MTR CORPORATION LTD v. CHEUNG CHING KIN

LDBM 19/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 19 OF 2015

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JUDGMENT
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1.  This is the trial of an application by the applicant who is suing as the manager of a Deed of Mutual Covenants (“DMC”) of a real estate development against the respondent who is an owner of unit within that development for noise nuisance, acting in breach of the DMC. Injunctive relief is being sought against the respondent.

Brief Background

2.  On Tseung Kwan O Town Lot No.75 there stands a real estate development called The Grandiose (君傲灣). It is not in dispute that owners of said development hold their respective units subject to and with the benefit of a DMC dated 14 June 2006 registered in the Land Registry by memorial number 06062902700124 on 29 June 2006 (“the said DMC”).

3.  The applicant is the manager appointed under and is a party to the said DMC. The respondent has become the registered owner of Flat K on 57^th floor, including Flat Roof of Tower 3, of the Grandiose, 9 Tong Chun Street, Tseung Kwan O, Sai Kung (“the said Premises”) since 18 August 2006. The assignment from which the respondent derives his title to the said Premises (“the Assignment”) is expressed to be subject to and with the benefit of the said DMC.

4.  The respondent is an “Owner” defined in the said DMC by virtue of his being holder of undivided shares in the Grandiose. The said DMC also provides, inter alia, the following:

“Section E

1. The Owners shall at all times hereafter comply with and shall observe and perform the covenants, provisions, restrictions and prohibitions contained in:

…

(b) this Deed [i.e. the said DMC];

…

2. The Owner shall … at all time hereafter be bound by and shall observe and perform the covenants, restrictions and prohibitions set out in the Third Schedule hereto.

…

11. Each Owner shall be responsible to the other Owners and occupiers and to the Managers for the acts and omissions of all persons occupying any Unit of which he is the Owner or using the same with his consent, express or implied…

…

THIRD SCHEDULE RESTRICTIONS AND PROHIBITIONS

…

11. Not to do or cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage or inconvenience to the other Owners and occupiers of the Land and the Development or members of the public.

…

22. No Owner shall produce or permit or suffer to be produced any music or noise (including sound produced by broadcasting or any apparatus or equipment capable of producing, reproducing, receiving or recording sound) or vibration or other acts or things in or on the part of the Land and the Development owned by him so as to cause a nuisance to other users of the Land and the Development.”

5.  It is the applicant’s pleaded case that since January 2014, the respondent has been causing or producing or permitting to produce noise caused by hammering and/or dropping of heavy objects onto floor of the said Premises in a manner that causes nuisance or annoyance to other owners and occupiers of the building, acting in breach of the aforesaid provisions of the DMC.

6.  According to one of the applicant’s witness Mr. Au, between 3 November 2013 and 2 May 2015, there have been more than 240 complaints received that the said Premises has been used in a manner as to constitute noise nuisance or annoyance to other owners. The noise nuisance usually took place after mid-night.

7.  The respondent denies such allegations. In his Notice of Opposition dated 8 April 2015, the respondent basically:

i) Denies having made any noise nuisance or annoyance as alleged;

ii) Questions why he has to make such noise;

iii) Says such claim is defamatory; and

iv) Says he has to work during the day and takes rest at night and therefore does not have time to cause the alleged noise nuisance.

8.  At trial, the respondent says he used to live with his younger daughter at the said Premises. Sometime in 2013 he moved out and his said daughter has since then lived there alone. The applicant does not seek to disagree.  At the conclusion of the trial, in response to questions put to him, the respondent does not deny the possibility of his daughter causing some of the noise nuisance or annoyance, though not to the extent as alleged by the applicant.

The Evidence

9.  On 24 March 2015, this tribunal gave directions that, inter alia, the parties do file and serve witness statements as to facts together with supporting documents on or before 13 May 2015. It has been expressly said by the tribunal that unless and until a statement has been filed and served in accordance with the tribunal’s direction, no witness will be allowed to testify at trial. The applicant did comply with the said direction but the respondent did not. On 29 May 2015, time extension of up to 5 June 2015 for the respondent to comply with the witness statement direction has been granted. The importance of the respondent having served a prior written statement before he was allowed to testify at trial was reiterated.

10.  At the adjourned hearing on 19 June 2015 the respondent said that he did not have any witness statement ready. He indicated he did not intend to do anything with the application for the time being. Neither was he ready to concede to any injunction sought against him. In light of the position taken by the respondent, this tribunal then made a direction that the respondent be debarred from adducing any evidence at trial.

