Vetzera Co Ltd v. The Incorporated Owners of White Jade Building

HCA 2164/2025

[2026] HKCFI 5433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2164 OF 2025

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BETWEEN

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DECISION

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1.The Plaintiff (“P”) is the owner of Flats 4A and 4B on the Fourth Floor of White Jade Building (“Building”). The Defendant (“IO”) is the incorporated owners of the Building.

2.All individual fresh water meters in the Building are located on the Lower Ground Floor. Each flat is served by a dedicated external pipe that runs from its respective meter up the external wall. Upon reaching the corresponding floor level, the pipe penetrates the external wall to supply the unit.

3.The fresh water, soil and waste pipes are housed within a vertical, rectangular shaped pipe duct (“Pipe Duct”) running along the Building’s external wall. Structurally, the Pipe Duct is bounded by open air on its exterior side and adjoins the individual units on its interior side. An illustrative plan, extracted from Annex III of P’s skeleton argument, is appended to this Decision for reference.

4.In February 2025, water seepage was reported in the guest toilet of Flat 3A, which is located immediately below Flat 4A. Since October 2025, the leak appeared to have cascaded down to Flat 2A.

5.P’s case is that the source of the seepage is a leak in a section of the water pipe inside the Pipe Duct, before it branches into Flat 4A (“Leaking Pipe”).

6.P contends that the Leaking Pipe is a common part of the Building, and the IO therefore owes a duty to repair it.

7.The IO:

(1) does not deny the existence of water seepage or the possibility of a defective or leaking pipe;

(2) denies that the Leaking Pipe is the source of the seepage, maintaining that the available evidence does not conclusively exclude other possible causes;

(3) denies that the Leaking Pipe is a common part of the Building;

(4) (even if the Leaking Pipe were a common part) maintains that it is under no obligation to carry out repairs until professional investigations identify the cause and location of the seepage, and an appropriate repair methodology is established; and

(5) contends that it remains ready and willing to remedy any common part defects, and has consistently taken proactive, concrete steps to resolve the issue, including engaging professionals to ascertain the cause, obtaining cost quotations, and requesting access to Flat 4A for inspection and testing.

8.In August 2025, the Water Supplies Department (“WSD”) issued a repair notice on Flat 4A, requiring the Leaking Pipe to be repaired, failing which water supply would be disconnected. A second repair notice was issued by the WSD in November 2025.

9.In October 2025, P applied to the IO for approval to repair the Leaking Pipe. P’s repair proposal was discussed at an owners’ meeting in November 2025. No decision was reached.

10.In November 2025, P commenced this action against the IO, seeking declarations that the Leaking Pipe is a common part of the Building and that the IO is responsible for its repair. P also claims damages for the repair costs of the Leaking Pipe that it has incurred and will incur.

11.In January 2026, P took out an application for an interlocutory injunction to restrain the IO from obstructing P in carrying out the repair works of the Leaking Pipe. The urgency was said to arise from the WSD’s imminent threat to terminate Flat 4A’s water supply, and the IO’s ongoing failure or refusal to resolve the matter satisfactorily. P’s core argument is straightforward: having waited long enough for the IO to act, P should no longer be obstructed from self-help repairs.

12.P’s original repair proposal was to abandon the Leaking Pipe and construct a new water pipe from the water meter on the Car Park Floor. The new pipe will route along the exterior of the Pipe Duct up to the Fourth Floor before entering the guest toilet of Flat 4A.

13.The IO contended that constructing a new external water pipe for the exclusive use of Flat 4A constitutes an unauthorized conversion of the Building’s common parts. P therefore put forward a replacement method which involves:

(1) erection of scaffolding along the Pipe Duct from the Ground Floor to the Fourth Floor of the Building;

(2) creation of an 800mm x 800mm opening on the external wall of the Pipe Duct for access to the Leaking Pipe;

(3) repairing and/or replacing the Leaking Pipe; and

(4) closing the opening, patch repairing and re-decorating, and finally removing the scaffolding.

14.The injunction application came before me on 24 June 2026. Mr Paul Shieh SC, leading Mr Ross Yuen and Ms Eunice Lui, appeared for P. Mr Kenneth Chan and Mr Iu Kwan Yuen appeared for the IO.

15.At the hearing, Mr Shieh informed me that the WSD’s threat of disconnecting the water supply to Flat 4A had abated for the time-being, following a February 2026 letter from the IO’s solicitors alerting the WSD to the pending injunction application. However, the risks remain that the WSD could resume enforcement action at any time.

