ELIAS NEIL DAVID AND ANOTHER v. CHENG SUI CHU AND OTHERS

DCCJ 2148/2016

[2018] HKDC 1567

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2148 OF 2016

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JUDGMENT

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A. Background

1.  This is a dispute between neighbours involving allegations of nuisance, trespass and conversion.[1]

2.  The 2^nd defendant (“D2”) is one of the owners of a piece of land in Tai Yeung Che, Tai Po, known as Lot No 246 in DD 8 (“the defendants’ land”).  The 1^st defendant (“D1”) is his wife.  At all material times, D1 acted on behalf of D2 in relation to the defendants’ land.[2]

3.  The defendants’ land is adjacent to four village houses as shown in the agreed sketch at Appendix A.  The defendants’ land is delineated by markers A-B-O-P and the houses are numbered Houses 60 to 63 respectively on the sketch.

4.  The plaintiffs (“P1” and “P2” respectively) were the owners and occupiers of House 61 at Section B of Lot No 245 in DD 8. 

5.  By a tenancy agreement dated 27 May 2010 (“Head Lease”), the defendants let a portion of the defendants’ land to the then owner of House 60, Susan Fitzgerald (“Susan”).  The portion that was let to Susan abutted House 60 and House 61.

6.  The Head Lease contained the following express terms:

Clause 1

The Landlord lets and the Tenant takes ALL THAT Garden DD8 Lot 246 (land) Tai Yeung Che (hereinafter called “the said premises”) standing at DD8 Lot 246 (ref land survey) in The Government of the Hong Kong Special Administrative Region and registered with the Land Office as Garden … for the term of 10 years commencing from 1-1-2011 at the monthly rent of Hong Kong Dollars 2,500 exclusive of rates...

…

Clause 22

Contract is a fixed contract for 5 years from 1-1-2011 – 1-1-2016.

Clause 23

From 1-1-2016 one month notice must be given in writing by either party to cancel the contract.

7.  It is clear from the above and not disputed by the defendants at the trial that the Head Lease was for a term of 10 years commencing on 1 January 2011 at the monthly rent of $2,500.  After 1 January 2016, either party could terminate the lease by giving one month’s written notice. 

8.  At the commencement of the Head Lease, the portion of land let to Susan was uncultivated and overgrown with vegetation.  Susan cleared the vegetation and turned it into a garden.  She erected wooden fences at the perimeter of the garden at her own expense (“Susan’s fences”).  Susan’s fences are marked by felt-pen marker on Appendix A. 

B.   The plaintiffs’ case

9.  By an undated sub-lease, Susan sub-let part of her garden to the plaintiffs from 31 May 2012 for the remainder of the term of the Head Lease at the monthly rent of $1,250 (“Sub-Lease”).  The part that was sub-let to the plaintiffs abutted House 61 (“subject land”).

10.  The plaintiffs erected a wooden fence to separate his garden from Susan’s.  The fence erected by the plaintiffs (“plaintiffs’ fence”) is also marked by felt-tip marker on Appendix A.

11.  On 1January 2016, D2 and his nephew suddenly came to the subject land to erect a barbed wire fence along the boundary with House 61 to block access from the house.  They were turned away by the plaintiffs who asserted their right to use the subject land under the Sub-Lease. 

12.  Sometime between 1 and 15 January 2016, the defendants broke through Susan’s fences to scatter “hell money” (溪錢) and spread wooden planks, palm leaves, polystyrene boxes, urns and bananas on the subject land.  The situation was captured by the photographs exhibited at pp 163-165 of the Bundle.

13.  By a letter dated 19 January 2016, the plaintiffs complained to the defendants and demanded them to remove the “rubbish”.  The plaintiffs reiterated their right to use the subject land under the Sub-Lease and reminded the defendants of clause 23 of the Head Lease. 

14.  There was no response from the defendants and the plaintiffs removed the “rubbish” on 23 January 2016.  D1 then made a complaint to the police.

15.  By a letter addressed to Susan dated 25 January 2016 (“Notice”), the defendants threatened legal proceedings if vacant possession of the defendants’ land was not delivered to them by 25 February 2016. 

16.  The plaintiffs acknowledged receipt of the Notice and, by a separate letter, offered to buy the subject land at $300,000.

17.  By a letter dated 5 February 2016, the defendants rejected the offer and insisted that “[u]nless vacant possession of the captioned land is delivered before 25^th February 2016, legal proceedings will be instituted against [Susan] and you…”.

18.  By a letter dated 16 February 2016, the plaintiffs confirmed that they would handover the subject land by the deadline.  They further wrote that:

“From your behaviour this morning, when you ranted at my friends and myself, I am guessing that you would like to retain the temporary fencing which Susan and I erected around the leased area. Unfortunately, for the land at the rear of House 61, we offered the dividing fencing to the new owners of House 60 who, we are told, will be leasing the land from you, but they declined to accept. We therefore have applied the wood to a new project and need to remove the fence.

For the other fencing at the back of House 60, Susan is prepared to leave it, with your permission, as otherwise we will need to restore the land to its original condition.  Please let me know urgently if you are happy for us to leave fencing in place. Or else I will need to remove it to comply with the normal lease conditions.”

19.  There was no response from the defendants and the plaintiffs removed the remaining fences.  The plaintiffs only received the letter dated 19 February 2016 from the defendants’ solicitors after they had removed the fences. 

20.  The plaintiffs delivered vacant possession of the subject land to the defendants on 25 February 2016.

21.  After they had resumed possession of the land, the defendants committed the following acts:

(a)   On 29 February 2016, D1 ploughed up the land, demolished all the plants therein, installed a barbed wire fence on the border with House 61 and posted up signs and notices on the fence.  The situation was captured by the photographs exhibited at pp 176-177 of the Bundle.

(b)   On 2 March 2016, D1 dumped “rubbish” of old pots and broken wood on the land and placed a mirror door there to reflect sunlight and glare into House 61. The situation was captured by the photographs exhibited at pp 178-179 of the Bundle.

