CHEUK CHI WAI AND ANOTHER v. HSU MAN NAI AND OTHERS

DCCJ 4864/2022

[2023] HKDC 633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4864 OF 2022

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D E C I S I O N

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1.  This is an application by the plaintiffs by summons filed on 6 February 2023 to enter default judgment against the defendants pursuant to Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”) in the form of a mandatory injunction and for damages to be assessed.

Background

2.  These proceedings concern a dispute between neighbours of Fairview Park, a residential estate in Yuen Long, New Territories. The plaintiffs allege that the defendants are liable for nuisance and breaches of sections 4 and 5 of the Noise Control Ordinance (Cap 400),[1] section 20 of the Rabies Regulation (Cap 421A),[2] and provisions of the Deed of Mutual Covenant (“DMC”) and Estate Rules (“Estate Rules”) of Fairview Park.

3.  As shown in the plaintiffs’ statement of claim:

(1)  The plaintiffs were and are the registered owners of No 45, 6^th Street, Section M, Fairview Park (“House 45”).

(2)  The 1^st defendant was and is the registered owner of No 49, 6^th Street, Section M, Fairview Park (“House 49”). She is the mother of the 3^rd defendant. The 2^nd and 3^rd defendants were and are occupiers of House 49.

(3)  Clause 5(c) of the Second Schedule to the DMC provides that each owner shall covenant “not to do or permit or suffer to be done anything in any sub-section or unit which may be a nuisance or cause an annoyance to the owners or occupiers of other sub-sections or units”.

(4)  Clause 15 of the Second Schedule to the DMC provides that each owner shall covenant “to observe and perform all the covenants conditions and provisions of this Deed and the Estate Rules”.

(5)  Chapter B of the Estate Rules provides that residents of Fairview Park may keep one licensed dog, provided that the following conditions, among other things, are observed:

(a)  “Dogs must be chained in kennels at rear garden or kept inside houses if they have the propensity to attack or bark at passer-by” (Rule 6.1.3).

(b)  “Dogs must not be allowed to bark constantly, causing continuous nuisance to neighbours in the tranquil environment of Fairview Park” (Rule 6.1.4).

(c)  “No dog or pet is allowed to foul any part of the common areas in the Estate. They should be trained accordingly” (Rule 6.1.6).

(6)  In contravention of section 20 of the Regulation, the DMC and the Estate Rules, four unlicensed dogs have been kept by the 2^nd and 3^rd defendants in House 49 since 2018 and three of these dogs constantly and fiercely bark throughout the day and during the night time. Further, the 2^nd and 3^rd defendants have allowed the four dogs to urinate at the sidewalk of the garden of House 49 and the water cleansing the urine to flow to the street, which is a common area of Fairview Park.

(7)  Despite repeated demands by the plaintiffs and the management company of Fairview Park, the defendants have refused to stop the nuisance and fouling of common areas caused by the four dogs kept in House 49.

(8)  As a result of the defendants’ nuisance and fouling of the common areas, the plaintiffs can no longer enjoy quite enjoyment of House 45, and have experienced shock, annoyance, frustration and anxiety on a daily basis.

4.  The plaintiffs filed a specially endorsed writ on 12 December 2022 and duly served the same on the defendants on 14 December 2022 by insertion through the letter box of House 49 pursuant to Order 10, rule 1(2)(b) of the RDC. The defendants failed to give any notice of intention to defend within time. By a letter dated 28 December 2022 to the court registry, the defendants requested for an adjournment of the proceedings on the ground that all of them had contracted COVID-19. On 13 January 2023, Master Timon Shum directed the defendants to issue a summons in respect of their intended application for adjournment, but no such summons has ever been issued by the defendants. On the same day, the plaintiffs filed and served on the defendants a notice of intention to enter judgment.

5.  Still, the defendants failed to file and serve their defence. Accordingly, on 6 February 2023, the plaintiffs issued the summons for default judgment as I mentioned at the outset. I am satisfied that the summons was duly served on the defendants.[3] I therefore proceeded with this hearing in the defendants’ absence. During the hearing, the 3^rd defendant appeared, upon which I explained the court procedures to her and allowed her to make oral submissions in relation to the present summons.

