YIP YUET MING AND ANOTHER v. LIU KING WA

DCCJ 2165/2024

[2024] HKDC 1404

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2165 OF 2024

________________________

________________________

________________________

J U D G M E N T

________________________

Introduction

1.  This is a water seepage case concerning the properties situate at Flat 5, 34/F, Block A, King Ming Court, Nos 2-6 (No 4)  Tsui Lam Road, Tseung Kwan O, Sai Kung, New Territories (“Ps’ Premises”)  and the flat above in the same building (“D’s Premises”).

2.  By Inter-Partes Summons dated 20 June 2024 (“the Summons”), the 1^st and 2^nd Plaintiffs (collectively, “Ps”)  apply for default judgment against the Defendant (“D”)  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 24 April 2024, the Writ of Summons specifically indorsed with a Statement of Claim (“SOC”)  was issued against D.

4.  In the SOC, it is pleaded that:

(1)  Ps are the registered owners of Ps’ Premises;

(2)  D is the registered owner of D’s Premises;

(3)  Both Ps and D are bound by a Deed of Mutual Covenants dated 9 March 1988 registered in the Land Registry (“the DMC”)  that provides:

(a)  “The owner of each equal undivided share of and in the Estate and the owner of each flat therein shall at all times hereafter be bound by and shall observe and perform the covenants provisions and restrictions herein and in the Second Schedule hereto contained” (clause 3);

(b)  “[The owner of each flat therein shall at all time] To be responsible for and indemnify the Authority and all other owners and occupiers against all actions proceedings costs claims and demands whatsoever arising out of or in respect of any loss or damage to any person or property caused by or as a result of the act or negligence of any occupier of any flat of which he is the owner or any person using such flat with his consent express or implied or by or through or in any way due to the overflow of water or the escape of electricity or gas therefrom” (clause 10 of the Second Schedule);

(c)  “No owner shall do or suffer or permit to be done anything whereby the flush or drainage system of any building within the Estate may be clogged or the efficient working thereof impaired” (clause 12 of the Third Schedule); and

(d)  “Each owner or occupier shall be responsible, upon notification by the Authority, to repair any defective drains, outlets or connections to any water-closets or other water apparatus in his flat and shall be responsible for any damage to any other flat resulting from disrepair of the said drain, outlets and connections” (clause 17 of the Third Schedule);

(4)  Further, pursuant to s 34H of the Building Management Ordinance, Cap 344, it is an implied term of the DMC that all owners of the building owe a duty to maintain their respective flats in good repair and condition;

(5)  Since or around October 2023, Ps discovered that there was seepage of water from D’s Premises causing damage to the ceiling and the wall of Ps’ Premises, particularly the kitchen, bedroom, bathroom and living room (“the Water Seepage”);

(6)  Ps immediately reported the Water Seepage to the management office in an attempt to resolve the problem but to no avail;

(7)  Despite the notice and demand of inspection by the management office, D has failed or otherwise neglected to take any remedial work or action to stop the Water Seepage;

(8)  Ps engaged Hong Kong Surveyor Limited to carry out inspection and investigation.  According to the formal inspection report that was prepared, the source of the seepage of water was the waterproofing layer and the drainage system in the kitchen of D’s Premises and the toilet system, waterproofing layer and drainage system in the bathroom of D’s Premises;

(9)  It was also found that the water seeped from D’s Premises into Ps’ Premises contained urine;

(10)  Despite the request by letter from Ps’ solicitors for D to carry out remedial works and to indemnify the damage caused to Ps’ Premises by the Water Seepage, D has not responded or taken any action;

(11)  Accordingly, Ps claim that D wrongfully and in breach of the express and implied terms of the DMC had caused or permitted the Water Seepage;

(12)  Ps also claim that the Water Seepage was caused by the negligence and/or omission on the part of D, her occupiers, servants and/or agents which caused the damages to Ps’ Premises for which Ps seek damages to be assessed;

(13)  In addition to damages, Ps also seek:

(a)  An injunction to restrain D, her agent and/or servants or otherwise from repeating or continuing the nuisance caused by the water seepage or any nuisance of a like kind from D’s Premises to Ps’ Premises;

(b)  A mandatory injunction that D, whether by herself, her employees, agents and/or servants do within 14 days from the date of order to be made to take all necessary actions to rectify and eradicate the water seepage from D’s Premises to Ps’ Premises to the satisfaction of an authorized person at her expense; and

(c)  Costs of this action including this application.

Service of process and non-appearance of D

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

6.  D has not filed or served any Acknowledgement of Service or defence.

7.  Furthermore, given that I am satisfied the Summons was served on D, 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 D at today’s hearing.

8.  Ms Chan, solicitors, appears on behalf of Ps at today’s hearing.

Applicable principles

9.  The applicable principles for default judgment under O 19, r 7 of RDC 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 have been granted in similar cases of water seepage: see eg 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 and Disposition

12.  Having carefully considered the SOC, I am satisfied that based on the pleaded facts, Ps have a valid claim based on breach of the DMC, nuisance and/or negligence against D in respect of the Water Seepage from D’s Premises to Ps’ Premises.

13.  I would assume that D has 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 D.

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 as the nuisance and/or negligence will continue unless restrained by the court.

16.  I will therefore enter judgment against D and make an order in terms of the Summons as amended by me.

17.  Having considered the statement of costs submitted to me, adopting a broad-brush approach, I have summarily assessed Ps’ costs at HK$68,000.