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DCCJ 5541/2017
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 5541 OF 2017
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BETWEEN
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WONG FUNG CHIU |
1st Plaintiff |
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LEI MAT IP |
2nd Plaintiff |
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and
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WONG WING HUNG |
Defendant |
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| Before: His Honour Judge MK Liu in Chambers (Open to public) |
| Date of Hearing: 20 December 2017 |
| Date of Decision: 20 December 2017 |
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DECISION
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Introduction
1. On 12 December 2017, the plaintiffs commenced these proceedings by issuing a writ of summons containing a statement of claim. At the same time, the plaintiffs took out a summons (“the summons”) for an interlocutory injunction (“the injunction”) requiring the defendant to carry out remedial works to rectify the water leakage problem, including but not limited to repairing the shower cubicle inside Flat 2208 (“2208”), 22/F, Block B, Kam Lung Court, 1 Kam Ying Road, Shatin, New Territories (“the Building”) within 30 days. The summons is supported by the 1st plaintiff’s affirmation dated 11 December 2017 (“the affirmation”). This is the hearing of the summons.
The plaintiffs’ case
2. The 1st plaintiff and the 2nd plaintiff are husband and wife. They are the registered owner of Flat 2207 (“2207”) on the 22/F of the Building. They have been residing in 2207 with their daughter since 2011. The defendant is the registered owner of 2208.
3. In or about April 2017, the plaintiffs discovered water leakage problem in 2207. A large amount of water was found accumulating on the bathroom floor near where the pipe ducts were located. The water later spread to other areas inside 2207, causing damage to the wooden flooring, skirting, wall paint and furniture.
4. On 15 April 2017, the plaintiffs notified the management office of the Building (“the management office”) the problem. The management office conducted inspections in both 2207 and 2208 in the period from 21 April 2017 to 8 May 2017, but was unable to identify the source of the water leakage. Various tests have been conducted by the management office in both units during this period, but the results of these tests does not show that the source of the water leakage is in 2208.
5. In early May 2017, the plaintiffs discovered that the bathroom in 2208 (“the 2208 bathroom”) was adjacent to the bathroom in 2207 (“the 2207 bathroom”), and the shower cubicle in the 2208 bathroom was located against the wall of 2207.
6. On 16 May 2017, the plaintiffs wrote to the defendant to invite him to conduct tests to verify that 2208 was not the source of the water leakage problem and to allow the plaintiffs to inspect 2208. The defendant refused.
7. On or about 19 May 2017, the plaintiff engaged an expert (“the expert”) from a consultancy company (“the consultancy company”) to conduct a water seepage examination in 2207. The expert subsequently produced an expert report (“the 1st report”), in which the expert expressed an opinion that the source of the water leakage was the shower cubicle in the 2208 bathroom. In §3.1.1 of the 1st report (which is also §3.1.1 of the 2nd report), the expert said:-
“3.1.1 根據紅外線掃瞄照片1及2顯示，於勘察單位食水總制關上後及多日沒有用水的情況下，公共喉管嘈內及勘察單位客房牆身仍有大量藏水（低溫位置（藍色／紫色位置）），根據客戶及大廈管理處所提供之資料及平面圖得知，公共喉管嘈背貼2208厠所企缸，公共喉管嘈內貼近2208厠所企缸的牆身更有水滲出及積聚，因此有證據及跡象顯示2208厠所企缸防水層有破損導致勘察單位滲漏。” (Emphasis added)
8. On 5 June 2017, the consultancy company wrote to the defendant and informed him the conclusion of the 1st report. The consultancy company further on behalf of the plaintiffs demanded the defendant to rectify the water leakage problem within 21 days and to pay damages to the plaintiffs.
9. On 17 July 2017, the plaintiffs’ solicitors wrote to the loss adjudicator retained by the defendant’s insurer to demand for stopping the water leakage problem and payment of damages and costs incurred by the plaintiffs.
10. On 7 August 2017, a joint inspection was carried out inside 2207. The defendant however did not allow the plaintiffs or their representatives to enter 2208.
11. In or about August 2017, the water leakage seemed to have subsided and stopped. The plaintiffs then made arrangements to renovate 2207. It was planned that the renovation work would be commenced in or about October 2017.
12. From about late October 2017 to November 2017, it was discovered that the water leakage reoccurred. As a result, the plaintiffs stopped the renovation plan.
13. On 17 November 2017, the expert conducted a second water seepage examination in 2207. On 29 November 2017, the expert produced another report (“the 2nd report”), in which the expert said the source of the water leakage was the shower cubicle in 2208 bathroom. In §3.5 of the 2nd report, the expert said:-
“根據目視勘察結果，公家喉管並沒有發現有破損／滲漏，因此可排除公家喉管滲漏到勘察單位厠所主人房、雜物房、客廳及客房。”
14. On 1 December 2017, the plaintiffs’ solicitors wrote to the defendant to inform him the reoccurrence of the water leakage problem and to request for an inspection inside 2208. There has not been any reply from the defendant.