(c)   On 5 March 2016, D1 hanged some dead fishes on the barbed wire fence and placed some on the land covered with palm leaves.  The situation was captured by the photographs exhibited at pp 180-185 & 187-188 of the Bundle.  The dead fishes were hung right in front of House 61 and created an unpleasant sight for the plaintiffs.  The obnoxious and unpleasant smells emanated from the dead dishes also spread through the neighbourhood and to House 61 in particular.

(d)   On 12 March 2016, D1 draped a large banner at the perimeter for the plaintiffs to see.  The banner can be seen from the photograph at p 394 of the Bundle.

(e)   Between 14 and 25 March 2016, D1 frequently came to add more “rubbish” on the land.

22.  The plaintiffs made repeated complaints to the village head, the police and to the Government but to no avail.  The village head advised the plaintiffs to call the police.  The police responded that as the acts were done on private properties, they could not take any action.  Staff of the Food, Environmental and Hygiene Department (“FEHD”) only came to lay down rat poison in the surrounding government land and pinned warning notices to that effect in the vicinity.

23.  On 21 April 2016, D1 came to mix and spread “chemicals” on the subject land which gave off a sharp and noxious smell.  The plaintiffs called the police who, in turn, summoned the fire brigade.  Firemen came to investigate and located three buckets of excreta with pungent smell on the land.[3]

24.  It is the plaintiffs’ case that the defendants’ acts constituted nuisance.[4] They commenced this action on 6 May 2016 and obtained an ex parte interlocutory injunction against the defendants.

25.  On the return date of the ex parte injunction on 20 May 2016, the defendants undertook to the court (i) to remove all the dead fishes; (ii) not to deposit any substance that would emit obnoxious smell or cause nuisance on the subject land; and (iii) not to use mirrors or like substance to reflect light into House 61, and the plaintiffs did not proceed with their injunction application.

26.  The plaintiffs later sold House 61 and the defendants were discharged from their undertakings. 

27.  At the trial, the plaintiffs sought the following relief:

(a)   damages in the sum of $100,000 for the annoyance, discomfort and loss of amenity they had suffered; and

(b)   aggravated damages in the sum of $100,000.

C.   The defendants’ case

28.  The defendants challenge the validity of the Sub-Lease and deny that the plaintiffs had the right to use the subject land. 

29.  The defendants claim that the plaintiffs should be liable for wrongfully removing the fences[5] before handing possession of the subject land back to them.  It is their case that the fences belonged to them.

30.  The defendants admit the several acts alleged of them by the plaintiffs but deny dumping any “rubbish”.  They explain that:

(a)   They erected the barbed wire fence and put up the signs and notices to prevent the plaintiffs and others from trespassing.

(b)   They ploughed up the land and demolished the plants to prepare the land for farming. 

(c)   They were making “salted fish” on the land.  They hanged no more than three dried fishes at a time which had been preserved with high concentration of salt. They deny that the dried fishes gave off obnoxious or nauseating smell or constituted an unpleasant sight.

(d)   They moved the rubbish that had been left by the plaintiffs or with their permission on neighbouring land to the subject land for subsequent disposal.

(e)   They buried a few dead fishes on the subject land and covered them with mud and leaves to fertilize the land.  They deny that the dead fishes gave off any nauseating smell.

(f)   They placed a mirror door on the subject land to scare off birds and to prevent birds from damaging the crops growing or to be grown on the land.

31.  They deny using any “chemicals” on the subject land.  After they had resumed possession of the land, they placed lidded containers of “organic fertilizer” on the land.  They deny that the containers gave off any nauseating smell.  On 21 April 2016, D1 came to the land to dilute the fertilizer with water and to apply it to the land to make preparation for farming.  The defendants had stopped applying fertilizer to the land since 26 April 2016.

32.  They deny any nuisance and contend that their actions constituted reasonable use of their land.

33.  At the trial, they counterclaim for: [6]

(a)   mesne profit (at $1,250 per month) for the plaintiffs’ wrongful occupation of the subject land; and 

(b)   the cost of reinstalling the fences (at $124,665). 

D.   The trial

34.  The broad issues that require determination are:

(1)   Should the plaintiffs be liable in trespass?

(2)   Should the plaintiffs be liable for removing the fences?

(3)   Should the defendants be liable in nuisance?

(4)   If any of the above is answered in the affirmative, what is the amount of damages to be awarded?

35.  Both plaintiffs testified at the trial.  They called Susan and Dawn Chen (“Dawn”), an occupant of House 61 at the time, to give evidence.

36.  Both defendants testified.  They called D1’s nephew (黃竣瑋) and the current owner of House 60 (謝寶珠) to testify.

37.  There is no dispute over the documentary evidence.

E.   Should the plaintiffs be liable in trespass?

38.  It is the plaintiffs’ case that they were entitled to use the subject land (hence, no trespass) under the Sub-Lease.

39.  The defendants sought to challenge the validity of the Sub-Lease by two arguments:

   (i)   The subletting was in breach of the Head Lease and the Head Lease had been forfeited by the operation of clause 20 thereof.  Consequently, the plaintiffs had been in wrongful occupation since 31 May 2012.[7] (“the first alternative”)

   (ii)   There was an agreement between the defendants and Susan to terminate the Head Lease by the end of 2015.  The Sub-Lease could not survive the Head Lease and the plaintiffs had been in wrongful occupation since 1 January 2016.[8] (“the second alternative”)

40.  In his closing submissions, Mr Pang raised a third alternative.  He argued that D1 had, with Susan’s consent, served a written notice of termination through WhatsApp in March 2015 and the Head Lease had been determined on 31 January 2016. [9] Consequently, the plaintiffs had been in wrongful occupation since 1 February 2016. (“the third alternative”)

41.  The third alternative, discerned by Mr Pang from the evidence, was never pleaded.  In Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at §21, theChief Justice issued this warning:

“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”

42.  Furthermore, the third alternative was not put to Susan during cross-examination.  In the premises, the defendants may not raise a new case in closing submissions.

43.  The first alternative is premised on the forfeiture of the Head Lease when Susan sublet the subject land to the plaintiffs on 31 May 2012.

