LEUNG CHUN WAH NICHOLAS v. CHIN SHIN DIAN AND OTHERS

DCCJ 3986/2025

[2026] HKDC 597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3986 OF 2025

------------------------------

BETWEEN

------------------------------

------------------------

JUDGMENT

------------------------

Introduction

1.  This case concerns a water seepage dispute between two vertically adjoining residential units at Village Gardens Phase C, Kowloon. The Plaintiff (“P”) is the registered owner of Flat B on the 1^st Floor, Block B13, No 28 Fa Po Street (the “P’s Premises”). The Defendants (“Ds”) are the joint owners of Flat B on the 2^nd Floor of the same block (the “Ds’ Premises”), situated immediately above P’s Premises.

2.  By a summons dated 27 October 2025 (the “Summons”), P applies for default judgment against Ds pursuant to Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”), seeking the monetary relief and mandatory injunction requiring Ds to carry out the necessary remedial works to rectify the water seepage emanating from Ds’ Premises.

3.  The Summons came before me on 5 January 2026. P was represented by Mr Andrew Wong of Messrs. Huen & Partners. Ds did not appear and were not represented.

4.  At the conclusion of the hearing, I reserved judgment, indicating that I would hand it down at a later date. I now do so.

Background

5.  According to the P’s Statement of Claim (“SOC”), the pleaded facts are summarised as follows.

6.  As set out above, this is a case concerning water seepage affecting two vertically adjoining residential units. In essence, P sues Ds for breach of the deed of mutual covenant (“DMC”), breach of section 34H of the Building Management Ordinance (Cap 344) (“BMO”), nuisance, and negligence arising out of water seepage emanating from Ds’ premises. The pleaded case includes, inter alia, that:

6.1 Prior to November 2023, there had been multiple episodes of water seepage since 2005, which were either purportedly rectified by Ds or reinstated by P at his own expense, without claiming those costs from Ds;

6.2 In early November 2023, P discovered water leaking from the ceiling of his master bathroom again, causing damage to both the master bathroom and master bedroom ceilings, and although the matter was reported to the management office, staff were unable to reach Ds despite repeated attempts;

6.3 Between 5 November 2023 and 11 April 2025, the management office conducted inspections of the ceilings of P’s master bathroom and master bedroom and recorded persistent signs of water seepage, including elevated Wood Moisture Equivalent (“WME”) readings; and

6.4 P’s expert conducted field analysis and found, among other things: (i) water samples collected from the ceiling of the master bathroom of P’s Premises tested positive for ammonia, indicating foul water leakage; (ii) in the master bathroom, there was apparent wetness of the ceiling, delaminated and bulged wall tiles, and water staining of the hanging cabinet; and (iii) in the guest bathroom of P’s Premises, there were peeled paint and damp patches on the ceiling, concrete spalling and cracking, and cracks along the tiling joints filled only with sealants.

7.  According to the SOC, P pleads that by permitting water to seep and continue to seep from Ds’ Premises into P’s Premises, thereby causing damage and interfering with P’s use and enjoyment of his property, Ds are in breach of the covenants contained in the DMC. In particular, P relies on the provisions requiring each owner to maintain his premises in good repair, to refrain from causing nuisance or annoyance to other owners, and to indemnify other owners for loss or damage caused by water overflow.

8.  P further pleads that Ds are in breach of section 34H of the BMO, which imposes a statutory duty on an owner to maintain in good repair and condition any part of the building of which he has exclusive possession. In the alternative, P pleads that Ds are liable in negligence for failing to maintain their premises in good repair, for failing to rectify the water seepage defect despite repeated complaints, and for causing nuisance, annoyance and inconvenience to P.

9.  Upon Ds’ default of Defence, by the Summons P applies for default judgment for damages together with interest:

9.1 The sum of HK$85,040.00, being the estimated cost of repair and reinstatement of the affected parts of P’s master bathroom, guest bathroom and the ceiling of the master bedroom; and

9.2 The sum of HK$18,225.52 for short‑term accommodation during the intended repair and reinstatement works, noting that the SOC pleads a higher figure of HK$30,000.00.

