HO SAI CHEONG AND ANOTHER v. HONEST GATE COMPANY LTD

DCCJ 5283/2023

[2024] HKDC 633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5283 OF 2023

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BETWEEN

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D E C I S I O N

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1.  This is an application by the plaintiffs by summons filed on 24 January 2024 to enter default judgment against the defendant pursuant to Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”) for injunctive relief and damages to be assessed.

Background

2.  These proceedings concern a water leakage dispute between neighbours, involving allegations of nuisance, negligence, breaches of section 34H of the Building Management Ordinance (Cap 344) (“BMO”)[1] and provisions of the Deed of Mutual Covenant (“DMC”) of South Horizons, a residential estate in Ap Lei Chau, Hong Kong.

3.  As shown in the plaintiffs’ statement of claim:

(1) The plaintiffs were and are the registered owners and occupiers of Flat B, 34^th Floor, Block 6 (Hoi Yat Court), South Horizons (“Flat 34B”).

(2) The defendant was and is the registered owner of Flat A, 35^th Floor, Block 6 (Hoi Yat Court), South Horizons (“Flat 35A”).

(3) Clause 5 of Section II of the DMC provides that each owner shall “at all times hereafter be bound by and shall observe and perform the obligations, covenants, terms and conditions set out in this Deed and any relevant Sub-Deed and the benefit and burden thereof shall be annexed to every part of the Lot and the Estate”.

(4) Clause 6 of Section V(A) of the DMC provides that each owner “shall indemnify all other Owners and occupiers against any actions, proceedings, claims and demands whatsoever in respect of any loss or damage to any person or property caused by or as the result of the act or negligence or such Owner or his occupiers and the breach of the Owner’s obligations hereunder by or through or in any way owing to the overflow of water or the escape of fumes, smoke or anything else originating therefrom”.

(5) Clause 6 of Section V(A) of the DMC provides that each owner shall “indemnify all other Owners for the acts, omissions and defaults of his occupiers and shall pay all costs, charges and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default of such persons”.

(6) Clause 11(d) of Section V(A) of the DMC provides that the owner on the top floor of each Block “shall keep his part of the roof terrace area (if any) in good repair and maintenance and free from leakage in such manner so as to avoid any loss, damage, nuisance or annoyance to any other person”.

(7) Clause 12 of Section V(A) of the DMC provides that each owner shall “maintain his Unit in good repair and condition … and in such manner so as to avoid any loss, damage, nuisance or annoyance to any other Owners”.

(8) Clause 16 of Section V(A) of the DMC provides that no owner will “do, cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other Owners and occupiers for the time being”.

(9) In contravention of section 34H of the BMO, the DMC and the defendant’s common law duty of care, since May 2022, the defendant has caused or permitted water or liquid to escape, leak, percolate or seep from Flat 35A through the floor, floor slabs or concrete level into the ceiling and walls of Flat 34B.

(10) According to an expert report prepared by Silver Consultants Engineering Limited dated 21 August 2023, defective waterproofing on the roof terrace of Flat 35A led to water leaking from Flat 35A to the ceiling of the master bedroom of Flat 34B. As a result, spalling plaster and mould were found at the ceiling of the master bedroom of Flat 34B, and the ceiling light thereat was not functioning properly.

(11) Despite repeated demands by the plaintiffs, including a letter issued by their solicitors dated 26 September 2023, the defendant has refused to pay heed to the plaintiffs’ complaints of water leakage.

4.  The plaintiffs filed a specially endorsed writ on 28 November 2023 and duly served the same on the defendant on the same day by inserting the writ through the letter box of the defendant’s registered office, viz. Flat 35A, pursuant to RDC Order 10, rule 1(2)(b).[2] The defendant failed to give any notice of intention to defend within time. On 8 January 2024, the plaintiffs filed and served on the defendant a notice of intention to enter judgment pursuant to RDC Order 19, rule 8A(1).

5.  Still, the defendant failed to file and serve their defence. Accordingly, on 24 January 2024, the plaintiffs issued the summons for default judgment as I mentioned at the outset. I am satisfied that the summons was duly served on the defendant.[3]

6.  At the hearing, one Ms Chan Sau Lin, the purported sole director of the defendant, appeared in person. I take note that the defendant has not complied with the requirements in RDC Order 5A, rule 2 to authorise Ms Chan to act on its behalf in these proceedings. Nonetheless, during the hearing, I explained to Ms Chan the court procedures, the legal principles applicable to the present summons, and the outcome of the hearing.

The relevant legal principles

7.  The relevant legal principles on granting default judgment under RDC Order 19, rule 7 are well established and may be summarised as follows:

(1) In determining whether to grant default judgment, the court must consider the application according to the pleadings alone, and decide whether the plaintiffs appear to be entitled to judgment on their statement of claim: Seto Yim King v Soo Hooyet Dew [2019] HKCFI 2640, §10.

