LAI PUI SAN v. TAM YUK HA

DCCJ 5951/2023

[2024] HKDC 1639

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5951 OF 2023

——————————

BETWEEN

——————————

——————————

JUDGMENT

——————————

Introduction

1.  This is a case concerning water seepage from the defendant’s property situate at Flat No. 3, 9^th Floor, Star Mansion, No. 3 Minden Row, Kowloon (“D’s Property”) down to the plaintiff’s property at Flat No. 3, 8^th Floor of the same building (“P’s Property”).

2.  On 29 December 2023, the Writ of Summons specifically indorsed with a Statement of Claim was issued by the plaintiff (“P”).

3.  By a summons dated 26 February 2024, P applies for default judgment against the defendant (“D”) (“Summons”).

Service on D

4.  P’s solicitors, in its affirmations dated 31 January 2024 and 12 June 2024, confirmed that the Writ of Summons and the Statement of Claim were served on D personally on 2 January 2024 at around 5:25 pm. Further copies of the same were inserted in the letterbox of D’s Property and that of Flat D, 10^th Floor, New Lucky House, No.15 Jordan Road, Kowloon, Hong Kong, both of which were the last known addresses of D.

5.  At the hearing on 21 May 2024, D appeared in person before Deputy District Judge Kenneth Lee (“DDJ Lee”). DDJ Lee explained to D the relevant court procedure and P’s case, and directed D to read the hearing bundle carefully (by herself); and if D found any loopholes in P’s affirmation of service, she should set them out in an affirmation in opposition to be filed with the court.

6.  At the end of the hearing, DDJ Lee granted leave for D to file and serve affirmation in opposition within 28 days from 21 May 2024.

7.  On the same day, D made a declaration merely stating that she had not received the Writ and Statement of Claim on 2 January 2024. No further affirmation was filed by D setting out any loopholes in P’s affirmation of service or disputing the alternative service effected by inserting the said court documents into the letter box of D’s Property and D’s other last known address at Flat D, 10/F of New Lucky House.

8.  Later, on 20 June 2024, D appointed Messrs Kingston Tong and Co to act on her behalf in this action. However, by a notice filed on 23 September 2024, D informed the court that she would act in person again. From 20 June to 23 September 2024 when D was legally represented, D made no attempt to attack the validity of P’s service in January 2024.

9.  In the circumstances, I am satisfied that the Writ and Statement of Claim in this action have been properly served on D on 2 January 2024.

10.  Until now, D has not filed any Acknowledgement of Service or served any Defence.

11.  P took out the present summons on 26 February 2024, which was served on D personally on 27 February 2024, a copy of the affirmation filed in support of the summons was also served at the same time.

12.  Despite D’s lack of acknowledgment of service, it is trite that the court can still proceed under O.19, r.7; see Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, para 6.

13.  A copy of the hearing bundle and P’s skeleton submissions dated 16 May 2024 was served on 17 May 2024 at D’s Property and D’s last known addresses at New Lucky House, No.15 Jordan Road, Kowloon.

14.  Regarding the hearing on 27 September 2024, D sent two hand-written notes to the court dated 19 September 2024 and 23 September 2024 respectively, requesting this court to adjourn the hearing, which was not acceded to. On 24 September 2024, this court notified the parties that the hearing would proceed on 27 September 2024 as scheduled.

15.  At the hearing, D appeared in person and opposed the application. Based on the materials before me, I am satisfied that due notice has been given to D in respect of these proceedings, the Summons, and other documents P seeks to rely. It is therefore expedient for the present application to be dealt with without further delay.

Default judgments

16.  The principles applicable to default judgments are well established. The court’s power to give default judgment is discretionary. The court cannot receive any evidence but must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the court shall give such judgment as the plaintiff appears entitled to on his statement of claim only, and only if the pleaded facts give rise to the relief sought: Hong Kong Civil Procedure 2024 §19/7/11 and §19/7/13.

