Polysonic Investment Ltd v. Chan George Lung Cheung and Another

DCCJ 1007/2020

[2022] HKDC 210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1007 OF 2020

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Coram:  His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of written submissions:  2, 9 & 16 December 2021

Date of Decision:  2 March 2022

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DECISION

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THE APPLICATION

1.In this action, the plaintiff claims that the Master Bedroom and Master Bathroom in its flat (“the plaintiff’s Property”) have been damaged by water leaking from the defendants’ flat situated immediately above (“the defendant’s Property”) since about June 2019. The plaintiff therefore sues the defendants herein for relief including orders of injunction and damages.

2.By summons filed on 19 July 2021 (“the Summons”), the plaintiff applies for an interlocutory injunction order in the following terms:

“1. A mandatory injunction be granted that the 1^st and 2^nd Defendants do carry out all necessary remedial repairing alternation and/or improvement measures at their own costs at Flat B, 18^th Floor, Block 2 Scenecliff, No.33 Conduit Road, Hong Kong (‘the Upper Flat’) in order to stop the leakage of water in question to Flat B, 17^th Floor, Block 2 Scenecliff, No.33 Conduit Road, Hong Kong (‘the Plaintiff’s Property’), including but not limited to repairing or reinstalling the waterproof layer of the master bathroom of the Upper Flat preventing water and dampness from passing through into the floor slab to the Plaintiff’s Property, within 14 days from the date of the Order to be made herein to the satisfaction of the Plaintiff.

2. Further or alternatively, a prohibitory injunction be granted that the 1^st and 2^nd Defendants and each of them, by themselves, or their servants or agents or otherwise howsoever from using all the water facilities of the master bathroom of the Upper Flat, including the water basin, water closet, shower and bathtub, pending the final determination of this action or further order.”

3.By consent, this application is disposed of on papers.

LEGAL PRINCIPLES

4.Parties have cited a number of authorities on the applicable legal principles on interlocutory injunctions. Without disrespect to counsel, I think it would be sufficient for our purpose to refer to the case of Music Advance Limited & Another v The Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041, in which Ma J (as his Lordship then was) had the following to say:

“11. The applicable principles for interlocutory injunctions are well-known and do not need repetition. Generally, one needs to look no further than American Cyanamid v. Ethicon Ltd [1975] AC 396 and the relevant text in Hong Kong Civil Procedure 2002 Volume 1 at paragraphs 29/1/8-29/1/50.

12. I would, however, only highlight one aspect. Where, as in the present case, the plaintiffs seek an interlocutory mandatory injunction (that is, an order requiring the defendant to do something, in contrast to a prohibitory injunction which restrains the defendant from doing something), the following matters should be borne in mind as being the court’s approach :

(1) In the case of interlocutory mandatory injunctions, it is often said or assumed that a court will not grant one unless it feels a high degree of assurance that at the trial of the action, it will be shown that the injunction was rightly granted : see Shepherd Homes Ltd v. Sandham [1971] Ch 340 at 351. This has been explained and sometimes understood as meaning that in the case of an interlocutory mandatory injunction, the applicant’s case on the merits has to be made out to a higher standard of proof than in the case of prohibitory injunction : see the Court of Appeal’s observations in TKI Limited v. New Happy Limited [1995] 1 HKC 551 at 554 B‑D.

(2) Broad statements such as the above must, however, be properly put in context.

(3) The basic approach to interlocutory injunctions, whether mandatory or prohibitory, is the same. Section 21L of the High Court Ordinance, Chapter 4 makes no distinction between these two types of injunctions and simply states that interlocutory injunctions may be granted if it appears to be just or convenient to do so.

