YIP YUET MING AND ANOTHER v. LIU KING WA

DCCJ 2165/2024

[2025] HKDC 1279

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2165 OF 2024

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DECISION

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Introduction

1.  This is Plaintiffs’ Summons dated 17 June 2025 (“Plaintiffs’ Summons”)  seeking, inter alia, leave (1)  that they or their agents and/or servants be allowed to enter and carry out remedial work in the Defendant’s premises at Flat 5, 35/F, Block A, King Ming Court, Nos 2-6 (No 4)  Tsui Lam Road, Tseung Kwan O, Sai Kung, NT (“Defendant’s Premises”)  within 60 days from the date of the order made herein and (2)  that the Defendant do pay for the costs and expenses incurred in the carrying out of the said remedial work.

2.  This application is taken out pursuant to Order 45 rule 8 of the Rules of the District Court, Cap 336H.

3.  The Defendant is absent at the hearing today. Having read the 2^nd Affirmation of Chan Lok Man dated 24 July 2025, I am satisfied that the Plaintiffs’ Summons was properly served on the Defendant. I shall proceed hearing this application in the Defendant’s absence.

Background

4.  The Plaintiffs are the registered owners of Flat 5, 34/F, Block A, King Ming Court, Nos 2-6 (No 4)  Tsui Lam Road, Tseung Kwan O, Sai Kung, NT (“Plaintiffs’ Premises”).

5.  The Defendant is the registered owner of the Defendant’s Premises.

6.  The present application arises from the alleged non-compliance of a default judgment granted on 22 August 2024 against the Defendant that, by way of a mandatory injunction order, the Defendant was required to carry out and take all necessary actions to rectify and eradicate the water seepage from the Defendant’s Premises to the Plaintiffs’ Premises (“Injunction Order”).

7.  The Injunction Order was served on the Defendant on 26 September 2024 by pre-paid ordinary post at the Defendant’s Premises. The Plaintiff’s solicitor later called the Defendant on 15 October 2024 to follow up on the matter and was informed by the Defendant that she had in about April 2024 arranged for remedial works to be carried out at the Defendant’s Premises.

8.  As requested by the Defendant, a copy of the Injunction Order was further sent to the Defendant’s email address on 16 October 2024. This matter was further followed up by the Plaintiff’s solicitor with a call to the Defendant on 31 October 2024.

9.  On 27 November 2024, the Defendant herself sent an email to the Plaintiffs’ solicitor stating that she had called the contractor recommended but the said contractor said that he was fully booked and thus could not spare time for her.

10.  In these circumstances, I find that the Defendant was clearly aware of the Injunction Order and of what was required to be done by the Defendant under the Injunction Order.

Discussion

11.  Order 45 rule 8 of the Rules of the District Court (“RDC”)  reads as follows:-

“If a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.”

12.  Order 45 rule 8 of the RDC empowers the court to order someone other than the disobedient party to do the required act under the injunction but at the expense of the disobedient party: Ever International Investment Holdings Limited v Lee Wah, unreported, DCCJ 886/2014, 1 February 2016, §§13 to 17.

13.  In the Affirmation of the 1^st Plaintiff dated 17 June 2025, the Plaintiffs have adduced and referred to a surveyor report dated 8 April 2025 in which the surveyor opined that the water seepage problem from the Defendant’s Premises to the Plaintiffs’ Premises still persisted. The surveyor opined that the source of the water seepage was the waterproofing layer and the drainage system in the kitchen of the Defendant’s Premises and the toilet system, waterproofing layer, and drainage system in the bathroom of the Defendant’s Premises.

14.  Such report shows that the Defendant has yet to comply with the Injunction Order granted. No contrary evidence has been adduced by the Defendant to the said opinions given by the Plaintiffs’ surveyor.

15.  In the premises, I am satisfied that there has been non-compliance with the Injunction Order by the Defendant and, as such, an order pursuant to Order 45 rule 8 of the RDC is thus necessary and appropriate. As for costs, there is no reason why costs should not follow the event and I so order.

Conclusion and Order

16.  I grant an order as follows:-

(a)  Leave be granted to the Plaintiffs, their agents and/or servants to enter the Defendant’s Premises and carry out remedial work at the Defendant’s Premises within 60 days from today;

(b)  Upon the carrying out of such remedial work at the Defendant’s Premises, the Defendant do pay the Plaintiffs such costs and expenses incurred within 14 days after a written demand is served upon the Defendant by the Plaintiffs setting out the breakdown of such costs and expenses with supporting proof;

(c)  Penal notice be granted and endorsed on this Order; and

(d)  Costs of this application be paid by the Defendant to the Plaintiffs to be paid forthwith, summarily assessed at HK$63,000.