KAI SHING MANAGEMENT SERVICES LTD v. KAM SAU CHING

HEADNOTE

Injunction - proof of claim in the absence of defendant for purposes of costs only as the pleaded nuisance had abated.

1991, No.A3711

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiff is the manager of the Beaulieu Peninsula development in Castle Peak Road, New Territories, and the defendant is, or at least was at the material time, the owner of house 24 thereon.

2. The plaintiff was originally seeking an injunction against the defendant ordering the removal of certain dogs kept on the premises. It also sought restraint against breach of Clause 8 of the Second Schedule to the Deed of Mutual Covenant for the development. Clause 8 inter alia prohibits the keeping on the premises of any pets if they shall be the cause of reasonable complaint by two or more owners or occupiers.

3. At the hearing, the defendant failed to attend. Counsel for the plaintiff advised that he was no longer seeking the injunctions and sought to prove his case only as to costs. With this in view he called Mr. Chu Chi Keung, the estate manager of the plaintiff company.

4. Mr. Chu described his duties as including mediation in problems concerning nuisance within the estate. In the course of those duties he had received two letters complaining about the defendant's dogs creating a nuisance. As a result he wrote two letters to the defendant dated 22nd October 1990 and 28th January 1991. These two letters were as a result of the complaints, which were respectively from the owners of houses Nos. 23 and 22 on the development. These two houses were next door and next door but one to the defendant's premises.

5. In the plaintiff's letter to the defendant of 22nd October 1991, the defendant was put on terms to stop the nuisance. In the plaintiff's letter of 28th January 1991, the defendant was put on notice to remove the dogs from the development within 14 days. On receiving the complaints from the owners of houses 22 and 23, Mr. Chu said he had investigated and found the complaints justified. He also said that the defendant did nothing after his own letters to rectify the cause of the complaints. The relevant letters were produced in a bundle as Ex.P3.

6. I am satisfied from the evidence that the cause of complaints by the two neighbouring owners justified those complaints. The complaints were therefore reasonable within the terms of Clause 8 of the Second Schedule to the Deed of Mutual Covenant, and the defendant was in breach thereof.

7. The plaintiff was therefore entitled to pursue its remedy as it has done and is awarded an order for costs of suit.