10.  P further seeks a mandatory injunction requiring Ds:-

“do forthwith procure and commence the carrying out of all necessary and proper repair works at their own costs within 3 weeks of the Order to be made to rectify the sources and causes of water seepage from [D’s Premises] to [P’s Premises] to the satisfaction of an Authorized Person engaged by the Plaintiff with reasonable costs of engaging the Authorized Person to be borne by the Defendants”. (“the Proposed Injunction Order”)

Service

11.  P has filed affirmations confirming service of the Writ of Summons, the Notice of Intention to Enter Judgment under Order 19, rule 8A RDC, and the present Summons together with P’s Affidavit on each of the Ds at their last known address ie at Ds’ Premises.

12.  The evidence further confirms that:-

12.1 The Writ of Summons was served by insertion through the letter box pursuant to Order 10, rule 1(2)(b) RDC;

12.2 The Notice under Order 19, rule 8A RDC was served by ordinary post in accordance with Order 65, rule 5(1)(b) RDC; and

12.3 The Summons and P’s Affidavit were served by leaving the documents at Ds’ proper address, a mode of service permitted under Order 65, rule 5(1)(a) RDC.

13.  Ds have not filed any acknowledgment of service or defence to P’s claim, nor have they attended the hearing of this application. I am satisfied that the Court may proceed in Ds’ absence pursuant to Order 32, rule 5 RDC.

Legal Principles – Default Judgment and Injunctive Relief

14.  In considering whether to grant judgment in default, the Court proceeds on the basis of the pleadings alone. It is not necessary for the plaintiff to prove his case by evidence, nor may the Court consider evidence going to the merits. The task of the Court is to determine whether, on the Statement of Claim, the plaintiff appears entitled to judgment. The costs of any affirmation filed in support of the merits will ordinarily be disallowed: Hong Kong Civil Procedure 2026 (“HKCP 2026”) at §19/7/11.

15.  Order 13, rule 6(1) RDC provides that where a writ is indorsed with a claim not falling within rules 1 to 4, then if a defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and upon filing an affidavit proving due service of the writ, proceed with the action as if that defendant had given notice of intention to defend.

16.  In these proceedings, as P seeks both injunctive relief and damages, the claim does not fall within Order 13, rules 1 to 4 RDC. Accordingly, upon due service of the Writ of Summons and Statement of Claim, P has to proceed with the action as if Ds have given notice of intention to defend.

17.  Furthermore, in accordance with Order 19, rule 7(1) RDC, if the plaintiff makes a claim not covered by rules 2 to 5, and the defendant or all defendants (where there is more than one) fail to serve a defence within the prescribed period, the plaintiff may apply for judgment, and the Court shall give such judgment as the plaintiff appears entitled to on his Statement of Claim.

18.  Although Order 19 rule 7(1) RDC is expressed in mandatory terms, the rule is discretionary. The Court retains the power to extend time for service of a defence where just, or to give interlocutory judgment and direct an assessment of damages. See HKCP 2026 at §19/7/13.

19.  With regard to P’s claim for injunctive relief, it is trite that the Court has jurisdiction to grant permanent injunctions on an application for default judgment: see HKCP 2026 at §19/7/17; Times Square Limited v Lee Kwun Kit trading as JL Music and Anor [2020] HKCFI 438 per DHCJ William Wong SC at §14(5).

Analysis

20.  As Ds have failed to give notice of intention to defend and have not served any Defence, P is entitled to apply for default judgment pursuant to Order 19, rule 7 RDC. On the basis of the Statement of Claim, P has sufficiently pleaded that water seepage has occurred from Ds’ Premises into P’s Premises, causing damage, and that Ds are in breach of the DMC and section 34H of the BMO, as well as liable in nuisance.

21.  I am satisfied that, in the circumstances, P appears entitled to claim damages and it is appropriate to enter default judgment accordingly. However, the damages sought in §1 of the Summons (see §9 above) are based on estimated repair costs and anticipated accommodation expenses. As these sums are not actual loss, have not yet been incurred and are unliquidated, it would not be appropriate for the Court to enter a final award for a fixed amount. The proper course is to enter judgment for damages to be assessed, leaving the quantification of the actual loss to a subsequent assessment when the necessary works and expenses can be more precisely established.