44.  However, it is clear from the evidence that the defendants had accepted rent from Susan after 31 May 2012.  As stated in para 17.098 of Woodfall on Landlord and Tenant:

“It is well settled that acceptance of rent which accrued due after the date on which the right to forfeit arose will waive the right to forfeit for any breach of which the landlord was aware on the date on which the rent fell due.”

In the premises, the defendants are taken to have waived their right to invoke clause 20 of the Head Lease to forfeit Susan’s lease by reason of the subletting.

45.  In any event, I accept Susan’s evidence that D1 had been informed of the subletting and that the defendants had raised no objection to it (see paragraph 5 of Susan’s witness statement).  Susan’s evidence is corroborated by the WhatsApp messages in evidence. 

46.  On 17 March 2015, after D1 had intimated (erroneously, see below) that the Head Lease would expire at the end of 2015, she wrote that:

“we won’t change our mind meant no further rental extension. Pls be reminded that your rental payment should be made till end of 2015. you should remind Jane [ie P2] for the same as you let her use part of your backyard.”

If the defendants did not know about or consent to the subletting, D1 would not have reminded Susan to inform the plaintiffs. 

47.  I therefore rule against the defendants on their first alternative.

48.  The second alternative should also be rejected.  According to D1, she ran into Susan in early March 2015 when Susan requested termination of the Head Lease by April 2015.  After some negotiation, she agreed with Susan that the lease would end on 31 December 2015 and Susan specifically waived the requirement for written notice of termination under the Head Lease.

49.  The defendants’ case is inconsistent with the contemporaneous evidence. On 16 March 2015, there were these WhatsApp exchanges between D1 and Susan:

Susan:   I am selling my house and the new owner wAnts [sic] to sign a contract for the garden for 5 years at same price (at 17:37)

D1:   no (at 19:58)

D1:   I need to ask my husband (at 19:59)

Susan:   Ok please confirm with me, thank you (at 19:59)

D1:   you fix contract will finish this year (at 20:00)

Susan:   Yes but we can give notice either side. I hope won’t be a problem as I have to sell house for divorce and new buyer is very nice family. I can sort contract with you if agreeable. (at 20:01)

D1:   my husband will not sign the new contract.and your fix contract will finish this year than [sic] he will get back the land (at 20:08)

Susan:   Is there any reason why? (at 20:08)

   For both parts of land incl next door at 61 (at 20:09)

D1:   ? (at 20:10)

Susan:   I pay you for outside my house and 61 (at 20:10)

D1:   the land which sign with you. (at 20:11)

   whole land behind 60+61 (at 20:11)

Susan:   Can I call you tomorrow? (at 20:12)

   You did promise would be for 10 years when in sigbed [sic] (at 20:12)

D1:   sorry (at 20:12)

   the contract you request only 5years fix (at 20:14)

Susan:   But we always said would renew for another 5 (at 20:14)

D1:   yes (at 20:14)

Susan:   Let’s chat tomorrow (at 20:14)

   I have ear infection and fever tonight, sorry (at 20:15)

D1:   renew only both agree (at 20:15)

   I need to1month notice only (at 20:17)

[image of part of the Head Lease containing clauses 22 and 23] (at 20:22)

   The contract will cancel at 1-1-2016 (at 20:23)

[image of part of Appendix A showing Houses 60 & 61] (at 20:23)

   Both 60+61 (at 20:23)

50.  It is clear from the above that:

(a)   There was no prior conversation on early termination of the Head Lease.

(b)   It was D1 who suggested that the Head Lease would “finish” at the end of 2015 (see the exchanges at 20:08). 

(c)   It is apparent that D1 had misapprehended the terms of the Head Lease.  First, she thought that the lease was for a fixed term of 5 years (see her message at 20:14) and would expire at the end of 2015 (see her messages at 20:08 & 20:23). Secondly, she thought that clause 23 provided for an option to renew the Head Lease (as opposed to early termination) by one-month notice (see her messages at 20:15 & 20:17).  Hence, she sent a further message to Susan on the next day to reiterate that the defendants “won’t change our mind” and there would be “no further rental extension” (see WhatsApp message dated 17 March 2015 quoted above).

(d)   Susan was relying on (instead of waiving) the requirement of written notice to terminate the Head Lease (see her message at 20:01).

51.  D1 suggested in her evidence that the payment of 8 months’ rent (up to the end of 2015) in one go by Susan is evidence of the alleged agreement.  I do not agree.  Susan’s action was prompted by D1’s message dated 17 March 2015 (quoted above).  Reading that message in the context of the exchanges on the previous day, it is clear that D1 was then under the aforesaid misapprehension.  Susan’s action was not referable to any agreement to terminate the Head Lease early.

52.  Furthermore, in the Notice dated 25 January 2016 by which the defendants demanded the plaintiffs to vacate the subject land, D1 wrote: “… the Premises was let to [Susan] for a term of five years expiring on 31^st December 2015.  I am further instructed that notwithstanding the tenancy of the Premises has already been expired on 31^st December 2015, you have [failed] and/or [refused] to deliver vacant possession of the Premises…”.  There was no mentioning of any agreement to terminate the Head Lease early.

53.  The defendants have failed to destroy the validity of the Sub-Lease based on which the plaintiffs had possessed the subject land.

54.  The Head Lease was only terminated by means of the Notice and the plaintiffs duly delivered vacant possession of the subject land to the defendants by the deadline imposed by the defendants.  There was no trespass.

55.  The defendants’ counterclaim based on trespass is therefore dismissed.

F.   Should the plaintiffs be liable for removing the fences?

56.  There is no dispute that the fences were paid for by Susan and the plaintiffs respectively.  The fact that the fences were installed with the defendants’ permission (see para 16 of the D&CC) did not confer ownership on the defendants.

57.  The defendants nonetheless argue that the fences belonged to them by the following arguments:

(a)   There was an oral agreement with Susan in about March 2015 that Susan would leave the fences (and plants) behind when she vacated the premises at the end of her tenancy.[10]

(b)   Under clause 15 of the Head Lease, Susan should yield up the land together with all fixtures and fittings (including the fences) at the end of her tenancy.[11]

58.  Argument (a) is premised on a personal contract made between Susan and the defendants.  I agree with Mr Yip that since the plaintiffs were not privy to that contract, the defendants have no cause of action against the plaintiffs on it.

