SOUTHERN EVER TRADING LTD v. THE INCORPORATED OWNERS OF JOY GARDEN

CACV322/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 322 OF 2003

(ON APPEAL FROM LDBM NO. 8 OF 2003)

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JUDGMENT

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Hon. Woo V-P:

1. I agree with the judgment of Yuen JA and the order nisi for costs she proposes.

Hon Yuen J.A.:

2. This is an appeal from a decision of H.H. Judge Chow (sitting in the Lands Tribunal) dismissing the Respondent's application to strike out the Application on the grounds that it disclosed no reasonable cause of action, or was frivolous, vexatious or an abuse of the process of the court.

Background

3. The background facts are as follows. The Applicant ("the Owner") owns a flat, occupied by its directors Mr and Mrs Chan, on the 6th floor of a building served by a lift. The building was built in 1975 and the lift has been in use since that time.

4. The Respondent ("the IO") is the owners incorporation of the building and is responsible under s.18(1)(a) Building Management Ordinance, Cap. 344 ("BMO") for the maintenance of the common parts and property of the corporation. The actual management work is undertaken by a professional building management company. The lift has been maintained by Otis Elevator Co (HK) Ltd.

5. For some time prior to the commencement of proceedings, the Owner has been complaining about the noise generated by the operation of the lift. The lift machine room is located above the Owner's premises. The noise is said to be such that Mr and Mrs Chan have been losing sleep and Mrs Chan has required medical attention for a mental disorder.

6. In early 2001, further to a complaint made by the Owner to the Environmental Protection Department ("EPD"), the EPD carried out a site investigation. The EPD found that the noise emitted from the lift, 53 dB(A), exceeded the night time noise limit of 45 dB(A) by 8 dB(A).

7. The IO referred the matter to Otis. According to Otis, the noise was not caused by abnormal operation or improper maintenance of the lift itself. Inspection of the lift by the Electrical and Mechanical Services Department showed no breach of safety regulations. Otis suggested that the noise could be due to the architectural design of the building. Nevertheless, some improvement work was done on the lift with a view to reducing the noise.

8. Subsequent soundings between August 2001 and July 2002 showed that the noise from the lift did not exceed the relevant noise limit. However Mr and Mrs Chan continued to be disturbed by the noise and persisted with their complaints to the IO, culminating in a letter before action from the Owner's solicitors.

9. This was addressed in August 2002 at an EGM of the IO at which various proposals were put forward to deal with the complaint. As a result, certain noise insulation works were undertaken.

10. Despite these works, a noise survey conducted by the Owner's expert noise consultants in late October 2002 indicated that the Corrected Noise Level received within the Owner's premises exceeded the night-time noise limit by 4 dB(A) to 9 dB(A). The consultants took the view that this was because the lift traction machine was not properly "vibration isolated" from the structure of the building.

11. In March 2003, an expert in lift systems engaged by the Owner confirmed that isolation pads should be used to reduce the transmission of vibration from the machine to the bedplate of the lift.

Proceedings

12. In January 2003, these proceedings were instituted in the Lands Tribunal. The jurisdiction of the Tribunal to hear (at least part of) these proceedings has been challenged: this issue will be discussed later in this judgment.

Amended Particulars of Claim

13. The Amended Particulars of Claim filed in May 2003 pleaded, first that pursuant to s.18(1)(a) BMO, the IO was under a duty to maintain the lift "in a state of good and serviceable repair and clean condition".

14. Further, under s.18(1)(c), the IO was under a duty to "do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant ("DMC") for the control, management and administration of the building". The First Schedule to the DMC contained various easements, rights, privileges and obligations of the owners.

15. It was pleaded that "the [IO], wrongfully and in breach of s.18 of the BMO and the terms of the DMC, having failed to maintain the said lift, had allowed the same to create excessive and continuous noise". The noise level readings by the EPD and by the Owner's expert noise consultant were pleaded as particulars of the breach of the BMO.

16. Paragraph 7 went on to plead that by reason of the above matters, Mr and Mrs Chan have been caused "nuisance and annoyance". The loss and damage allegedly suffered by the Owner are said to be "loss of the right to enjoy the premises which should be free from vibration and excessive noise from the said lift".

17. Paragraph 8 then pleaded that "unless restrained by this Court, the [IO] will continue to allow the excessive noise to come out from the said lift".

18. The relief sought was in effect, a mandatory injunction, "an order that the [IO] do forthwith take out remedial work to reduce the noise created by the said lift below the ANL [Acceptable Noise Levels] and to install proper insulator against the vibration caused by the said lift".

Strike out application

19. The IO sought to strike out the Application on the grounds that it disclosed no reasonable cause of action, or was frivolous, vexatious or an abuse of the process of the court. Both parties filed evidence, the Owner to the effect that its complaints about the noise from the lift was supported by expert evidence, and the IO, as to the measures it has taken to reduce the noise.

