REALTY HARVEST LTD AND OTHER v. GOLD MARGIN DEVELOPMENT LTD AND ANOTHER

REALTY HARVEST LTD AND OTHER v. GOLD MARGIN DEVELOPMENT LTD AND ANOTHER

Court preferred plaintiffs' expert evidence and methodologies (BS4142 for noise; BS6472 for vibration), found the machines caused noise and vibration levels that would (or would probably) dissatisfy a reasonable person and materially interfered with plaintiffs' enjoyment; 1st defendant liable in nuisance; 2nd defendant liable for breach of DMC for failing to take all possible steps and for renewing tenancy without securing mitigation; injunctions and damages awarded accordingly.

Citation
REALTY HARVEST LTD AND OTHER v. GOLD MARGIN DEVELOPMENT LTD AND ANOTHER
Parties
1st Plaintiff: Realty Harvest Limited; 2nd Plaintiff: Wai Ming Contracting Co., Ltd.; 3rd Plaintiff: Wai Ming Services Ltd.; 1st Defendant: Gold Margin Development Limited; 2nd Defendant: Au Yu Ping
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 May 2000
Case Number
HCA11197/1998
Procedural Posture
Civil Nuisance and Breach of Deed of Mutual Covenants / Judgment at Trial (court of First Instance)
Outcome
Judgment for all plaintiffs. 1st defendant liable in nuisance; 2nd defendant liable for breach of DMC. Injunctions granted; 2nd plaintiff awarded damages of HKD 13,000; costs ordered to plaintiffs (order nisi).
Legal Topics
Nuisance, Noise Pollution, Vibration, Deed of Mutual Covenants, Injunctions, Damages
Source Language
EN
Tort Contract Property Environmental Law Civil Procedure Nuisance Noise Pollution Vibration +3 more

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Parties

Realty Harvest Limited

1st Plaintiff

Wai Ming Contracting Co., Ltd.

2nd Plaintiff

Wai Ming Services Ltd.

3rd Plaintiff

Gold Margin Development Limited

1st Defendant

Au Yu Ping

2nd Defendant

Procedural Posture

Civil Nuisance and Breach of Deed of Mutual Covenants / Judgment at Trial (court of First Instance)

Legal Issues

  1. 1 Whether noise and vibration from defendant's machinery constitute actionable nuisance
  2. 2 Whether 2nd defendant breached covenants in the deed of mutual covenants by permitting the nuisance
  3. 3 Which standards/methods of assessment apply (BS4142 and BS6472 v ISO TR3352 and EC Directive)

Ratio Decidendi

Court preferred plaintiffs' expert evidence and methodologies (BS4142 for noise; BS6472 for vibration), found the machines caused noise and vibration levels that would (or would probably) dissatisfy a reasonable person and materially interfered with plaintiffs' enjoyment; 1st defendant liable in nuisance; 2nd defendant liable for breach of DMC for failing to take all possible steps and for renewing tenancy without securing mitigation; injunctions and damages awarded accordingly.

Court Disposition

Judgment for all plaintiffs. 1st defendant liable in nuisance; 2nd defendant liable for breach of DMC. Injunctions granted; 2nd plaintiff awarded damages of HKD 13,000; costs ordered to plaintiffs (order nisi).

Orders

  • Injunction restraining 1st defendant from producing or emitting noises exceeding 10 dB above background level and vibrations exceeding 0.4 m/s^1.75 between 9:00 a.m. and 5:00 p.m. Mondays to Saturdays excluding holidays
  • Order requiring 2nd defendant to forthwith take steps to prevent emission of noises exceeding 10 dB above background and vibrations exceeding 0.4 m/s^1.75 between 9:00 a.m. and 5:00 p.m. Mondays to Saturdays excluding holidays