Lau Tin Fai v. Gold Regal International Ltd

DCCJ 7008/2024

[2025] HKDC 1098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 7008 OF 2024

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DECISION

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1.Before me is an application by the Plaintiff, made by summons filed on 9 April 2025, seeking default judgment against the Defendant pursuant to Order 19, rule 7 of the Rules of the District Court, Cap 336H, for injunctive relief and damages to be assessed (the “Summons”).

RELEVANT BACKGROUND

2.On 26 November 2024, the Writ of Summons, indorsed with a Statement of Claim (the “SOC”), was issued by the Plaintiff against the Defendant.

3.The Plaintiff’s case, as against the Defendant, is founded upon allegations of negligence and nuisance arising from alleged water seepage emanating from the Defendant’s premises into the Plaintiff’s premises.

The facts pleaded in the SOC

4.From the SOC, the following salient facts have been pleaded:-

(1)  The Plaintiff is the registered owner of Flat A1, 8/F, Block A, Paterson Building, No 47 Paterson Street, Causeway Bay, Hong Kong (“P’s Property”);

(2)  The Defendant is the sole registered owner of Flat A1, 9/F, Block A, Paterson Building, No 47 Paterson Street, Causeway Bay, Hong Kong (“D’s Property”);

(3)  D’s Property is situated immediately above P’s Property;

(4)  At all material times, the Defendant owes a duty of care to the Plaintiff, which includes but is not limited to, a duty not to damage P’s Property and not to cause nuisance to the Plaintiff;

(5)  Since in or around mid-2022, there had been multiple instances of water seepage from D’s Property into P’s Property (the “Water Seepage”). Particulars of such instances have been pleaded by the Plaintiff as being:-

(a)  Water dripping from the ceiling of the master bedroom, living room, guest bedroom and corridor of P’s Property; and

(b)  Multiple large areas of the ceiling, beams and walls of the master bedroom, living room, guest bedroom and corridor being significantly dampened and spalled, flaked and/or cracked with flaking of paint and damage to the concrete underneath.

(6)  The Water Seepage has caused loss and damage to the Plaintiff and the following particulars have been pleaded:-

(a)  Multiple instances of spalling, flaking and/or cracking in the ceiling, the beam and/or the walls of the master bedroom, living room, guest bedroom and/or corridor of P’s Property;

(b)  Multiple areas of the ceiling and/or walls of the master bedroom, living room, guest bedroom and/or corridor have been dampened and/or are exposed to black mould;

(c)  Multiple areas of the ceiling of the master bedroom, living room, guest bedroom and corridor have expanded and bulged up;

(d)  Furniture including but not limited to beds, mattresses, sofa, wi-fi router, and desktop computer placed in the master bedroom, living room, guest bedroom and/or corridor sustained water damage.

(7)  Upon discovery of the Water Seepage, it is averred that the Plaintiff notified the Defendant as well as the Food and Environmental Hygiene Department (“FEHD”) and the Buildings Department by mail in early September 2022.

(8)  Since September 2022, FEHD has carried out multiple inspections of both P’s Property and D’s Property and on 29 November 2023, a Water Leakage Assessment Report was issued by the FEHD. Strangely, the conclusion and/or findings, as set out in this report, has/have not been pleaded by the Plaintiff. It has only been pleaded that such a report was issued.

(9)  In addition to the notification by mail in or about early September 2022, the Plaintiff avers that:-

(a)  On 13 December 2023, a letter was delivered by the Plaintiff to the post box of D’s Property, requesting the Defendant to remedy the Water Seepage; and

(b)  On 19 December 2023, the Defendant’s director Lin Sze Kit (“Mr Lin”) acknowledged receipt and provided the Plaintiff with Mr Lin’s contact information. Mr Lin orally expressed that he would follow-up with the remedial works over the telephone.

