Tam Tze Hang Antony v. Ngai Ping Yuen and Another

DCCJ 187/2024

[2024] HKDC 1102

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 187 OF 2024

——————————

BETWEEN

——————————

————————————————————

REASONS FOR JUDGMENT

————————————————————

Introduction

1.This is a water seepage case concerning the properties situate at Flat 6 on 16^th Floor of Block C, Ventris Place, Nos 19-23 Ventris Place, Happy Valley, Hong Kong (“P’s property”) and the unit above on the 17^th Floor of the same building (“D1 and D2’s property”).

2.By summons dated 30 May 2024, the Plaintiff (“P”) applies for default judgment against the Defendants (“Ds”) for the following orders under O 19 r 7 of the Rules of the District Court (“RDC”) (“Summons”):

(a) A mandatory injunction compelling D1 and D2 to, within four weeks or such reasonable time as this Honourable Court may order, and at its own costs, remedy, repair, rectify and/or otherwise cease the Water Leakage and prevent the recurrence of the Water Leakage;

(b) Damages to be assessed;

(c) Interest; and

(d) Costs.

Service on D1 and D2

3.The Writ of Summons specifically indorsed with a Statement of Claim dated 11 January 2024 was served on D1 by registered post at D1 and D2’s property on 11 January 2024, being D1’s last known address.

4.The Writ of Summons posted to D1 has not been returned undelivered by the Post Office through the dead letter service (§7 of the Affirmation of Chan Arthur Joseph).

5.The Writ of Summons specifically indorsed with a Statement of Claim dated 11 January 2024 was served on D2 by registered post at D1 and D2’s property on 11 January 2024, being D2’s last known address.

6.The Writ of Summons posted to D2 has not been returned undelivered by the Post Office through the dead letter service (§7 of the Affirmation of Chan Arthur Joseph).

7.D1 and D2 have failed to file or serve any Acknowledgement of Service or defence.

8.Ds were served with a copy of a Notice of Intention to Enter Judgment filed on 24 April 2024 by posting at D1 and D2’s property.

9.On 30 May 2024, P served the Summons on D1 and D2 by ordinary post at D1 and D2’s property. The copies of the Summons served on D1 and D2 have not been returned by the Post Office undelivered (§5 of the Affirmation of Kwok Ching Nam Manley).

10.Based on the materials before me, I was satisfied that due notice has been given to D1 and D2 in respect of these proceedings and the Summons. It is expedient for the hearing to proceed in D1 and D2’s absence, pursuant to O 32 r 5(1) of RDC.

11.At the end of hearing the Summons, I gave judgment for P. These are my reasons.

Default judgments

12.The principles applicable to default judgments are well established. The court’s power to give default judgment is discretionary. The court cannot receive any evidence, but must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the court shall give such judgment as the plaintiff appears entitled to on his/her statement of claim only, and only if the pleaded facts give rise to the relief sought: Hong Kong Civil Procedure 2024 at §19/7/11 and §19/7/13.

P’s pleaded case

13.At all material times, P is the registered owner of P’s property and D1 and D2 are the registered owners of D1 and D2’s property.

14.Section F of the Deed of Mutual Covenant (the “DMC”) governing the two properties provides, inter alia, that:

(a) Each owner shall be responsible for and indemnify the Manager and all other Owners and occupiers against all actions, proceedings, claims and demands whatsoever arising out of or in respect of any loss or damage to any person or property caused by or as the result of the act or negligence of his or of any occupier of any Unit of which he is the Owner or any person using such Unit with his consent express or implied or without limiting the generality of the foregoing, by or in any way owing to the overflow of water therefrom (clause 4).

(b) Each Owner shall be responsible to the Manager and the other Owners for the time being for the acts and omissions of his and of all persons occupying any Unit of which he is the Owner or any person using such Unit with his consent, express or implied and to pay all costs charges and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default of all such persons. In the case of loss or damage which the Manager is responsible to make good or repair, such costs charges and expenses shall be recoverable by the Manager as hereinbefore provided and in the case of loss or damage suffered by the Owners or occupiers of any of the other Units for which the Manager is not responsible to repair or make good, such costs, charges and expenses together with all other damages recoverable by law shall be recoverable by the person or persons sustaining the loss or damage (clause 5).

