LAI HOI CHING PATRICIA v. CHAN KAM CHUN

DCCJ 6018/2024

[2025] HKDC 1247

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6018 OF 2024

--------------------------------------

BETWEEN

--------------------------------------

------------------------------

REASONS FOR JUDGMENT

------------------------------

Introduction

1.  This is a water seepage case concerning the properties situate at Unit A on 52^nd Floor of Tower 8, Bellagio, 33 Castle Peak Road, Sham Tseng, Tsuen Wan, New Territories, Hong Kong (“P’s property”) and the unit above on the 53^rd Floor of the same building (“D’s property”).

2.  By summons dated 3 June 2025, the Plaintiff (“P”) applies for default judgment against the Defendant (“D”) for the following orders under O 19 r 7 of the Rules of the District Court (“RDC”) (“Summons”):

(a) A mandatory injunction against D to take all reasonable steps to abate the water seepage originated from D’s property, including but not limited to effect due and effective repair to stop and rectify the water seepage problem at P’s property within 150 days from the date of judgment, with a certificate of satisfaction to be issued by an independent authorized person to be appointed by the parties;

(b) Damages as a result of the nuisance, negligence and/or breach of duties by D to be assessed;

(c) Further damages (including without limitation to the inconvenience and discomfort) to be assessed;

(d) Interest pursuant to sections 49 and 50 of the District Court Ordinance; and

(e) Costs.

Service on D

3.  The sealed copy of the Writ of Summons dated 14 October 2024 was served on D on 16 October 2024 by way of insertion through the letter box of D’s property, being D’s usual or last known address.

4.  The sealed copy of the Writ of Summons will have come to D’s knowledge within 7 days from the date of service (§4 of the Affirmation of Lai Hoi Ching Patricia).

5.  The Amended Statement of Claim dated 14 April 2025 (“ASOC”) was served on D on 17 April 2025 by way of insertion through the letter box of D’s property, being D’s usual or last known address.

6.  D has failed to file or serve any Acknowledgement of Service or defence.

7.  D was served with a copy of a Notice of Intention to Enter Judgment filed on 26 May 2025 by posting at D’s property on 27 May 2025. However, no notice of intention to defend the proceedings has been filed.

8.  On 5 June 2025, P served the Summons on D way of insertion through the letter box of D’s property, being D’s usual or last known address.

9.  Based on the materials before me, I was satisfied that due notice has been given to D in respect of these proceedings and the Summons. It is expedient for the hearing to proceed in D’s absence, pursuant to O 32 r 5(1) of RDC.

10.  At the end of hearing the Summons, I gave judgment for P. These are my reasons.

Default judgments

11.  As D has not filed any defence, P is entitled to apply for judgment pursuant to O 19 r 7 of the RDC.

12.  The principles applicable to default judgments are well established. The court’s power to give default judgment is discretionary. The court cannot receive any evidence, but must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the court shall give such judgment as the plaintiff appears entitled to on its statement of claim only, and only if the pleaded facts give rise to the relief sought: Hong Kong Civil Procedure 2024 at §19/7/11 and §19/7/13.

P’s pleaded case

13.  At all material times, P is the registered owner and occupier of P’s property and D is the registered owner and occupier of D’s property.

14.  Harriman Management Services Limited is and was at all materials times the management office (“Management Office”) of Tower 8, Bellagio, 33 Castle Peak Road, Sham Tseng, Tsuen Wan, New Territories.

15.  On or around 17 March 2024, P discovered water dripping from the kitchen ceiling of P’s property. P identified at least one spot of water seepage in the center of the kitchen ceiling, which is the area directly beneath the electrical wiring box. P promptly reported this issue to the Management Office. This posed a significant risk of electrical leakage and/or electrical shock since the electricity in P’s property is supplied through the electrical wiring box by wiring, hence any electrical leakage would result in a complete power outage throughout P’s property, necessitating a reinstallation of the wiring.

16.  On 18 March 2024, the Management Office arranged Mr Ng, a senior management officer and Mr Lam, a management officer to inspect the water seepage problem at P’s property. They confirmed the presence of water dripping from the kitchen ceiling. Following this, Mr Ng and Mr Lam conducted a water test along the plastic seal of the guest bathroom at D’s property. They discovered that water was leaking to the electrical wiring box located directly beneath the sink of D’s property’s guest bathroom, resulting in water dripping from the kitchen ceiling.