59.  In any event, I find against the defendants on the existence of such a contract.  According to D1, the alleged contract was part and parcel of her arrangement with Susan on the early termination of the Head Lease at Susan’s request (see paras 11-18 & 41-43 of D1’s witness statement).   As I have rejected the defendants’ primary case that Susan had requested early termination, I refuse to accept their case on the existence of an agreement in relation to the fences.  This is all the more so as their allegation is:

(a)   denied by Susan (see paragraph 8 of her witness statement);

(b)   not supported by the contemporaneous WhatsApp exchanges between Susan and D1; and

(c)   contradicted by the Notice and the letter dated 5 February 2016 whereby the defendants demanded “vacant possession” of the land.

60.  In relation to argument (b), the relevant law is as stated in paras 13.140-13.141 of Woodfall on Landlord and Tenant:

“… Those fixtures which a limited owner is entitled to remove are generally called ‘tenant’s fixtures’ and those which he may not remove are generally called ‘landlord’s fixtures.’…

A tenant’s fixture is a chattel which is:

(a) annexed by a tenant to the land;

(b) is so annexed either for the purposes of his trade or for mere ornament and convenience; and

(c) physically capable of removal without causing substantial damage to the land and without losing its essential utility as a result of the removal.

… In the other cases mentioned above the tenant may remove tenant’s fixtures, but this right may be excluded either by the express terms of the lease or, in some cases, by a custom of the country to the contrary.”

61.  In my view, the fences installed by Susan and the plaintiffs at their own expenses are “tenant’s fixtures”. The fences were annexed to the land by Susan or with her permission to delineate the boundary and to enhance the aesthetic appearance of the gardens. The plaintiffs had removed the fences without causing damage to the land as there was no corresponding complaint from the defendants.

62.  In his closing submissions, Mr Pang argued that clause 15 of the Head Lease had the effect of excluding Susan’s right to remove tenant’s fixtures.  I do not agree.

63.  Whether the tenant’s right to remove tenant’s fixtures has been excluded depends on the construction of the particular covenant in question.  If a landlord wishes to do so, he must say so in plain language.  If the language used leaves matters doubtful, the ordinary right of the tenant to remove tenant’s fixtures will not be affected.  See Woodfall on Landlord and Tenant, para 13.153.

64.  In the present case, clause 15 provided that:

“The Tenant shall yield up the said premises and all additions thereto and all fittings and fixtures therein including the fixtures hereto and other Landlord’s fixtures subsequently added in tenantable repair and condition (fair wear and tear and accidents by fire excepted) at the expiration or sooner determination of the tenancy.”

65.  In my view, there was nothing to exclude Susan’s right to remove tenant’s fixtures.  To the contrary, the requirement that Susan should yield up all fittings and fixtures including “the fixtures hereto” (meaning the fixtures that existed at the commencement of the lease) and “other Landlord’s fixtures subsequently added” (without mentioning any tenant’s fixtures) suggests that the tenant’s right to remove tenant’s fixtures is preserved.

66.  Thus, the defendants have not established any right over the fences. 

67.  A person has title to sue for conversion if and only if he had, at the time of the conversion, either actual possession or the immediate right to possess the property concerned: see para 17-43 of Clerk & Lindsell on Torts. 

68.  When the plaintiffs removed the fences, the defendants did not have actual possession of the fences.  By the foregoing analysis, the defendants did not have any immediate right to possess the fences either.  In the premises, they have no right to claim for reinstatement of the fences and their counterclaim is dismissed.

G.   Should the defendants be liable in nuisance?

69.  Mr Pang took a pleading point in his closing submissions.  He submitted that the plaintiffs should not be entitled to base their claim on any acts done by the defendants prior to March 2016, as the plaintiffs have only pleaded acts of nuisance “[f]rom early March” in paragraph 9 of the ASOC.[12]

70.  In reply, Mr Yip specifically conceded the complaint in relation to the installation of the barbed wire fence which happened on 29 February 2016. 

71.  In my view, given the concession the plaintiffs should also have foregone their complaints in relation to the defendants’ acts in ploughing up the land, demolishing the plants and posting up signs and notices as they were done on 29 February 2016 (see paragraph 16 of P1’s witness statement).

72.  Be that as it may, the following complaints remain:

(a)   dumping “rubbish” on the land;

(b)   placing a large mirror door on the land;

(c)   hanging dead fishes on the fences and placing some on the land; and

(d)   mixing and spreading “chemicals” on the land.

73.  Mr Yip argued the defendants’ liability in nuisance on two different bases:

(i)   He invited me to find that the defendants had acted with an intent to annoy the plaintiffs and submitted, with reference to para 20-17 of Clerk & Lindsell on Torts,that acts done with the intention of annoying a neighbour and actually causing annoyance will be a nuisance.

(ii)   The defendants’ acts of (b), (c) and (d) had caused real interference with the comfort or convenience of the plaintiffs’ living according to the standards of the average man.

74.  Mr Yip’s submission in (i) prompted an interesting argument during closing submissions and I invited both counsel to submit fully by means of supplemental submissions.  I am grateful for their further thoughts.

G1.   Acts done with an intention to annoy

75.  In his final analysis, Mr Yip categorised the defendants’ acts of (i) dumping rubbish, (ii) hanging up signs and notices and (iii) ploughing up the land as “sight’ nuisance.  He submitted that: “in the case of sight (as contrary to other categories of nuisance, such as noise, smell, etc), it is only when the acts were done with an intention to annoy and causing serious interference with the plaintiff’s enjoyment of the land, then such acts would constitute actionable nuisance.” (with Mr Yip’s emphasis). 

76.  He argued that an intention to annoy the plaintiffs should be apparent from the following considerations:

(a)   The digging up of the land and destruction of the grassland served no useful purpose other than to annoy the plaintiffs by creating an unpleasant sight at the back of their house.

(b)   The dead fishes were deliberately hung higher and close to House 61 so that they could be clearly seen by the plaintiffs.

