Chan Ho Yan v. Wong Shung Yan

DCCJ 4552/2025

[2025] HKDC 2079

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4552 OF 2025

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BETWEEN

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REASONS FOR DECISION

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I. INTRODUCTION

1.I had before me on 1 December 2025 an Inter-Partes Summons dated 22 September 2025 (“the Summons”)  issued by the Plaintiff pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of District Court seeking default judgment and an order in terms of the Summons. The Summons was dismissed, and the parties were informed. I would give the reasons for the dismissal in writing.  These are the reasons for my decision to dismiss the Summons.

II.  BACKGROUND

2.The Plaintiff is the registered owner of Flat F on the 9^th Floor of Lai Ming Building, No 223 Tung Choi Street, Kowloon, Hong Kong and the Defendant is the registered owner of Flat F on the 10^th Floor of the same building.  Disputes arose from water seepage allegedly from the Defendant's flat to the Plaintiff's floor (“the Seepage”).  By a Writ of Summons (“the Writ”)  and a Statement of Claim dated 14^th August 2025 (“the SOC”), the Plaintiff commenced the present proceedings.

3.At the Prayer of the SOC, the Plaintiff claims the following: (1)  for an injunction against the Defendant to rectify or make good the faulty facility causing the seepage; (2)  the sum of HK$23,434.00 being the costs of repair; (3)  general damages for discomfort and inconvenience from the nuisance; (4)  interests; (5)  costs of the proceedings; (6)  further and or other reliefs.

4.For the purpose of the Summons, the Plaintiff filed the Affirmation of Lau So Hong, clerk to S T Cheng & Co (“STC”), file dated 22^nd September 2025 in which Mr Lau affirmed he did serve on 18^th August 2025 a sealed copy of the Writ of Summons in this action indorsed with the SOC and blank forms of Acknowledgement of Service of the Writ together with Notes for Guidance by inserting the same into the letter box of the Defendant at the Defendant’s flat of Flat F on the 10^th Floor of Lai Ming Building.  The Plaintiff says that the Defendant did not file any Acknowledgment of Service to the Writ and the SOC.

5.Further by another Affirmation of Leung Yanto, Letty dated 19^th November 2025, which is produced, Ms Leung wrote that under the instruction of STC, she did on 9^th October 2025 served STC’s covering letter (“the Letter”)  together with a sealed copy of the Summons for default judgment by prepaid ordinary post to the Defendant address at Flat F on the 10^th Floor of Lai Ming building.  She affirmed that neither the Letter nor the Summons had been returned through the dead letter service.

6.In the Summons, the Plaintiff sought an order to be made which includes: (1)  the Defendant be restrained from causing and/or allowing and/or permitting water seepage and/or leakage from the Defendant’s Flat to the Plaintiff’s Flat; (2)  the Defendant be ordered to pay the sum of HK$23,434 for the costs of the Plaintiff to make good damage to the Plaintiff’s flat caused by water seepage and/or leakage from the Defendant’s flat.

7.In the SOC, it is noticed that: (1)  at paragraph 6 the investigation by the Food and Environmental Hygiene Department (“FEHD”)  by colour dye could not pinpoint the source of the leakage; (2)  at paragraph 8 that on 26^th February, the Defendant's flat was occupied by his tenant; (3)  at paragraphs 10 - 11 that the Plaintiff engaged Building Diagnostic Consultants Limited (the “Consultant”)  to investigate and the Consultant’s Report confirmed that the seepage could be traced back to the Defendant’s flat rather than the external wall, but without pleading particulars as to any location of the alleged leakage.

8.At the hearing of the Summons, Mrs Chelsea Sha of STC was present on behalf of the Plaintiff; whereas Mr Wong Shung Yan, the Defendant was present in person.

III.  DISCUSSION

Mandatory injunction to do an act

9.In the case Lau Tin Fai and Gold Regal International Ltd [2025] 2 HKLRD 408, P sought a default judgment with a final mandatory injunction order against D who was absent.  The Summons asked inter-alia for: (i)  a mandatory injunction that D shall “do necessary act” to cure, cease and prevent the water seepage from D’s unit to the unit immediately below owned by P In Lau Tin Fai, the Summons was dismissed and it was held:

“5. A mandatory injunction is an order which requires a person to do a specified act. …

6. … The Summons merely refers to “necessary act”, without specifying what it is. The imprecision is in my view unacceptable.… The duty is on the drafter to ensure the formulation is clearer so that the recipient of the order would know with absolute certainty which “specified act” must be performed by him to avoid being sent to prison for contempt. …

(Tech Focus Ltd v Austria Property Management Ltd [2004] 1 HKC 343, Lau Oi Kiu v Man Chun Shing [2015]4 HKC 73 applied). (See paras.7-8.)

10. Just like how requiring a defendant to “keep the peace and be of good behaviour” is no longer a sufficiently precise formulation for any bind-over order, requiring a defendant to “perform all necessary acts” is no longer a sufficiently precise formulation for a mandatory injunction. A civil litigation practitioner should consider utilizing the same drafting skill, adding a “by” clause after the phrase. In water seepage cases, depending on the factual scenario, a formulation along the lines of “the defendant do within 56 days from the date hereof remove all causes of the water seepage from his unit to the plaintiff’s unit by replacing all pipes and waterproofing membranes in all bathrooms in his unit with pipes and membranes that are functional and non-defective”, or something similar, would be preferable. (Lau Wai Wo v HKSAR (2003)  6 HKCFAR 624 applied). … (See paras.9-10.)”

