MA MAN YIN STEPHEN v. NG YUN CHEONG

DCCJ 7037/2025

[2026] HKDC 1092

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 7037 OF 2025

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DECISION

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A.  Introduction

1.  This is the plaintiff’s application under O.19 r.7 of the Rules of the District Court (Cap 336H) (“RDC”) by Summons filed on 26 February 2026 for default judgment (the “Summons”) as amended at the hearing on 27 May 2026[1] (the “Amended Summons”) concerning the plaintiff’s claim of water seepage from the defendant’s premises at Flat 2 on 12/F of Block E, Sui Wo Court, No. 17 Sui Wo Road, Shatin, the New Territories (the “Defendant’s Premises”) to the plaintiff’s premises which is situated immediately below the Defendant’s Premises at Flat 2 on 11/F of Block E, Sui Wo Court, No. 17 Sui Wo Road, Shatin, the New Territories (the “Plaintiff’s Premises”).

B.  The plaintiff’s case

2.  As set out in his Statement of Claim (“SOC”), the plaintiff’s case is as follows: -

(1)  At all material times: -

(i)  the plaintiff was and is the registered owner of the Plaintiff’s Premises; and

(ii)  the defendant was and is the registered owner of the Defendant’s Premises.

(2)  Since about November 2019, water leaked from the bathroom of the Defendant’s Premises to various parts of the Plaintiff's Premises (the “Leakage”).

(3)  The plaintiff alleges that, in failing to take reasonable and necessary steps to stop the Leakage and/or failing to carry out the necessary repair works, the defendant is in breach of his duties under the relevant Deed of Mutual Covenant (the “DMC”), s.34H of the Building Management Ordinance (Cap 344) and his common law duty of care.

(4)  As a result of the Leakage which is still continuing: -

(i)  the Leakage has interfered with the enjoyment of the Plaintiff’s Premises by the plaintiff and his family members; and

(ii)  the plaintiff has suffered loss and damage.

C.   Procedural history

3.  According to the affirmations of service filed by the plaintiff:-

(1)  The Writ indorsed with the SOC were served on the defendant by insertion into the letter box of the Defendant’s Premises on 30 December 2025[2].

(2)  The plaintiff’s Notice of Intention to Enter Judgment filed on 21 January 2026 was served on the defendant by ordinary post to the Defendant’s Premises on 21 January 2026[3].

(3)  The Summons was served on the defendant on 2 March 2026[4].

(4)  Copies of the plaintiff’s supplemental skeleton submissions and the hearing bundle were served on the defendant by insertion into the letter box of the Defendant’s Premises on 19 May 2026[5].

(5)  A copy of the court’s order dated 14 April 2026 (whereby the Summons was adjourned to the hearing before me on 27 May 2026) was served on the defendant by insertion into the letter box of the Defendant’s Premises on 22 May 2026[6].

4.  In light of the above, I am satisfied that reasonable steps have been taken to inform the defendant of the hearing of the Amended Summons and that the hearing should proceed.

D.  Analysis

D1.  Whether the Summons was issued in time

5.  As the plaintiff claims damages, possession of the property and injunctive relief, RDC O. 13 r.6(1) applies:-

“Where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.”

6.  For present purposes, the reference to “prescribed time” means the time limited for the defendant to acknowledge service of the writ, see: RDC O.13 r.6A.

7.  RDC O. 19 r. 7(1) provides that:-

“Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

8.  In the present case, the Writ together with the SOC are deemed to be served on the defendant on 6 January 2026[7]. Pursuant to O. 12 r.5 and O.18 r.2, the deadline for the defendant to file and serve its defence is 16 February 2026. As no acknowledgment of service or defence has been filed by the defendant by the deadline. Hence, the Summons (which was issued on 26 February 2026) comes within O.19 r.7(1).

D2.  Whether the plaintiff’s claim is established on the facts of the SOC

9.  In an application under O.19 r.7(1), the court cannot receive any evidence and judgment is given on the pleadings alone, see: Hong Kong Civil Procedure 2026, vol.1 at §19/7/11. Therefore, I have to consider whether the plaintiff is entitled to judgment on the facts of the SOC.

10.  The plaintiff relies upon the various causes of action in the SOC. In my view and for the sake of brevity, it is only necessary to consider the following: (1) nuisance; (2) negligence; and (3) breach of the relevant Deed of Mutual Covenant.