(c) Each Owner shall keep the interior of the Unit of which he is for the time being the Owner and all electrical and sanitary appliances therein and all the windows and doors thereof in good repair and condition to the satisfaction of the Manager and to maintain the same in such manner so as to avoid any loss, damage, nuisance or annoyance to the Owners or occupiers of any other Units (clause 11).

(d) No Owner shall do or suffer or permit to be done anything whereby the flush or drainage system of any Building may be clogged or the efficient working thereof may be impaired (clause 12).

(e) No Owner shall use or permit or suffer any part of the Estate owned by him to be used except in accordance with any applicable Building Regulations or any Government Ordinances and Regulations or other permit, consent or requirement from time to time applicable thereto (clause 29).

15.Since about 28 February 2022, D1 and D2 have allowed, caused, and/or permitted water to escape, leak, percolate and/or seep from D1 and D2’s property. Such water seeped through and fell upon the ceiling and/or walls of P’s property (“Water Leakage”), causing damage to the ceiling of the master bathroom adjacent to the bathtub, the ceiling at the entrance to the master bedroom, and the wall at the entrance of the master bedroom.

16.On 7 March 2022, the Building Department / Food and Environmental Hygiene Department Hong Kong Regional Joint Office (“Joint Office”) sent a letter to P acknowledging a water leakage complaint against D1 and D2.

17.On 17 March 2022, the Ventris Place Management Office (“Management Office”) sent a letter to D1 and D2 informing them of the Water Leakage and recommending an inspection at their property to be conducted.

18.On 31 March 2022, the Management Office sent another letter to D1 and D2 informing them the Water Leakage had been reported to the Food and Environmental Hygiene Department and an inspection at their property by the Joint Office was scheduled on 7 April 2022.

19.On 28 October 2022, the Management Office sent a chaser letter to D1 and D2 informing them that the Water Leakage had not improved and requesting them to follow up.

20.On 17 November 2022, the Management Office sent another chaser letter to D1 and D2 informing them that the Water Leakage had not improved but had persisted.

21.On 29 November 2022, the P’s solicitors, Messrs SSW & Associates (“SSW”) sent a letter to D1 and D2 regarding the Water Leakage and requesting that, inter alia, all necessary repair and/or maintenance works be performed at D1 and D2’s property.

22.P engaged an expert, Ir Dr Lam Siu Shu Eddie (“Expert”) to identify the cause(s) of the Water Leakage. In the Expert’s report dated 10 May 2023 (“Report”), the Expert opined that the source of the Water Leakage is D1 and D2’s property.

23.The Expert’s Report was sent under cover of letter dated 18 May 2023 from SSW to D1’s solicitors, Messrs H Y Leung & Co LLP (“HYL”). The letter reiterated that the Water Leakage has persisted and requested D1 to, inter alia, arrange all necessary repairs and/or maintenance works to D1 and D2’s property to prevent the Water Leakage.

24.A further letter dated 5 June 2023 was sent by SSW to HYL. No reply was received from HYL or D1 and D2.

25.Despite the demands, the Water Leakage persists and continues to detrimentally affect P and P’s property.

26.It is averred by P that the matters complained of above were caused by the breach of the DMC on the part of D1 and D2. Further or alternatively:

(a) the Water Leakage was caused by the negligence on the part of D1 and D2, their occupiers, employees, servants, tenants and/or agents and water escaped therefrom and seeped to P’s property and damaged the same; and/or

(b) the water leakage constitutes a trespass and/or nuisance caused or permitted by D1 and D2, their occupiers, employees, servants, tenants, and/or agents; and/or

(c) P shall rely on the rule in Rylands v Fletcher in support of its claim against D1 and D2; and

(d) insofar as is appropriate or necessary, P shall rely on the doctrine of res ipsa loquitur.

