Ma Tor Fuk Dick and Another v. Wong Kwok Wah

DCCJ 2183/2015

CIVIL ACTION NO 2183 OF 2015

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D E C I S I O N
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1.This is the plaintiffs’ application for judgment against the defendant in default of defence under Order 19 rule 7 of the Rules of the District Court.

2.For the purpose of this application, the plaintiffs’ solicitors have already filed an affirmation of service proving the due service of the writ on the defendant.  I have also been advised by Mr Li that the plaintiffs’ solicitors have also properly served the summons for judgment as well as other related documents on the defendant and an undertaking has been given to file an affirmation to prove such service.  Having accepted such an undertaking, I therefore have proceeded to hear the application in the absence of the defendant.

3.The parties are respectively the registered owners of two units in South Horizons. This action was commenced on 18 May 2015.  The plaintiffs claim against the defendant for injunctive relief as well as damages for loss and damage arising from water leakage. 

4.It is trite law that in such an application the court cannot receive any evidence but must give judgment according to the pleadings alone.  It is therefore not necessary on the hearing of the summons or motion for judgment to prove the case by evidence (see Hong Kong Civil Procedure 2016 at paragraph 19/7/11).

5.Nonetheless, for the purpose of the present application, the plaintiff has filed an affirmation in support of the application whereby the plaintiffs produce among other things a surveyor’s report in relation to the water leakage.  Such evidence should not have been filed.  I understand from counsel, Mr Li, counsel for the plaintiffs, that the same was filed at the instance of the plaintiffs themselves.  In light of the legal position, however, the same would be excluded from my consideration.  My attention would be confined to the statement of claim filed on the plaintiffs’ behalf.

6.According to the statement of claim, the plaintiffs’ case is as follows.  The plaintiffs are the joint owners of Flat D, 3rd Floor, Tower 12, South Horizons, No 12 South Horizon Drive, Hong Kong.  The defendant is the owner of Flat D, 4th Floor of the same building.  That is, the defendant’s property is situated directly above that of the plaintiffs. 

7.Since around 5 January 2015, soiled water has been continuously escaping from the defendant’s property onto the plaintiffs’ property and have caused, and it is still causing, damage to the same.   The plaintiffs have thereby suffered loss and damage.   Such water leakage was caused by the negligence of the defendant and constitutes a nuisance.   As a result, the plaintiffs’ property is practically unusable for the purpose for which it was permitted because of the health, safety and hygiene risks caused by the matters complained of as aforesaid, and the plaintiffs’ property cannot be rented out in the current state of disrepair caused by the matters complained of.

8.The plaintiffs have made requests and demands to the defendant to request the latter to take remedial actions to prevent the continuous escape of water from the latter’s premises to that of the plaintiffs, but the defendant has failed and/or refused to carry out any remedial actions.  In the premises, the plaintiffs are therefore entitled to the reliefs sought in this action including damages to be assessed and an injunction to compel the defendant to carry out the necessary repairs and/or remedial actions.

9.From what is pleaded in the statement of claim, it is almost immediately clear without any need for elaboration that the plaintiff is entitled to at least damages to be assessed.

10.As to the injunctive relief sought, Mr Li has helpfully referred me to the relevant authorities including, but not limited to, American Cyanamid Company v Ethicon Limited [1975] AC 396 and Music Advance Limited v Incorporated Owners of Argyle Centre Phase 1 [2010] 2 HKLRD 1041.  

11.Applying the principles laid down in these authorities, I am satisfied that on the basis of the matters as pleaded, there is a serious question to be tried.  I am also satisfied that in the case of water leakage, an award of damages would not be an adequate relief without the defendant putting an end to the water leakage. It is therefore necessary in the instant case for this court to grant a mandatory injunction against the defendant so that the water leakage can hopefully be resolved.

12.I therefore order that interlocutory judgment be entered against the defendant with damages to be assessed.  I further grant the injunctive relief as prayed for in the statement of claim.

13.I further order the defendant to pay the plaintiffs their costs of and occasioned by this application including the costs of this action. 

(Discussion on costs)

14.I do not think I need to add the phrase “to be taxed” to the costs order that I have just given a while ago because the plaintiff would by default be entitled to have their costs taxed, so I would command - forgive me for using this word - the plaintiffs’ solicitors to carefully prepare a bill for provisional taxation excluding all the work done in relation to the abortive exercise for judgment last time and include only the necessary costs for commencement of action through to the obtaining of interlocutory judgment and the present application.  In my view, both exercises would definitely not have attracted $120,000 and the hourly rate should also be reflective of the experience of the solicitors.   I leave it to the taxing master or CJC to deal with Mr Li’s brief fees and refresher rates. 

Mr Philip Li, instructed by Lau, Chan & Ko, for the 1st and 2nd plaintiffs

The defendant was not represented and did not appear