(4) At the interlocutory injunction stage, the principal concern of the court is that it might make a wrong decision in the sense that after trial, the party to whom an interlocutory injunction has been granted may lose or the party who has been refused one, may win. The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong. This ‘fundamental’ principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions (included are, of course, the American Cyanamid guidelines) and therefore, in the application of any guidelines, sight must not be lost of this principle. See here : Films Rover International Ltd v. Cannon Films Sales Ltd [1987] 1 WLR 670 at 680 D‑G, in a passage from the judgment of Hoffman J which was approved by the House of Lords in R v. Secretary of State for Transport ex parte Factortame Limited (No.2) [1991] 1 AC 603 and recently reiterated in the English Court of Appeal decision of Zockoll Group Ltd v. Mercury Communications Ltd [1998] FSR 354 (which Mr Au was kind enough to place before me).

(5) Two common guidelines are of course the consideration of the merits of the plaintiffs’ claim and the balance of convenience. Here, it is of course easy to see at once how they are linked to the fundamental principle : there must be a risk of injustice if the plaintiff cannot even establish a serious question to be tried or that one or the other party will be put to substantial inconvenience or prejudice if an interlocutory injunction were or were not granted.

(6) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute. In Films Rover International Limited, it was put thus by Hoffman J at 681 B‑E :

‘In Shepherd Homes Ltd. v. Sandham, Megarry J. spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage : they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.’

(7) This passage in my view explains just why it is that generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case : see sub‑paragraph(1) above. However, I emphasize that this is only generally the court’s approach. Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel the ‘high degree of assurance’ as aforesaid, it would be right to grant an interlocutory mandatory injunction : see Films Rover International Limited at 681 A‑B.

(8) This of course brings into focus the balance of convenience. Thus, if a plaintiff in seeking an interlocutory mandatory injunction cannot demonstrate more than a serious question to be tried, it will have to show that the balance of convenience tilts so much in its favour that justice requires such an injunction to be granted, even taking into account those aspects of an interlocutory mandatory injunction expressed by Hoffman J in Films Rover International Limited.

(9) At no stage, however, in the consideration of the matter does the court lose sight of the practical realities of the situation to which the injunction will apply : see NWL Limited v. Woods [1979] 1 WLR 1294 at 1306C per Lord Diplock.

MERITS OF THE PLAINTIFF’S CLAIM

Burden of proof in water seepage cases

5.It is trite that the plaintiff has to prove where the water came from. In Leung Yung Chun & Another v Chan Wing Sang & Others [2000] 1 HKLRD 456, it was held by Cheung J (as his Lordship then was) that:

“The burden of proof is clearly on the plaintiffs to show that the source of water came from Mr Chan’s flat. As rightly pointed out by Leong JA in 張秀玲及吳炳漢對鄭禮莊 (CACV268/98), there is no presumption that the source of leakage would necessarily come from the flat above…” (at 461 I – J)

6.Further, it is not for the defendants to find out or identify the real source of the water seepage or to prove that its origin did not come from their property[1]. Neither is it necessary for the court to find the real source of the water seepage problem.[2]

Discussion

7.For the purpose of this action, the court has given directions for experts to give expert opinion on, among other things, the source of the water leakage, and pursuant to which Mr Chung Wai Hoi Vincent (“Mr Chung”) and Mr Lau Wing Wai Patrick (“Mr Lau”) have been appointed as the expert of the plaintiff and the defendants respectively. They had conducted joint site inspections of the plaintiff’s Property and the defendants’ Property on 17 December 2020 and 7 January 2021, and prepared a Joint Expert Statement dated 8 April 2021, in which the following opinion had been expressed:

(1)  Both experts agreed that the Master Bathroom and the Master Bedroom of the plaintiff’s Property were affected by water seepage;

(2)  Mr Chung took the view that the dampness found in the plaintiff’s Property was resulted from water seepage through the floor slab due to the failure of waterproofing layer of the Master Bathroom of the defendants’ Property. Mr Lau was slightly less certain about this, yet he concluded that it was “highly likely” that it was so;

(3)  Both experts agreed that repair work and touch up work are needed to be done in the plaintiff’s Property when the source of water seepage in the defendants’ Property is fixed.

