Hon Chun Kwong and Another v. Ng Chak Ho

DCCJ 4679/2021

[2022] HKDC 645

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4679 OF 2021

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BETWEEN

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Before: Deputy District Judge B Mak in Chambers (Open to Public)

Date of Hearing: 22 June 2022

Date of Decision: 4 July 2022

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DECISION

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Introduction

1.This is an application by the plaintiff under Order 19 rule 7 of the Rules of the District Court for judgment in default of notice of intention to defend.

2.At the hearing on 22 June 2022, I granted the relief sought with costs. Here are my reasons.

Service

3.The writ of summons and statement of claim were served on the defendant on 11 November 2021 by insertion into the letter box of the defendant’s property.

4.The summons and the supporting affirmation were served on the defendant on 28 January 2022 by insertion into the letter box of the defendant’s property.

5.They were not returned to the plaintiffs’ solicitors. I am satisfied that the defendant has been duly served with the writ of summons and the summons and he has chosen not to take any action.

6.A Notice of Hearing dated 8 June 2022 was sent to the parties informing them the date, time and place of the hearing of the summons. I am satisfied the due notice have been given to the parties.

The Plaintiffs’ case

7.The plaintiffs are the former and current registered owners and occupiers of Flat 1405, 13^th Floor, Block C, I-Feng Mansions, No 239 To Kwa Wan Road, Kowloon (“the plaintiffs’ property”).

8.The defendant is the registered owner of the premises immediately above the plaintiff’s property, ie Flat 1505 (“the defendant’s property”).

9.Water seepage was discovered in various parts of the plaintiffs’ property since early June 2019 from the defendant’s property.

10.The Joint Office (Buildings Department/Food and Environmental Hygiene Department) (“the Joint Office”) commissioned 2 investigation tests and inspections which confirmed that the source of the water seepage was infiltration from the floor slab of the kitchen of the defendant’s property.

11.The plaintiffs founded their claim on 3 causes of action, namely, (1) nuisance; (2) breach of Deed of Mutual Covenant; and (3) negligence.

Relief

12.Based on the cause of action of nuisance and breach of Deed of Mutual Covenant, the plaintiffs are entitled to the injunctive relief sought: Victory Success Trading Ltd v Cheung Kin Ying [2020] HKDC 753.

13.On the plaintiffs’ case as pleaded in the statement of claim, I am satisfied that the plaintiffs should be granted the injunctive relief sought compelling the defendant to carry out the necessary repair works so as to stop the water seepage.

14.I am also satisfied that by reason of the water seepage, the plaintiffs have suffered damages which have to be assessed.

Order

15.Accordingly, I made the following orders:-

(1) An order that the defendant doth forthwith carry out such repair or remedial works to stop or prevent the water seepage from the defendant’s property to the plaintiffs’ property;

(2) An injunction restraining the defendant, whether by himself or his agents, tenants or occupants, from causing, permitting or continuing the water seepage affecting the plaintiffs’ property;

(3) Damages to be assessed; and

(4) The costs of this action including the costs of this application be to the 1^st and 2^nd plaintiffs, to be taxed if not agreed.

Mr Jacky Ho, instructed by Raymond Luk & Co, for the 1^st and 2^nd plaintiffs

The defendant was not represented and absent