WONG LAI KUEN v. TIU CHUNG YUN AND ANOTHER

DCCJ 4813/2022

[2023] HKDC 1621

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4813 OF 2022

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DECISION

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A. Introduction

1.  This is an application by the Plaintiff by Summons filed herein on 9^th June 2023 (the “Summons”) for judgment against the 1^st Defendant pursuant to O 19 r 7 of the Rules of District Court upon the default of the 1^st Defendant in filing an Acknowledgment of Service with Notice of Intention to defend and the Defence.

2.  This is a water seepage case.

3.  The Plaintiff is and was at all material times the registered owner of Flat C, 9^th Floor, Block 5, Tsing Yi Garden, Nos. 7-19 Tsing Luk Street, Tsing Yi, New Territories (the “Flat 9C”). The 1^st and 2^nd Defendants are and were at all material times the joint tenants of Flat C, 10^th Floor, Block 5, Tsing Yi Garden, Nos. 7-19 Tsing Luk Street, Tsing Yi, New Territories (the “Flat 10C”).

4.  Flat 10C is situated directly and immediately above Flat 9C.

5.  Before the issue of the Summons, on 1 March 2023, the 2^nd Defendant filed a Defence contesting the Plaintiff’s claim. As any default judgment entered against the 1^st Defendant may affect the interest of the 2^nd Defendant, I have made an order to direct the Plaintiff to serve the Summons on the 2^nd Defendant to give her an opportunity to be heard, which the Plaintiff did.

6.  I also made an order to direct the Plaintiff to file further submissions on whether default judgment should be entered against the 1^st Defendant in circumstances when the 2^nd Defendant has filed a Defence contesting the Plaintiff’s claim and when any default judgment entered against the 1^st Defendant may affect the interest of the 2^nd Defendant, which the Plaintiff also did.

7.  After the Summons was served on her former solicitors, the 2^nd Defendant filed a Notice to Act in person. At the hearing on 3 November 2023, Ms. Chung of Messrs. Ivan Lee & Co. appeared for the Plaintiff, the 1^st Defendant was absent and the 2^nd Defendant was present. At the end of the hearing, I indicated that judgment is reserved and will be handed down in due course, which I now do.

B.  The Plaintiff’s case against the 1^st and 2^nd Defendants

8.  The Plaintiff’s claim against the 1^st and 2^nd Defendant as pleaded in the Statement of Claim (the “SOC”) is as follows:-

(1)  Since around October 2019, the 1^st and 2^nd Defendants had caused and/or permitted water or liquid to escape, leak, percolate or seep (or suffered water or liquid to be escaped, leaked, percolated or seeped) from Flat 10C through the floor, floor slabs, concrete level or the enclosing walls of the shower area of the guest bathroom and master bathroom, or howsoever into the ceiling and/or internal walls of Flat 9C (the “Water Seepage”) causing damage to Flat 9C and annoyance to the Plaintiff and her husband residing at Flat 9C.

(2)  The Plaintiff and/or her husband reported the Water Seepage to the management company of Tsing Yi Garden (the “Management Company”) in October 2019.

(3)  The Water Seepage has caused and continued to cause damage to Flat 9C, inter alia, as follows:-

(a)  Serious concrete spalling and/or debonded plastering at the ceilings of the guest bathroom of the Flat 9C (the “Guest Bathroom”);

(b)  Concrete spalling and debonded plastering from the ceilings of the master bathroom of Flat 9C (the “the Master Bathroom”);

(c)  Debonded plastering and/or water staining at the ceiling of the living room of Flat 9C;

(d)  Rusting and/or eroding of the steelbar at the ceiling of the Guest Bathroom;

(e)  Odour and foul smell from the ceiling of the Guest Bathroom;

(f)  Short circuiting of the ceiling light of the Guest Bathroom;

(g)  The Plaintiff and her husband were constantly required to clean the affected areas; and

(h)  Serious health, safety and hygiene issues.

(4)  In or about January 2021, water seepage and/or concrete spalling and/or debonded plastering at the ceiling of the Guest Bathroom became more serious. The Plaintiff and/or her husband again reported the Water Seepage to the Management Company. The Management Company informed the 1^st and 2^nd Defendants of the Water Seepage, but the 1^st and 2^nd Defendants had failed to take any remedial action.

(5)  In light of the persistent Water Seepage, the Plaintiff and/or the Management Company therefore made complaints to the Building Department/Food and Environmental Hygiene Department New Territories West Regional Joint Office (the “Joint Office”) on or about 22 January 2021.

(6)  On 3 March 2021, the Plaintiff and/or her husband reported the Water Seepage to the Management Company again requesting the 1^st and 2^nd Defendants to take actions to rectify the Water Seepage.

(7)  The contractor engaged by the Joint Office performed water seepage investigations and testing at Flat 9C. The contractor opined that the water seepage to the ceiling of the Master Bathroom and the Guest Bathroom were caused by water seepage from Flat 10C. The Water Seepage was caused by water infiltration through the floor slab including the enclosing walls of the shower area of the guest bathroom and the floor slab of master bathroom of Flat 10C.

