YAU KAR KWAI v. SHAN JIGESH RAJNIBHAI AND ANOTHER

DCCJ4752/2017

[2018] HKDC 75

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4752 OF 2017

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DECISION

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1.  This is the plaintiff’s application for default judgment.

2.  The plaintiff is the owner of Flat 10 on 4/F of Kiu Fung Mansion, and the defendants are the owners of the flat above.

3.  According to the statement of claim, water has been seeping from the defendants’ premises into the plaintiff’s premises since May 2017, causing damage to property, inconvenience and discomfort.  The plaintiff’s surveyor has determined that the seepage is due to a leakage in the floor slab and walls and the flushing system in the bathroom inside the master bedroom of the defendants’ premises.

4.  By this action, the plaintiff is seeking injunctive relief as well as unliquidated damages based on nuisance, negligence and breach of the applicable DMC.

5.  According to the affirmation of the process server, the writ was sent to the defendants by registered post on 27 October.  By operation of Order 10, rule 1(3)(a), service was deemed to be effected on the 7^th day after posting.  The defendants had 14 days to acknowledge service.  However, the defendants did not give any notice of intention to defend, and the plaintiff proceeded with this action as if the defendants had done so under Order 13, rule 6.  The defendants then had 28 days to file a defence, and the last day for them to do so was 14 December.

6.  The defendants have failed to serve a defence, and the plaintiff took out the summons for default judgment on 27 December.

7.  Sadly, the plaintiff passed away on 29 December.  Pursuant to the Order 15, rule 7(2), I grant an order to make the plaintiff’s daughter a party to these proceedings and for the proceedings to be carried on as if she had been substituted for the deceased.

8.  It is trite that in circumstances where no defence has been filed, the court will assume that the statement of claim has been impliedly admitted: see Whitebook, para.19/2/1.  In the premises, I am satisfied that the plaintiff is entitled to judgment based on the matters and the causes of action pleaded in the statement of claim.  In particular, given the negative covenant in the DMC and the fact that the defendants have failed and refused to carry out repair to rectify the seepage, I agree with the plaintiff’s counsel (Mr Lam) that a mandatory injunction in terms of the draft order should be ordered in the exercise of my discretion.

9.  I therefore enter judgment against the defendants in terms of the draft order placed before me.

10.  I also order that the 1^st and 2^nd defendants do pay the plaintiff’s costs of this action, including the costs of this application, summarily assessed at HK$25,000.00 (including the full fee charged by counsel).