8.On the basis of the above expert opinion, I am of the tentative view that the plaintiff’s case on the merits has been made out to a higher standard of proof required which entitles this court to feel a high degree of assurance that, at the trial of this action, it will be shown that the interlocutory injunction was rightly granted.

9.However, Mr Wong for the defendants have made the following counter-arguments:

(1)  Remedial works have already been carried out two times to the Master Bathroom of the defendants’ Property respectively in (i) November 2019 to January 2020 (“the First Repair Work”) and (ii) July to August 2021 (“the Second Repair Work”). These would have been effective measures to remedy any leakage therefrom. According to Leung Lai Kwan[3]’s 2^nd Affirmation, the conditions of the plaintiff’s Property have become worse by the end of August 2021. This shows that the defendants’ Property is not the source of water. If the Master Bathroom of the defendants’ Property was not the source of water, then the granting of the interlocutory injunction would not solve the problem;

(2)  The most recent conclusion of the independent investigation of the Joint Office of the Buildings Department and Food and Environmental Hygiene Department (“the Joint Office”) has defeated any purported strong prima facie case that the defendants’ Property is the source of water leakage.

The First Repair Work

10.The argument made on the basis of the First Repair Work can be dealt with quickly. Such work was done before the joint inspections and tests conducted by the experts on 17 December 2020 and 7 January 2021. If the experts still came to the opinion as set out above, then the First Repair Work apparently cannot assist the defendants here.

The Second Repair Work

11.On 31 July 2021, 2 August 2021 and 5 August 2021, the defendants’ contractor had, upon the instructions of the defendants, applied 3 waterproofing layers to the Master Bathroom of the defendants’ Property.

12.Mr Wong for the defendants referred to the 1^st defendant’s affidavit in which it was stated that:

“47. Upon the Defendants’ solicitors’ receipt of the findings from the Joint Office, for prudent’s sake, I engaged a si-fu to apply waterproofing layer to the master bathroom of the Defendants’ Property (‘the Second Repair Works’). Si-fu advised that 3 layers should be applied to ensure a high degree of water resistence.

48. Fresh water supplied was stopped in order to facilitate the Second Repair Works […]

49. When si-fu unmounted the faucet on 31^st July 2021, he found water seeping from the side. He advised that could be residual water in the pipes as fresh water supply was just switched off. However, on 2 August 2021, si-fu again found water seeping out. He raised the suspicion of which I verily believe there to be water leakage from external walls as there should not be any water seeping out after fresh water supply had stopped for a few days […]”

13.The 1^st defendant did not disclose the identity or qualification of this “si-fu”. This court is not minded to place any weight to the alleged “suspicion” that there was leakage from the external wall raised by this unknown person.

14.I have not forgotten that while Mr Chung (the plaintiff’s expert) has concluded in the Joint Expert Statement that the external wall is not likely to be the source of water seepage, Mr Lau (the Defendants’ expert) opined that there is such a possibility. I quote his opinion on this matter as follows:

“According to the inspection on 17^th December 2020, the external walls are finished with homogenous tiles. Some obsolete anchor bolts are found on the external walls and there are also certain rusty stain marks on the pipe bracket and void adjoining the anchor point of the pipe bracket. (Please refer to the closed up photos in Appendix IV of the Joint Report).

As the reported water seepage location is near the external wall and no test, such as water spray test on external wall was done, there is a possibility that water seepage through the external wall of the Plaintiff’s Property and the Defendants’ Property to the Plaintiff’s Property.”[4]

15.My views on Mr Lau’s aforesaid opinion are as follows:

(1)  As the experts recognised under section 5.0 of the Joint Expert Statement, one of the issues which required the respective experts’ opinion was “on the issue of liability, the source/cause of the alleged water seepage in the plaintiff’s Property”. In other words, the experts were supposed to given their opinion on the source of water, rather than simply commenting on the question of whether the defendants’ Property was the source. If Mr Lau considered that a spray test had to be done at the external wall so that he could discharge his duty as an expert properly, I do not understand why he did not propose to do such a test;

(2)  It must be noted that Mr Lau, in paragraph 6.4 of the Joint Expert Statement, also had the following to say:

“Both experts agreed that repair works and touch up work are needed to be carried out done in the Plaintiff’s Property when the source of water seepage in the Defendants’ Property is fixed.”