(8)  By a letter dated 8 December 2021, the Joint Office confirmed upon investigation conducted by it that the Water Seepage originated from Flat 10C.

(9)  In light of the Joint Office’s findings, a Nuisance Notice was issued on 8 December 2021 to the 1^st and/or the 2^nd Defendants by the Director of Food and Environmental Hygiene, requiring the 1^st and 2^nd Defendants to satisfactorily repair the floor slab of the master bathroom and the floor slab including the enclosure wall of the shower area in guest bathroom of the Flat 10C (the “Nuisance Notice”).

(10)  The Water Seepage to Flat 9C has unduly and continuously interfered with the Plaintiff’s comfortable and convenient use and enjoyment of Flat 9C and has materially injured Flat 9C.

9.  The Plaintiff claims against the 1^st and 2^nd Defendant on the basis of breach of the DMC and/or the Building Management Ordinance (Cap. 344) (particulars of which are pleaded in paragraph 21 of the SOC), negligence (particulars of which are pleaded in paragraph 22 of the SOC) and nuisance (particulars of which are pleaded in paragraph 23 of the SOC).

C.  Circumstances under which default judgment may be entered when there is default by one of several defendants

10.  It is well-established that where there are several defendants, and not all are in default, then an application for default judgment may be made by the plaintiff in circumstances in which the claim against the defaulting defendant or defendants is severable from the claims against the other defendants: Halliburton BV Merkezi Hollanda Ankara Merkez Turkiye Subesi v. Sheng Yi (HK) Trade Co Ltd & Ors, HCA 1627/2016 (unrep., 8 February 2017) at paragraph 20 per Recorder Anthony Houghton SC; Hong Kong Civil Procedure 2024, Vol 1, paragraph 19/7/6.

11.  In Mary Kay Inc & Ors v. 浙江天猫网络有限公司 (Zhejiang Tmall Network Co. Ltd & Ors) [2021] 5 HKC 30, Lok J observed (at paragraph 137) that:-

“…in deciding whether to exercise the discretion to enter judgment, the court has to consider the overall circumstances of the case, including whether it is fair and just to enter default judgment and the effect of the default judgment on the other remaining defendants (Halliburton is an example). Hence, it would be misleading to address the issue as one of the locus of the non-defaulting defendant to intervene in the default judgment application against the defaulting defendant. After all, the court needs to assess the overall justice of the case, including the effect of the default judgment on the non-defaulting party, in determining whether to exercise the discretion to enter default judgment.”

12.  In the present case, following the approach of Lok J in Mary Kay Inc., and having considered the overall circumstances of the case, it is in my view fair and just to enter default judgment against the 1^st Defendant, notwithstanding that the 2^nd Defendant has filed a Defence contesting the Plaintiff’s claim:-

(1)  On the basis of the Plaintiff’s claim in the SOC, the 1^st and 2^nd Defendants, being joint tenants of Flat 10C, are joint tortfeasors. The notion that the cause of action against joint tortfeasors was one and indivisible was abrogated in Hong Kong by s.5 of the Civil Liability (Contribution) Ordinance (Cap. 377), and the liability of joint tortfeasors is joint and several: see the decision of Lai Pui Ling v. Ho Chi Keung (No.2) [2017] 1 HKLRD 1248 at paragraph 10 per Godfrey Lam J (as he then was). Thus, the Plaintiff’s cause of action against the 1^st Defendant is severable from her cause of action against the 2^nd Defendant.

(2)  In the Defence, the 2^nd Defendant contested liability on the basis that she had not caused the water seepage because she moved away from Flat 10C in or about August 2008 and that Flat 10C had since been solely occupied by the 1^st Defendant. This again shows that the Plaintiff’s cause of action against the 1^st Defendant is severable from her cause of action against the 2^nd Defendant.

(3)  At the hearing, the 2^nd Defendant also stated that she basically agreed (“基本上同意”) to the grant of the reliefs sought by the Plaintiff against the 1^st Defendant in the Summons.

D.  Conclusion

13.  In conclusion, I find that the Plaintiff has proved her case against the 1^st Defendant, and I will enter judgment in favour of the Plaintiff against the 1^st Defendant in the terms of the Summons, as follows (with minor modification of this court):-

(1)  Interlocutory judgment be entered in favour of the Plaintiff against the 1^st Defendant for damages to be assessed;

(2)  An injunction requiring the 1^st Defendant to forthwith carry out repair work at his own expense to the floor slab of the master bedroom and the floor slab including the enclosure wall of the shower area in the guest bedroom of Flat 10C satisfactorily to present water seepage to Flat 9C;

(3)  An injunction restraining the 1^st Defendant, whether by himself, his servants or agents or otherwise howsoever from causing, permitting, allowing or suffering water to be leaked, seeped, escaped, percolated and/or emitted from Flat 10C to Flat 9C;

(4)  The 1^st Defendant do pay the Plaintiff the Plaintiff’s costs of this action to date and the costs of the Summons to be taxed if not agreed; and

(5)  There be no order as to costs between the Plaintiff and the 2^nd Defendant.

14.  I thank Ms. Chung for the assistance she has rendered to the court.