(c)   The dumping of rubbish between 14 to 25 March 2016 was clearly done with the intention to annoy the plaintiffs.  The rubbish was clearly not conducive to farming.

(d)   The plaintiffs were aware that the defendants would not further let the subject land to them.  The signs and notices on the barbed wire fence and the banner served no useful purpose other than to annoy the plaintiffs.

(e)   The defendants placed three buckets of excreta with pungent smell and spread some on the subject land on 21 April 2016 to annoy the plaintiffs.

77.  On the other hand, Mr Pang submitted that:

(a)   The starting point is that generally in the law of torts, malice or bad motive per se will not turn an otherwise lawful act into an unlawful one. He referred to para 1-59 of Clerk & Lindsell on Torts and the House of Lords decisions of Bradford v Pickles [1895] AC 587 and Allen v Flood [1898] AC 1.

(b)   In Bradford v Pickles, the House of Lords was dealing with the defendant’s “unqualified” right to divert and appropriate water on his own land.  Cases such as Christie v Davey [1893] 1 Ch 316 and Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 were dealing with “qualified” right of the defendant to do what he pleased on his land.

(c)   Based on such distinction, “acts under the qualified right category are subject to the test of reasonableness, and because of this, motive becomes relevant”.  On the other hand, “if an alleged act was within the defendant’s unqualified right, it was lawful even if the defendant carried it out with malice”.

(d)   As the defendants in this case were exercising their “unqualified” right to use their land, malice or bad motive per se will not turn their acts into unlawful ones.

78.  I do not think I need to be drawn into their argument.  According to Mr Pang, the defendants’ intention is simply irrelevant.  On the other hand, according to Mr Yip’s formulation, the plaintiffs will still have to prove that (i), (ii) and (iii) had caused serious interference to the plaintiffs.  I do not think the plaintiffs have succeeded in proving that.

79.  In terms of (i), it is P1’s evidence that D1 dumped “rubbish” of old pots and broken wood on the subject land on 2 March 2016 and then added more “rubbish” between 14 and 25 March 2016.  The state of the land as at 25 March 2016 (ie after the acts complained of) was captured by the photographs at pp 183-185 of the Bundle.  When one compares these photographs with the photographs at pp 176-177 of the Bundle taken on 29 February 2016 (ie before the acts complained of), one does not see much difference in terms of the state of the land.   It is not the plaintiffs’ case that the “rubbish” was smelly.

80.  In terms of (ii), the defendants were merely asserting their ownership over their land by putting up signs and notices to warn against trespassers. It cannot be said that the plaintiffs’ occupation and enjoyment of their house was thereby affected.

81.  There is a background to the defendants’ action.  There is in evidence some advertisements published in November 2015 for the sale of what appeared to be the plaintiffs’ house.[13] Whilst the plaintiffs denied placing the advertisements themselves, they confirmed that they had engaged a property agent to sell their house at that time and the advertisements did feature their house.  The advertisements highlighted a 2,000 odd square feet garden.  Faced with such advertisements, it would be reasonable for the defendants to take reasonable action to protect their interest, such as by putting up signs and notices on their own land to assert their ownership.  It cannot be said that the plaintiffs’ use and occupation of their house was thereby affected.

82.  In terms of (iii), the defendants were entitled to till their land after resuming possession of it.  It was certainly heart-wrenching for the plaintiffs to see their garden destroyed, but the defendants’ act did not, in my view, create any real interference to the plaintiffs in terms of their occupation and enjoyment of House 61 let alone substantial interference. 

83.  I therefore rule against the plaintiffs on their claim based on an intention to annoy. 

84.  In the ensuing paragraphs, I shall consider the alternative basis of liability argued by the plaintiffs, ie nuisance.

G2.   What is nuisance?

85.  Both counsel have cited Clerk & Lindsell on Torts on the general law. The relevant principles may be summarized as follows:[14]

(a)   We are presently concerned with private nuisance, which, for present purposes, may be defined as “an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of … his ownership or occupation of land … or other right used or enjoyed in connection with land”.

(b)   In an organized society like Hong Kong, the law recognises that “everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours”.  Thus, ordinary domestic use of premises could not constitute a nuisance even though interference with the enjoyment of neighbouring premises is caused.

(c)   “The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.”  There is no absolute standard to be applied and it is always “a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance”.

(d)   In deciding whether an interference could amount to an actionable nuisance, the courts have to “strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property”.

(e)   No precise or universal formula is possible, but a useful test is: What is reasonable according to ordinary usages of mankind living in a particular society.  In the words of Oliver J in Stone v Bolton [1949] 1 All ER 237 at 238-239: “Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.”

G3.   The mirror door

86.  Mr Yip cited the New Zealand case of Bank of New Zealand v Duncan Cotterill & Co[15] in argument.  In that case, the glass roofing panels installed by the defendants on their verandah reflected sunlight into the windows of the two buildings across the road occupied by the plaintiffs.  The plaintiffs (including a bank and a firm of solicitors) sued the defendants in nuisance.  The High Court of New Zealand accepted the general evidence (at p 3 of the judgment) that: “… on a sunny day the verandah throws off a dazzling glare that is too intense for the naked eye to bear; and those subjected to it cannot reasonably be expected to tolerate.  People are momentarily blinded by it, have to shield their eyes from it, cannot look out the windows at it, need to sit with their backs to it.  Sometimes they get headaches.  It is a continuing cause of irritation and complaint, not only to those working there but also to the plaintiffs’ customers and clients.”

87.  The Court rejected the defence that the defendants were doing no more than making ordinary and reasonable use of their land and found (at p 16) that: “It is not a normal or a reasonable consequence of the construction of a verandah for a dazzling glare to be reflected into premises opposite, and so create a nuisance there.” 

88.  The Court considered the circumstances of each plaintiff separately as (at p 4) “various plaintiffs are affected to different degrees; and also in different ways, according to the interior layout of the premises.”  The Court held that the plaintiff bank had made out their case on nuisance as there was a substantial and unacceptable interference with the enjoyment of their premises (at pp 13-14 & 18).