20. For reasons set out in his written decision, the judge found that this was not a suitable case for a strike-out.

Appeal

21. The IO appealed against this decision.

22. An appeal from the Lands Tribunal to the Court of Appeal is limited to questions of law: s.11(2) Lands Tribunal Ordinance, Cap. 17 ("LTO").

Questions of law

23. The points of law submitted on behalf of the IO were as follows:

(1) whether the Lands Tribunal has jurisdiction, or whether it is open to the Tribunal, to make an Order that the IO do forthwith take out remedial work to reduce the noise created by the life below the Acceptable Nosie Levels and to install proper insulator against the vibration caused by the lift;

(2) whether the IO owed a duty to the Owner either at common law or under the BMO or DMC in respect of the subject matter of the relief sought in the Amended Notice of Application.

Jurisdiction of the Lands Tribunal

24. The Lands Tribunal has jurisdiction to hear proceedings relating to the interpretation and enforcement of the provisions of the BMO (paragraph 1 of the Tenth Schedule to the BMO).

25. Section 18(1)(a) BMO requires the IO to maintain common parts and property (which would include the lift) "in a state of good and serviceable repair and clean condition". The Owner's case is that the IO has failed to comply with this section and consequently it is seeking to enforce this section. It is at least arguable that a lift is not in a state of "good" repair if it cannot be used without exceeding an acceptable noise level or a level beyond which the noise would be regarded as annoying to a reasonable person. Therefore, this is clearly a proceeding relating to the enforcement of a provision of the BMO, for which the Lands Tribunal has jurisdiction.

26. It was submitted by Mr Johnny Mok, counsel for the IO, that the Lands Tribunal would only have jurisdiction to order a meeting of owners to be held for the purposes of considering what management action should be taken and not to make the sort of specific order sought in the Amended Particulars of Claim.

27. With respect to Mr Mok, I do not see why that is so. Section 8(9) LTO provides:

"in the exercise of its jurisdiction, the Tribunal shall have the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance".

The Lands Tribunal therefore has jurisdiction to grant a remedy such as a mandatory injunction in the exercise of its jurisdiction to enforce s.18(1)(a) BMO. Whether the Lands Tribunal would consider it appropriate to make the specific order sought would of course be a matter for the Tribunal at the end of the trial after considering all the evidence, but there is, in my view, no basis for the submission that the Lands Tribunal has no jurisdiction at all to make that sort of order.

Whether duty owed by IO

28. Further, it was submitted that the IO owed no duty to the Owner whether at common law or under the BMO or DMC in respect of the subject matter of the relief. The IO's obligations under the BMO and DMC have been discussed above.

29. It was submitted on behalf of the IO that there could not be an actionable nuisance at common law because the lift was used in common, including by the Owner itself.

30. However, it is at least arguable that where an occupier in sole possession of property has suffered harm by way of nuisance, he can sue notwithstanding that the defendant carrying out operations is a co-owner and co-occupant with him in the area from which the nuisance emanates (Clerk and Lindsell on Torts 18th ed p.996-7, par. 19-43, Hooper v Rogers [1975] 1 Ch 43). The example drawn in Mr Mok's argument of a person playing in a band and complaining of the noise is not apposite. That would be a clear case of contributory negligence or volenti non fit injuria (Hooper v Rogers, 51). Here, the Owner is not complaining about the use of the lift, it is complaining of the noise arising from the failure to keep the lift in good repair.

31. As to the question whether the Lands Tribunal has jurisdiction to hear a case of nuisance, there may be something in this point if the only cause of action asserted by a party were nuisance at common law (Wong Hing Cheong v Wah E Investment Ltd [2002] 3 HKC 59, 63, obiter). But that is not this case. Section 34I(1)(b) BMO provides that no person may use or permit to be used the common parts of a building in such a manner as to cause a nuisance to any person lawfully in the building and s.34I(2) provides that any use of common parts so as to cause a nuisance is deemed to be a breach of the deed of mutual covenant. Therefore, the jurisdiction of the Lands Tribunal is engaged pursuant to paragraphs 1 and 2 of the Tenth Schedule of the BMO.

32. Mr Mok submitted that the IO itself could not be included as "any person". I fail to see why that is so. The language could hardly be wider.

33. Although it is correct that s.34I had not been specifically pleaded in the Amended Particulars of Claim, paragraphs 1 and 2 of the Tenth Schedule had been specifically referred to in the Amended Notice of Application. Section 34I was specifically included in the Supplemental Respondent's Notice.

Order

34. In the circumstances, I do not consider that there was any error on the part of the Lands Tribunal in respect of the two questions of law posed on appeal. I would dismiss the appeal and make an order nisi that the costs follow the event of the appeal, i.e. that the IO pay the Owner's costs of the appeal.