27.As a result of D1 and D2’s conduct mentioned above, P has suffered and/or will suffer loss and damage. This includes the future costs to be incurred to renovate, repair and/or reinstate P’s property (amount to be assessed), and expert’s fees in the amount of HK$35,100.

28.Despite repeated requests and demands from P, D1 and D2 have failed and fails to pay any heed to P’s complaints of the Water Leakage and no action has been taken by D1 and D2 to rectify the situation or carry out any repair works to stop the nuisance to P’s property.

29.In addition to damages, P also seeks a mandatory order to compel D1 and D2 to take all necessary actions to remedy, repair, rectify and/or otherwise cease and to prevent the recurrence of the Water Leakage.

Discussion

30.I have considered the Statement of Claim and I am satisfied that P has made out a valid claim against D1 and D2 in respect of the Water Leakage from D1 and D2’s property affecting P’s property. D is deemed to have admitted the particulars in default of filing any defence.

31.It is well-established that the court has jurisdiction to grant injunctions in default judgments: Hong Kong Civil Procedure 2024 at §19/7/17; Times Square Limited v Lee Kwun Kit trading as JL Music and Anor [2020] HKCFI 438, at §14(5) per William Wong DHCJ; Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658 at §§12-13 per Paul Lam DHCJ.

32.Mandatory injunctions have been granted in similar cases. In Chiu Hung Shun, Paul v So Ka Tai, unreported judgment dated 5 December 2005, CACV 136/2005, the Court of Appeal dealt with an appeal regarding a water leakage case. The plaintiffs had sought a permanent injunction “to restrain the 1^st and 2^nd defendants or any of them from doing the following acts or any of them that is to say, causing, permitting, allowing or suffering water to be leaked, seeped and discharged from the defendants’ premises into the plaintiffs’ premises.” The trial judge refused to grant the injunction sought. The plaintiffs appealed.

33.In dismissing that part of the appeal, Ma CJHC (as he then was) observed at §16 that the trial judge was right to have refused to grant the plaintiffs such an injunction:

“In the present case, the Plaintiffs’ complaint was that of a leakage from the Defendants’ premises. The obvious remedy, in the absence of any special circumstances, was simply a mandatory injunction to effect due repairs, no more. This was precisely what the Judge ordered.”

34.Mandatory injunctions requiring the defendants to repair in the defendant’s flat in order to rectify the water leakage were also granted in Man Kwong Kau & Anor v Wong Wai Hong, unreported judgment of B Mak DDJ dated 19 May 2023 DCCJ 3552/2019; Chiu Yi Tung v Lo Yue Fung Franky and Anor, unreported judgment of Kay Seto DDJ dated 11 September 2023, DCCJ 3591/2019; and Lam Kit Yee v Lam Shuk Lam and Anor, unreported judgment of Lawrence Ng DDJ dated 10 March 2017, DCCJ 3115/2011.

35.I agree with P’s submission that P has a genuine need for relief, as D1 and D2’s breaches of the DMC, nuisance and/or negligence will continue unless restrained by this court.

Disposition

36.Subject to the amendments made by me at the hearing, I make an order in terms of the draft order submitted to me. Interlocutory judgment should be entered in favour of P, with damages to be assessed.

37.Costs should follow the event. I order that costs of this application, be paid by D1 and D2 to P to be summarily assessed. For the purpose of the summary assessment of costs, I direct that:-

(a) P do serve its statement of costs on D1 and D2 and file an affidavit of service confirming the same within 3 days hereof;

(b) D1 and D2 do, if so advised, lodge and serve its list of objections to P’s statement of costs within 5 days thereafter; and

(c) Assessment of costs shall be conducted on paper without a further hearing.

38.I thank Ms Szeto for her assistance.

Ms Amanda Szeto of SSW & Associates, for the Plaintiff

The 1^st and 2^nd Defendants were not represented and did not appear