D2.1  Nuisance

11.  In respect of the claim of nuisance, the general principles in the context of water leakage were summarised by His Honour Judge Alan Kwong in Tollemache Company Limited v Raymond Lun Kwok Pao [2024] HKDC 2026 at §§25-30:-

(1)  Private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by: (amongst others)(i) causing physical damage to his neighbour’s land/building and works upon it; or (ii) unduly interfering with his neighbour’s comfortable/convenient enjoyment of his land.

(2)  The courts have repeatedly held that water leakage can amount to nuisance.

(3)  The liability for nuisance is not strict or absolute. If an owner or occupier nullifies the nuisance emanating from his land without undue delay after he became aware of it, he would not be liable. However, if the defendant has knowledge that the nuisance emanates from his land but fails to take reasonable steps to nullify or abate the same within a reasonable time, he will be liable.

(4)  Thus, a defendant who does not have actual or constructive knowledge that the water seepage emanated from his property is not liable. However, once the defendant has the requisite actual or constructive knowledge, he will be liable unless remedial action is taken without delay.

D2.2  Negligence

12.  Similarly, the law on negligence and the law on nuisance coincide in the sense that where an owner knows or ought to know that the conduct or omission relating to his land will cause harm to his neighbour, he is under a duty to avoid and/or abate such harm, see: Tollemache at §§31-32.

D2.3  Breach of the DMC

13.  As pleaded in the SOC, under Clause 3 of the DMC, each owner (including the defendant) is obliged to keep the interior of the flat owned by him in good repair and condition.

D2.4  Liability established

14.  As pleaded in the SOC, the Leakage has been occurring since November 2019 and the defendant has failed to carry out the necessary repair works to abate the Leakage, despite repeated requests and demands from the plaintiff. The Leakage has caused damage to the plaintiff’s property and interfered with his quiet enjoyment of the Plaintiff’s Premises. Accordingly, the defendant is liable for the plaintiff’s claims.

E.  Reliefs

15.  The plaintiff seeks the following reliefs:-

(1)  damages to be assessed; and

(2)  mandatory injunctions to abate the Leakage.

16.  As liability is established on the basis of the SOC, the plaintiff is entitled to damages to be assessed. I am also satisfied that the mandatory injunctions` sought are necessary and appropriate to abate the nuisance caused by the Leakage. It is noted that the court has granted mandatory injunctions from time to time to remedy the water leakage in various similar cases, see e.g.: Victory Success Trading Limited v Cheung Kin Ying [2020] HKDC 753 at §§16-18; (Her Honour Judge Phoebe Man); Kuo Tsz Wai v Wong Sau Yuen [2024] HKDC 214 at §§19-22 (Deputy District Judge Zabrina Lau); Tam Tze Hang Antony v Ngai Ping Yuen & anor [2024] HKDC 1102 at §§32-35 (Deputy District Judge James Kwan); and Joy Asia Limited v Wong Chui Hong [2024] HKDC 1522 at §§9-16 (Her Honour Judge Grace Chow).

17.  I am also satisfied that the terms of the proposed mandatory injunctions are sufficiently specific so that the defendant should have no difficulty understanding what acts he needs to perform in order to comply with the injunctions.

18.  Accordingly, I enter judgment against the defendant in terms of the draft submitted by the plaintiff with minor amendments as follows:-

(1)  Interlocutory Judgment in default of defence to the Plaintiff’s claim as stated in the Statement of Claim be entered into against the Defendant;

(2)  The Defendant do, within four weeks from the date of service of the sealed copy of this Order, and at his/her own costs, abate the nuisance of the water seepage or leakage from the Defendant’s premises known as Flat 2 on 12/F of Block E, Sui Wo Court, No. 17 Sui Wo Road, Shatin, the New Territories to the Plaintiff’s premises known as Flat 2 on 11/F of Block E, Sui Wo Court, No. 17 Sui Wo Road, Shatin, the New Territories: -

(i)  by removing the associated drainage pipes of the bathroom toilet system and replacing them with new, non-defective drainage pipes; and

(ii)  by removing the existing defective waterproofing layer and floor tiles of the bathroom floor (including the shower/bathtub area and associated pedestal or upstand walls), and replacing them with a new waterproofing system and tiling to a water-tight condition.

(3)  All such works mentioned in paragraph 2 above shall be completed to the satisfaction of an authorized person or a qualified surveyor engaged by the Plaintiff, the reasonable costs of which (not exceeding HK$30,000) shall be borne by the Defendant;

(4)  The Plaintiff’s claim for damages against the Defendant be assessed;

(5)  Liberty to apply;

(6)  Costs of this action on liability up to the date hereof, including the costs of and occasioned by the Summons, be paid by the Defendant to the Plaintiff, with certificate for counsel, to be taxed if not agreed.