Kai Shing Management Services Ltd. v Yuk Yun Kit & Ors - [2016] HKCU 1736

Background

The Applicant in this case was the estate manager of the Development. The Respondents were co-owners of a property in the Development ("House No. 26"). There were complaints received since 2012 that the dogs and cats kept in House No. 26 ("Animals") had been a nuisance to other owners in the Development ("Affected Owners").

The nuisance complained of included dogs barking non-stop day and night, cats making loud noises at night, cat hair flying around the Development, bad smells, fouling in the Development and the mishandling of pet food causing rat infestation. Some of the Affected Owners said that the smell was so bad that they could not open the windows of their houses, or sit in their gardens.

Facts

The Respondents had been keeping the Animals since 2001. The Respondents said that the animals were abandoned by their owners and that they were kept in House No. 26 pending transfer to other families. As at the trial date, there were 10 dogs and 8 cats being kept inside the Respondents' property.

The conduct and behaviour of pet owners at the Development was governed by Clause 5.19 of the Sub-Deed of Mutual Covenants for the Development ("Sub DMC") which stated: "No Village Owner of a Residential Unit shall keep or harbour any dog, cat…or other animals in any part of his Unit if the same has been the cause of reasonable complaint by at least two Owners or Occupiers in any part of the Estate or if in the opinion of the Manager, the same is causing a nuisance to the Owners of the other Units."

Issues

As the conduct and behaviour of the owners in the Development when keeping cats and dogs was governed by the Sub-DMC, the Applicant did not bring a claim against the Respondents for nuisance under the law of tort. Rather, the Applicant’s cause of action was for breach of Clause 5.19 of the Sub-DMC. The Applicant argued that the noise pollution and foul odour, if proved, amounted to nuisance under the Sub-DMC which substantiated the complaints made by the Affected Owners and that consequently, the Applicant was entitled to enforce Clause 5.19 of the Sub-DMC.

The Court had to consider whether the complaints received about the Respondents in relation to the Animals were reasonable, and whether the Applicant as the manager of the Estate, was correct in forming the opinion that a nuisance had been caused by the Animals.

Law

In considering the reasonableness of the complaints, the Court reaffirmed the position in the previous leading authorities that the relevant question is: what is reasonable according to ordinary usage of mankind living in a particular society.

Application

As regards the concept of "ordinary usage of mankind living in a particular society" the Judge considered whether the keeping of a large number of dogs and cats was an ordinary use in the circumstance. As House No. 26 was in a low-rise, low-density and high-class residential development the Judge did not consider keeping a large number of dogs and cats to be ordinary use. On the other hand, the Judge contended that there had to be a balance between the rights of the Respondents to use their property for their own lawful enjoyment on the one hand, and the right of the other neighbors to the undisturbed enjoyment of their property on the other. In this regard, the Court considered various factors:

Locality

The Respondents submitted that persons living in large rural developments where the keeping of pets is commonplace should be more tolerant of smell and noise than those living in secluded urban districts where animal keeping is often forbidden. This argument was rejected by the Judge who was of the opinion that residents in the Development were entitled to the use and enjoyment of their properties without being interfered with or disturbed by insufficient control of animals by others residents. In the Judge's opinion, the level of nuisance exceeded the level which was acceptable in any environment.

Standard of comfort

The Respondents argued that the Applicants were of a "peculiar temperament" but the Judge disagreed, opining that no ordinary person "would want to be awakened by a dog barking at night and no ordinary person would want to be attacked by foul odour emitted by animals or their excrement from next door".

On a related note, during their cross-examination of some of the Applicant's witnesses, the Respondents asked whether the Applicant had any objective / scientific evidence to test the odour complained of. The Judge rejected this scientific approach and held the Applicant's witnesses' evidence on the noise and smell was truthful and reliable.

Manner of Interference

The Respondents argued that the present case concerned only short, sporadic and transitory interference of dogs barking, and that the duration did not last long on every occasion. Accordingly, the Respondents argued that although the keeping of dogs and cats may cause a considerable amount of temporary annoyance to their neighbours, one cannot on that account alone be held liable for unlawful nuisance because then pet-keeping would always fall foul of the law.

The Judge did not agree with the description of the barking adopted by the Respondent, and explained that the Respondents could not control the time the dogs barked. The dogs did bark at night, and more frequently than that the Respondents admitted to the Court.

Abatement

The Respondents asked the Judge to consider their abatement measures. The Respondents argued that they kept pets as a recreation which had a real, useful and positive utility to both humans and animals. The Respondents argued that they treated dogs and cats as members of the family, loyal friends and companions.

The Respondents argued that they had set up sound insulation materials inside House No. 26 and employed additional domestic helpers to remove waste heaps and disinfect areas.

The Judge dismissed these arguments because, the disturbance of noise and smell continued after the abatement.

Conclusion

For the above reasons, the Judge was satisfied that the disturbance in the present case amounted to actionable nuisance and that the complaints received by the Applicant were reasonable. Accordingly, the Court ordered that the Respondents must remove all the Animals from House No. 26.

Take-aways

If a DMC contains a clause governing nuisance arising out of keeping pets at a development, a complaining owner can rely on the relevant clause in the DMC in addition to / instead of nuisance under the law of tort.

Although in Kai Shing Management Services Ltd. v Yuk Yun Kit & Ors, the behaviour of the Animals was considered to be a nuisance under the Sub-DMC, this case shows that the type of Development is an important factor that the Courts take into consideration. What might be considered as completely unacceptable in a small suburban apartment may well be considered reasonable behaviour in a large rural development (and vice versa).