P’s pleaded case

17.  At all material times, P is the registered owner of P’s Property and D is the registered owner of D’s Property. D’s Property was converted by D into four sub-units with three separate entrances along the common corridor of the 9^th Floor of the building. The said conversion involved the addition of individual toilets and raised platforms, as well as the alteration of the water pipes inside D’s Property.

18.  The Deed of Mutual Covenant (the “DMC”) governing the two properties provides, inter alia, that:-

(1) under clause 10(a), “Not to make any structural alterations in his part of the said Building which may damage the other part thereof or cause any inconvenience to the other occupiers and not to make any alteration to the water or gas pipes electrical wiring or plumbing which may cause such damage or inconvenience as aforesaid […]”; and

(2) under clause 10(c), “Not to […] do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said Building”

19.  Further, P relies on section 34H of the Building Management Ordinance, Cap.344 (“the Ordinance”), which stipulates that:

(1) Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant.

20.  Since early July 2022 at the latest, serious seepage of water and/or sewage in yellowish colour with foul odour has been found on the ceiling of P’s Property, causing inconvenience and annoyance to P’s tenant, who was then occupying P’s Property under a lease for the period from 20 December 2021 to 19 December 2023 at HK$7,600 per month.

21.  The seepage issue was reported to the manager of Star Mansion, namely The Best Property Management Limited (“Manager”), the Building Department and Food and Environmental Hygiene Department Kowloon Regional Joint Office (“the Joint Office”), for investigation and follow up.

22.  On about 18 July 2022, the Incorporated Owners of Star Mansion and the Manager requested D to engage a qualified contractor to carry out investigation and repair, D failed to take any action and the seepage continued.

23.  In late July 2022, P engaged a contractor to urgently carry out temporary works inside P’s Property, including covering the ceiling with canvas and installing aluminum and plastic boards on the ceiling and the walls near the light troughs (“the Interim Measures”). The corresponding cost incurred was HK$20,000.

24.  Due to D’s failure, neglect and/or refusal to carry out any repair works to purge the seepage of water and/or sewage, it continued and the condition of P’s Property worsened over time. As a result, P’s Property has become inhabitable and unhygienic, notwithstanding the Interim Measures taken. On 10 January 2023, P had no alternative but to accept her tenant’s request for early termination of the lease.

25.  In early 2023, the Joint Office engaged a surveyor to ascertain the cause and the origin of the seepage in P’s Property. Various tests were carried out on both P’s Property and D’s Property.

26.  Upon investigation, the surveyor concluded that the seepage originated from 2 of the sub-units inside D’s Property and was due to the defective waterproofing work of the raised platform in the respective toilets of the sub-units.

27.  Subsequently, the Joint Office also issued a ‘Nuisance Abatement Notice’ to D under section 127(1) of the Public Health and Municipal Services Ordinance (Cap.132), ordering D to complete the required repair works. Notwithstanding the said notice, no repair or remedial actions were taken by D, and the seepage of water and/or sewage continued. The condition of P’s Property continued to get worse.

28.  As a result of the seepage, physical damage was caused to P’s Property, including the following:

(a) Dripping of water and/or yellowish sewage, damp stains and moulds appearing on multiple areas of the ceiling and the walls;

(b) large-scale peeling-off of paints over multiple areas of the ceiling and walls;

(c) fixtures and home appliances such as bed, air-conditioner, kitchen hood and light troughs were damaged by the continuing seepage, and the same became unusable; and

(d) wire hose and power system were damaged.

29.  P avers that the said conversion work inside D’s Property caused the water leakage and/or seepage, which in turn caused and continues to cause damage to P’s Property and inconvenience to P and P’s tenant.

30.  It is further averred by P that the matters complained of above were caused by D’s breach of DMC.

31.  Further or alternatively, the said water leakage and seepage was caused by D’s negligence in that D failed:

(a) to ensure that the toilets and raised platforms in D’s Property, in particular, those in sub-unit B and sub-unit D, were properly installed and furnished with appropriate and working waterproofing layer;

(b) to maintain, repair or keep the toilets and raised platforms in D’s Property, in particular, those in sub-unit B and sub-unit D, and the flooring including the waterproofing layer of the raised platforms (if any) in a good and proper state of repair and condition;

(c) to take any or any adequate precautionary measures to prevent or stop water from leaking, escaping, and seeping through the floor slab of D’s Property into P’s Property;

(d) to carry out any or any proper repair and/or remedial measures to stop the water leakage and seepage, prevent the same from continuing, etc.