89.  In respect of the plaintiff solicitors, however, the Court found (at pp 4-5) that “the glare is apparent only in and on entry into the rooms with windows looking out onto Hereford Street … [and their] windows are, with one exception, fitted with venetian blinds, but these need to be closed completely to keep the glare out, for it appears to be much more penetrating than sunlight.”  The Court reasoned (at p 14) that: “Whilst it may be awkward, I do not think it unreasonable for persons in offices fitted with venetian blinds to have to close these when necessary to keep out the glare, or even to keep them closed while the likelihood of glare persists.  It is a perfectly normal thing for people to have to do.  It is part of what venetian blinds are designed for…  No doubt when the blinds are closed completely the rooms are darkened, but the interior lights are on all day, and I do not see that as a serious imposition in all the circumstances.  I was told that even when the blinds are closed completely the glare may penetrate at the edges, but that seems to me a relatively minor matter.  I exclude from consideration the one room in which there are no blinds, for that is the result of deliberate choice.  I accordingly agree with Mr Sissons [for the defendants] in relation to [the plaintiff solicitors] and hold that it has not established the basic premise on which its action depends.”  

90.  In the present case, the defendants admitted that D1 had (with the help of others) placed a mirror door on the land.  I find their excuse of using its reflective surface to “scare off or prevent birds from damaging the crops growing or to be grown” incredible.  D1 brought in the mirror door in early March 2016.  At that time, she had just churned up the soil to enable the insecticide once placed by Susan to be drained and washed away.  She had not yet sown and there was no cause for her to worry that the birds might destroy her crops.

91.  On the other hand, I accept the plaintiffs’ evidence (which is confirmed by the photograph at p 178 of the Bundle) that D1 had positioned the mirror door to reflect sunlight into the plaintiffs’ house.  Be that as it may, it is not clear how the plaintiffs (or any occupants of their house) were affected. 

92.  The side of the plaintiffs’ house being affected overlooked an open field.  It was not as if sunlight was diverted by the mirror door to shine upon a part of their house that would normally be shaded from the sun and the inhabitants were thereby affected.  According to P1, sunlight was reflected by the mirror door into their house for a couple of hours in most afternoons between March and May 2016 and the study room was particularly affected. During that period, P1 had a busy overseas travel itinerary and P2 was mostly engaged in her teaching duties at the university.  And their house was fitted with curtains and the plaintiffs did use the curtain to block out the sunlight if necessary.  There is no clear evidence as to how they were affected.

93.  The plaintiffs have not satisfied me that the mirror door placed by the defendants had caused real (let alone sufficiently serious) interference with their occupation and enjoyment of House 61.

G4.   The dead fishes

94.  According to the plaintiffs, D1 came to the land on 5 March 2016 and hanged 5 to 6 dead fishes on the fence abutting House 61.  The dead fishes created an unpleasant sight for the plaintiffs.  D1 also placed some more dead fishes on the land and covered them with palm leaves.  Obnoxious and unpleasant smell emanated from the dead fishes spread through the neighbourhood and their house. 

95.  As the dead fishes began to rot, the smell got stronger and stronger. The obnoxious smell caused both P1 and P2 to feel nauseous.  They suffered irritation of their eyes, nose and throat and loss of appetite.  They had to keep their windows and French doors shut at all times and could not turn on their air-conditioner to mitigate the smell, but the unpleasant smell still permeated the house.  The smell also prevented their domestic helper from staying in his quarter.  By April 2016, parts of the rotten fishes had dropped to the ground attracting various insects and vermin to the vicinity of their house.

96.  They made repeated complaints to the police and the Government but to no avail. 

97.  The defendants admit hanging dead fishes on the fence and burying some in the ground.[16] They however, dispute:

(a)   the number of dead fishes hanged;

(b)   the purpose for hanging the dead fishes; and

(c)   whether there was any obnoxious smell.

98.  There were “5-6 fishes” according to the plaintiffs’ evidence in court, but the defendants claim to have hung “no more than 3 fishes at a time”.  Both claims are approximation.  I do not consider the dispute over the number of fishes material.  The plaintiffs are suing the defendants in nuisance and, as far as that goes, the focus is on the degree of interference caused by the dead fishes (hanged and buried).  Whether there were in fact 5 to 6 dead fishes or no more than 3 dead fishes being hanged at a time on the fence is, in my view, immaterial.

99.  I reject the defendants’ case that D1 was making salted fish on the balance of probability.  There is a ring of artificiality in D1’s testimony:

(a)   The timing of D1 making salted fish coincided with her dispute with the plaintiffs. 

(b)   Despite the claim in her witness statement that she was making salted fishes for commercial purposes, she said in court that the salted fishes were for her own consumption.  However, that does not sit well with her evidence that she was very health conscious and careful with what she eats (see paragraphs 59-60 of her witness statement). When confronted, she excused that she could not help craving for salted fish and so she had made her own. 

(c)   According to her evidence, the defendants’ land was not visible from where the defendants live and she hardly visited the land.  Yet she elected to make salted fish for her own consumption in a place where she had minimal control.  By then, her dispute with the plaintiffs had erupted.  I do not believe someone as health-conscious as D1 would have chosen to make salted fish for her own consumption at the doorstep of her adversary.

100.  On the contrary, I find that D1 hanged the dead fishes to annoy the plaintiffs. 

(a)   Prior to that, the defendants had scattered “hell money” on the land (see the photograph at page 164 of the Bundle).  The silly act was clearly done to annoy the plaintiffs.

(b)   D1 hanged the dead fishes literally to the plaintiffs’ face (see the photograph at page 187 of the Bundle).  Her excuse that she could not have hung the fishes somewhere else as the soil elsewhere was too loose to hold the poles for the fishes rings hollow.  It can be seen from the photograph at pages 396 and 398 of the Bundle that she had erected poles elsewhere to hang signs and notices.

(c)   The dead fishes were hung amidst signs and notices asserting the defendants’ ownership of their land (see the photograph at pages 180, 181 & 183 of the Bundle).

