LAW SHUI SHEK v. TSE MAN YICK in his capacity as administrator of the Estate of TSE CHI KEUNG, Deceased

DCCJ 6859/2025

[2026] HKDC 1339

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6859 OF 2025

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REASONS FOR JUDGMENT

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1.  This is a water leakage case. This is an application by the Plaintiff for default judgment against the Defendant.

The Plaintiff’s Case

2.  The Plaintiff is the registered owner of Flat A on 8^th floor, Cherry Mansion, Nos 17-39, 19A, 23A-35A & 39A Oak Street & Nos 22 & 22A Cherry Street, Kowloon (“Plaintiff’s Property”).

3.  The Defendant is the administrator of the estate of Tse Chi Keung, Deceased, who was the registered owner of the property immediately above the Plaintiff’s Property ie Flat A on 9^th floor, Cherry Mansion, Nos 17-39, 19A, 23A-35A & 39A Oak Street & Nos 22 & 22A Cherry Street, Kowloon (“Defendant’s Property”).

4.  Since or around 2015, there has been persistent water leakage from the Defendant’s Property to the Plaintiff’s Property causing, inter alia, water stains, dampness, plastering and concrete spalling and exposing rusted steel reinforcement bars at the Plaintiff’s Property.

5.  Complaints were lodged by the Plaintiff to the Building Department and also to the Food and Environmental Hygiene Department Kowloon Regional Joint Office (“Joint Office”) in or about July 2021. However, no effective action was taken by the Defendant to repair and remedy the problem.

6.  In or about March 2025, the Plaintiff engaged Hong Kong Survey Limited to conduct site inspections and carried out tests to investigate into the cause of the water leakage. It was concluded that the water leakage affecting the Plaintiff’s Property was caused by (1) the failure of waterproofing layer of the original bathroom floor of the Defendant’s Property (including the perimeter walls and the bathroom/shower floor along the said walls) and leakage from the related drainage pipes and (2) the failure of the waterproofing layer of the original toilet floor of the Defendant’s Property (including the perimeter walls) and leakage from the related drainage pipes.

7.  In these proceedings, the Plaintiff has pleaded and relied upon the following causes of actions against the Defendant: (1) negligence, (2) breach of the Deed of Mutual Covenant, (3) breach of section 34H of the Building Management Ordinance (Cap 344) and (4) nuisance.

8.  The Plaintiff alleges that he has suffered loss and damage because of the water leakage including the costs of the repair and restoration works to be carried out, the costs for the inspection and investigation work already performed and also the loss of rental income in the total sum of HK$435,100.

Discussion

9.  I am satisfied that the Defendant was properly served with these proceedings but has failed to acknowledge service of these proceedings. The Defendant has not filed and served any defence.

10.  The Defendant is absent today. I will proceed to hear this application in the Defendant’s absence.

11.  I am satisfied that the Plaintiff is entitled to the reliefs as sought in the Statement of Claim. I have paid regard to the findings made by Hong Kong Survey Limited and pleaded in the Statement of Claim.

12.  In the Plaintiff’s Summons dated 12 June 2026, the Plaintiff asks for a monetary judgment sum be entered against the Defendant in the sum of HK$435,100 being the repair costs for the water leakage and also a further sum calculated at the rate of HK$5,200 per month from 18 November 2025 to the date of judgment being the continuing loss of rental income suffered by the Plaintiff.

13.  I am not prepared to grant a judgment as such. The proper course is for the Plaintiff to prove his loss and damage in an assessment of damages hearing before a Master. The Plaintiff’s solicitor did not press further on this matter.

14.  In conclusion, having heard submissions from the Plaintiff’s solicitor, I granted an interlocutory judgment for the reliefs sought in the Plaintiff’s summons dated 12 June 2026 (with modifications) as follows:-

(a)  An injunction to restrain the Defendant, whether by himself or his servant(s), agent(s), tenant(s), license(s) or otherwise howsoever, from continuing, causing, permitting or allowing water to leak, seep or flow from the Defendant’s Property to the Plaintiff’s Property;

(b)  An Order that the Defendant do within 56 days after the service of this Order and at his own expense carry out all necessary repairs and/or remedial works to stop and prevent the water leakage from the Defendant’s Property to the Plaintiff’s Property to the satisfaction of an Authorized Person or surveyor jointly engaged by the parties with the reasonable costs of engaging the said professional to be borne by the Defendant, failing which the Plaintiff be at liberty and at the costs of the Defendant to arrange a contractor to carry out the said repairs and/or remedial works;

(c)  The Defendant do pay damages to the Plaintiff caused by the water leakage, the amount of which to be assessed before Master. I also leave the question of interest to be handled by the Master; and

(d)  Costs of this application be paid by the Defendant to the Plaintiff the amount of which is summarily assessed at HK$45,000.

15.  The Plaintiff’s solicitor also asks the aforesaid order to be indorsed with a penal notice. There are authorities to the effect that penal notice does not form part of the court order and can be added back to the order even after the order has been sealed: Anglo-Eastern Trust & Another v Kermanshahchi [2002] All ER (D) 296and LA v TWK, unreported, FCMC 15040/2012, 9 June 2014 at §46. I tend to agree with the view expressed in the above authorities. But, if leave is needed, I do grant leave for the order to be so indorsed with a penal notice.