32.  As a result, P suffered loss and damage, which include:

(a) costs incurred in respect of the Interim Measures, in the sum of $20,000;

(b) loss of rental income from 10 January 2023 at $7,600 per month;

(c) the damage caused to P’s Property and the fixtures, home appliances and furniture therein, and

(d) damages for distress and inconvenience.

33.  By a letter dated 3 October 2023, P’s solicitors requested D to comply with the ‘Nuisance Abatement Notice’ and to compensate P for the loss and damage suffered, D again failed to comply.

34.  The seepage is continuing, and D has not taken any action to rectify the situation or carry out any repair works to prevent or stop the water leakage and/or seepage. P is, therefore, unable to quantify the damage and loss suffered.

35.  In addition to damages, P also seeks:

(1) a mandatory order that D do forthwith at her costs and expenses carry out all such repair or remedial works as may be necessary to stop water and/or sewage from being leaked and seeped or otherwise discharged from D’s Property into P’s Property; and

(2) an injunction to restrain D, whether by herself, her tenant(s), licensee(s), servant(s) or agent(s) or otherwise howsoever, from causing or permitting nuisance by permitting or allowing water and/or sewage to come into and about P’s Property.

Discussion and disposition

36.  I have considered the Statement of Claim and am satisfied that P has made out a valid claim against D regarding the water leakage and/or seepage from D’s Property affecting P’s Property. It is to be noted that in default of filing of an acknowledgement of service and any defence, D is deemed to have admitted the particulars set out in P’s claim.

37.  In view of D’s non-compliance with the ‘Nuisance Abatement Notice’ since April 2023, I am also satisfied that P has a genuine need for the injunctive relief sought, as the water leakage and seepage in question will likely continue unless restrained by court.

38.  As to the terms of the injunctive reliefs proposed, the one set out in paragraph 2 of the Summons is not only vague but also too wide; if granted, it would effectively turn D into an ‘insurer’ against any future water leakage into P’s Property irrespective of whether it is intentionally caused by D, due to her negligence or otherwise, which, in my view, is not appropriate as a matter of fairness.

39.  I therefore make the following orders:

(a) Interlocutory judgment be entered in favour of P;

(b) D do, within 90 days and at her costs and expenses, carry out all such repair or remedial works as may be necessary to stop water and/or sewage from leaking and/or seeping or otherwise discharging from D’s Property down to P’s Property;

(c) D, whether by herself, her servants, agents or otherwise, be restrained from causing or permitting leakage or seepage of water and/or sewage from D’s Property into P’s Property; and

(d) Damages to be assessed.

40.  As to costs, P seeks the costs of this action, including the present application. Mr Lai agreed that as the court should only consider the pleading filed by P in the exercise of its discretion under O.19, r.7, the costs associated with the preparation and use of the Affirmation of P dated 26 February 2024 filed in support of this application should not be allowed. P further invited me to perform a summary assessment of costs and, in connection therewith, handed up a Statement of Costs at the hearing.

41.  Bearing the relevant principles in mind, I make an order nisi that the costs of this action (including the present application and the hearing on 27 September 2024) be to P, summarily assessed at $70,000. It is to be noted that the costs of the water seepage investigation report dated 29 July 2022 incurred prior to the commencement of this action has been excluded from the scope of the summary assessment.

42.  Unless any party applies to vary within 14 days, this costs order nisi shall become absolute without further order of the court.

43.  This judgment is handed down in English as submissions were made to me in English. However, D may liaise with the court clerk within 14 days upon receipt of this judgment to arrange for interpretation by a court translator at the District Court. The court clerk shall notify D of this liberty by a letter in Chinese.