11.  Basically the respondent put the applicant to strict proof of its case. At trial, though he does not testify, he is allowed to cross-examine the applicant’s witnesses and is given opportunity to make submission.

12.  At trial, the following 2 witnesses testify on the applicant’s behalf:

i) Mr. AU Ka Ki, the Assistant Property Manager of The Grandiose (“Mr. Au”); and

ii) Mr. WONG Cheuk Wa, a Senior Supervisor of the Security Department of The Grandiose (“Mr. Wong”).  

13.  Each of them made a witness statement dated 13 May 2015. They both rely on them as their evidence in chief and further explain the situation upon the enquiry of the tribunal.

Mr. Au’s Evidence

14.  Mr. Au is the Assistant Property Manager of The Grandiose who is responsible for the management of the Grandiose. He has been working in the management office of The Grandiose since 18 July 2011. His evidence is that according to record kept by the management office, 2 resident cards have been issued for the said Premises to the respondent and his daughter upon their application on 21 October 2006.

15.  At trial, Mr. Au produces the following 2 exhibits:

i) Exhibit marked A-1: The said DMC;

ii) Exhibit marked A-2: The Assignment dated 18 August 2006 with plans

16.  According to the typical floor plan of Tower 3 attached to the Assignment where the said Premises is situated, there are 11 units on each floor of Tower 3 arranged in 3 groups in a Y-shape layout. The said Premises (Flat K) is immediately adjoining Flat J on one side and a staircase on the other. It is also closed to Flats H and G. These 4 units share one common corridor and are all situated on one arm of Tower 3.

17.  Since 3 November 2013, complaints have been received from neighbours living nearby that noise has been produced from the inside of the said Premises mostly after midnight, causing nuisance to them. The noise is said to be produced by hammering on walls and/or dropping of heavy objects onto the floor. Mr. Au produced a bundle of 180 Security Incident Reports prepared by the applicant’s security staffs between 3 November 2013 and 2 May 2015 recording complaints received by the applicant from the respondent’s neighbours and/or incidents of noise heard by the security staffs during their surveillance. 12 pages of “occurrence record”, being an extract from a log book kept at the reception counter of Tower 3 where the said Premises is located, are also produced.

18.  It is Mr. Au’s evidence that since there have been repeated noise nuisance caused by the use of the said Premises, they particularly deployed a team of security staffs outside the said Premises and in the staircase next to it after midnight doing surveillance with a view to find out whether, and if so, the seriousness of noise produced from the said Premises.

19.  From a perusal of the Security Incident Reports, most of the complaints were received from occupiers at the floor immediately below, namely Flats 56K, 56J and 56H on the 56^th floor. Some are from the same floor, namely, Flat 57H and 57J. However, a number of complaints are from floors as low as Flat 55J, 55K, 55L, 53H, 53J, 53K,50A, 50H, 50J, 50K, 49K and even 47J and 47K.

20.  It is evident from the Security Incident Reports prepared on 17 February 2014 by Mr. Wong[1] that, upon receipt of complaint from the Flat 56K occupier that hammering noise had been produced from the floor immediately above at around 21:40, an officer (bearing staff number CR051198) from their control room was sent to the Premises. The said control room officer reported that he could hear similar noise outside the said Premises at 21:45 as complained. Though this was not the first complaint that such noise nuisance has been received from occupiers, it is the first report recording that such noise was heard by the applicant’s staff. Mr. Au said since a lot of complaints were received, they set up a team to do regular surveillance outside the said Premises. From the bundle of reports, it has been reported that on over 70 occasions, there has been hammering noise actually heard by staffs of the applicant, either at the respective complainants’ units or outside the said Premises or in the staircase next to it.

21.  As can be gleaned from the reports exhibited, more than 20 staffs have actually heard the hammering noise. They include Mr. Wong (staff no. SUP55154) and staffs with staff nos CRO51198, RSO44502, SO44411, SO51054, SO20646, SO51139, SO19939, SO20281, SO20738, SO51517, SO33569, SO33993, SO34147, SO33836, SO32211, SUP34173, SG33569, SUP34147, SG92301, SG34836, SG91926, SG34213, SSUP34189.  Most of them reported that they heard the hammering noise while they were doing surveillance outside the said Premises. The hammering mostly took place after midnight. His staffs all concluded that the hammering activities and noise came from the said Premises.

