CHONG PING SHI v. CHAU HOK SHUN

DCCJ 2994/2020

[2020] HKDC 1257

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2994 OF 2020

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J U D G M E N T

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Introduction

1.  This is the plaintiff’s application for default judgment against the defendant by way of Summons filed on 5 October 2020 (“Summons”).

2.  The plaintiff is and was at all material times the registered owner of Flat A & Portion of the Flat Roof on 1/F of Winning Heights, 7 Fu Wah Street & 8 Wun Tung Street, Tsuen Wan, New Territories (“Plaintiff’s Property”).  The defendant is and was at all material times the registered owner of Flat A on 2/F of Winning Heights, 7 Fu Wah Street & 8 Wun Tung Street, Tsuen Wan, New Territories (“Defendant’s Property”).

3.  The Defendant’s Property is directly and immediately above the Plaintiff’s Property.

The plaintiff’s pleaded case

4.  According to the Statement of Claim filed and served by the plaintiff together with the Writ of Summons, water has been continuously seeping from the slab of the Defendant’s Property to the Plaintiff’s Property since about 2010 causing damp patches to appear at the ceiling and the wall of the bathroom and the living room of the Plaintiff’s Property. Throughout the years, the water seepage problem reoccurred in different periods of time.  The plaintiff has repeatedly through the management office requested the defendant to rectify the same but in vain.

5.  In January 2020, the water seepage problem reoccurred and deteriorated.  The plaintiff discovered damp patches and/or cracks at the ceiling and walls of the plaintiff’s bathroom and sitting room. The plaintiff again requested the defendant to rectify the seepage problem through the management office.

6.  On 4 February 2020, the defendant replied via the management office that he would arrange a full renovation of the Defendant’s Property to rectify the water seepage problem.

7.  There has not been any renovation of the Defendant’s Property.  Despite repeated demands and requests, including the issuing of pre-action letters to the defendant on 23 March 2020 and 6 May 2020 respectively by the plaintiff’s solicitors, the defendant still has not rectified the water seepage problem.

8.  The water seepage and the persistent dampness have affected the plaintiff’s use and enjoyment of the Plaintiff’s Property.

9.  The plaintiff by this action seeks injunctive relief as well as unliquidated damage based on nuisance, negligence and breach of the relevant Deed of Mutual Covenant (“DMC”) against the defendant.

Service

10.  The plaintiff has put in evidence of service of the Writ of Summons with Statement of Claim, the Notice of Intention to Enter Judgment and the Summons.

11.  The Writ of Summons with Statement of Claim was served on the defendant on 23 June 2020 by inserting the same through the letter box of the defendant at the Defendant’s Property (the last known address).  The same was also posted up at conspicuous place at the main entrance of the Defendant’s Property.  Service was deemed to be effected on the seventh day after the said insertion by the operation of Order 10 Rule 1(3)(a) of the Rules of District Court (“RDC”), ie 30 June 2020.  No notice of intention to defend was filed by the defendant within 14 days.  Pursuant to Order 13 Rule 6(1) of the RDC, the plaintiff proceeded with the action as if the defendant had given notice of intention to defend.  The defendant then had 28 days to file his defence and the last day for him to do so was 11 August 2020.

12.  The defendant has failed to file and serve his defence.

13.  The Notice under Order 19 Rule 8A of the RDC and the Summons were respectively served on the defendant by ordinary post and by posting the same at conspicuous place at the main entrance of the Defendant’s Property.

14.  The defendant does not appear today.  I am satisfied that the Summons was duly served on the defendant and I allow the hearing of the Summons to be proceeded with in the absence of the defendant pursuant to Order 32 Rule 5 of the RDC.

15.  At the beginning of the hearing, Miss Ho, counsel for the plaintiff, clarifies that the plaintiff’s application was made under Order 19 Rule 7 of the RDC, whereas the Summons has mistakenly stated as being made under Order 17 Rule 9.  I accept Miss Ho’s explanation that such mistake was mere clerical mistake.  I shall correct the irregularity by treating the Summons as an application under Order 19 Rule 7 (Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658 [6] refers).

Default Judgment and Injunctive Relief

16.  In considering an application for default judgment, the court cannot receive any evidence but must give judgment according to the pleadings alone (see Paragraph 19/7/11 of the Hong Kong Civil Procedure 2021 Vol 1 (“HKCP”)).

17.  In the circumstances where no defence is filed, the court will assume that Statement of Claim has been impliedly admitted (see Paragraph 19/2/1 of HKCP).

18.  The plaintiff asks for, inter alia, a mandatory injunction requiring the defendant to carry out the necessary repair or remedial work to stop or prevent any water to seep from the Defendant’s Property to the Plaintiff’s Property and an order for damages to be assessed.

19.  Miss Ho confirms that the plaintiff shall rely on the claim of nuisance and breach of DMC in seeking the injunctive relief. Indeed, according to Clerk & Lindsell on Torts, 23^rd edn, Paragraph 19-32, the availability of the injunction as a possible remedy has been taken as significant in drawing a line between nuisance and negligence whereby if a person seeking an injunction to restrain his neighbour from doing something on his own land which causes damage to that person, the appropriate cause of action on which to base the remedy of an injunction is nuisance (see also HHJ Phoebe Man’s judgment in Victory Success Trading Limited v Cheung Kin Ying, DCCJ 714/2020, [2020] HKDC 753, 4 September 2020 [12]).

20.  I am satisfied that on the pleadings, the existence of water seepage is established from the Defendant’s Property into the Plaintiff’s Property and that damage has been caused by nuisance.  I am also satisfied that the plaintiff’s case of breach of Clause 10 of the DMC has been made out.

21.  The plaintiff is therefore entitled to the relief sought.

Conclusion

22.  I am satisfied that in the circumstances, it is appropriate to grant the plaintiff’s application for default judgment in terms of the draft order placed before me as amended.