Tjon Yose Manuel Sie Fo and Another v. Ngo Otin

DCCJ 3990/2019

[2020] HKDC 1031

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3990 OF 2019

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Before:  His Honour Judge KC Chan in Chambers (Open to Public)

Date of Hearing:  12 November 2020

Date of Judgment:  12 November 2020

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JUDGMENT

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1.This is a water seepage case.

2.The 1^st and 2^nd plaintiffs (“the plaintiffs”) applied by summons dated 10 August 2020, pursuant to O 19 r 7 of the Rules of the District Court, for default judgment upon the default of the defendant in filing an Acknowledgment of Service with Notice of Intention to defend and the Defence.

3.By the 6^th affirmation of Li Kwok Leung filed on 10 August 2020, I am satisfied that the Amended Writ of Summons herein endorsed with the Amended Statement of Claim was served to the defendant in the manner required by the Order of Registrar Lui made on 28 May 2020.  No Defence has been filed by the defendant in the prescribed time, or at all.  By the 7^th affirmation of Li Kwok Leung filed on 4 November 2020, I am also satisfied that the present summons was duly served to the defendant who is absent today.

4.The legal principles relating to such an application are trite and I do not need to repeat them here.

5.The Amended Statement of Claim is a bit prolix. The salient averments pleaded therein are as follows, which I have paraphrased :-

(a)  At all material times, the plaintiffs were and are the registered owners of Shop B, Ground Floor, Fortuna Building, Nos 451, 453 and 455 Chatham Road North, Kowloon (“the Plaintiffs’ Shop”), and they have been renting it out to fetch income.

(b)  At all material times, the defendant was and is the registered owner of Flat C, 1^st Floor including portion of Flat Roof adjoining thereto (“D’s Flat Roof”) of Fortuna Building, Nos 451, 453 and 455 Chatham Road North, Kowloon (“the Defendant’s Premises”).

(c)  The Plaintiffs’ Shop was situated immediately below the Defendant’s Premises.

(d)  Since around July or August 2017 and continuing, water originated from D’s Flat Roof, which was exposed and uncovered, has been seeping through to, and dripping from, the ceiling of the Plaintiffs’ Shop.

(e)  The 1^st plaintiff then made complaints to Incorporated Owners of Fortuna Building who informed the defendant of the same.  There were then discussions and the defendant initially in January 2018 agreed to carry out and pay for remedial works to be done on D’s Flat Roof to stop the seepage.  Such remedial works however were not carried out as promised.

(f)  The plaintiffs rely on an expert report dated 17 November 2018 setting out the findings and opinion of the expert that the said water seepage to the Plaintiffs’ Shop was caused by water seeping through D’s Flat Roof.

(g)  The defendant has thereby breached Clauses 4 and 10 of the DMC in failing to keep the Defendant’s Premises, particularly, D’s Flat Roof in good repair and condition and has thereby caused or permitted nuisance, damage or inconvenience to the plaintiffs.

(h)  The defendant has thereby also breached his duty of care owed to the plaintiffs and has therefore been negligent.

(i)  The plaintiffs thereby suffered loss and damage, including the loss of rental incomes from certain tenancies.

6.According to the averments pleaded in the Amended Statement of Claim, the plaintiffs are entitled to the relief claimed.

7.I therefore enter interlocutory judgment on liability against the defendant with damages to be assessed, grant the mandatory injunction as prayed for with some variations in wording ordering the defendant to carry out repairs to stop the water seepage, and order that the defendant do pay to the plaintiffs the costs of this action on liability, including the costs of this application, with certificate for counsel, to be taxed if not agreed. 

Ms Winnie Y.T. Li , instructed by Chan Ching Man & Co, for the 1^st and 2^nd plaintiffs

The defendant was not represented and did not appear