The relevant legal principles

6.  The relevant legal principles on granting default judgment under RDC Order 19, rule 7 are well established and may be summarised as follows:

(1)  In determining whether to grant default judgment, the court must consider the application according to the pleadings alone, and decide whether the plaintiffs appear to be entitled to judgment on their statement of claim: Seto Yim King v Soo Hooyet Dew [2019] HKCFI 2640, §10.

(2)  The court cannot receive any evidence, and it is thus not necessary for the plaintiffs to prove their case by evidence: Times Square Limited v Lee Kwun Kit trading as JL Music and Anor [2020] HKCFI 438, §14(3).

(3)  Notwithstanding the wording in Order 19, rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: Times Square Limited (supra), §14(4).

7.  In relation to the plaintiffs’ claim for injunctive relief, it is well established that the court has jurisdiction to grant permanent injunctions in default judgment applications: Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, §§12-13; Times Square Limited (supra), §14(5).

8.  With these principles in mind, I turn to the facts of the present case.

Discussion

9.  First and foremost, I take note that, even now, nothing has been filed on behalf of the defendants, and although the 3^rd defendant has appeared in court this morning, there is no indication in her oral submissions that the defendants have any substantive defence on the merits.

10.  I have had regard to the explanation of the principles and the relevant considerations set out by the Court of Appeal in The Decurion [2012] 1 HKLRD 1063. Having regard to those principles and to all the circumstances of this case, I consider that my discretion should be exercised in favour of entering judgment for the plaintiffs for the following reasons.

(a) Injunctive relief

11.  The availability of an injunction has been said to be a touchstone of nuisance: Clerk and Lindsell on Torts (23^rd ed, 2020), §19-32. As Lord Hoffmann explained in Hunter v Canary Wharf Ltd [1997] AC 655, 706C, nuisance which is productive of sensible personal discomfort constitutes an unlawful threat to the utility of one’s land such that the possessor or occupier is entitled to an injunction.

12.  On the facts as pleaded, I am satisfied that the plaintiffs are entitled to a mandatory injunction requiring the defendants to forthwith remove all four unlicensed dogs from House 49 for the following reasons:

(1)  The plaintiffs are entitled to have quiet enjoyment of House 45. The DMC and the Estate Rules expressly provide that no nuisance shall be caused to neighbours in the tranquil environment of Fairview Park.

(2)  The 2^nd and 3^rd defendants are in breach of section 20 of the Rabies Regulation and Chapter B of the Estate Rules for keeping four unlicensed dogs in House 49.

(3)  Noise caused by dogs barking constantly clearly constitutes actionable nuisance: Clerk and Lindsell on Torts (supra), §19-18. By permitting the dogs to bark constantly and fiercely day and night, the defendants have caused continuous nuisance to the plaintiffs, and are thus in breach of sections 4(1) and 5(3) of the Noise Control Ordinance and Chapter B of the Estate Rules. Further, the 1^st defendant, being the registered owner of House 49 and thus a party to the DMC, is in breach of Clauses 5(c) and 15 of the Second Schedule to the DMC for her failure to observe and perform the provisions of the DMC and those of the Estate Rules.

(4)  By causing or allowing the water cleansing the dogs’ foul to flow into the common areas of Fairview Park, the defendants have caused unreasonable annoyance to the plaintiffs, which constitutes nuisance at common law: Clerk and Lindsell on Torts (supra), §19-18. Further, the 1^st defendant is in breach of Clauses 5(c) and 15 of the Second Schedule to the DMC for permitting such acts to be done which cause an annoyance to the plaintiffs.

(5)  Without an injunction ordering the defendants to remove the four dogs from House 49, it is more likely than not that the defendants’ nuisance and breaches of statutory provisions, the DMC and the Estate Rules would persist, further depriving the plaintiffs of quiet enjoyment of their property.

13.  As to the terms of the injunction, the plaintiffs seek an order that the defendants remove permanently all the dogs in House 49 from the property. It appears to me that the plaintiffs’ proposed wording may be construed as to restrain the defendants from keeping any dog in House 49 in the future. This would potentially amount to a perpetual injunction, which is plainly too wide in scope and is inconsistent with Chapter B of the Estate Rules which provides that residents of Fairview Park may keep one licensed dog.

