Joy Asia Ltd v. Wong Chui Hong and Another

DCCJ 1454/2024

[2024] HKDC 1522

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1454 OF 2024

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BETWEEN

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JUDGMENT

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Introduction

1.This is a water seepage case concerning the premises situate at Ground Floor, No 71A Tai Nan Street, Prince Edward, Kowloon, Hong Kong owed by the Plaintiff (“P’s Premises”) and the premises on the first floor and roof above in the same building owned by the 1^st and 2^nd Defendants (“Ds’ Premises”).

2.By Summons dated 8 July 2024 (“the Summons”), the Plaintiff (“P”) applies for default judgment against the 1^st and 2^nd Defendants (collectively, “Ds”) pursuant to O 19, r 7 of the Rules of the District Court, Cap 336H (“RDC”) for injunctive relief and damages to be assessed.

Background

3.On 18 March 2024, the Writ of Summons specifically indorsed with a Statement of Claim (“SOC”) was issued by P against Ds.

4.In the SOC, it is pleaded that:

(1) P is the registered owner of P’s Premises;

(2) Ds are the registered owners of Ds’ Premises;

(3) Ds’ Premises are situated immediately above or adjacent to P’s Premises;

(4) P and Ds are bound by a Deed of Mutual Covenant dated 12 April 1983 registered at the Land Registry (“DMC”) that provides inter alia:

(a) “Each of the parties to the DMC shall not… use or cause or permit or suffer to be used the part of the said building to which he is entitled to the exclusive use occupation and enjoyment for any purposes other than such as are permitted under the Crown Lease or for any noisy noisesome obnoxious immoral or illegal purpose or do or cause or permit or suffer to be done anything therein or thereupon which may be or become a nuisance or annoyance to the other parties or to the other occupiers of the said building or adjoining premises” (clause 12(c));

(b) “Each of the parties hereto shall indemnify the Corporation and each other of the parties hereto against all actions proceedings claims and demands whatsoever arising out of or as a result of any injury loss or damage to any person or property caused by or as a result of the act or negligence of any occupier of any unit in the said building to the exclusive use occupation and enjoyment of which any such party is for the time being entitled to or of any person using such unit with any such party’s consent express or implied or by or through or in any way connected with an overflow of water therefrom or arising out of or as a result of the covenants clauses or conditions herein contained” (clause 17); and

(c) “Each of the parties hereto shall be liable to the Corporation and to each other of the parties hereto for any injury loss or damage to any person or property arising out of or as a result of any act or omission of any person occupying any unit in the said building to the exclusive use occupation and enjoyment of which any such party is for the time being entitled or the same with any such party’s consent express or implied or arising out of or as a result of non-performance or non-observance by any such party of any of the covenant clauses or conditions herein contained and shall pay all costs charges and expenses incurred in repairing or making good the same… shall be recoverable by the person or by the owner of the property sustaining such injury loss or damage” (clause 18);

(5) Further and/or alternatively, s34H of the Building Management Ordinance, Cap 344 (“BMO”), provides that a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to use, occupation or enjoyment of that part, as the case may be, shall maintain that part in good repair and condition;

(6) Alternatively, Ds are under a common law duty to: (a) maintain Ds’ Premises in a state of good and serviceable repair so not to allow water to seep through the floor slab of Ds’ Premises and damage any part of P’s Premises; (b) not cause harm or injure P’s Premises; and (c) not to disturb enjoyment and comfort of P’s Premises;

(7) In around March 2021, P was informed by its tenant that there was water leakage or seepage on P’s Premises (“Water Seepage”);

(8) On 18 August 2022 and 14 September 2022, P appointed a surveyor to inspect and investigate the Water Seepage. According to the survey report dated 8 November 2022, the Water Seepage was caused by the missing or defective waterproofing layer of the flat roof of Ds’ Premises which caused water to leak through the floor slab to the ceiling and beam of P’s Premises;

(9) In around October 2022, a director of P informed the chairlady of the Incorporated Owners of the Water Seepage and requested her to inform Ds;

(10) By letter from P’s solicitors to Ds dated 16 June 2023, Ds were requested to take action to remedy the Water Seepage;

