton Railway Company (1856) 1 H&N 34 which indicates that even where the nuisance emanates from such a permanent structure as a railway shed, if it consists of matters such as hammering noises and the like, those are not regarded as of a permanent nature.

5. Mr. Tang who appears on behalf of the Plaintiffs manfully struggled with the difficulty with which he was faced and pointed out that this particular nuisance of which complaint is made has, on the Plaintiffs' allegation, lasted for at least 20 years. In those circumstances, Mr. Tang says rhetorically how can it be said that the nuisance is only temporary. The answer to that rhetorical question must, it seems to me, be this-that it is the nature of the nuisance which must be looked at. I have already recited the relevant part of para. 4 of the Statement of Claim, those are matters which could cease at any moment. Questions of noise must presumably cease at night when work stops, presumably the bad smell also does. But in any event all these matters could cease almost at a moment's notice. Since the Plaintiffs are not the persons in possession of the shop and cockloft which is the particular premises, it seems to me that their action must fail.

6. As I indicated in the course of argument to Mr. Tang the position may not be entirely hopeless if the Plaintiffs were to seek to join in the present occupiers and tenants of the premises but no application is made at present to do that.

7. There is only one further matter which must be considered and that is the allegation in para. 5 that the Defendant has unlawfully built one additional floor on top of the original stall which blocks the windows of the cockloft. Taking, as I must, that allegation at its face value (even though I am aware that the Defendant challenges the allegation of unlawfulness in relation to the additional floor), the allegation on its own it seems to me is a bad pleading because as Mr. Cheung has pointed out there is no pleading of ancient lights and in those circumstances, the Plaintiffs cannot aver that they have acquired a right to light either by grant or by prescription. In those circumstances, it seems to me that the allegations in the Statement of Claim fall to be struck out.

8. In the circumstances, having heard the counsel, I will strike out the Statement of Claim. The order for the consequential dismissal of the action is not resisted.

[SUBMISSIONS AS TO COSTS]

9. As regard costs and of course I have sympathy with both parties in this case as I understand that they are not wealthy and I also appreciate the Plaintiffs carrying on with the matter today even though they might have asked for an adjournment, but nevertheless I think the fair order would be that the Defendant should have his costs of the action. I do bear this in mind also that as I indicated on the Plaintiffs' own submissions today, I feel that there would have been enormous difficulties in applying for an interlocutory injunction on the basis that the nuisance has been going on for 20 years. In those circumstances, I feel that the costs of today, the argument having been directed in a slightly different direction, really would have fallen on the Plaintiffs in any event. So I simply make an order that the Defendant do have his costs of the action.