22.  According to the reports, some hammering episodes lasted for a few seconds[2]. Some however, lasted for as long as 10 minutes and even 25 to 60 minutes[3]. For each episode, the hammering repeated for as many as 200 times[4] or even a few hundred times in 2 hours after midnight[5]. On some occasions there were over one and there could be as many as 4 episodes of hammering in the same night[6]. From the reports and the log book exhibited, there were always corresponding nuisance complaints from neighbours when hammering noise was heard by the applicant’s staffs. The applicant had on many occasions reported the matters to the Police. Police officers did attend and knocked on the door of the said Premises. However, never on any occasion had anyone from the said Premises answered door. Mr Au says he believes what his staffs have reported are true.

23.  Mr. Au said since 11 April 2014, the applicant had sent numerous letters to the respondent and the occupier, some by themselves and some through their lawyers, asking them to stop the nuisance. He and the chairman of the owners’ committee met the respondent on 26 April 2014 and requested him to stop the noise nuisance either generated by him or his family members from the said Premises. He says the respondent has neither admitted nor denied noise having been produced from the said Premises.

Mr. Wong’s Evidence

24.  Mr. Wong is a senior supervisor of the security department of The Grandiose. He had prepared many of the written reports aforesaid upon receipt of reports from his colleagues and complaints from occupiers of Tower 3. He recalls that on 2 occasions he was actually outside the said Premises and heard loud noise generated from inside.

24 April 2014

25.  Mr. Wong says he was on duty in the control room of The Grandiose after midnight on 24 April 2014. He received a call from the security staff stationed at Tower 3 reception counter that a Mr. Luk of Flat 56K had complained he was annoyed by the hammering noise from the unit immediately above his. Mr. Wong then went to the said Premises. When he was walking up in the staircase next to the said Premises from the 56^th floor, he suddenly heard hard banging noise for about 10 times similar to those caused by striking of iron hammer onto the wall. It was the partition wall between the Premises and the staircase which was being hit. It was so sudden and loud that he was shock and taken by surprise. He said the intensity of the noise was similar to the noise level of someone breaking the wall on the other side with a hammer or pneumatic tool. He took a picture of the wall he believed from which the noise was generated[7]. He marked the position of the wall on the floor plan and exhibited it as A-3.

26.  When he was outside the said Premises, he found Mr and Mrs Lee of Flat 56H coming up banging at the said Premises’ door with a view to ask the occupier inside stopping the noise. No one, however, answered the door. He asked them to return home as the matter had already been reported to the Police by his colleagues. Three policemen later arrived and observed outside. As there was no more noise generated during the police’s stay they did not knocked on the Premises and left.

30April 2014

27.  Mr. Wong was on surveillance duty outside the Premises during 01:00 to 04:15 am on 30 April 2014. He mainly stayed in the staircase on the 57^th Floor though he occasionally patrolled outside the said Premises. At about 02:28 he heard the same hammering noise which he heard on 24 April 2014. He said the noise seemed to have been generated by striking an iron hammer onto the wall between the said Premises and the staircase or onto some other iron objects. It lasted for a minutes. He did not knock on the door as he did not believe the occupier inside would open it.

28.  He had reported the matter to the Police but there was no more noise heard. He left at about 04:15 and his duty was taken over by his colleague, one Mr. Auyeung (Staff no. SO20646). Mr. Auyeung reported to him 3 more incidents of noise produced from inside of the said Premises, respectively on 04:26, 05:33 and 05:57 that night. It was reported the first 2 being bangs on the wall while the last being noise similar to that caused by dropping of heavy objects onto the floor. He believed what were reported by his colleague Mr. Auyeung true.

Discussion

29.  It has been suggested during cross-examination that there are discrepancies on some occasions regarding the time for occurrence of the hammering episodes reported by the surveillance team and the neighbouring owners. The tribunal considered that such discrepancies are minor and acceptable because owners were awaken by loud noise in the middle of the night when they have already fallen asleep. They might not have recalled exactly when the awakening events actually took place when they reported the matters to the applicant the next morning. Although the 2 witnesses were cross-examined by the respondent, in the tribunal’s judgment their evidence remains unshaken and is basically coherent and consistent. The tribunal accepts they are honest and truthful witnesses. On a balance, the tribunal accepts their evidence.