If Mr Lau was serious about the possibility of the external wall being a source of the water seepage, I wonder why he would take the view that the plaintiff could do repair work in the plaintiff’s Property upon the fixing of the water seepage problem in the defendants’ Property, rather than waiting until the condition of the external wall was ascertained.

16.I therefore do not think the alleged possibility of the external wall being the source of water may assist the defendants.

17.Mr Wong then emphasised that the defendants had not used the Master Bathroom of the defendants’ Property for 3 weeks after the Second Repair Work was done. He did not make it clear in his submissions why this suspension of use is relevant to show that the defendants Property was not the source of water leakage. In any event, this allegation of fact (that the defendants did not use the Master Bathroom of their flat for 3 weeks) was only mentioned by the defendant’s solicitors in their letter dated 18 August 2021, but surprisingly not in the 1^st defendant’s affidavit. I am not prepared to accept such evidence in these circumstances for the purpose of the application.

18.Mr Wong further submitted that:

“33. Importantly, the most recent conclusion of the independent investigation of the Joint Office unequivocally defeats any purported strong prima facie case that Ds’ Flat is the source of the alleged water leakage continuing to affect P’s Flat. That, Ds submit, is all they need in order to resist P’s application for interlocutory injunction, without having to go as far as to establish that the Joint Office has conclusively identified an alternative source of leakage unrelated to Ds’ Flat.

34. It is indisputable that there is no evidence before the Court to contradict the latest findings of the Joint Office and show the First Repair Works and Second Repair Works combined had not been effective.” (Mr Wong’s emphasis)

19.He referred to the Joint Office’s letter dated 9 November 2021 to support his submission above.

20.The crucial part of the said letter reads:

“因應一宗滲水舉報，本處的合約顧問宜居顧問服務有限公司職員曾到受滲水影響單位及你的單位進行第三階段的滲水調查及測試，包括主人浴室地台的蓄水測試、主人浴室內淋浴間地台的蓄水測試及其周邊牆壁灑水測試，但仍然無法確定滲水原因。[…]”

21.With respect, I do not think the above letter would entitle Mr Wong to make submission as if the Joint Office had reached a conclusion that the defendants’ Property was not the source of the water seepage, or the water seepage had ceased. Reading the Joint Office’s letter fairly, all it stated was that the Joint Office could not reach any conclusion on the source of water.

22.Finally, Mr Wong submitted that it is not necessary for the court to grant the injunction given that the defendants have already taken adequate measures to eliminate any suspected source of leakage from the Master Bathroom of the defendants’ Property. It was also said that the defendants had done all they could to prevent any possible leakage.

23.I cannot accept the above arguments. Before the Second Repair Work was done, the defendants had also caused the First Repair Work to be done from November 2019 to January 2020. One of the items of work done on that occasion was “conducting waterproofing works to the floor slab”[5]. As mentioned above, it had been found by the experts subsequently that the water seepage problem still persisted despite such work, and the defendants’ own expert concluded that it was highly likely that the seepage was caused by the waterproofing layer of the defendants’ Master Bathroom. With that evidence, this court simply cannot assume that the Second Repair Work must be effective in solving any water seepage problem.

24.Furthermore, it is evident that when the management office inspected the plaintiff’s Property on 16 August 2021, it was found that the ceiling of the Master Bathroom and the corridor of the Master Bedroom of the plaintiff’s Property was still very wet.

