ELIAS NEIL DAVID AND ANOTHER v. CHENG SUI CHU AND OTHERS

ELIAS NEIL DAVID AND ANOTHER v. CHENG SUI CHU AND OTHERS

The court held the sub-lease valid (no forfeiture or effective early termination) so plaintiffs were not trespassers; the plaintiffs lawfully removed tenant-funded fences as tenant's fixtures; the defendants committed private nuisance by hanging dead fish (producing offensive sight and smell for about a month) and by placing and applying buckets of excreta/fertiliser (causing a few days of noxious smell); these interferences were sufficiently serious to be actionable; damages of HKD 40,000 awarded to plaintiffs; counterclaim dismissed; aggravated damages not awarded for lack of pleading and evidence; costs ordered to plaintiffs (order nisi).

Citation
[2018] HKDC 1567
Parties
1st Plaintiff: Elias Neil David; 2nd Plaintiff: Lockwood Jane Elizabeth Mary; 1st Defendant: Cheng Sui Chu; 2nd Defendant: Wong Chi Hing; 3rd Defendant: Persons doing such acts or things, in or on Lot No.246 in D.D.8, causing nuisance or which may be or become a nuisance or annoyance or inconvenience to owners, occupiers or users of Section B of Lot No.245 in D.D.8
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 December 2018
Case Number
DCCJ2148/2016
Procedural Posture
Civil Action for Nuisance, Trespass and Conversion (district Court) / Judgment After Trial
Outcome
Judgment for plaintiffs on nuisance claim; plaintiffs awarded HKD 40,000; plaintiffs' claims for aggravated damages dismissed; defendants' counterclaim dismissed; costs to plaintiffs (order nisi)
Legal Topics
Nuisance, Trespass, Conversion, Damages, Forfeiture, Fixtures, Sub Letting, Mesne Profit, Injunction, Pleadings
Source Language
EN
Tort Property Landlord and Tenant Civil Procedure Nuisance Trespass Conversion Damages +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 12 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Elias Neil David

1st Plaintiff

Lockwood Jane Elizabeth Mary

2nd Plaintiff

Cheng Sui Chu

1st Defendant

Wong Chi Hing

2nd Defendant

Persons doing such acts or things, in or on Lot No.246 in D.D.8, causing nuisance or which may be or become a nuisance or annoyance or inconvenience to owners, occupiers or users of Section B of Lot No.245 in D.D.8

3rd Defendant

Procedural Posture

Civil Action for Nuisance, Trespass and Conversion (district Court) / Judgment After Trial

Legal Issues

  1. 1 Validity of sub-lease and whether plaintiffs in wrongful possession (trespass)
  2. 2 Whether plaintiffs wrongfully removed fences (conversion)
  3. 3 Whether defendants committed private nuisance by actions on re-taken land

Ratio Decidendi

The court held the sub-lease valid (no forfeiture or effective early termination) so plaintiffs were not trespassers; the plaintiffs lawfully removed tenant-funded fences as tenant's fixtures; the defendants committed private nuisance by hanging dead fish (producing offensive sight and smell for about a month) and by placing and applying buckets of excreta/fertiliser (causing a few days of noxious smell); these interferences were sufficiently serious to be actionable; damages of HKD 40,000 awarded to plaintiffs; counterclaim dismissed; aggravated damages not awarded for lack of pleading and evidence; costs ordered to plaintiffs (order nisi).

Court Disposition

Judgment for plaintiffs on nuisance claim; plaintiffs awarded HKD 40,000; plaintiffs' claims for aggravated damages dismissed; defendants' counterclaim dismissed; costs to plaintiffs (order nisi)

Orders

  • Defendants to pay plaintiffs HKD 40,000 as damages
  • Counterclaim dismissed