30.  From the evidence, on almost all occasions the noise was usually generated after midnight. From Mr. Wong’s direct evidence, this tribunal believe that the noise was generated from inside of the Premises. They are of an intensity that is as loud as striking of iron hammer onto the wall of the Premises or similar to breaking of wall using machine. There are over 20 staffs who had actually heard similar noise. At least 11 occupiers of Tower 3 have lodged complaints to the applicant that they were waken up from sleep, annoyed and disturbed in the enjoyment of their respective units particularly after midnight. This tribunal does not believe that there is any concerted effort to falsify evidence in such scale as to pinpoint against the respondent, as somehow suggested in the cross-examination of witnesses by the respondent.

31.  The complaints are mainly loud voice in the middle of night, resulting in the complainants being waken up in their respective units and/or causing annoyance. In the tribunal’s judgment, it amount to a nuisance. In Clerk & Lindsell on Torts, Sweet & Maxwell (21^st ed, 2014), at para 20.01, nuisance (or private nuisance) is defined as follows:

“The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. … Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of : (a) [public nuisance], or (b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.” (Emphasis added)

32.  Obviously the noise generated inside of the said Premises is so loud that neighbours’ lives have been interfered with, or disturbed when they were waken up in the middle of the night. Their comfortable and convenient enjoyment of their own units is now being unduly interfered with. This tribunal has no hesitation to come to the conclusion the noise so generated comes from the use of the said Premises and is a nuisance to other owners of The Grandiose, and therefore prohibited by Clause 22 of the Third Schedule of the said DMC.

33.  In the Halsbury’s Law of Hong Kong[8], it is stated that:

“Where the covenant is against any act which may lead to ‘annoyance, nuisance or damage’, it is wider, and is broken by anything which disturbs the reasonable peace of mind of an adjoining occupier. The disturbance needs not amount to physical detriment to comfort, nor need the adjoining occupier be a tenant of the same landlord” (Emphasis added)

34.  No doubts the acts now being complained of also amount to “… a nuisance or annoyance to or cause damage or inconvenience to the other Owners and occupiers of the Land and the Development or members of the public” prohibited under Clause 11 of the Third Schedule of the said DMC.

35.  There is no dispute that the respondent has no longer stayed in the said Premises. It is his daughter who is living there. The respondent admits, and the tribunal considers fairly, that he does not rule out his daughter has been the cause of some of the complaints, though not to the extent as alleged. His daughter is not a party to the proceedings. The question is whether the respondent should be held liable for breach of Clauses 11 and 22 of the said DMC in the circumstances.

36.  It is noted that both clauses can be breached in at least the following 2 ways, namely, either by:

i) causing or producing directly the nuisance, annoyance or inconvenience (including any music, noise or vibration which amount to nuisance, annoyance or inconvenience); or

ii) permitting or suffering to be produced such nuisance, annoyance or inconvenience.

37.  Apparently the respondent has neither caused nor produced directly the noise which constitutes the nuisance and annoyance to others. As regards the second limb of contravention, it is noted in Realty Harvest Limited & Ors v Gold Margin Development Limited & Anor[9], the Court of Appeal apparently has accepted the dicta of Atkin LJ in Berton and Others v Alliance Economic Investment Company Limited and Others[10] on the meaning of “permit” and “suffer” as follows (at p.759):

“It is not suggested that there is any difference between the words ‘permit’ and ‘suffer’ in this context, and I treat them as having the same meaning. It is clear that a person under a covenant not to use premises in a particular way cannot commit a breach of the covenant except by his own act or that of his agent. The same is true of a covenant not to permit. The user in one case and the permission in the other must be something which can be predicated of the defendant or the defendant’s agent. It is not sufficient to show that the premises have been used in a way which would constitute a breach of the covenant; it must further be shown that the user is by the defendant or his agent, or that it is permitted by the defendant or his agent. … To my mind the word ‘permit’ means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man’s power to prevent it. Acts which fall short of that, though they be acts of sympathy or assistance, do not amount to permission at any rate in the covenants with which we are dealing …” (Emphasis added)

38.  In the tribunal’s judgment, in order to prove the respondent “permits” or “suffers to be done/produced” the breaches, knowledge on his part needs be shown otherwise he will not be able to give leave for the nuisance to continue, or abstain from taking reasonable steps to prevent such nuisance from continuing.

39.  Turning to the facts of this case, it is Mr. Au’s evidence, which this tribunal has no hesitation to accept, that as early as 11 April 2014, the applicant has informed the respondent of the noise nuisance caused by use of the said Premises. This tribunal also accepts that he and the occupier have been repeatedly told to stop such nuisance[11] by letters issued by the management office of the Grandiose, the applicant’s head office and its present firms of solicitors. This tribunal also accepts that respondent has been met on at least 3 occasions[12] and had been asked to stop the said nuisance. He has been told of the particulars[13] of the complaints, and has been warned of the consequence if he and/or the occupier do not stop such noise nuisance. This tribunal accepts he has full knowledge of the said Premises being used in such a way as to constitute nuisance or annoyance or inconvenience to his neighbours.

