VICTORY SUCCESS TRADING LTD v. CHEUNG KIN YING

DCCJ 714/2020

[2020] HKDC 753

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 714 OF 2020

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BETWEEN

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JUDGMENT

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Background facts

1.  The plaintiff is the registered owner of the G/F & Cockloft Store, No 73 Yu Chau Street, Kowloon (“the Plaintiff’s Property”).  The defendant is the owner of the 1^st Floor & Flat Roof, No 73 Yu Chau Street, Kowloon (“the Defendant’s Property”).  The Defendant’s Property is situated directly above the Plaintiff’s Property.

2.  The plaintiff’s case is that since 2015, water has been seeping from the Defendant’s Property to the Plaintiff’s Property.  Despite numerous complaints by the plaintiff to the defendant, no action had been taken by the defendant to rectify the water seepage problem.

3.  The plaintiff complained to the Joint Office of the Buildings Department and Food and Environmental Hygiene Department (“the Joint Office”) in 2015 and 2020.  After investigations and conducting tests at the Defendant’s Property, the Joint Office confirmed with the plaintiff in May 2016 and February 2020 respectively that there was water seepage from the bathroom in the Defendant’s Property.  The Joint Office notified the plaintiff by a letter dated 11 February 2020 that a Nuisance Notice was served by the Joint Office on the defendant requiring him to complete the necessary rectification works.

4.  The plaintiff engaged its own expert surveyor who carried out inspection on 12 September 2018 and 16 December 2019.  It was found that water leakage still persisted in the Plaintiff’s Property.  It was also ascertained that the source of water leakage to the Plaintiff’s Property was (a) the defective water proofing system of bathroom of the Defendant’s Property and (b) the damage to the roofing system and the water proofing system on 1/F of the Defendant’s Property.

5.  At all material times, the Plaintiff’s Property is used as a warehouse, wholesale and retail shop for selling clothes.  As a result of the water seepage, the goods and properties kept inside the Plaintiff’s Property were damaged.  The inside of the Plaintiff’s Property, including the wooden door frame, metal frames, lighting fitting, wooden partition etc were also damaged.  The damage has affected the plaintiff’s use and enjoyment of the Plaintiff’s Property.

Application

6.  By a writ of summons endorsed with a statement of claim dated 13 March 2020, the plaintiff asks for:-

(1) An injunction restraining the defendant by himself, his servants agents tenants or occupants from continuing the water seepage at the Defendant’s Property;

(2) An order that the defendant do carry out all necessary rectification works at the Defendant’s Property to stop the water seepage;

(3) An order that at the defendant’s costs, the plaintiff’s agent(s) be allowed to carry out all necessary investigations and tests at the Defendant’s Property to ensure that the rectification works are complete;

(4) Damages in the sum of

(i) HK$225,000 for the reinstatement of the Plaintiff’s Property;

(ii) HK$250,000 for damaged goods;

(iii) HK$23,000 for the surveyor’s fee;

(5) Damages for expenses to be incurred for temporary accommodation of goods stored in the Plaintiff’s Property be assessed;

(6) Damages for distress, discomfort and loss of enjoyment of the Plaintiff’s Property, and any further loss and damage to be assessed.

7.  By a summons dated 29 July 2020 (the “Summons”), the plaintiff applied for default judgment to be entered against the defendant pursuant to Order 19 rule 7 of the Rules of the District Court for the following orders:-

(1) An injunction restraining the defendant by himself, his servants agents tenants or occupants from continuing the water seepage at the Defendant’s Property;

(2) An order that the defendant do carry out all necessary rectification works at the Defendant’s Property to stop the water seepage;

(3) An order that at the defendant’s costs, the plaintiff’s agent(s) be allowed to carry out all necessary investigations and tests at the Defendant’s Property to ensure that the rectification works are complete;

(4) Damages to be assessed; and

(5) Costs.

Service

8.  The plaintiff has put in evidence of service of the Writ of Summons, the Notice under Order 19 Rule 8A of the Rules of the District Court and the Summons on the defendant at his last known address at 1^st Floor, Flat Roof, No 73 Yu Chau Street, Kowloon, Hong Kong.

9.  The defendant has not filed any acknowledgment of service nor defence to the plaintiff’s claim.  The defendant did not appear at the hearing of the application either.  In the circumstances, I am satisfied that the court may proceed in the defendant’s absence pursuant to Order 32, r  5.

Legal principles - default judgment and declaratory relief

10.  In considering whether to grant judgment in default, the court cannot receive any evidence but must give judgment according to the pleadings alone[1].

The Law - Water Leakage and Injunctive Relief

11.  The plaintiff has pleaded 3 causes of action:-

(1) Nuisance;

(2) Negligence;

(3) Breach of the Deed of Mutual Covenant (the “DMC”)

12.  The availability of an injunction as a possible remedy has been taken as significant in drawing a line between nuisance and negligence[2]. In Miller v Jackson[3], Lord Denning MR said:-

“if the plaintiff seeks a remedy in damages for injury done to him or his property, he can lay his claim either in negligence or nuisance. But if he seeks an injunction … I think he must take his action in nuisance. The books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. But there is no case, as far as I know, where it has been granted so as to stop a man from being negligent. At any rate in a case of this kind, where an occupier of a house or land seeks to restrain his neighbour from doing something on his own land, the only appropriate cause of action, on which to base the remedy of an injunction, is nuisance … It is the very essence of a private nuisance that it is the unreasonable use by a man of his land to the detriment of his neighbour. He must have been guilty of the fault, not necessarily of negligence, but of the unreasonable user of land.”

13.  I will thus consider the causes of action of nuisance and breach of the DMC when deciding if the plaintiff is entitled to the relief sought (which includes injunctive relief) under the application for default judgment.

14.  I am satisfied that on the pleadings, the existence of the water seepage is established from the Defendant’s Property into the Plaintiff’s Property; and that damage has been caused by the nuisance.

15.  I am also satisfied that on the pleadings, the plaintiff’s case of a breach of the DMC (failure to keep in tenantable repair and condition the water proofing system of the Defendant’s Property, and using the Defendant’s Property in a manner so as to cause nuisance and damage to other occupiers) by the defendant has been made out.

16.  The courts had in the past granted injunction orders in a default judgment application  compelling a defendant to carry out necessary repairs and remedial actions to stop any water leakage problems[4].

17.  I am satisfied that in the circumstances, it is appropriate to grant the plaintiff’s application for default judgment.

Orders

18.  I will thus grant the following orders:-

(1) An injunction restraining the defendant by himself, his servants agents tenants or occupants from continuing the water seepage at the Defendant’s Property;

(2) An order that the defendant do carry out all necessary rectification works at the Defendant’s Property to stop the water seepage;

(3) An order that at the defendant’s costs, the plaintiff’s agent(s) be allowed to carry out all necessary investigations and tests at the Defendant’s Property to ensure that the rectification works are complete;

(4) Damages to be assessed; and

(5) Costs of the application be paid by the defendant to the plaintiff, to be taxed if not agreed.