(10)  The Plaintiff engaged one Mr Pau Chi Hoi, an architect of Tappro Construction Company Limited, to perform inspections in P’s Property and to identify the source of the Water Seepage. Pursuant to the report prepared by Mr Pau, dated 6 June 2024, the Water Seepage was identified as being due to defective water-proofing systems in bathrooms of the subdivided units of D’s Property.

(11)  The Water Seepage remained unresolved as at the date of the Writ of Summons.

(12)  In breach of the duty of care owed by the Defendant to the Plaintiff, the Defendant has negligently caused and permitted the Water Seepage.

(13)  Further or alternatively, the Defendant negligently failed to maintain the water-proof layer of the D’s Property and/or negligently omitted to cease and/or prevent the Water Seepage.

(14)  P further alleges that the Defendant has “created nuisance to the Plaintiff by damaging P’s Property and interrupting the Plaintiff’s quiet enjoyment”.[1] Although strangely worded in the SOC, I understand this averment to contend that, the Water Seepage, and the damage caused thereby, constitutes nuisance caused or permitted by the Defendant.

(15)  The Plaintiff has pleaded damages for (a) renovation costs in the sum of HK$156,000; (b) accommodation costs for 3 weeks for repair in the sum of HK$54,000; (c) costs of replacement furniture in the sum of HK$97,000; (d) general loss and damages in the sum of HK$50,000; (e) the Architect’s Water Leakage Report fee in the sum of $18,000 and (f) general damages for nuisance to be assessed.

(16)  The Plaintiff has further pleaded a prayer seeking an injunction requiring the Defendant to immediately do all necessary acts to cure, cease and prevent the Water Seepage.

Service and procedural history

5.Pursuant to Order 10, rule 1(2)(b) RDC, on 26 November 2024, the Plaintiff served the Writ of Summons and the SOC on the Defendant at the registered address of the Defendant, namely No A1, 2/F, Paterson Building, 47 Paterson Street, Causeway Bay, Hong Kong (“D’s Registered Address”), by inserting through the letter box of the D’s Registered Address, a sealed envelope addressed to the Defendant and containing the Writ of Summons and SOC, together with a covering letter dated 26 November 2024.[2]

6.Up to the date of this hearing, the Defendant has failed to file and serve any Acknowledgment of Service or a defence. Unsurprisingly, the Plaintiff decided to take steps to seek default judgment against the Defendant.

7.The Plaintiff had originally taken out a summons for default judgment on 20 March 2025 and which was heard by Deputy District Judge Kenneth Lam on 3 April 2025. Dissatisfied with the wording of the relief sought in that summons, the application was dismissed by the learned Deputy District Judge. Deputy District Judge Kenneth Lam did, however, stipulate in his judgment that the dismissal was without prejudice to the Plaintiff’s right to issue a fresh summons.[3]

8.Reflecting on the concerns expressed by learned Deputy District Judge, the wording of the summons was reformulated, and the Plaintiff issued the Summons on 9 April 2025.

9.On 11 April 2025, the Summons was served on the Defendant at D’s Registered Address by inserting a cover letter and the Summons into the letterbox thereat.[4]

10.I note that a Notice of Intention to Enter Judgment was filed by the Plaintiff on 19 March 2025. At the time of the hearing, there was, however, no evidence that this Notice was ever served on the Defendant by the Plaintiff.

11.I assume that the aforementioned Notice of Intention to Enter Judgment was filed by the Plaintiff out of an abundance of caution.

12.In light of the fact that the Defendant has never filed any Acknowledgement of Service and not given notice of intention to defend these proceedings, the requirement to serve a Notice of Intention to Enter Judgment pursuant to Order 19, rule 8A RDC (and to file an affidavit in relation to service of the same) is not engaged. Order 19, rule 8A RDC does not apply where no notice of intention to defend the proceedings has been filed by a defendant. It only applies where such notice has been filed.[5]

13.By failing to file evidence of service of the Notice of Intention to Enter Judgment on the Defendant before the hearing of the Summons, the Plaintiff has not, in the circumstances, fallen foul of Order 19, rule 8A RDC.

