JACK GORDON LESLIE SMITH AND ANOTHER v. TAM MICHAEL WING WAH AND ANOTHER

JACK GORDON LESLIE SMITH AND ANOTHER v. TAM MICHAEL WING WAH AND ANOTHER

There was a serious question to be tried on both excessive amplified noise and improper disposal of cigarette butts; acoustic monitoring and forensic evidence, the proximity and frequency of conduct, and the framing of the DMC negative covenant justified the exercise of the court's discretion to grant interlocutory injunctive relief in the refined form proposed by the claimants pending trial.

Citation
JACK GORDON LESLIE SMITH AND ANOTHER v. TAM MICHAEL WING WAH AND ANOTHER
Parties
1st Plaintiff: Jack Gordon Leslie Smith; 2nd Plaintiff: Helen Woodside Smith; 1st Defendant: Tam Michael Wing Wah; 2nd Defendant: Tam Au Annie Wan Yee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 June 2007
Case Number
HCA2638/2004
Procedural Posture
Civil Nuisance; Injunction / Interlocutory Injunction Application (hearing and Judgment)
Outcome
Interlocutory injunction (nisi) granted restraining excessive noise and improper disposal of cigarette butts pending trial; costs in the cause; liberty to apply.
Legal Topics
Nuisance, Interlocutory Injunction, Negative Covenant, Neighbour Dispute, Noise Pollution, Evidence (noise Monitoring; Dna)
Source Language
EN
Civil Law Property Law Tort (nuisance) Equity (injunction) Contract (deed of Mutual Covenant) Nuisance Interlocutory Injunction Negative Covenant +3 more

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Parties

Jack Gordon Leslie Smith

1st Plaintiff

Helen Woodside Smith

2nd Plaintiff

Tam Michael Wing Wah

1st Defendant

Tam Au Annie Wan Yee

2nd Defendant

Procedural Posture

Civil Nuisance; Injunction / Interlocutory Injunction Application (hearing and Judgment)

Legal Issues

  1. 1 Whether defendants' amplified music and karaoke constituted actionable nuisance
  2. 2 Whether disposal of cigarette butts onto neighbours' property amounted to nuisance or breach of negative covenant
  3. 3 Whether there is a serious question to be tried such that an interlocutory injunction should be granted

Ratio Decidendi

There was a serious question to be tried on both excessive amplified noise and improper disposal of cigarette butts; acoustic monitoring and forensic evidence, the proximity and frequency of conduct, and the framing of the DMC negative covenant justified the exercise of the court's discretion to grant interlocutory injunctive relief in the refined form proposed by the claimants pending trial.

Court Disposition

Interlocutory injunction (nisi) granted restraining excessive noise and improper disposal of cigarette butts pending trial; costs in the cause; liberty to apply.

Orders

  • Interim injunction granted in form proposed by claimants' counsel, restraining defendants from producing noise above the limits prescribed by the acoustics expert (background‑referenced thresholds) pending trial
  • Interim injunction restraining defendants from throwing cigarette butts and other rubbish onto claimants' property pending trial