16.As an overarching point, Mr Chan submits that an injunction is not necessary because the IO is not refusing to repair the common parts. The IO has consistently maintained that it will investigate and carry out recommended works once the source, cause and liability are properly identified. The appropriate course of action is therefore to conduct inspections and testing, allowing for a professionally informed decision on the most necessary, proportionate, and appropriate repair methods.

17.The IO also undertakes to engage qualified professionals to investigate the cause of the water seepage. If the source is identified as a defect in a common part, the IO undertakes to execute all remedial works recommended by the professionals.

18.In response, Mr Shieh directs the Court to the parties’ correspondence since February 2025, which he argues demonstrated P’s consistent effort to repair the Leaking Pipe and prevent a water supply disconnection to Flat 4A. He submits that these efforts were met by the IO’s “delaying tactics, if not radio silence”. He maintains that investigation is not necessary; the Leaking Pipe is undisputably a cause of the water seepage, as noted in [20] below, and must be repaired regardless of whether other contributing causes exist.

19.Both P and the IO disagree on how best to carry out the repairs. It is neither the Court’s role at this stage to determine the correct method, nor is it necessary to review the history of the matter. The IO may well have an alternative timeline and procedure, but that does not address the core issue. The focal point of this injunction application is whether P should be allowed to proceed with its own repairs immediately, and in the manner proposed in [13] above.

20.Mr Shieh submits that the evidence demonstrates that the Leaking Pipe is defective and actively causing water seepage, thereby necessitating immediate repair. He derives support from a consistent chain of contemporaneous observations and expert findings:

(1) February 2025: Technical and engineering staff appointed by the IO observed a leaking pipe on the Fourth Floor routing into a flat through the external wall;

(2) March 2025: A surveyor engaged by the management office detected active leakage and dripping from the water supply pipe of Flat 4A inside the Pipe Duct, noting that the pipe appeared rusted and defective;

(3) April 2025: The IO’s expert conducted a visual inspection via the Flat 3A Pipe Duct access opening and confirmed that a semi-embedded, high-level metal water pipe was wet and leaking;

(4) August and November 2025: The WSD issued the repair notices;

(5) February 2026: P’s expert inspected the Pipe Duct through the Flat 4A guest toilet access panel near the ceiling, and observed localized dripping from a water supply pipe level with the Flat 4A floor slab, with damp patches confined to the immediate vicinity of the pipe.

21.Mr Shieh argues that the Leaking Pipe is a common part of the Building. He relies on the Deed of Mutual Covenant of the Building, which imposes a primary duty on the IO to maintain “pipes” and prohibits owners from cutting, altering or interfering with them. He notes that the reference to “pipes” (as opposed to “plumbings” in the individual flats) does not exclude pipes inside the Pipe Duct that exclusively serve individual owners. He also cites Incorporated Owners of Summit Court v Full Surplus Investment Ltd [2007] 3 HKLRD 351 at [39]-[40], which held that branch pipes serving a single flat exclusively may still be regarded as common parts if they form part of the common water system, and the existence of separate meters serving individual flats does not change the common nature of the overall water supply system.

22.Mr Chan submits that to safely determine whether a defect lies in a common part or private property, the Court must first identify the actual pipe and its physical layout, including its route, function, and any past modifications. However, this is a matter for trial. Mr Chan accepts that at this interlocutory stage, the Court is not required to conclusively determine the source of the water seepage. On the evidence presented, I am satisfied that there is a serious issue to be tried as to whether the Leaking Pipe is a source of the water seepage and a common part of the Building.

23.There is a debate whether P must go beyond establishing a serious issue to be tried and instead satisfy the Court that there is a high degree of assurance that the injunction will be shown at trial to have been rightly granted. Mr Chan submits that the higher threshold applies because the injunction sought is mandatory in nature, as it compels the IO to consent to P executing repair works through a common part of the Building – specifically, by creating an opening on the exterior of the Pipe Duct. In response, Mr Shieh contends that P merely seeks to restrain the IO from interfering with P’s repairs, making the injunction prohibitory in nature. In any event, Mr Shieh emphasizes that even for mandatory injunctions, the Court is guided by the fundamental principle of minimizing the risk of injustice: it will adopt whichever course carries the lower risk of injustice should its interim decision prove wrong. The Court must also not lose sight of the practical realities of the situation to which the injunction will apply. See Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 at [12].

24.It is ultimately unnecessary to resolve this question because, as demonstrated below, the outcome of the injunction application turns on the balance of convenience, regardless of the precise merits threshold.

