CHOW YUET MUI TWINKY AND OTHERS v. ISS EASTPOINT PROPERTY MANAGEMENT LTD AND OTHERS

HCSA 8/2021

[2023] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 8 OF 2021

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 34624 OF 2019)

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DECISION

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Application before the court

1.  Before the court is the abovenamed 1^st and 2^nd claimant’s application (“Application”)  for leave to appeal against the decision (“Decision”)  made by Deputy Adjudicator Cindy Chan (“Adjudicator”)  on 7 April 2021, dismissing the 1^st and 2^nd claimants’ claim in the Small Claims Tribunal (“Tribunal”)  under SCTC 34624/2019.

SCTC 34624/2019

2.  The claimants are members of a family occupying a unit in Villa Rocha in Happy Valley.  The 1^st defendant is the manager of Villa Rocha.  The 2^nd and 3^rd defendants are the registered owners of the unit immediately above the claimants’ unit (“Upstairs Unit”).

3.  The 3^rd and 4^th claimants, the 1^st and 2^nd claimants’ children, had discontinued their claims against all defendants on 16 September 2019. 

4.  For ease of reference, (1)  the 1^st and 2^nd claimants, (2)  the 1^st defendant and (3)  the 2^nd and 3^rd defendants shall be referred to as the “Claimants”, “Manager” and “Upstairs Owners” respectively.

5.  In gist, the Claimants’ complaint was that the renovation work in the Upstairs Unit, lasting for 12 weeks or so from 19 June to 13 September 2019, had generated such excessive noise that it amounted to nuisance.  It was their case that the Upstairs Owners were liable for damages for nuisance capped at the Tribunal’s jurisdictional limited of $75,000 (insofar as the loss and damage suffered by them exceeded $75,000)  and the Manager for negligence and breach of duty under paragraphs 22 and 23 of the Deed of Mutual Covenants of Villa Rocha (“DMC”).

6.  In support of their claim in nuisance, the Claimants produced in evidence audio recordings of the renovation work in the Upstairs Unit recorded by the 3^rd claimant.  There were 19 noise samples (“Noise Samples”)  from 11 days.  The recordings ranged from 6 to 39 seconds long.  The Adjudicator accepted that the Noise Samples represented a true and fair view of the level of noise emitted by the renovation work in the Upstairs Unit as recorded in the Claimants’ unit.

7.  The Claimants relied on the expert evidence of Dr Cheung Liu Yee (“Dr Cheung”)  whose status as an expert witness was, notwithstanding the Upstairs Owners’ challenge, accepted by the Adjudicator, having regard to Dr Cheung’s relevant qualifications and experience in noise mitigation and acoustics. 

8.  Dr Cheung was not present when the Noise Samples were recorded.  Nor did she have the opportunity to listen to the 19 audio clips.  She compiled her report based on 19 sets of measured noise results, with their respective recorded date, time and charts as well as one sample video, all provided to her by the Claimants.  She was able to identify the noise in the video as mechanical drilling noise from powered handheld tools such as wall drillings in the daytime.  She observed that all the provided data have maximum noise levels that were higher than 80 dB (decibels).  She expressed the opinion that a noise level exceeding 80 dB is unacceptable to a normal healthy person and if such noise occurs continuously or for a prolonged period, it will bring adverse impact on and disturbance to the person subject to such noise.  However, she was unable to say from the material provided to her whether the noise occurred in a continuous manner or for a prolonged period.

9.  The Adjudicator dealt with the claim based on nuisance first.  She identified the issue as follows at [20] of the reasons for judgment (“Reasons”)  handed down on 14 May 2021):

“… there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. In organised society everyone must put up with a certain amount of discomfort and noise caused by the legitimate activities of his neighbours. The court in deciding whether interference can amount to an actionable nuisance 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.”

10.  After considering the relevant authorities, including Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Clerk & Lindsell on Torts, 22^nd Edition (2018), pages 1384-1389, paragraphs 20-10 to 20-16, the Adjudicator identified and summarised the principles to be applied at [21]-[22] of the Reasons:

(1)  Whether an act constitutes a nuisance is a question of act to be determined, not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case.

(2)  A nuisance of the kind alleged, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of an average man, and not a person of abnormal sensitivities.

(3)  Noise and dust caused by demolition and rebuilding work will not be actionable if the operations are reasonably carried on and all reasonable and proper steps are taken to ensure no undue convenience is caused to his neighbours. The claimant merely has to establish that actionable degree of interference has occurred. The burden is then on the defendant to prove that his actions were reasonable.

(4)  The duration of the interference is an element in assessing its actionability together with the character and quality of that interference. However, it is not a decisive factor, for a substantial, though temporary, interference will be an actionable nuisance.

11.  The Claimants contended that at the material time, the 2^nd claimant was recovering from surgery and suffered from insomnia.  They submitted that this was a relevant consideration while the Upstairs Owners contended that it was not.  The Adjudicator found that for the purpose of evaluating the reasonableness of the Upstairs Owners’ actions, the court only had to consider the impact of those actions on an average man (as opposed to the impact on the particular claimant before the court).