25.Having considered the above-mentioned matters, I hold the view that the experts’ agreed opinion on the source of water seepage is still left intact.

26.By reasons of the aforesaid, despite the defendants’ arguments, this court still feels a high degree of assurance that, at the trial of this action, it will be shown that the interlocutory injunction was rightly granted.

EXERCISE OF THE COURT’S DISCRETION

27.When this court exercises its discretion, it should bear in mind the fundamental principle that court “should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’”, “in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial”[6].

28.Mr Wong has not made any submissions on this matter at all.

29.In my view, given the plaintiff’s establishment of its strong case against the defendants, granting an interlocutory injunction appears to carry a lower risk of injustice.

30.I also accept Ms Chao’s submissions that the plaintiff could not be adequately compensated in damages due to the potential risk of short circuit, electric shock, circuit spalling, etc.

31.I note that it was Mr Lau’s view that the plaintiff’s Property was still fit for habitation though there were signs of water seepage. One of his reasons was that “there [was] no record and/or reported short circuit and/or electric shock happened in the plaintiff’s Property”[7]. He did not say that the potential risk referred to by Mr Chung was non-existent.

32.In his written submissions, Mr Wong also gave the following reason as to why no injunction order should be granted herein. In his own words:

“It is worthwhile also to note that Ds had put forward an undertaking to carry out improvement works to the waterproofing layer of the master bathroom of Ds’ Flat on a non-admission of liability basis, but the same was not accepted by P. Ds would ask the Court not to exercise its discretion to grant an interlocutory injunction in favour of P on the basis that Ds have offered an undertaking in appropriate terms.”[8]

33.In support of this argument, Mr Wong referred this court to a letter issued by the defendants’ solicitors to the plaintiff’s solicitors dated 20 July 2021, which I will quote below.

34.The 1^st defendant described what happened at the material time as follows in his Affidavit:

“46. On [20 July 2021], the Defendants’ solicitors informed the Plaintiff’s solicitors that they are prepared to advise us to give an undertaking to the Court that we will carry out improvement works in respect of the waterproofing layer of the master bathroom of the Defendants’ Property in lieu of injunction on the basis of non-admission of liability. There is now produced and shown to me marked ‘CGLC-18’ a copy of the letter from the Defendants’ solicitors to the Plaintiff’s solicitors dated 20 July 2021.”

35.The said letter dated 20 July 2021 issued by the defendants’ solicitors (the 2^nd letter issued by them on that day) (“the 20 July Letter”) reads:

“We write further to our 1^st Letter of today’s date.

We trust your good firm would no doubt be aware of the legal principles in respect of interlocutory injunction in the context of water seepage case as stated in Wong Fung Chiu, DCCJ 5541/2017. We are of the considered view that your client would not be able to discharge the burden.

Having said that and solely for the purposes of saving time, we are prepared to advise our clients to give an undertaking to the Court to carry out improvement works in respect of the waterproofing layer of their master bathroom in lieu of injunction. For the avoidance of doubt, our clients’ undertaking would be given on without admission of liability basis.

We will let you have our draft Consent Order on Undertaking for consideration once instruction is confirmed with our clients.

All our clients’ rights are hereby expressly reserved.”

(emphasis added)

36.In his Affidavit, the 1^st defendant did not go on to explain what happened after his solicitors “were prepared to advise” him and the 2^nd defendant to give an undertaking to the court.

37.The answer could be found in the 2^nd Affirmation of Leung Lai Kwan, in which he deposed that:

“24. […] the Plaintiff’s Application [for interlocutory injunction] was taken out and served on [the Defendants’ solicitors] on 19 July 2021. The Plaintiff’s Application was fixed to be heard on 23 July 2021 at 10am.

25. On 20 July 2021, [the Plaintiff’s solicitors] wrote to [the Defendants’ solicitors] asking for the Defendants’ indication of their position on the Plaintiff’s Application […].