(2) The court cannot receive any evidence, and it is thus not necessary for the plaintiffs to prove their case by evidence: Times Square Limited v Lee Kwun Kit trading as JL Music and Anor [2020] HKCFI 438, §14(3).

(3) Notwithstanding the wording in Order 19, rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: Times Square Limited (supra), §14(4).

8.  In relation to the plaintiffs’ claim for injunctive relief, it is well established that the court has jurisdiction to grant permanent injunctions in default judgment applications: Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, §§12-13; Times Square Limited (supra), §14(5).

9.  With these principles in mind, I turn to the facts of the present case.

Discussion

10.  First and foremost, I take note that, even now, nothing has been filed on behalf of the defendant to oppose the plaintiffs’ summons. Hence, there is no indication that the defendant has any substantive defence on the merits.

11.  It is well established that the essence of a private nuisance is unreasonable user by a man of his land to the detriment of his neighbour. The requirement that there must be a real interference with the comfort or convenience of living according to the standard of an average man, and the discomfort must be substantial to any person occupying the plaintiffs’ premises, is satisfied where there is actual physical damage to the property, and this is routinely applied in water seepage cases: Loke Yuen Jean Tak Alice v Wong Kit Ying and Anor [2019] HKCFI 1895, §§49-51.

12.  Based on the plaintiffs’ pleaded case, water leakage originating from Flat 35A has caused actual physical damage to their property, including spalling plaster, mould and malfunctioning ceiling light at the master bedroom of Flat 34B. This clearly constitutes nuisance, negligence and breaches of the BMO and the DMC as claimed by the plaintiffs.

13.  I also have had regard to the explanation of the principles and the relevant considerations set out by the Court of Appeal in The Decurion [2012] 1 HKLRD 1063. Having regard to those principles and to all the circumstances of this case, I consider that my discretion should be exercised in favour of entering judgment for the plaintiffs for the following reasons.

(a) Injunctive relief

14.  The availability of an injunction has been said to be a touchstone of nuisance: Clerk and Lindsell on Torts (24^th ed, 2023), §§19-32. As Lord Hoffmann explained in Hunter v Canary Wharf Ltd [1997] AC 655, 706C, nuisance constitutes an unlawful threat to the utility of one’s land such that the possessor or occupier is entitled to an injunction.

15.  On the facts as pleaded, I am satisfied that the plaintiffs are entitled to mandatory injunctions requiring the defendant to abate the water leakage problem at Flat 35A and to take remedial action for the following reasons:

(1) The DMC expressly provide that each owner shall maintain his unit, including his part of the roof terrace area (if any), in good repair and maintenance and free from leakage so as to avoid any loss, damage, nuisance or annoyance or damage to other owners.

(2) By causing or allowing water to leak from the rooftop terrace of Flat 35A to the master bedroom of Flat 34B, the defendant has caused continuous nuisance to the plaintiffs, and are in breach of the provisions of the BMO and the DMC.

(3) The existence of spalling plaster, mould and malfunctioning ceiling light at the master bedroom of Flat 34B renders the same unsafe for occupation. If the spalling plaster is to fall off the ceiling, it would create a real risk of physical danger for the plaintiffs. Damages are clearly not an adequate remedy.

(4) Further, without an injunction ordering the defendant to abate and remedy the water leakage problem at Flat 35A, it is more likely than not that its nuisance and breaches of the BMO and the DMC would persist, further depriving the plaintiffs of enjoyment of their property.

16.  In the circumstances, I am prepared to grant the injunctive relief as sought by the plaintiffs at §2(1) and (2) of the plaintiffs’ summons as amended.

(b) Damages

17.  The plaintiffs also seek judgment for damages as follows: (1) costs of repairing the damage to Flat 34B to be carried out in the sum of $24,508.30; (2) expert report fees in the sum of $16,000; and (3) general damages for nuisance, stress, distress, anxiety, annoyance, discomfort and inconvenience, to be assessed.

18.  On the facts as pleaded in the statement of claim, I am satisfied that, as a result of the defendant’s nuisance, the plaintiffs have suffered loss and damage. The plaintiffs ask for their entire claim of damages to be assessed. I would therefore enter judgment for the plaintiffs’ claim of damages to be assessed.

Disposition

19.  In view of my decision above, I would make an order in terms of §2(1) to (4) of the plaintiffs’ summons as amended. Such order shall be endorsed with a penal notice in accordance with RDC Order 45, rule 7(4).

20.  Costs should follow the event. Accordingly, the defendant shall pay the plaintiffs’ costs of this action up to the date of this order, including the costs of the plaintiffs’ summons, to be taxed if not agreed.