Wong Chi Wing v. Wong Siu Wa

DCCJ 493/2023

[2023] HKDC 1143

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 493 OF 2023

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DECISION

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BACKGROUND

1.By an inter partes summons filed on 18 May 2023, the plaintiff is seeking default judgment against the defendant, pursuant to O.19, r.7 of the Rules of the District Court. The plaintiff is claiming against the defendant for mandatory injunctive relief and damages for loss and damages arising from water seepage allegedly originating from the defendant’s flat.

2.The plaintiff is the owner of shop 16 on the ground floor of Kwan Tak Building, Nos 13-17 and 21-25, Yuen Long, Hong Lok Road, Nos 2‑20 Hong King Street, Yuen Long, New Territories. At all material times, shop 16 was horizontally subdivided into two individual units, the lower one being a unit with shop front and the upper one being a cockloft.

3.The defendant is the owner of flat O and flat P on the 1^st floor of the same building. The defendant’s flats are used by the defendant’s tenant to run a short-stay hotel known as Lok Kun Villa (樂宮別墅 / 樂宮賓館). The defendant’s flats situate directly above the plaintiff’s cockloft.

4.In or around 2018, the plaintiff discovered signs of water seepage into the cockloft. Water was seen dripping from the ceilings of the cockloft, causing extensive water stains and mould with dampness in the premises. The plaster on the ceilings and the walls of the cockloft have bulged and peeled off because of the moisture. Some parts of the ceilings have been corroded to the extent of exposing the reinforced steel bars. The plaintiff left the cockloft vacant since February 2022 because of the water seepage problem.

5.It is pleaded in paragraph 7 of the statement of claim that the plaintiff has engaged building surveyors of Proficient Surveyors & Co to carry out inspections of flat 1O and flat 1P on 27 June 2022 and 12 July 2022 with the permission of the defendant’s tenant. The result of the tests showed that the water seeping into the cockloft was fresh water and the source of water seepage was from flat 1O and flat 1P.

6.The plaintiff’s surveyor also found the water proofing membrane on the floor of the bathrooms and/or kitchen in flat 1O and flat 1P was defective and there was water leakage from fresh water pipes inside flat 1O and flat 1P.

7.The plaintiff has made repeated complaints against the defendant but the defendant has failed to take any effective measure to abate the water seepage. Therefore, the plaintiff commenced the present action relying on the following three causes of action:

(a)  negligence;

(b)  breach of DMC; and

(c)  nuisance.

LEGAL PRINCIPLES

8.It is trite law that the court cannot receive any evidence but can only give judgment according to the pleadings of the plaintiff in determining an application for default judgment under O.19, r.7 (Hong Kong Civil Procedure 2023, Volume 1, paragraph 19/7/11).

9.The plaintiff cited Ma Tor Fuk Dick and Yip Wai Ling v Wong Kwok Wah, DCCJ 2183/2015 (unreported), 29 January 2016 and Victory Success Trading Limited v Cheung Kin Ying, DCCJ 714/2020 (unreported), 4 September 2020, as authorities in support that the court may make order against the defendant to carry out repairs and remedial work to stop water seepage in a default judgment application.

DISCUSSION

10.I am satisfied that the plaintiff has established his case against the defendant of an alleged water seepage case. According to the pleadings, the source of water has been confirmed by the building surveyor engaged by the plaintiff.

11.I am also satisfied that the plaintiff has established that the defendant has been in breach of his duty to properly maintain his properties to avoid water seepage to the property of the plaintiff.

12.The defendant is in breach of clause 9 of the DMC by allowing his flats to be the source of water seepage, adversely affecting other occupiers of the building like the plaintiff. As such, the water seepage caused by the defendant constituted private nuisance.

13.The plaintiff has also established he has suffered loss and damages as a result of the aforesaid breaches of the defendant.

CONCLUSION

14.For the above reasons, I make the following order:

(1)  Judgment in default of defence to the plaintiff’s claim as stated in the statement of claim herein be entered into against the defendant in the following terms:

(a)  A mandatory injunction that the defendant shall take measures to abate the nuisance and prevent further water seepage from his flat 1O and flat 1P to the plaintiff’s cockloft.

(b)  An order for damages to be assessed against the defendant as per paragraph 16 of the statement of claim.

(2)  The costs of this action in relation to liability issue, including costs of this application with certificate for counsel, be to the plaintiff in any event to be taxed if not agreed.

Mr Bache Sit, instructed by C F Lee & Co, for the plaintiff

The defendant was not represented and did not appear