(11) Despite such request, Ds have failed to or refused to carry out repair or remedial works and to date, water continues to seep or leak causing damage to P’s Premises;

(12) Wrongfully in breach of the DMC, s 43H of BMO and the common law duty of care, Ds failed to keep or maintain Ds’ Premises in good repair and condition so as to avoid any loss, damage, nuisance or annoyance to P;

(13) Further or alternatively, the Water Seepage constituted nuisance caused or permitted by Ds; and

(14) P claims Ds are liable for general damages (in the sum of HK$266,434.36 or damages to be assessed) and seeks a mandatory injunction compelling Ds to, within 4 weeks or such reasonable time as the court deems fit and at their own cost, carry out such rectification work to Ds’ Premises as is necessary to stop the water seepage and/or water leakage from Ds’ Premises to P’s Premises to the satisfaction of an Authorised Person engaged by P with all reasonable costs of the said Authorised Person to be borne solely by Ds.

Service of process and non-appearance of Ds

5.I am satisfied from the affirmations of service filed on behalf of P that the Writ of Summons was served on Ds by inserting the same through the letterbox for Ds’ Premises, being the last known address of Ds. I accept that the said service amounts to proper service on Ds under O 10, r 1(2)(b) of RDC.

6.Ds have not filed or served any Acknowledgement of Service or defence.

7.Furthermore, given that I am satisfied the Summons and the Notice of Intention to Enter Judgment were served on Ds by insertion of the same through the letterbox for Ds’ Premises, I am of the view that it is expedient to proceed with the hearing of the Summons under O 32, r 5 of RDC notwithstanding the absence of Ds at today’s hearing.

8.Ms Mok, counsel, appeared on behalf of P at today’s hearing.

Applicable principles

9.The applicable principles for default judgment are well-settled. The power to grant judgment under O 19, r 7 is discretionary. The court is required to scrutinize whether the matters pleaded in the Statement of Claim entitle the plaintiff to the judgment sought. The court’s decision is made on the basis of pleaded facts, rather than on evidence. See Hong Kong Civil Procedure 2024, Vol 1, §§19/7/11 and 19/7/14.

10.As for injunctive relief, it is now well-established that the court has jurisdiction to grant injunctions in default judgment: see Hong Kong Civil Procedure 2024, Vol.1, §19/7/17 and Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, §§12-13.

11.Mandatory injunctions requiring the defendants to abate or remedy water leakage have been granted in similar cases: see e.g. Victory Success Trading Limited v Cheung Kin Ying [2020] HKDC 753; Kuo Tsz Wai v Wong Sau Yuen [2024] HKDC 214; Ho Sai Cheong & Anor v Honest Gate Company Limited [2024] HKDC 633 and Tam Tze Hang Antony v Ngai Ping Yuen [2024] HKDC 1102.

Analysis

12.Having carefully considered the SOC, I am satisfied that based on the pleaded facts, P has a valid claim based on breach of the DMC and/or BMO, nuisance and/or negligence against Ds in respect of the Water Seepage from Ds’ Premises to P’s Premises which has caused damage to P’s Premises.

13.I would assume that Ds have impliedly admitted the matters pleaded in the SOC in default of filing any defence: see Hong Kong Civil Procedure 2024, Vol 1, §19/2/1.

14.I am satisfied that, in all the circumstances, it is appropriate to exercise my discretion to grant default judgment against Ds.

15.Furthermore, on the basis of matters pleaded in the SOC, I am of the view that there is a genuine need for injunctive relief compelling Ds to carry out the necessary repairs and remedial action to stop water seepage/leakage.

Disposition and orders

16.Accordingly, I order Ds do within 8 weeks from the service of the sealed order, at Ds’ own costs, carry out such rectification work to Ds’ Premises as is necessary to stop the water seepage and/or water leakage from Ds’ Premises to P’s Premises to the satisfaction of an Authorised Person engaged by P and all reasonable costs of the said Authorised Person to be borne by Ds.

17.Interlocutory judgment should be entered in favour of P with damages to be assessed.

18.Costs should follow the event. I therefore order Ds pay to P the costs of this action, including costs of the Summons, to be taxed if not agreed.

Ms Tina Mok, instructed by CFN Lawyers, for the plaintiff

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