Ever International Investment Holdings Ltd v. Lee Wah

DCCJ886/2014

CIVIL ACTION NO 886 OF 2014

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REASONS FOR DECISION

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1.This is the hearing of the plaintiff’s summons issued on 24 November 2015 for leave to enter and carry out remedial works in the defendant’s premises in order to stop the water leakage problem.

2.The defendant has not defended or ever entered an appearance in these proceedings, and is absent at the hearing today.

3.I am satisfied that valid service of the summons was effected on the defendant on 6 January 2016. It is appropriate to proceed the hearing in the defendant’s absence.

Background

4.The plaintiff is the registered owner of the premises at 4^th Floor, No 10 Water Street, Hong Kong (“P’s premises”), a flat on the top floor of the building.  The defendant is the owner of the premises on the floor above, ie the 5^th Floor of the same building (“D’s premises”) which is actually the roof.

5.Water leakage occurred at P’s premises since early 2010.  The plaintiff sued the defendant in an earlier similar action (DCCJ 4146 of 2010) in which it obtained judgment in default and was awarded damages.  However the water leakage problem was not rectified or resolved, and became more serious after August 2013.

6.The plaintiff instituted the present proceedings again against the defendant on 10 March 2014.  It claims against the defendant herein for loss and damage in respect of the water leakage at D’s premises resulting in serious damage to P’s premises.

7.On 17 June 2015, default judgment was entered against the defendant for, inter alia, a mandatory injunction order (“the Injunction Order”) that the defendant is required to carry out the remedial works as set out in the statement of claim within 60 days from the date of the order in order to stop the water leakage.

8.The Injunction Order was served on the defendant as follows pursuant to a court order of substituted service granted on 30 July 2015:-

(i) On 20 August 2015, the Injunction Order was posted up at a conspicuous place at the main entrance of D’s premises; and

(ii) On 28 August 2015, a Chinese notice of the Injunction Order was advertised in “SingTao Daily News”.

9.No remedial works were carried out at D’s premises pursuant to the Injunction Order upon expiry of the-60 day time limit on 16 August 2015 or until now.

10.The plaintiff commissioned a survey report dated 11 November 2013 by Raymond Chan Surveyors Limited.  As stated in the survey report, the cause of water seepage at P’s premises was due to the defective waterproofing system resulted from some unauthorized building works on the roof/at D’s premises.  To rectify the water leakage problem, the following works would be required at D’s premises:-

(i) Removal of the unauthorized building works; and

(ii) Re-roofing and installation of a new waterproofing system.

(collectively “the Remedial Works”)

11.After perusing the 3^rd Affirmation of Yeung Ching Man filed on 24 November 2015 on behalf of the plaintiff, I am satisfied that there are still unauthorized structures at D’s premises.  The photographs taken of D’s premises show a deserted and vacant house-like structure with its door left open.  The plaintiff’s evidence is that all this time and during the past few years, D’s premises were vacant and the defendant could not be contacted.  Access to the roof, ie D’s premises, is not restricted by any locked door or gate.

12.In compliance with the Injunction Order, the plaintiff seeks leave (i) to enter into D’s premises and (ii) to carry out the Remedial Works.

Discussion

13.The plaintiff has exhausted its efforts to pressurize the defendant to rectify the water leakage problem that has persisted since early 2010, by two court actions, but to no avail.

14.The plaintiff has suffered continuous losses as it has not been able to rent out P’s premises for rental income since September 2013 and up to now.  The water leakage problem has become more serious in the past 2 years, and even worse recently.

15.Order 45 rule 8 of the Rules of the District Court empowers the Court to order the act required to be done at the expense of the disobedient party as follows:-

“8. If a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.”

16.The defendant never responds to the plaintiff’s demands for remedy nor takes part in these proceedings.  Looking at the history of the events, there is every reason to believe that he will not comply with the Injunction Order even if more time is allowed.  On the other hand, it can only be fair to the plaintiff that the Remedial Works should be carried out without further delay in order to remedy the water leakage problem and stop the continuing losses.

17.In considering whether the plaintiff’s application should be granted, I have made reference to the Court of Appeal decision in The Incorporated Owners Champion Court v Pang Ping Fan Peter & Anor, HCMP 359/2011 in which the decision of HHJ Lok (as he then was) to enforce a mandatory injunction to remove illegal structures under Order 45 rule 8 was upheld.  The situation is similar to the present case where removal of unauthorized building works are required under the Injunction Order.

18.I consider the present circumstances justify the order sought by the plaintiff.  I allow the plaintiff’s application and make an order in terms of paragraphs 1 to 3 of the plaintiff’s summons.

(Discussion re summons and costs)

19.I further order that the costs of this application and today’s hearing be to the plaintiff, with certificate for counsel.

Mr Alex Y H Lai, instructed by BC Chow & Co, for the plaintiff

The defendant was not represented and did not appear