15. Because of the water leakage problem, in or about late April 2017, the plaintiffs moved out from 2207 and moved to the 1st plaintiff’s mother-in-law’s home, living together with the mother-in-law and the 2nd plaintiff’s sister. The plaintiffs have been paying a rental of HK$8,000 per month to the sister. They are also storing their furniture in a warehouse, paying a storage fee of HK$1,600 each month. The renovation of 2207 has been postponed indefinitely. The water leakage problem has also caused significant inconvenience and distress to the plaintiffs’ family, including their daughter, who is now studying for her exam. The plaintiffs say that such inconvenience and distress are something which cannot be compensated by money.
The principles
16. Mr Au Lut Chi, counsel for the plaintiffs, accepts that the injunction now being sought by the plaintiffs is an interlocutory mandatory injunction. The principles concerning interlocutory mandatory injunction have been set out by Ma J (as he then was) in Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041. In a nutshell, a plaintiff seeking an interlocutory mandatory injunction has to demonstrate a high degree of assurance that he will succeed in trial, alternatively he has to show that the balance of convenience tilted so much in his favour and justice requires the injunction to be granted.
17. In approaching the balance of convenience, the starting point is whether damages would be an adequate remedy. If damages would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be. See Hong Kong Civil Procedure 2018, Vol 1, §29/1/11.
Analysis
18. Mr Au fairly submits that the plaintiffs bear the burden of proving that the source of water leakage is from the defendant, and the defendant has no obligation to find out or identify the source of water leakage or to prove that its origin did not come from his property. See Gay Prospect Company Limited v Lui Kam On Johnny (DCCJ 1230/2015, 30 November 2017, [8].
19. Mr Au submits that the 1st report and the 2nd report together have demonstrated a strong prima facie case that the source of the water leakage is from 2208. With respect, I am unable to agree.
(a) The expert’s opinion as set out in §3.1.1 of the 1st report (which is also §3.1.1 of the 2nd report) is that there is leakage from the common pipes which are close to the shower cubicle in the 2208 bathroom. If this opinion is correct, the cause of the water leakage would be some problems in the common pipes. Water comes out from the common pipes, passes through the shower cubicle in the 2208 bathroom and then goes to 2207. In this scenario, the defendant may not be the one responsible for the water leakage problem.
(b) In §3.5 of the 2nd report, the expert says according to his visual inspection, there is no damage in the common pipes. It seems that there is a discrepancy between this paragraph and §3.1.1 of the 1st report. The expert has not offered any explanation regarding the discrepancy.
(c) Reading the 1st report and the 2nd report as a whole, I am not satisfied that there is clear evidence showing that the origin of the water leakage problem is the shower cubicle in the 2208 bathroom and not anywhere else.
(d) The management office has conducted various tests inside both 2207 and 2208 from 21 April 2017 to 8 May 2017, and does not find any evidence showing that the water leakage is from 2208. The plaintiffs have not adduced any evidence showing any error or inadequacy in the tests conducted by the management office.
(e) In these circumstances, I do not agree that the plaintiffs have demonstrated a strong prima facie case against the defendant.
20. On the basis of the evidence now before the court, I am not satisfied that the plaintiffs have demonstrated a high degree of assurance that they would succeed in the trial.
21. Further, I am also not satisfied that the plaintiffs have shown that damages would not be an adequate remedy if the injunction is not granted. Assuming that the plaintiffs succeed in the trial, the rentals paid in exchange for the alternative accommodation, the storage fees, the additional expenses caused by the delay in implementing the renovation plan, all these can be compensated by damages. The defendant is the owner of 2208, which is certainly a valuable asset. Although 2208 is subject to a mortgage in favour of a bank, there is no evidence showing that the market value of 2208 is not higher than the loan amount secured by the mortgage. Further, there is evidence showing that the defendant has purchased an insurance policy covering liabilities arising from matters concerning 2208. In my view, if the plaintiffs succeed in the trial, the defendant would be able to pay the damages awarded to the plaintiff.
22. I appreciate that the inconvenience and stress caused to the plaintiffs’ family by the water leakage problem may not be something which can be compensated by a monetary award. However, the plaintiffs are not different from the claimants in all other cases. Every claimant in a litigation has a problem, and he or she wants to solve the problem in the litigation. The problem no doubt would have caused inconvenience and stress to the claimant. In my view, mere inconvenience and stress would not be a sufficient factor justifying the grant of an interlocutory mandatory injunction.
23. In my judgment, the plaintiffs have not made out a case justifying their application for the injunction. The summons must be dismissed.
24. Having heard submissions on costs, the general rule of costs following the event should apply. Costs of the summons should be to the defendant in any event.
Disposition
25. I dismiss the summons with costs to the defendant in any event, to be taxed if not agreed.
26. I thank Mr Au and Mr Lam for the assistance provided to the court.
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( MK Liu )
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District Judge |
Mr Au Lut Chi, instructed by JCC Cheung & Co, for the 1st and 2nd plaintiffs
Mr Lam Chun Sing, of Hastings & Co, for the defendant
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