14.  In The Incorporated Owners of Nos 3-3E Wang Fung Terrace v Law Chi Wing and Anor, DCCJ 230 of 2006 (28 March 2006), §68, HH Judge Marlene Ng (as she then was) refused to grant a perpetual injunction to restrain one of the defendants therein from keeping dogs at the premises in all future times on the ground that it was too wide and inappropriate. In my view, the same considerations are applicable here. The court must strike a balance between the plaintiffs’ entitlement to quiet enjoyment of their property and the defendants’ right under the Estate Rules to keep one licensed dog provided that the conditions set out therein are duly observed. In the circumstances of this case, I think it would be appropriate to make an order that the defendants shall forthwith remove all four unlicensed dogs from House 49.

(b)  Damages

15.  The plaintiffs also seek judgment for two heads of damages, namely, damages for diminution in value of House 45, and damages for mental pain.

16.  First, Ms Chan for the plaintiffs refers to §8.2 of the statement of claim in claiming that the plaintiffs have been suffering from a diminution in the property value of House 45. However, the facts pleaded in §8.2 of the statement of claim, that “[N]o prospective purchaser or tenant will bother to purchase or rent [House 45]” and “[a]ny prospective purchaser or tenant will be shocked by the fierce barking”, appear to me to give rise to a prospective claim in the future rather than supporting any concrete claim of diminution in the market value of House 45 during the period for which the nuisance persisted in the past. Given that an injunction is to be granted, it is rather unlikely that House 45 would suffer any diminution in the property value in the future.

17.  Nonetheless, Ms Chan has also drawn the court’s attention to Loke Yuen Jean Tak Alice (supra), §§68-69, in which Marlene Ng J explained that nuisance may give rise to a loss of amenity to the land, and the courts must place a value on such intangible loss even though the same “cannot be assessed mathematically”. In my view, the loss of amenity value of the property constitutes a diminution in value of the property and is clearly recoverable in a case of nuisance. As Lord Lloyd explained in Hunter v Canary Wharf Ltd (supra), 695B-696C:

“Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. …

In the case of encroachment the plaintiff may have a remedy by way of abatement. In other cases he may be entitled to an injunction. But where he claims damages, the measure of damages in cases (1) and (2) will be the diminution in the value of the land. This will usually (though not always) be equal to the cost of reinstatement. …

… Exactly the same should be true of nuisances within class (3). There is no difference of principle. The effect of smoke from a neighbouring factory is to reduce the value of the land. There may be no diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts.”

In the same judgment, Lord Hoffmann explained (at 706B-F) as follows:

“In the cases of nuisance 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.”

18.  On the facts as pleaded in the statement of claim, I am satisfied that, as a result of the defendants’ nuisance, the plaintiffs have been deprived of quiet enjoyment of House 45 as a relaxed home for the family in the originally tranquil environment of Fairview Park, and have therefore suffered a loss of amenity value of House 45. I would therefore enter judgment for the plaintiffs for such loss, with damages to be assessed.

19.  Secondly, the plaintiffs seek damages for mental pain against the 1^st defendant. Upon clarification, Ms Chan confirms that even though the plaintiffs have suffered mental distress, their claim under this head is limited to damages for inconvenience and discomfort. On the facts as pleaded in the statement of claim, the dogs’ incessant barking, for which the defendants are liable, has resulted in persistent shock, annoyance, frustration and anxiety on the plaintiffs’ part. I consider that the plaintiffs are entitled to damages for inconvenience and discomfort to be assessed on such basis, and would enter judgment for the plaintiffs accordingly.

Disposition

20.  In view of my decision above, I would make an order in terms of §§1-4 of the plaintiffs’ summons as amended. Such order shall be endorsed with a penal notice in accordance with RDC Order 45, rule 7(4).

21.  Costs should follow the event. Accordingly, the defendants shall pay the plaintiffs’ costs of this action up to the date of this order, including the costs of the plaintiffs’ summons, to be taxed if not agreed.