WONG MAN TAT v. CHAN YUEN MAN AND OTHERS

CACV 347/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 347 OF 2007

(ON APPEAL FROM DCCJ NO. 2853 OF 2005)

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DECISION

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1.  This appeal arose out of a claim by the plaintiff, who is the owner of Flat 1802, Block C, Westlands Garden, against the defendants, who are the owners of the adjourning flat, Flat 1801.

2.  After trial, Deputy District Judge Anthony Chow decided in favour of the plaintiff and the following orders are relevant to this application:

“	(1)	the Defendants be restrained whether by themselves, their servants or agents from repeating or continuing the water seepage from the Master Bathroom of Flat C1801, 18th Floor, Block C, Westlands Gardens, No.4 Westlands Road, Hong Kong into the Master Bathroom of Flat C1802, 18th Floor, Block C, Westlands Gardens, No.4 Westlands Road thereby causing nuisance or any nuisance of a like kind;
	(2)	the Defendant do forthwith rectify the water seepage and the defective shower area (wall and floor tiles) and floor drain in the Master Bathroom of Flat C1801, 18th Floor, Block C, Westlands Garden, No.4 Westlands Road, Hong Kong;”

3.  Leave to appeal was granted by the learned judge on 29 September 2007.  The appeal has been fixed for hearing on 17 April 2008.

4.  The plaintiff’s claim was that there was water seepage from the bathroom in the Master Bedroom of Flat 1801, into the bathroom in the Master Bedroom of Flat 1802, and the learned judge so found.  In the appeal, the defendants will seek to challenge the finding.

5.  This is the defendants’ application for a stay of the orders pending appeal.

6.  Mr Arthur Wong, who appeared for the defendants, submitted that the appeal is very likely to succeed.

7.  Whilst I am prepared to proceed on the basis that the appeal may succeed, I am not able to agree that the appeal is very likely to succeed.

8.  Mr Wong also relied on the affirmation of the 1^st named defendant, Chan Yuen Man filed in support of this application.

9.  This is what she said in para. 29:

“

29.

In fact, the Defendants had serious doubt as to whether the Plaintiff’s Flat 1802 still suffered from water problem. The Plaintiff did not allow the Defendants entry to his flat. The Defendants believe that there was no water seepage or no further water seepage in the Plaintiff’s Flat 1802; and the Plaintiff’s evidence at trial was that the seepage had subsided.”

10.  Mr Alexander Cheung, who appeared on behalf of the plaintiff, did not accept that there was no water seepage or no further water seepage in the plaintiff’s flat.  I was referred to the transcripts.  It seems that the seepage had not subsided.

11.  Mr Cheung made the further point that since the water seeping into the plaintiff’s flat was waste water, it might be unhygienic.

12.  On the other hand, Mr Wong submitted that since the defendants’ father, who was 83, resides in the flat, and uses the bathroom in the Master Bedroom, if work had to be carried out, it would be greatly inconvenient.

13.  The plaintiff has been trying (without success) to serve the order on the 1^st named defendant with a penal notice endorsed.  There is an application for substituted service.  When asked by me, Mr Cheung accepted that if a stay is not granted, and the plaintiff considers that the orders have not been complied with satisfactorily, there might be committal proceedings for contempt of court against at least the 1^st named defendant.

14.  Mr Cheung also submitted that the plaintiff has sought the advice of an expert in order to see what rectification works needed to be carried out.  In the plaintiff’s solicitors’ letter to the defendants’ solicitors dated 17 October 2007, they said that they would let the defendants have the expert advice and recommendation on the work to be done.

15.  In the defendants’ solicitors’ letter on 7 November 2007, it was said:

“

Arrangement of inspection of the Plaintiff’s flat

With respect to the Plaintiff’s complaints about continuing water seepage/leakage problem in the Plaintiff’s flat, we should be obliged if you would kindly confirm that the Plaintiff will allow the Defendants’ expert to inspect the Plaintiff’s flat for the purpose of allowing the Defendants to consider what rectification works (if any) need to be carried out. Needless to say, the Defendants will allow the Plaintiff reciprocal access to the Defendants’ flat for similar purpose. Please revert within the next 7 days.”

16.  The reply came on 8 November 2007:

“	After the due service of the Injunction, we will provide you with our surveyor’s written methodology of carrying out proper rectification work to the defective shower area and may allow your client’s surveyor to visit our client’s premises, if necessary.
	Please be reminded that our client will not tolerate further delay in this matter.”

17.  Mr Chan informed me that in about October 2007, the plaintiff did seek expert advice as to what needed to be done.  It seems that the report has recently become available.  It has not yet been provided to the defendants, as the letter of 8 November 2007 said, it would be provided after service of the order.

18.  On the evidence, I am not satisfied that hygiene is a serious problem such that any delay might be injurious to heath.

19.  Mr Cheung has reminded me that a successful plaintiff should not be deprived of the fruits of his judgment.  There is also an undertaking as to damages given by the plaintiff in the event that the orders are set aside, so that the defendants would be compensated should their appeal succeed.

20.  I have not found this an easy decision.  In the end I have decided that a stay of these orders pending appeal should be granted.

21.  7 months have elapsed since judgment. The appeal will be heard in 5 months.  I appreciate that the learned judge who granted leave to appeal has refused a stay.  Experience tells one that in this kind of proceedings, emotion can run very high.  It seems highly likely without a stay there would be disputes over the compliance of the orders, leading possibly to committal proceedings.

22.  I am also of the view that the balance of convenience is in favour of granting a stay.  I do not have in mind balance of convenience in the American Cyanamid sense which is not applicable here.  But balance of convenience provides a helpful pointer to me whether it would be fair and just in the circumstances of this case for a stay to be granted.

23.  For the above reasons, I would grant a stay of the orders pending the disposal of the appeal.  Costs of the application to be costs in the appeal.