22.  Turning to the injunctive relief sought under §2 of the Summons, I am mindful of the principles recently set out in similar cases at the district court level eg Lau Tin Fai v Gold Regal International Ltd [2025] 2 HKLRD 408 at §§6 to 10; Chan Ho Yan v Wong Shung Yan [2025] HKDC 2079 at §10, where in these cases the learned judges refusing to grant a mandatory injunction because of the plaintiff’s failure to precisely set out the terms of the injunction with precision.

23.  As set out in Lau Oi Kiu v Man Chun Shing & Anor [2015] 4 HKC 73 per DHCJ Paul Lam SC at §124, citing Morris v Redland Bricks Ltd [1970] AC 652:-

“124. It is of critical importance to define the terms of a mandatory injunction clearly. As Lord Upjohn held in Morris (supra) at 666G‑667C:

‘If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.

This has been well settled for a long time… There may be cases where, to revert to the simple illustration I gave earlier, the defendant can be ordered ‘to restore the right of way to its former condition.’ This is so simple as to require no further elucidation in the court order. But in anything more complicated the court must in fairness to the defendant tell him what he has to do, though it may well be by reference to plans prepared by some surveyor… The principle is summed up by Maugham L.J. in Fishenden v Higgs & Hill Ltd (1953) 153 L.T. 128, 142:

‘I should like to observe, in the first place, that I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom it is granted ought to know exactly what he has to do.’’

24.  A mandatory injunction must be framed with precision so that the defendant is left in no real doubt about the acts required to comply with it. The court must be satisfied that the obligation imposed is clear, specific and workable, bearing in mind that non‑compliance may expose the defendant to contempt. The degree of detail needed will depend on the circumstances of the case. In a straightforward situation, a simple direction may suffice, but where the works are more involved or technical, the order must identify the required steps with sufficient particularity, whether by express description or by reference to professional plans or specifications, to ensure that compliance can be achieved fairly and without risk of inadvertent breach.

25.  On the other hand, I also recognise that the degree of specificity achievable in any given case is constrained by the factual circumstances in which the application arises. In particular, where the plaintiff has had limited access to the defendant’s premises, the court may not be in a position to identify the precise source of the problem or the exact remedial steps required. This point was recently considered in Pang San Sor v Wan Kui Chuen [2026] HKDC 231, at §§13-14, where DDJ Vincent Lung, having reviewed Lau Tin Fai, stated that:-

“13. As a matter of first principles, there can be nothing objectionable to the requirement that mandatory injunction orders should be drafted with precision. But equally, each case must depend on its own facts, and the same applies to the drafting of an order, in particular how specific the drafter might be able to go. In water seepage cases where the defendant has not appeared, the plaintiff usually has not had access to the defendant's unit to carry out investigations and tests, so it will sometimes be impossible for the plaintiff (and the Court when giving the order) to identify precisely whether it is the pipes, the kitchen sink, the balcony, the bathtub or the waterproofing membrane that is the real source of the seepage which necessitates repairs and maintenance. To require the plaintiff in such a situation to utilize the technique of adding a “by clause” may be asking too much. Alternatively, if this is insisted upon, the plaintiff will then put in a lengthy “by clause” in a lawyerly manner to include all possible sources of seepage that one can imagine so as to cover all bases. In this situation the usage of the “by clause” to improve the clarity and precision of the mandatory injunction order would be self-defeating. It would also mandate the defendant to essentially tear everything down in his flat and re-do the renovation in order for him to comply with the full terms of the order (when for example only a single pipe needs replacement).”