12.  For the purpose of analysis, the Adjudicator separated the renovation period into two.  The period between 19 June 2019 and 7 August 2019 was referred to as the “First Period” while the period between 8 August and 13 September 2019 was referred to as the “Second Period”.  The designer engaged by the Upstairs Owners, Mr Wong Ting Kong (“Mr Wong”), testified that save for the demolition of the existing decoration (which took no more than a few days), there was not much noise-creating work conducted during the First Period.

13.  The Adjudicator found that there was no actionable degree of interference during the First Period. 

14.  Since 8 August 2019, that is the first day of the Second Period, the Claimants took more active steps in complaining about the noise generated by the renovation work in the Upstairs Unit.  On the same day, Mr Lam (a senior building supervisor of the Manager)  attended the Upstairs Unit and found that there were about 10 workers inside.  Two of those workers were holding a handheld powered driller during Mr Lam’s visit and Mr Lam advised the workers not to operate more than one driller at the same time.

15.  Although the Adjudicator found substantial interference in the Second Period to constitute nuisance, the Upstairs Owners had proved that their renovation work had been carried out in a reasonable manner and all reasonable and proper steps had been taken to ensure that no undue inconvenience was caused to the Claimants.  Those steps included posting fitting-out notice (which was one of the mitigation measures identified by Dr Cheung), starting work after 10 am, expediting the completion of noise-creating work and liaising with the Manager, minimising the noise generated by powered tools and minimising the creation of new ducts (which required the use of powered tools).

16.  In the circumstances, the Adjudicator found that no nuisance had been caused by the Upstairs Owners to the Claimants and dismissed the claim in nuisance. 

17.  The Adjudicator held that as the nuisance claim against the Upstairs Owners had failed, the claim for negligence against the Manager should also fail.  It was further found that the Manager had properly discharged its duties as the manager of the building and that the claim for breach of duty failed.

Requirements for leave to appeal under the Ordinance

18.  Section 28(1)  of the Small Claims Tribunal Ordinance (Cap 338)  (“Ordinance”)  provides that any party who is aggrieved by a decision of the tribunal, on any ground involving a question of law alone or on the ground that the claim was outside the jurisdiction of the tribunal, may apply to the Court of First Instance (“CFI”)  for leave to appeal and the CFI may grant such leave if it thinks fit.

19.  Although the claim as originally brought by the Claimants exceeded the jurisdictional limit of the Tribunal, they have abandoned the balance of their claim exceeding $75,000.  In the circumstances, there can be no issue that the claim was outside the jurisdiction of the Tribunal.  The only issue is whether there was any question of law to justify the grant of leave.

20.  Section 29(2)  of the Ordinance further provides that on an appeal for which it has granted leave under s 28, the CFI may draw any inference of fact and make such order as to costs and expenses as it thinks fit, but may not reverse or vary any determination made by the Tribunal on questions of fact or receive further evidence.

21.  If the Claimants wish to challenge a finding of fact by the Adjudicator, they must convince a judge of the CFI that the Adjudicator had erred in law in making such finding of fact.  Otherwise, the weight and assessment of the parties’ evidence and submission by the Adjudicator would not involve any error of law, for which the CFI can grant leave to appeal.

22.  The Claimants, being the parties seeking leave to appeal, must further show that the question of law raised by them is reasonably arguable in order to obtain leave to appeal.

Claimants’ intended grounds of appeal by

23.  The intended grounds for which the Claimants sought leave to appeal (“Ground 1”, “Ground 2”, “Ground 3”, “Ground 4”, “Ground 5” respectively and “Grounds” collectively)  were set out in the Form 9 filed on 16 April 2021, which I reproduce in full:

“1. Having accepted the Claimants’ Evidence, the Adjudicator wrongly held that nuisance was not established.

2. On the totality of Evidence, the Adjudicator wrongly held there was no nuisance.

3. The Adjudicator failed to consider the nuisance affected both claimants.

4. The Adjudicator wrongly relied on the evidence of “Wong Ting Kong” which was “hearsay”.

5. The Adjudicator failed to consider the breach of the Deed of Mutual Covenant.”

24.  At the hearing on 31 May 2021, the 2^nd claimant, speaking on behalf of the Claimants, repeated the arguments raised in the Form 9. 

Analysis

25.  The Grounds can be dealt with together shortly in that they are all bare assertions, challenging the findings of fact made by the Adjudicator without identifying any or any arguable error of law in the Adjudicator’s reasoning.  The Application should be dismissed for this reason alone.

26.  Additionally, in relation to Ground 4, the Claimants contend that the Adjudicator wrongly relied on the hearsay evidence of Mr Wong.  Mr Wong had in fact testified on matters he witnessed at the Upstairs Unit.  His evidence is thus not hearsay.  In any event, the Claimants have failed to identify the specific part of Mr Wong’s evidence that ought not to have been relied on by the Adjudicator.  Ground 4 has no merits for these additional reasons.

27.  Ground 5 complains that the Adjudicator failed to consider the breach of the DMC by the Manager.  However, as summarised above, the Manager’s alleged breach of duty under the DMC did not arise for consideration in consequence of the Adjudicator’s primary ruling that there was no nuisance.  Ground 5 has no merits for this additional reason.

Disposition

28.  For the above reasons, I see no viable ground of appeal on point of law.

29.  Accordingly, I dismiss the Application.  There should be no order as to costs.