26. I was informed that [the Plaintiff’s solicitors] did not receive any response from [the Defendants’ solicitors] until 8:50pm on 20 July 2021 when [the Plaintiff’s solicitors] received a fax from [the Defendants’ solicitors] indicating that they ‘were prepared to advise’ the Defendants to give an undertaking to the Court in lieu of injunction and that they would let [the Plaintiff’s solicitors] have their draft Consent Order on Undertaking for consideration ‘once instruction was confirmed’ with the Defendants […].

27. In the absence of any agreement between the parties, [the Plaintiff’s solicitors] properly instructed Counsel and proceeded to lodge the hearing bundles and Counsel’s submissions with the Court and serve the same on [the Defendants’ solicitors] on 21 July 2021 in the morning for preparation of the hearing on 23 July 2021 in compliance with the relevant Practice Directions.

28. In await of further response from [the Defendants’ solicitors] on the proposed undertaking in lieu of injunction, [the Plaintiff’s solicitors] received a fax from [the Defendants’ solicitors] at approximately 8:35pm on 21 July 2021 alleging that the Plaintiff refused to accept the Defendants’ undertaking in lieu of injunction and proposed to adjourn the Plaintiff’s Application for substantive argument.”

38.The letter issued by the defendants’ solicitors dated 21 July 2021 (“the 21 July Letter”) reads:

“We write further to our 2^nd letter dated 20^th July 2021 and your Skeleton Argument served on us this morning.

We take that your client refuses to accept the 1^st and 2^nd Defendants’ undertaking to carry out improvement works in respect of the waterproofing layer of their master bathroom in lieu of injunction.

We write to put on record the following:-

(1) The remedy for breach of an undertaking is the same as for breach of an injunction. Your client would be well protected by our clients’ undertaking, if this was your client’s concern.

(2) […]

(3) […]

(4) The Court has jurisdiction to reject an application for injunction where the Defendant has offered an undertaking in appropriate terms. We consider this to be the case.

In the circumstances, we suggest parties entering into a Consent Summons along the following lines:-

1. Leave be given to the 1^st and 2^nd Defendants to file affirmation in opposition within 21 days from the date of the Order to be made herein;

2. Leave be given to the Plaintiff to file affirmation in reply (if so advised) within 7 days thereafter;

3. No affirmation shall be filed without leave of the Court;

4. The hearing scheduled for 23^rd July 2021 be vacated and the Plaintiff’s summons be adjourned for substantive argument with 3 hours reserved in consultation with Counsel’s diary;

5. Costs reserved.

[…]”

39.I do not understand why the defendants’ solicitors had, in the 21 July Letter, treated as if they had notified the plaintiff’s solicitors subsequent to the 20 July Letter that the defendants had confirmed their instructions to give an undertaking to the court. Mr Wong has not drawn my attention to any further communication between solicitors when he made his very bold submission that the defendants “have offered an undertaking in appropriate terms”. Indeed, in the 21 July Letter, the defendants’ solicitors only “[wrote] further to their 2^nd letter dated 20 July 2021”. They did not refer to any other letter.

40.It goes without saying that before any agreement has been reached, solicitors are obliged to prepare for the imminent hearing in the normal way. Without hearing from the defendants’ solicitors further on the proposed undertaking, it was perfectly proper for the plaintiff’s solicitors to lodge and serve the plaintiff’s skeleton submissions before such a hearing. This cannot be treated as the plaintiff’s refusal to accept the defendants’ undertaking which had never been properly put forward for the plaintiff’s consideration.

41.There is thus nothing in Mr Wong’s point on undertaking.

FORM OF THE INJUNCTION ORDER

42.For the above reasons, in principle, I am prepared to grant an order of mandatory injunction.

43.Although the Summons had been drafted as if the plaintiff was applying for both a mandatory injunction and a prohibitory injunction, it is now clear from Ms Chao’s written submissions that the prohibitory injunction is only an alternative relief sought[9].