101.  I also reject the defendants’ case that the dead fishes did not give off obnoxious smell.  D1’s denial (of smell) must be viewed against her evidence that she visited the defendants’ land infrequently.  The fact that the new owner of House 60 did not perceive any obnoxious smell from the dead fishes (see paragraph 11.3 of her witness statement at p 149 of the Bundle) is also neither here nor there, as she only attended her house over the weekends.

102.  On the other hand, the plaintiffs’ complaint is corroborated by the WhatsApp exchanges between P2 and the village head (Mr Wong):

3/5/16   12:10 PM – Jane Lockwood: <Media omitted>[17].

3/5/16  12:43 PM – Mr Wong: Come on. What kind of person. I can not imaging [imagine].

3/6/16  12:55 PM – Jane Lockwood: She had also buried them under banana tree leaves in the garden. There are flies, bad smells

103.  It is the plaintiffs’ evidence that the smell from the dead fishes had died down by early April 2016.  However, Dawn, an occupier of their house, claimed that the dead fishes were still producing bad and obnoxious smell in mid-April.  In my view, their evidence do not necessarily contradict each other as their perception of the interference may be different.  In any event, the Environmental Protection Department (“EPD”) conducted inspection on 6, 13, 19 and 26 April and 10 May 2016 and confirmed that there was “no air nuisance” (see EPD’s letter dated 16 June 2016 at p 464 of the Bundle).  I accept the plaintiffs’ evidence that the smell had died down by early April 2016.

104.  All in all, I find that the dead fishes admittedly hung by the defendants did produce an unpleasant sight and give off an obnoxious smell that substantially interfered with the plaintiffs’ enjoyment of House 61 for about a month (from 5 March to early April 2016).

G5.   “Chemicals”?

105.  It is the plaintiffs’ case that the defendants left large urns of “unknown chemical” on the subject land.  On 21 April 2016, the defendants mixed the chemicals in the urns which produced an obnoxious smell.

106.  The defendants deny using any chemicals on the land.  They however admit placing “lidded containers” of “fertilizer” on the subject land (see para 33.6 of the D&CC) and “diluting the fertilizer with water” on the land on 21 April 2016 (see para 48 of the D&CC).

107.  According to P2, the defendants’ action on 21 April 2016 caused her eyes to water and throat to constrict.  Dawn also picked up a sharp and noxious smell when she returned to the house that evening and she had difficulty breathing.

108.  I accept the plaintiffs’ case that the substance brought onto the subject land by the defendants did give off an obnoxious smell:

(a)   According to D1, the defendants used fish guts to make “fertilizer” on the land.  The process would generate an obnoxious smell although the defendants had tried to contain the smell by using lidded containers.

(b)   According to the Incident Report, the firemen attended the scene to investigate “suspected leakage of chemical substance” and located three buckets of excreta “with pungent smell emitted”.  The firemen wore breathing apparatus (see the photograph at p 194 of the Bundle). 

(c)   The incident also prompted enquiries from the village head (Mr Wong) and a concerned neighbour (Becky) as per their respective WhatsApp exchanges with P2:

“WhatsApp exchanges between Mr Wong and P2.

4/21/16 10:24 PM – Mr Wong: Hi, Jane, Fireman is asking your house number. Are you all right? Hope there is nothing wrong.

4/22/16 9:00 AM – Jane Lockwood: Chu and husband have come into the garden with what we thought was some kind of noxious chemical and causing dreadful smells. Turns out to be excrement that they have spread over the whole area. This is really awful. Can’t bring people over to the house tight [right] now. …very upsetting.

4/22/16 9:42 AM – Mr Wong: sorry to hear this.

WhatsApp exchanges between Becky and P2

4/22/16 9:05 AM – Jane Lockwood: Hi Becky, just to let you know that the noxious smell caused by buckets of stuff brought into our garden yesterday turns out to be excrement. Fire brigade confirmed this. Not dangerous it would seem but where does she stop?take care.

4/22/16 10:38 AM – Jane Lockwood: Maybe fertilizer

4/22/16 11:15 AM – Becky: Did you take legal action yet?

…

4/22/16  11:33 AM – Becky: Jane I am really afraid chu will do the same way in my backyard”

109.  In his closing submissions, Mr Pang suggested that “the lids were opened by the firemen or someone other than Ds.”  The submission is not consistent with the defendants’ admission that “the 1^st Defendant was … diluting the fertilizer with water” on the land on that day.  There is no evidence that someone else had mingling with the substance.  As said before, the fire brigade came to investigate “suspected leakage of chemical substance”.  That suggests the presence of a pungent smell before the fire brigade arrived.

110.  I therefore accept that the defendants had placed three buckets of substance at the back of the plaintiffs’ house and applied the substance to the land. The substance gave off an obnoxious smell that caused irritation to P2 and Dawn.

111.  According to the EPD letter, there was “no air nuisance” on 26 April and 10 May 2016 when they conducted inspection.  As such, the period of interference was at most a few days.

G6.   Conclusion

112.  All in all, I accept that the defendants had committed the following acts of nuisance:

(a)   The defendants hanged a few dead fishes at the back of the plaintiffs’ house and buried some on the subject land on 5 March 2016.  The dead fishes presented an unpleasant sight for the plaintiffs and produced an obnoxious smell which substantially interfered with the plaintiffs’ use and enjoyment of their house for about a month.

(b)   The defendants placed three buckets of excreta on the subject land and applied some to the land on 21 April 2016 that gave off an obnoxious smell which substantially interfered with the plaintiffs’ use and enjoyment of their house for a few days.

H.   Measure of damages

113.  It is not the plaintiffs’ case that they have suffered any tangible loss. They claim:

(a)   damages for the annoyance, discomfort and loss of amenity they suffered in the sum of $100,000; and

(b)   aggravated damages in the sum of $100,000.

114.  In cases involving interference with amenity and enjoyment of property, the court must place a value on the intangible loss.  The approach was explained by Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] AC 655 at 706B-F as follows:

“In the case of nuisances productive of sensible personal discomfort, the action is not for causing discomfort to the person but … for causing injury to the land. True it is that the land has not suffered sensible injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.