25.I reject Mr Chan’s further submission that granting the injunction will finally or substantially dispose of the claims, which would require P to show a likelihood of success at trial. Mr Chan contends that once the external wall is opened and any leaking pipe is replaced or bypassed, the physical state of the Pipe Duct and water pipes will be irrevocably altered. As a result, he argues that it may become difficult – if not impossible – to ascertain the true source and cause of the seepage, or to determine whether the defect lies in common parts or private property. However, Mr Shieh must be right that P’s application will not practically dispose of the action. Even if an injunction is granted, the claim for damages remains outstanding. Any concerns regarding the preservation of evidence can be addressed by thoroughly documenting the repair works, with expert assistance to monitor the process if necessary. The replaced or removed sections of the pipe can also be preserved for further examination. Accordingly, P’s repairs will not result in any material loss of evidence.

26.P’s primary obstacle is the existence of a viable, less disruptive alternative repair method: the Leaking Pipe can be accessed directly from inside Flat 4A by opening the internal wall of the guest toilet. The IO’s expert opined that this is the “simplest and least expensive” repair method, and no evidence suggests it is less effective or efficient than external works. While this approach requires dismantling wall tiles and bathroom fittings, any resulting financial loss and physical disruption can be remedied by an award of damages at trial – a remedy P expressly seeks. Given the manageable 45-day work estimate and the fact that Flat 4A has alternative toilet facilities, the temporary inconvenience to occupants does not constitute irreparable harm. Although P claims that the internal repair method would render Flat 4A “totally [un]inhabitable” due to the required protection works, this assertion remains entirely bare, unsubstantiated, and unexplained.

27.Mr Shieh submits that the Leaking Pipe is highly likely a common part of the Building, meaning there is no justification for an individual owner to sacrifice the utility of their unit and bathroom to facilitate its repair. However, the definitive status of the Leaking Pipe remains a matter for trial. In assessing the balance of convenience, the Court must account for the collective interests of the IO, owners, and occupants. While P has shown a serious issue to be tried regarding the common-part status of the Leaking Pipe, that alone does not entitle P to dictate a repair method that carries inherent risks over a safer alternative. To that end, the IO’s expert evidence warns that breaching the external wall poses potential structural risks to the Building, which was constructed in the 1970s. Furthermore, erecting full-height scaffolding requires anchor holes that could compromise the waterproofing system, risking external water seepage that localized patch repairs may not reliably fix.

28.Faced with the above concerns, P’s contention that the risks of damage to the Building are overstated – on the basis that the Pipe Duct walls are non-structural and that any subsequent damage can be remedied or financially compensated – fails to address the core principle governing interlocutory relief. The Court will not sanction an intrusive, external construction process that creates a fresh risk of structural and environmental nuisance to other occupants when a localized internal solution is readily available.

29.Ultimately, where two viable avenues of repair exist, the principle of minimizing the risk of injustice requires the Court to adopt the course that protects the physical integrity of the common parts of the Building as far as possible. Since the internal repair method avoids creating a new structural hazard, whereas the external repair method may expose the Building to unnecessary risks, the balance of convenience tips decisively against granting the injunction.

30.I therefore dismiss P’s application.

31.For completeness, P’s application must also be denied on the ground that the proposed terms of the injunction are overly wide, ambiguous, and incapable of effective supervision. It is a fundamental principle that an injunction order must state with precision what the restrained party is prohibited from or required to do. P’s initial proposed terms fell short by seeking a blanket restraint against the IO from “hindering, obstructing and/or interfering with the repair works” without specifying the works involved. Although P submitted revised terms post-hearing, they remain deficient. The revised draft fails to pinpoint the exact coordinates of the proposed 800mm x 800mm opening by reference to an agreed building plan, leaving the Court unable to effectively enforce or police the order. Furthermore, the provision permitting P to access unidentified “other pipes” inside the Pipe Duct “insofar as necessary” is impermissibly imprecise. While this issue is rendered moot by my findings on the balance of convenience, the material imprecision of the proposed terms constitutes an additional basis for refusing the injunction.

32.Costs should follow the event. I make a costs order nisi that P pay the IO’s costs of the injunction application, including any costs reserved. Such costs are to be taxed forthwith if not agreed, and payable forthwith, with a certificate for one counsel only. This order nisi shall be become absolute unless an application for variation is made by way of summons within 14 days from the date of this Decision.

33.I thank counsel for their assistance.

Mr Paul Shieh SC leading Mr Ross M Y Yuen and Ms Eunice Lui, instructed by Ng, Au Yeung & Partners, for the Plaintiff

Mr Kenneth C L Chan and Mr Iu Kwan Yuen, instructed by CLM Lawyers, for the Defendant

Appendix