40.  No evidence has ever been advanced by the respondent that he has done anything or taken any steps to prevent the noise nuisance. Neither is he advancing that he has done all he can but is unable to stop the noise from producing. The respondent is the sole owner of the said Premises having sole and exclusive right to its use and enjoyment. Though the said Premises is now being occupied by his daughter, she is definitely occupying it with the respondent’s consent or permission. The respondent remains legally the only one in this world in the sole and exclusive control of the said Premises. There is simply no evidence at all showing that he has done anything despite his knowledge that the said Premise has been used in such a way as to constitute nuisance and for such a long time. Since the respondent has the onus of proving that he has used reasonable effort, the only logical conclusion of the tribunal is that the respondent has not taken or has abstained from taking any step, which is fully within his power, to prevent the acts being complained of. He simply, for reasons only know to him, shuts his eyes to the nuisance and annoyance so caused to his neighbours and does nothing about it, well knowing his neighbours will suffer from his inaction.

41.  The tribunal considers both Clauses 11 and 22 of the Third Schedule of the said DMC have been breached by the respondent.

Conclusion and Orders

42.  The noise nuisance has started since end of 2013. Evidence shows that it has become more and more serious as time goes by. Initially in each episode the hammering repeats only several times and lasts for a few seconds at night. The problem, however, has becoming more serious. The hammering later repeats over hundred times and lasts for a few minutes for each episode. Very often there are 2 to 3 episodes of noise nuisance in a night, and all taking place after midnight. On at least occasion there are 4 episodes in a night. Repeated complaints and/or warnings, no matter orally or in writing, have been totally ignored. Door unanswered no matter it is the applicant’s staffs or the Police knocking on it. Even after the issue of the present proceedings on 28 January 2015 the situation remains unchanged if not worse[14]. The nuisance is still continuing. In the tribunal’s judgment, without this tribunal’s intervention the respondent’s neighbors will continue to suffer. It will therefore only be just and equitable in the circumstances of the present case for this tribunal to grant the injunction against the respondent as sought so as to stop the nuisance, annoyance and convenience caused to other owners of The Grandiose.

43.  This tribunal hereby grants an injunction that the respondent, whether acting by himself, his employee(s), his servant(s), agent(s), his family member(s) or his occupier(s) of the premises known as Flat K on the 57the Floor including the Flat Roof of Tower 3 of The Grandiose (君傲灣) , No 9 Tong Chun Street, Tseung Kwan O, Sai Kung, New Territories, Hong Kong (i.e. “the said Premises”) or otherwise, be restrained from causing, producing or permitting or suffering to be produced any noise or vibration, or to be done any acts or things, in or on the part of said Premises so as to cause a nuisance or which may be or become a nuisance or annoyance or inconvenience to other owners, occupiers users of The Grandiose or members of the public.

44.  As costs are to follow the event, this tribunal do make a costs nisi that the respondent do pay the applicant’s costs of the application, to be taxed on District Court scale if not agreed, such order nisi is to be made absolute unless an application is made to vary the same within 14 days.

[1] See Bundle/52

[2] See for example report at Bundle/84-90 and Bundle/112

[3] See for example reports at Bundle/240, Bundle/107 and Bundle/108

[4] See for example report at Bundle/175

[5] See §28 below

[6] See for example report at Bundle/238

[7] See Bundle/331

[8] Halsbury’s Laws of Hong Kong (2^nd Ed.) Vol.36 at 235.382

[9] [2001] 1 HKC 234

[10] [1922] 1 KB 742

[11] See Bundle/244-268.

[12] See the letters dated 11/4/2014 and 5/3/2015 (Bundle/244 & 266) and the evidence of Mr. Au at §23 above.

[13] See for examples Bundle/244 (11/4/2014: hammering noise causing nuisance), Bundle/245-6 (25/4/2014 & 7/5/2014: hammering noise together with noise caused by dropping of heavy objects onto floor causing nuisance, heard by security staffs direct and matters have been reported to the Police) and Bundle/255 (17/11/2014: that the noise nuisance was caused after midnight)

[14] See the 57 Security Incident Reports at Bundle/186-242 for complaints between 29 January to 2 May 2015