LAU TIN FAI v. GOLD REGAL INTERNATIONAL LTD

DCCJ 7008/2024

[2025] HKDC 608

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 7008 OF 2024

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DECISION

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1.  I have before me a badly drafted summons (“the Summons”)  taken out by the plaintiff Lau Tin Fai (“P”)  on 20 March 2025, seeking a default judgment with a final mandatory injunction order against the absent defendant Gold Regal International Limited (“D”)  in relation to an alleged water seepage problem within Paterson Building, Hong Kong.

2.  Mr Eric Chau, counsel for P, suggested to me that the drafting of the Summons was modelled on the orders made by HHJ Phoebe Man in Victory Success v Cheung Kin Ying [2020] HKDC 753 (§18).  With respect, it was not.  The words used in the Summons were different from those used by HHJ Phoebe Man in Victory Success and the differences are in my view fatal.  In any case, as I shall explain, even those words used by HHJ Phoebe Man in Victory Success can be improved upon.

3.  The Summons asked for this: -

“(1)  A mandatory injunction that the Defendant shall within 56 days from the date hereof do necessary act to cure, cease and prevent the water seepage from the Defendant’s property situated at ‘Flat A1, 9/F, Block A, Paterson Building, No. 47 Paterson Street, Causeway Bay, Hong Kong’ to the Plaintiff’s property situated at ‘Flat A1, 8/F, Block A, Paterson Building, No. 47 Paterson Street, Causeway Bay, Hong Kong’.

(2)  An order that at the Defendant’s costs, the Plaintiff’s agent(s)  be allowed to carry our [sic] all necessary investigations and tests to ensure that the rectification works are completed.”

4.  The formulation above is in my view unacceptable, and I must dismiss the Summons.  Since D is absent, I make no order as to costs.  This dismissal is without prejudice to a fresh summons, properly drafted, being filed and served by P in the future.

5.  In order to explain why the formulation above is unacceptable I must first explain what a mandatory injunction is.  In my view, the best explanation is this passage from the current edition of Bean on Injunctions (§2-21): -

“A mandatory injunction is an order which requires a person to do a specified act. This is normally an act which will end a wrongful omission (such as an order requiring delivery up of property which should have been returned)  or which reverses the consequences of a wrongful act (such as removing some wrongful alteration to land).”

6.  For present purpose the important phrase is “a specified act”.  The Summons merely refers to “necessary act”, without specifying what it is.  The imprecision is in my view unacceptable.  A religious person may consider praying to God quite necessary, whilst a non-religious person may disagree.  A prudent person may consider the complete replacement of all floor tiles, the waterproofing membranes beneath them plus all pipes in the flat quite necessary, whilst a not-so-prudent person may disagree.  The duty is on the drafter to ensure the formulation is clearer so that the recipient of the order would know with absolute certainty which “specified act” must be performed by him to avoid being sent to prison for contempt.  There is a huge body of caselaw on this “precision” requirement but just naming a few cases as examples should suffice.

7.  The first example can be Rogers V-P’s dictum in Tech Focus Ltd v Austria Property Management Ltd [2004] 1 HKC 343 at 345-B (§2), as follows: -

“It is very important when mandatory injunctions are framed that they are framed in precise terms so that everybody, including in particular the defendant, must know exactly what he must do and what steps he must take.”

8.  A second example can be DHCJ Paul Lam SC’s sage remarks in Lau Oi Kiu v Man Chun Shing [2015] 4 HKC 73 from 102-H (§124), as follows: -

“It is of critical importance to define the terms of a mandatory injunction clearly… ”

9.  As to how a drafter can make his wording more precise, more guidance can be found in Lord Scott NPJ’s speech in Lau Wai Wo v HKSAR (2003)  6 HKCFAR 624 at 648-G (§49), where His Lordship said: -

“Although the traditional form of bind-over order is an order requiring the person concerned to keep the peace and be of good behaviour, without any greater precision, we do not think that an order simply in that general form should any longer be regarded as satisfactory. Nor do we regard an implied limitation by reference to the facts that prompted the making of the order to be satisfactory. We think the principle of legal certainty requires that the order spell out with precision, in the same way as would be expected of an injunction, what it is that the person must not do. For example, in the present case, if a bind-over order was to be made against the appellant, it should have been an order requiring him to keep the peace and be of good behaviour by abstaining from assaulting or threatening to assault his brother or by doing anything to give rise to a reasonable apprehension that he intended to assault his brother, or in some such terms.”

10.  Just like how requiring a defendant to “keep the peace and be of good behaviour” is no longer a sufficiently precise formulation for any bind-over order, requiring a defendant to “perform all necessary acts” is no longer a sufficiently precise formulation for a mandatory injunction.  A civil litigation practitioner should consider utilizing the same drafting skill, adding a “by” clause after the phrase.  In water seepage cases, depending on the factual scenario, a formulation along the lines of “the defendant do within 56 days from the date hereof remove all causes of the water seepage from his unit to the plaintiff’s unit by replacing all pipes and waterproofing membranes in all bathrooms in his unit with pipes and membranes that are functional and non-defective”, or something similar, would be preferable.  Practitioners must remember we are all here to solve, not create, problems.  An imprecise formulation creates more problems than it solves.

11.  The second part of the Summons is also unsatisfactory in that there is a reference to P being allowed to conduct tests “at D’s costs”, but there is no limit on quantum.  In the District Court, the jurisdictional limit on the award of damages is currently set at HK$ 3 million.  It is wrong for a litigant to ask for a blank cheque the quantum of which may exceed HK$ 3 million.  It can be perceived as an attempt to get round that jurisdictional limit on the award of damages.  In my view, a reference to P being allowed to conduct tests “at D’s costs” can only be ordered if there is also a proviso limiting such costs to a maximum sum of HK$ 3 million, and possibly to a substantially smaller sum (eg HK$10,000).  Of course, if this case were in the High Court that proviso may or may not be necessary depending on the actual factual scenario.

12.  On 2 April 2025 at 1444 hours, I received a faxed letter from P’s solicitors thanking me for drawing their attention to the above, agreeing with my observations.  There were written proposals for reformulation but with respect those written proposals were themselves defective.  It seemed to me that P’s solicitors would need competent external assistance on their drafting work.

13.  I considered whether I should save the parties’ time and costs by doing the reformulation myself.  I decided against it because on the facts of our present case, P should prepare and serve a proper fresh summons on D before proceeding further.  D should be given sufficient time to make an informed choice whether to contest the fresh summons, and indeed whether to engage competent lawyers.  I fully appreciate this may cause some delay, but on balance I believe this is still the better option.

14.  As I mentioned in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§120 & 146, DDJ Kenneth KY Lam), litigants and solicitors should file and serve competently drafted documents, failing which the efficient administration of civil justice would be harmed.

15.  I do thank Mr Eric Chau for his most able assistance.