Trevand Manufacturing Company Ltd v Stoeckert et Al

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Campbell, J.A.,Forte, J.A.
• Judgment Date: 30 July 1990
• Neutral Citation: JM 1990 CA 70
• Docket Number: No. 15 of 1990
• Date: 30 July 1990

Court of Appeal

Campbell, J.A.; Forte, J.A.; Gordon, J.A. (Ag.)

No. 15 of 1990

Trevand Manufacturing Company Limited

and

Stoeckert et al

Appearances:

D.M. Muirhead Q.C. and C. Piper instructed by Clinton Hart & Co for appellant

Emil George Q.C. and Miss Crislyn Beecher instructed by Milholland Ashenheim & Stone for respondents

Injunction - Appeal against interlocutory injunction — Appellant operated a concrete block factory and/or saw mill — The respondents became aware of the activities on the appellant's land which they considered constituted breaches of restrictive covenants and a nuisance — Respondents sought an injunction to restrain the appellant from drilling, operating saw mills, power-saws and other machinery on its premises which caused vibration on the respondents' premises and permitted dust, smoke or fire to escape from its premises to the respondents' premises — Whether the order was too vague to be enforce able and ought to be discharged — Whether the facts which were endorsed on the writ of summons did not disclose a cause of action in actionable nuisance — Whether an interlocutory injunction should have been granted — Finding of the court that the trail judge did not err in any point of law — Appeal was dismissed — Costs to the respondents to be taxed if not agreed.

Campbell, J.A.

1 This is an appeal against an Order of Edwards J., made on February 16, 1990 granting an interlocutory injunction in favour of the respondents. The formal order restraining the appellant, its servants and or agents is in the following terms:–

• “1. The defendant by itself, its servants or agents or otherwise howsoever be restrained from causing or creating or permitting to be caused or created a nuisance to the plaintiff's or other occupiers of the plaintiff's adjoining promises at 10 Montrose Road, in the parish of Saint Andrew, by drilling, operating saw mills, power-saws and other machinery, causing vibrations on the plaintiff's premises, causing or permitting dust or smoke or fire to escape from the defendant's premises at number 4 and 6 Montrose Road in the parish of Saint Andrew onto the plaintiff's premises or otherwise pending trial. This does not apply to such reasonable user of machinery and equipment as may be necessary to construct a building on the premises after all the necessary statutory approvals for such construction have been obtained and in “keeping with the conditions of approval.

• 2. The defendant by itself, its servants, or agents or otherwise howsoever be restrained from operation of a concrete block factory and/or a saw mill and/or any factory whatsoever on the defendant's premises at numbers 4 and 6 Montrose Road in the parish of Saint Andrew.”

2 The appellant acquired by registered transfer, premise numbered 4 and 6 Montrose Road being part of lands known as Vale Royal which adjoins the respondents' premises numbered 10 Montrose Road. The appellant's transfer was registered on July 18, 1989. The purchase price of the premises was $1.3 million which was financed to the extent of $1.155 million by a loan from National Commercial Bank Jamaica Limited, secured by mortgage of the said land which mortgage was registered on August 15, 1989. The purchase of the premises was for the construction thereon of a ten two bedroom luxury townhouses. It is plain that with this heavy dependence an bank financing, the project to be profitable as an investment, had to be cost efficient both in terms of time as well as in money expenditure on construction.

3 To achieve these objectives the appellant immediately sought approval for the project under the Town and Country Planning Law. An outline plan was approved under this lacy in, September 1909. The premises also had to be cleared of restrictive covenants against subdivision and the carrying on of any trade thereon. Application for the removal or modification of these restrictive covenants is contemplated but for reasons stated by the appellant, no application to date has been made. The appellant however commenced certain activities on its premises allegedly preparatory to construction which were designed to be cost saving.

4 The respondents became aware of activities on the appellant's land which they considered as constituting breaches of the restrictive covenants as well as a nuisance. They accordingly issued a writ on or about January 26, 1990 claiming inter alia:–

• (a) are injunction to restrain the appellant from drilling, operating sawmills, power-saws and other machinery on its premises thereby causing vibrations on the respondents' premises or thereby permitting dust smoke or fire to escape from its aforesaid premises onto the respondents' premises;

• (b) an injunction restraining the appellant from operating a concrete block factory and/or a saw mill and/or any factory whatsoever on its premises.