… It seems that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not.  In the case of a transitory nuisance, the capital value of the property will seldom be reduced.  But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted.  To some extent this involves placing a value upon intangibles.  But estates agents do this all the time.  The law of damages is sufficiently flexible to be able to do justice in such a case.”

115.  The above principles have been applied in Hong Kong.[18] Our Court of Appeal has added that there is no scientific way of translating inconvenience and discomfort into a sum of money and so the measure of damages has to be a conventional sum.[19]  It is ultimately a question of evidence.[20]

116.  Mr Yip cited two authorities in argument:

(a)   Leung Wai Kee v Tam Yuet Sheung (unreported) DCCJ 5716/2007, 10 July 2012 is a water leakage case. The plaintiffs were awarded $25,000 for the discomfort and inconvenience caused by the defendants’ wrongful act over a 2-month period of water leakage and repair work.

(b)   In Hu Wei Hsin v Ma Hung Wing (unreported) DCCJ 273/2011, 3 June 2011, the defendants were found liable in nuisance for burning incenses in the common area of a multi-storey building for about 9 months.  The plaintiff was awarded $75,000 as damages for distress and inconvenience.

He submitted that the defendants had committed a wide range of actionable nuisance over a period of 3 months between February to May 2016 and the appropriate quantum lay closer to Hu Wei Hsin.

117.  Mr Pang did not submit on the question of quantum.

118.  In my view, the plaintiff’s reliance on Hu Wei Hsin is misplaced.  The award in Hu Wei Hsin is premised on the special circumstances of that case.  In that case, the learned Judge explained (at para 53) that:

“I have taken into account the special features in this case, including the psychological stress caused to the Plaintiff by the Defendants’ nuisance and hostile behaviour during the difficult time of her pregnancy. Had there been no such special features in the case, I am of the view that the quantum of damages should be much less.”

119.  In the present case, the unsightly dead fishes and the pungent smell from the dead fishes and the excreta had substantially interfered with the plaintiffs’ use and enjoyment of their house.  The plaintiffs had been affected for about one odd month in total.  I accept that the smell was particularly intense and irritating as confirmed by the evidence.  I award the plaintiffs $40,000 as damages in the circumstances of this case.

120.  The plaintiffs also claim aggravated damages. Such a head of damages was not expressly claimed in the ASOC and Mr Yip only raised it for the first time in his closing submissions.

121.  In the UK, rule 16.4 of the Civil Procedure Rules stipulates that if a claimant is seeking aggravated damages, he must include a statement to that effect as well as his grounds for claiming them in the Particulars of Claim.  However, there is no such requirement in our Rules of the District Court.  That has prompted Mr Yip to submit, in response to my query, that the plaintiffs need not plead such a claim.  I do not quite agree.

122.  According to para 18/12/10 of Hong Kong Civil Procedure 2018, the practice is that:

“Where the plaintiff claims that he has suffered damage, ie injury, of a kind which is not the necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extent of the damages, ie the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so as to fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into court, and the mere statement or prayer that he claims “damages” will not support a claim for such damages…

The facts relied on to support a claim for aggravated damages should be pleaded, see Rookes v Barnard [1964] AC 1129.”

So, although there is no specific requirement to plead a claim for aggravated damages the facts relied in support of such a claim must still be pleaded.

123.  In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299, Ribeiro PJ explained the basis of an award for aggravated damages (in the context of a defamation action) as follows:

“112. Aggravated damages are part of the compensatory award and may be granted to ‘compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.’ (Per Sir Thomas Bingham MR in John v MGN Ltd [1997] QB 586 at 607-608)

113. In McCarey v Associated Newspapers (No 2) [1965] 2 QB 86 at 104, Pearson LJ gave as examples of such aggravating conduct:

‘... any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff's pride and self-confidence...’.”

…

126. As we have seen, the aim of aggravated damages is to compensate for increased injury to feelings caused by the defendant’s post-publication conduct…

…

128. … It is of course well-established that for the purposes of constituting the cause of action in defamation, some damage is presumed in favour of the plaintiff of whom defamatory words have been published.  But there is no basis for presuming that a plaintiff has suffered aggravated mental pain and suffering in any particular case.  That must be a matter of evidence, depending on the circumstances, such as the robustness or vulnerabilities of the plaintiffs in question…

129. Without any evidence regarding injury to CK Ma’s feelings, his claim for aggravated damages cannot succeed…”

124.  In the present case, despite the pleading in paragraph 17 of the ASOC that “[t]he continued effects have caused and cause the Plaintiffs stress and distress, anxiety and worry”, no evidence was led in that regard at the trial. Thus, there is no evidence (and there is no basis for presuming) that the plaintiffs have suffered any additional injury to their feelings as a result of the defendants’ acts of nuisance.  There is no evidential basis to make an award for aggravated damages.

I.   Disposition

125.  By reason of the above, I find the defendants liable to the plaintiffs in nuisance.  I order the defendants to pay the plaintiffs damages in the sum of $40,000.

126.  The plaintiffs have prayed for interest in their ASOC but the point was not argued by either counsel.  In McGregor on Damages, it is said that apart from the case of Dobson v Thames Water Utilities Ltd [2012] EWHC 986 (TCC) the courts have not awarded interest on the non-pecuniary loss element in torts generally outside the field of personal injury and wrongful death, and the better solution is to award no interest at all.[21] I direct that if the plaintiffs would like to seek pre-judgment interest on the $40,000 awarded to them, they should lodge in and serve written submissions within 14 days from the date of this judgment, setting out the basis of claim, the interest rate claimed and the period for which interest should accrue.  The defendants are at liberty to lodge in and serve their written submissions in reply within 14 days thereafter.  Unless otherwise directed, the issue will be determined on paper without an oral hearing.  If I do not hear from the plaintiffs, they will be taken to have waived their claim on pre-judgment interest.

127.  The counterclaim is dismissed.

128.  Costs normally follow the event.  I make an order nisi that the costs of this action (including the costs of the counterclaim and all reserved costs) be to the plaintiffs with certificate for counsel, to be taxed if not agreed.

Appendix A

Agreed Sketch