14.From the affirmations of service filed on behalf of the Plaintiff, I am satisfied that the Writ of Summons (containing the SOC) and the Summons  was duly served on the Defendant by the Plaintiff and that such service amounts to proper service under Order 10, rule 1(2)(b) RDC.

15.Given that I am so satisfied, I am of the view that it is expedient to proceed with the hearing of the Summons under Order 32, rule 5 RDC, notwithstanding the absence of the Defendant at the hearing.

16.The Plaintiff was represented by counsel, Mr Eric Chau, at today’s hearing.

THE APPLICABLE LEGAL PRINCIPLES

17.The legal principles applicable to the granting of default judgment under Order 19, rule 7 RDC are well-settled and have been usefully summarised by Deputy District Judge Kay Seto in her judgment in Ho Sai Cheong & Anor v Honest Gate Company Limited [2024] HKDC 633 at §§7-8. In considering the present application, I bear in mind the following principles:

(1)  In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the Plaintiff appears to be entitled to judgment on the matters pleaded in the SOC: Seto Yim King v Soo Hooyet Dew [2019] HKCFI 2640, §10.

(2)  The court cannot receive any evidence, and it is thus not necessary for the Plaintiff to prove their case by evidence: Times Square Limited v Lee Kwun Kit trading as JL Music and Anor [2020] HKCFI 438, §14(3).

(3)  Notwithstanding the wording in Order 19, rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: Times Square Limited (supra), §14(4).

(4)  The court has jurisdiction to grant permanent injunctions in default judgment applications: Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, §§12-13; Times Square Limited (supra), §14(5).

18.I also note that mandatory injunctions requiring defendant(s) to abate or remedy water leakage have been granted in previous similar cases. See, for example, 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 (supra); Tam Tze Hang Antony v Ngai Ping Yuen [2024] HKDC 1102 and Joy Asia Limited v Wong Chui Hong & Anor [2024] HKDC 1522.

ANALYSIS & ORDERS

19.On the basis of the facts pleaded by the Plaintiff in the SOC, I am satisfied that:-

(1)  The Plaintiff has made out a valid claim against the Defendant for negligence and/or nuisance in respect of the Water Seepage from D’s Property into P’s Property and the consequential damage to P’s Property caused thereby.

(2)  It is appropriate, in all the circumstances, for the me to exercise my discretion in favour of the granting default judgment against the Defendant.

(3)  The Plaintiff has suffered loss and damage as a result of the Defendant’s nuisance/Water Seepage.

(4)  Further, it would be appropriate, and there is a genuine need, for a grant of injunctive relief compelling the Defendant to repair and/or take remedial action to abate the Water Seepage. Without an injunction ordering the Defendant to abate and remedy the Water Seepage, it is more likely than not that the nuisance would persist and continue to cause damage to P’s Property and further deprive the Plaintiff of enjoyment of their property.

20.I therefore make the following orders:-

(1)  Judgment in default of defence to the Plaintiff’s claim as stated in the SOC, dated 26 November 2024, be entered into against the Defendant;

(2)  The Defendant shall, within 56 days from the service of the sealed order, at the Defendant’s own costs, remove all causes of Water Seepage from D’s Property to P’s Property by replacing all defective parts, including pipes and membranes if any, of the waterproofing system in all bathrooms in the Defendant’s Property with parts which are functional and non-defective;

(3)  The Plaintiff’s agent(s) be allowed to carry out investigations and tests to ensure/confirm that such remedial/rectification works have been completed, and the costs of carrying out such investigations and tests by the Plaintiff’s agent(s) shall be borne by the Defendants, but shall not exceed HK$10,000; and

(4)  The Plaintiff’s claim for damages be assessed.

21.Costs should follow the event. I therefore order that the costs of this action, including the costs of the Summons, be paid by the Defendant to the Plaintiff, in any event, to be taxed if not agreed, with certificate for counsel.

Mr Eric Chau Hin Chung, instructed by Paul W Tse, for the Plaintiff

The Defendant was not represented and did not appear