Yu Chui Chu v. Silver Town Property Ltd

DCCJ 12/2019

[2019] HKDC 1106

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 12 OF 2019

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Before: His Honour Judge Andrew Li in Chambers (Open to public)

Date of Hearing: 29 July 2019

Date of Decision: 29 July 2019

Date of Reasons for Decision: 15 August 2019

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REASONS FOR DECISION

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INTRODUCTION

1.The plaintiff had, by summons dated 10 July 2019, applied for a mandatory injunction to gain access to the defendant’s premises for the purpose of “inspecting, taking photos and videos as well as carrying out test(s) to ascertain whether the leakage problem from (the defendant’s premises…) still subsists”.

2.At the hearing, I found there was absolutely no basis for the plaintiff to make the application. I therefore dismissed the summons with costs in favour of the defendant and said that I would provide reasons for my decision in due course. Here are the reasons.

BACKGROUND

3.In the plaintiff’s affirmation filed on 10 July 2019, she has confirmed that the water seepage had stopped since March 2019.  However, she said that as nobody was using the defendant’s premises since February 2019, she was not sure whether the seepage problem had really been rectified or not.

4.The defendant’s director Madam Pun Lai Wan (“Pun”) in her affirmation filed on 25 July 2019 has confirmed that in the Joint Report dated 8 June 2019, which was written after a joint inspection carried out by the experts on 11 April 2019, stated that both experts did not consider water seepage was continuing at the premises at the time.

5.During the period between 21 March 2019 and 24 June 2019 when the experts were carrying out inspections and compiling the joint expert report, the plaintiff did not make any request for carrying out inspections and/or tests at the defendant’s premises in order for her or her contractor to ascertain whether the water seepage had stopped or not.

6.Then on 25 June 2019, suddenly and without any explanation, the plaintiff’s solicitors wrote to the defendant’s solicitors and proposed to conduct inspections and carry out tests at the defendant’s premises by the contractor in order to “ascertain whether there is still any water seepage”, despite the fact that no sign of any further water seepage had been found in her premises.

7.There is no evidence produced by the plaintiff to suggest that the defendant had not carried out the original repair work ordered by the Court or that there was any further water seepage since early March 2019.

DISCUSSION

8.As stated in Pun’s affirmation, in compliance with His Honour Judge Kent Yee’s Order dated 27 February 2019, the defendant had engaged its contractor to carry out the repair and/or remedial work to its premises with a view to stop and/or prevent water seepage to the plaintiff’s premises on 3 March 2019.  Further, she had received an inspection report on 24 July 2019 from the Joint Office which was dated 27 April 2018 which confirmed that water seepage had ceased during their investigation.

9.In my judgment, the plaintiff’s present application made under Order 29, Rules 2 & 3 of the Rules of District Court, asking the Court to grant an order to ask the defendant to give access to the plaintiff and/or the plaintiff’s contractor to enter the defendant’s premises for the purpose of “inspecting, taking photos and videos as well as carrying out test(s) to ascertain whether the leakage problem from the defendant’s premises to the plaintiff’s premises” is not only premature (as there was no evidence of any water seepage since the defendant’s repairs/remedial work had been carried out in early March 2019), it is also against the established principles that such mandatory injunction, which would affect a property owner’s fundamental proprietary rights of able to enjoy to live in peace in his/her premises without any interference, should not be granted lightly without very good reasons.

10.In my view, had there been continuous or further leakage after the repairs and/or remedial work carried out by the defendant, that may be a different matter.  However, it is not the case here as the water seepage had stopped since at the end of February or early March 2019, even according to the plaintiff’s own case.

11.The plaintiff, if she wishes to continue to pursue the current case, the proper course for her to do is to take further steps to bring the case to trial. This will include seeking proper directions from the Court for the defendant to file its defence and for her to file her reply; directions for appointing experts to inspect and to adduce expert evidence, discovery of documents, etc., just like in any other water seepage cases.

12.In my judgment, what the plaintiff is not entitled to do is to take out what I would call a “pre-emptive strike”, ie to obtain a mandatory injunction when there is no evidence of any further water leakage.  This is in particular when the plaintiff can be adequately compensated by damages should she be able to prove her case at the trial in due course.

13.Given the above, I consider the application had been totally misconceived and was taken out pre-maturely.

14.In the circumstances and for the above reasons, I had dismissed the plaintiff’s summons with costs in favour of the defendant.  I was also of the view that such costs should be paid on an indemnity basis given the pre-mature, misconceived and oppressive nature of the application.  I therefore had summarily assessed the costs at HK$11,000 at the end of the hearing on 29 July 2019. I ordered that such sum should be paid by the plaintiff to the defendant forthwith.

Mr Rio Lau of Robertsons for the plaintiff

Mr M Tse of Simon C W Yung & Co for the defendant