10.The formulation in the SOC for an injunction against the Defendant to rectify or make good the faulty facility causing the seepage is equally imprecise and unacceptable, as what is faulty to be made good is not specified. Just on this, the Summons ought to be dismissed without prejudice to a properly amended Prayer of the SOC being filed in the future.

Permanent Injunction sought in the Summons

11.The Permanent Injunction sought in the Summons differs from the injunction pleaded in the SOC.  What was sought was for an order that the Defendant be restrained from causing and/or allowing and/or permitting water seepage and/or leakage from the Defendant's Flat to the Plaintiff's Flat.

12.Chui Hung Shun, Paul and Chiu Paul v So Ka Tai and Wong Emma CACV 136/2005 was another case that concerned with a dispute between neighbors over the leakage of water from the Defendant’s premises into the Plaintiff’s flat below.  At the hearing below, the Plaintiff’s summons sought the following orders :

“1. Judgment be entered for the 1^st and 2^nd Plaintiffs against the 1^st and 2^nd Defendants for damages to be assessed upon admission of liability by the 1^st and 2^nd Defendants for breach of Deed of Mutual Covenant and/or negligence and/or nuisance;

2. A Permanent Injunction be granted to the 1^st and 2^nd Plaintiffs to restrain the 1^st and 2^nd Defendants or any of them, their servants, agents or otherwise from causing, permitting, allowing or suffering water to be leaked, seeped and discharged from the Defendants’ premises into the Plaintiffs’ premises which shall not be taken effect until 28 days from the date of the order to be made;

3.  …”

13.The wording of the injunction sought in the present Summons is very similar to the permanent injunction sought in Chiu Hung Shun, Paul.  The Judge in Chiu Hung Shun, Paul below refused to grant the requested permanent injunction.  His decision was appealed and the Hon Ma CJHC (as he then was)  wrote at paragraph 16 of the Court of Appeal judgment:

“16. Some of the relevant covenants being negative ones (see paragraph 3 above), it is then submitted that a permanent injunction should therefore have been granted by the Judge. In my view, the Judge was right to have refused to grant the Plaintiffs such an injunction:

(1)  Injunctions are an equitable remedy and as such therefore subject to equitable principles. They are to be granted only where necessary, appropriate and just. For example, where damages provide an adequate remedy, an injunction will not generally be granted. Where one is to be granted, the same principles also dictate that an injunction should not be made any wider than necessary; otherwise, for example, the party subject to the injunction may find himself in contempt of court (for this is in many ways the prime remedy for a breach)  of an order that goes beyond what the party benefiting from the injunction could realistically have expected or have been entitled in the first place.

(2)  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.

(3)  …”

14.The well known obiter dicta of Lord Cairns LC in Richard Wheeler Doherty v James Clagston Allman and W C Dowden (1878)  3 App Cas 709 HL, at p.719-720 where it was said:

“My Lords, if there had been a negative covenant, I apprehend, according to well settled practice, a Court of Equity would have had no discretion to exercise. If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury - it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves. But, my Lords, if there be not a negative covenant but only an affirmative covenant, it appears to me that the case admits of a very different construction.”

15.In the present case, at the SOC the Plaintiff cites the Deed of Mutual Covenant which at paragraph 12 says that “No Owner shall use his unit… or permit to be done… which may be or become a nuisance or annoyance or cause damage or inconvenience to other Owners of the Building…”.

16.So, just on well known legal principles in the cases cited above, the Summons in the wordings as drafted ought to be and was dismissed.

17.For completeness, a word ought to be said about service of the proceedings.  At the hearing before me, the Plaintiff’s solicitor admits that she knew that the Defendant’s Flat was occupied by a tenant and the letters that served the proceedings were deposited into the mail box or otherwise posted to the Defendant’s Flat, pleaded as the Defendant’s last known address.  In HKCP 10/1/13 on the Service of Originating Process, it is written:

“Again, the writ must be brought to the attention of the defendant. Thus, where a defendant was not living at the address where it was inserted into a letterbox at that address, it was not brought to the defendant's notice and the service was irregular: Sinokawa Investment (Holdings)  Ltd v Li Chun [2006] 3 HKLRD 441 (CFI). …”.

18.In Sinokawa, the two default judgments that were obtained were set-aside as they were irregular. In the present proceedings, there is also the risk of the default judgment and the orders sought, if granted, being set-aside.

19.For all the reasons above, the inter-partes Summons for default judgment was dismissed.  In fact, the Defendant appeared in Court in person and when he was asked by the Plaintiff’s solicitor about Acknowledgment of Service, he agreed to file the Acknowledgment within 14 days, after he was taken to the form in Chinese, with a brief explanation about the boxes to be ticked.

20.There shall be no order as to costs.

Mrs Chelsea Sha, instructed by S T Cheng & Co, for the plaintiff

The defendant appeared in person