5 The respondents thereafter issued a Summons seeking an interlocutory injunction in terms of (a) and (b) above more fully elaborated in the summons. The affidavit in support stated in paragraph 9 that the appellant had commenced operating a concrete block factory and a saw mill with workmen, heavy equipment, drills, power-saws and/or other machinery and in paragraph 10 the respondents complain that such operations cause –

• (a) excessively loud noise from 6 a.m. to 11 p.m. including repetitious drilling and the operation of the sawmill;

• (b) constant vibration to be felt on the respondent's premises with fear of severe and irreparable damage to their building;

6 (c) constant stirring up on and escape from appellant's premises of clouds of dust on to respondents' premises which dust settles on the furniture in their home and on the walls of their home and this has in addition adversely affected the health of one of the respondent's.

7 The appellant admitted that in anticipation of securing the removal or modification of the restrictive covenants in due course and as a construction cost saving device it had commenced making concrete blocks on the premises after dismantling an old building on, and clearing, the premises and building a wall enclosing the said premises. It further admitted that it operated a power saw to cut up plywood for use in making pallet on which to place the freshly made concrete blacks for the purpose of curing them.

8 It however states that in relation to the concrete block making operation it was a small portable block making machine housed in a zinc shed, the operation of which was much small to be viable as a commercial enterprise. The power saw was a small one weighing only 3 lbs with a blade diameter of only 7 ¹/₂ inches. It denied that its activities were commenced before 7.30 a.m., or that they were continued beyond 5.30 p.m., or that they were capable of causing or caused any vibrations or escape of dust to the extent claimed by the respondents.

9 The learned trial judge having heard submissions from the attorneys for the respective parties and having read the affidavits before him made an order in terms of the Summons. His conclusion so far as is relevant was that the affidavits revealed conflicting evidence. He thereafter reasoned thus at pages 52 – 53 of the record:–

“Looking at the matter before me, this is not a fictitious case. Something is happening and there is a dispute e.g. can the defendant's operations be considered a block factory, saw mill, heavy equipment? — this an issue to be determined. This court is not a court of trial. If it is held that a factory is operated, are there excessively loud noises at 6 a.m. — 11 p.m. as alleged by plaintiff? Are there vibrations from the operations as alleged by the plaintiff and denied by the defendant?

If there is such an operation are there irreparable damages to the plaintiff's building? Are there clouds of dust escaping and damage resulting to plaintiff's health? There will be evidence at trial other than Affidavit evidence — people can be questioned about it. There are serious issues to be tried therefore.

This leads us to whether an interlocutory Injunction to be granted. Test is the balance of convenience. Where does it lie, plaintiff or defendant? What kind of harm is likely to arise?

If granted, defendant would not he able to make blocks until after trial. Is this quantifiable? It can be as the machine has a known output. Loss can be worked out. Proposed building is not yet commenced. Although some form of approval has been granted, unconditional approval has not yet been obtained. Defendant is taking steps to have his title modified. It is expected he will get it but it is not certain yet. The approval given was subject to there being no breach of covenant. So it is still not unconditional approval. It is impossible at this stage for the defendant to say with certainty. From defendant's point of view, if interlocutory injunction granted until trial and he succeeds his loss is quantifiable.

If Injunction is refused, the Affidavit evidence states that health of defendant is affected. If injunction is refused, can the plaintiff recover if her health continues to deteriorate?

On the one hand we have a case where money can compensate. On the other hand, we have a case where money cannot compensate.

The balance of conveniences seems to be to favour the plaintiffs.

Order in terms of paragraph 1 & 2 of Summons dated 1 ^st February, save that in respect of paragraph 2, it does not apply to such reasonable user of machine and equipment as may be necessary to construct a building on the premises after all the necessary statutory approvals for such construction have been obtained and in keeping with the conditions of approval.”

10 The appellant appeals the Order of the learned trial judge on 9 grounds of appeal. The first ground is that there is too vague to be enforceable and ought therefore to be discharged.

11 The basis for this complaint is that the formal Order recites the...