44.Mr Wong had made a number of submissions on the terms of the mandatory injunction. For the sake of convenience, I set out the order sought by the plaintiff again as follows:

“A mandatory injunction be granted that the 1^st and 2^nd Defendants do carry out all necessary remedial repairing alternation and/or improvement measures at their own costs at Flat B, 18^th Floor, Block 2 Scenecliff, No.33 Conduit Road, Hong Kong (‘the Upper Flat’) in order to stop the leakage of water in question to Flat B, 17^th Floor, Block 2 Scenecliff, No.33 Conduit Road, Hong Kong (‘the Plaintiff’s Property’), including but not limited to repairing or reinstalling the waterproof layer of the master bathroom of the Upper Flat preventing water and dampness from passing through into the floor slab to the Plaintiff’s Property, within 14 days from the date of the Order to be made herein to the satisfaction of the Plaintiff.

45.Firstly, Mr Wong took issue with the words “including but not limited to”. He submitted that:

“[…] the scope of the interlocutory mandatory injunction may at first glance be more specific than the permanent injunction sought, but that is not actually the case. The conjunctive words ‘including but not limited to’ do not operate to confine the breath of the injunction. The proposed terms of the injunction are far too broad and vague to be enforceable.”[10]

46.I do not accept this argument. I cannot see anything wrong with the inclusion of such words. Although there is an added requirement that the defendants have to repair or reinstall the waterproof layer of the Master Bathroom of their flat, it is clear that they are obliged to “stop the leakage of water” under the injunction order. There is nothing too broad nor vague.

47.Secondly, Mr Wong submitted that the repair work should not be done “to the satisfaction of the plaintiff”.

48.I agree that it is unusual to include such a requirement in the injunction. At the end of the day, if the plaintiff is not satisfied with the work done, he may bring the matter back to the court, and it is for the court (but not the plaintiff) to decide whether the injunction has been complied with.

49.Ms Chao, in her reply submission, informed the court that the plaintiff has no objection in principle that the words “to the satisfaction of the plaintiff” be substituted by wordings such as “to the satisfaction of an authorised person to be jointly appointed by the parties with liberty to apply if the parties could not agree on the candidate”.

50.I am not minded to consider this suggestion which was made at such a late stage.

51.Thirdly, Mr Wong submitted that the defendants should be allowed a much longer time than 14 days as suggested by the plaintiff which, he submitted, is unreasonable and unrealistic. He asked for at least 90 days.

52.I agree that a much longer time should be allowed for the defendants to comply with the injunction. I hold the view that the defendants should be given 3 months to do so.

ORDER

53.I therefore order that, upon the undertaking given by the plaintiff by virtue of paragraph 44 of Leung Lai Kwan’s Affirmation filed on 19 July 2021, a mandatory injunction be granted that the 1^st and 2^nd defendants do carry out all necessary remedial repairing alternation and/or improvement measures at their own costs at the defendants’ Property in order to stop the leakage of water in question to the plaintiff’s Property, including but not limited to repairing or reinstalling the waterproof layer of the master bathroom of the defendants’ Property preventing water and dampness from passing through into the floor slab to the plaintiff’s Property, within 3 months from the date hereof.

COSTS

54.I make a costs order nisi that the plaintiff’s costs of the Summons (including counsel’s fees incurred for the Summons) be in the cause.

55.If any party wishes to vary the costs order nisi:

(1)  Such a party shall lodge and serve written submissions within 14 days hereof;

(2)  The other party shall lodge and serve written submissions within 14 days thereafter;

(3)  The applying party shall lodge and serve written submissions in reply within 7 days thereafter;

(4)  The application shall then be disposed of on papers.

56.The above order nisi shall become absolute in the absence of application to vary within the first 14-day period mentioned above.

Ms Jolie Chao, instructed by Hastings & Co, for the plaintiff

Mr Wong Cho Lik, instructed by Munros, for the 1^st and 2^nd defendants