14. It goes without saying that the context would be completely different if say a full-blown expert report has been prepared which identifies the exact spots and sources of seepage. In that situation, the plaintiff should be able to be much more specific in working out the terms of the mandatory injunction order.” (emphasis added)

26.  Mr Wong, in his oral submissions, submitted that the reference to an Authorized Person in the Proposed Injunction Order would supply the necessary certainty. I am unable to accept that submission. The formulation advanced by P identifies only the outcome to be achieved, namely the rectification of the sources and causes of seepage, but does not specify the works that Ds are required to carry out. It leaves the scope and nature of those works to be determined subsequently by an Authorized Person engaged by P, which is precisely the kind of open‑ended obligation cautioned against in the abovementioned authorities. A defendant subject to a mandatory injunction must be able to place the order before a contractor and understand the specific steps required for compliance. The present wording does not meet that standard. It identifies the problem but not the remedial works, and it delegates the definition of those works to P’s Authorized Person in terms that are too indeterminate to support an enforceable mandatory injunction order. The breadth of the formulation is such that even the court cannot presently discern what works would be required to comply with its order, which illustrates the unacceptable level of uncertainty inherent in the proposed relief.

27.  I accept, as rightly noted by DDJ Vincent Lung in Pang San Sor, that in some cases it may be impossible to identify the source of water seepage for the purpose of drafting a mandatory injunction. In such circumstances, the level of specificity attainable in the order is necessarily constrained by the plaintiff’s limited knowledge.

28.  This, however, is not such a case. In support of the application, P filed an affidavit dated 24 October 2025 (“P’s 1^stAffidavit”) exhibiting an expert report prepared by Mr Tsang Tak Ming Jacob dated 2 June 2025 (“the Expert Report”). While the Court, when entering default judgment under Order 19, rule 7 RDC, should not consider evidence going to the merits and the costs of the affirmation should be disallowed (see §14 above), I note that the Expert Report is comprehensive and diagnoses the seepage by reference to objective testing. The expert identifies the likely causes of seepage and the areas requiring rectification at sections 6 and 8 of the report, including defective floor waterproofing in the master bathroom (and possibly the guest bathroom) and potential leakage from a rusty foul water drainage pipe within the common pipeduct:-

“6. Diagnosis

In view of the above findings, the problem can be diagnosed as follows:

[…]

6.2 I opine that defective floor waterproofing system at master bathroom of [D’s Premises] is the major cause of water seepage suffered at [P’s Premises]. Following are my justification.

[…]

Subject to further inspection and tests that can be arranged at [D’s Premises], there may be defective floor waterproofing system at guest bathroom.

[…]

6.4 Defective floor waterproofing system at master bathroom and/or guest bathroom of Flat 2B should be rectified. Rusty common foul water drainage pipe within the pipeduct should be checked and are to be replaced if necessary.

[…]

8. Conclusion

[…]

8.2 Defective floor waterproofing system at master bathroom of [D’s Premises] is the major cause. Subject to further inspection and tests that can be arranged at [D’s Premises], there may be defective floor waterproofing system at guest bathroom.

[…]

8.3 Subject to further checking and tests, there may be leakage from the rusty common foul water drainage pipe within the common pipeduct.”

29.  Given that the Expert Report has already identified the probable causes of seepage and the corresponding areas requiring rectification, there is no reason why P could not have formulated the terms of the Proposed Injunction Order with greater specificity. In the present context, any mandatory injunction should specify the necessary remedial works and stipulate a clear timeframe for compliance to avoid ambiguity. Unfortunately, that was not done.

30.  The application for mandatory injunction as sought under §2 of the Summons is therefore refused. This refusal is, however, without prejudice to any renewed application by P for the same.

Conclusion and Orders

31.  For the above reasons, I am satisfied that on the basis of the matters as pleaded in P’s SOC, D is liable for the water seepage, and I make the following orders:-

31.1 Interlocutory judgment on liability be entered in favour of the Plaintiff with damages to be assessed;

31.2 Interest pursuant to sections 49 and 50 of the District Court Ordinance;

31.3 Costs of the Plaintiff’s 1^st Affirmation dated 24 October 2025 filed in support of the application be disallowed;

31.4 Save for paragraph 31.3 above, the costs of the application, including the costs of the Summons, be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

32.  I thank Mr Wong for his assistance.