Yau Chi Ping and Another v. Wang Junjie

DCCJ 5242/2022

[2023] HKDC 840

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5242 OF 2022

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JUDGMENT

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Introduction

1.This is the plaintiffs’ application for default judgment against the defendant by way of Summons filed on 21 April 2023.

2.The plaintiffs are and were at all material times the registered owner of Apartment 1306 on 13^th Floor, Sun Hing Building, No 607 Nathan Road, Kowloon, Hong Kong (“the Plaintiffs’ Premises”).

3.The Defendant is and was at all material times the registered owner of Apartment 1407 on 14^th Floor, Sun Hing Building, No 607 Nathan Road, Kowloon, Hong Kong. (“the Defendant’s Premises”). Part of the Defendant’s Premises is above the Plaintiffs’ Premises.

4.It is the plaintiffs’ case that water has been seeping from the Defendant’s Premises to the Plaintiffs’ Premises since August 2022. Despite numerous complaints by the plaintiffs, the defendant has not rectified the water seepage problem.

Service of Documents

5.The plaintiffs issued the Writ of Summons endorsed with a Statement of Claim to commence the present proceedings on 30 December 2022.

6.According to the first affirmation of service, the writ was served on the defendant by insertion through the letter box of the defendant’s usual and last known address on 5 January 2023.

7.By operation of Order 10, rule 1(3)(a) of the Rules of the District Court (“RDC”), Cap 336H, service of the Writ was deemed to be effected on the seventh day after insertion through the letter box. No notice of intention to defend was filed by the defendant within 14 days after the service of the Writ. The plaintiffs proceeded with this action as if the defendant had done so under Order 13, rule 6 RDC. The defendant then had 28 days to file a defence. No defence being filed, the Plaintiffs took out the present Summons.

8.Despite the valid service of the relevant legal documents on the defendant, the defendant did not participate in these proceedings. He did not attend the present hearing. Having satisfied that the present Summons and the relevant documents had been duly served on the defendant, I directed the hearing of the present Summons to be proceeded with in the absence of the defendant.

Discussion

9.In determining an application for default judgment under Order 19 rule 7 RDC, the court should consider the pleadings alone but not evidence. The court will assume that the statement of claim has been impliedly admitted by the defendant: paragraph 19/7/11 of the Hong Kong Civil Procedure 2023 Vol 1.

10.According to the Statement of Claim, water has been continuously seeping from the Defendant’s Premises into the Plaintiffs’ Premises since August 2022. Water was found to have escaped from the Defendant’s Premises to the ceiling and further extended to the floor of the Plaintiffs’ Premises.

11.In or about September 2022, the Plaintiffs engaged a surveyor to conduct an investigation into the cause of water seepage of the Plaintiffs’ Premises. The surveyor compiled a report on 30 September 2022 after a site visit to the Plaintiffs’ Premises. The report further confirmed the Defendant’s Premises was the source of the water seepage of the Plaintiffs’ Premises.

12.The plaintiffs as well as the management office of the building where the Defendants’ Premises located have repeatedly requested the defendant to rectify the water seepage problem. All such requests met with no success. No action has been taken by the defendant to deal with the problem.

13.The persistent water seepage has caused loss and damage to the Plaintiffs. The plaintiffs accordingly seek injunctive relief and damages against the defendant for breach of clause 9 and clauses 7 to 10, 14 of the Second Schedule of the Deed of Mutual Covenant (“DMC”) applicable to the Defendant’s Premises as well as for the torts of nuisance and negligence.

14.On the Statement of Claim before me, I am satisfied that the plaintiffs have established their claim that the Defendant’s Premises had been the source of the water seepage of the Plaintiffs’ Premises. It follows that the defendant is liable in both tort and contract as pleaded in the Statement of Claim.

15.In the premises, the plaintiffs are entitled to damages for the loss and damage suffered as a result of the water seepage. Further, the pleaded facts that the defendant has failed and refused to carry out repair work to rectify the water seepage give rise to the plaintiffs’ entitlement to the injunctive relief sought basing on nuisance and the covenants in the DMC.

Order

16.Having satisfied that the plaintiffs are entitled to judgment based on the matters and the causes of action pleaded in the Statement of Claim, I enter judgment against the defendant in terms of the draft order placed before me with minor amendments which I indicate at this hearing.

Mr Wong Shu Pui of C Y Lam & Co, solicitors for the Plaintiffs

The Defendant is not represented and did not appear