17.  D was notified of the water seepage problem and requested to arrange for repairs.

18.  The water seepage problem persisted. On 22 March 2024, P lodged a complaint with the Management Office again. The Management Office issued a letter to D to request D to arrange for a contractor to conduct inspections and repairs.

19.  As the water seepage problem continued, P filed a complaint with the Food and Environmental Hygiene Department.

20.  On 24 May 2024, P engaged a certified surveyor, Hong Kong Survey Limited (“Surveyors”) to attend P’s property to conduct further testing and inspections. Thereafter, on 27 May 2024, the Management Office issued another letter to request D to promptly remedy the water seepage problem.

21.  On 31 May 2024 and 20 June 2024, the Surveyors conducted further site inspections and water seepage tests on the kitchen ceiling and produced a report dated 11 July 2024. According to the report, the water seepage from the kitchen ceiling was caused by two sources in the guest bathroom of D’s property: (i) water leakage from the toilet system; and (ii) water leakage from the waterproofing membrane or other waterproofing layer and/or associated drainage pipes of the floors and the standing walls (including the area surrounding the base of the bathtub).

22.  The water seepage problem constitutes nuisance caused, permitted or adopted by D, whether by itself, its servants, agents or otherwise, to P.

23.  Despite repeated complaints and/or requests to D including without limitation P’s solicitors’ letter dated 30 July 2024, D failed to respond to P’s requests to remedy the water seepage problem, and/or to indemnify P for the costs and expenses incurred.

24.  The water seepage problem also constitutes a breach of D’s duties under the BMO and/or DMC as the owner of D’s property:

(i) Under clause 2 of Section E, the Owners shall at all times hereafter be bound by and shall observe and perform the covenants, restrictions and prohibitions set out in the Third Schedule. Under clause l (n) of the Third Schedule, no Owner shall do or cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance or to cause damage to the other Owners and Occupiers of the Land and the Development.

(ii) Pursuant to section 34H of the BMO, D owes a duty to P to maintain D’s property in good repair and condition.

25.  Further and/or in the alternative, since on or around March 2024, D has acted, negligently or recklessly, whether by itself, its servants, agents or otherwise in causing, permitting, adopting, allowing or suffering water to be leaked, seeped or discharged from the guest bathroom into P’s property.

26.  Further and/or in the alternative, since on or around March 2024, D has acted, whether by itself, its servants, agents, or otherwise, in breach of its common law duty of care towards P by causing, permitting, adopting, allowing or suffering water to be leaked, seeped and discharged from the guest bathroom of D’s property into the kitchen ceiling of P’s property.

27.  As a result of D’s nuisance, negligence and/or breach of duties, P has suffered loss and damage, inconvenience and discomfort.

Discussion

28.  I have examined the ASOC. I am satisfied that it makes out a strong and obvious case on nuisance, negligence, and breach of duties under the Deed of Mutual Covenant dated 27 December 2002 (“DMC”) and/or alternatively section 34H of the Building Management Ordinance (Cap 344) (“BMO”), and/or common law.

29.  P has made out a valid claim against D in respect of the water seepage from D’s property affecting P’s property. D is deemed to have admitted the particulars in default of filing any defence.

30.  It is well-established that the court has jurisdiction to grant injunctions in default judgments: Hong Kong Civil Procedure 2025 at §19/7/17; Times Square Limited v Lee Kwun Kit trading as JL Music and Anor [2020] HKCFI 438, at §14(5) per William Wong DHCJ.

31.  Mandatory injunctions have been granted in similar cases: see Chiu Hung Shun, Paul v So Ka Tai, unreported judgment dated 5 December 2005, CACV 136/2005; Man Kwong Kau & Anor v Wong Wai Hong, unreported judgment of B Mak DDJ dated 19 May 2023 DCCJ 3552/2019; Chiu Yi Tung v Lo Yue Fung Franky and Anor, unreported judgment of Kay Seto DDJ dated 11 September 2023, DCCJ 3591/2019; and Lam Kit Yee v Lam Shuk Lam and Anor, unreported judgment of Lawrence Ng DDJ dated 10 March 2017, DCCJ 3115/2011.

32.  P has a genuine need for relief, as D’s nuisance, negligence, and breach of duties under the DMC, BMO and common law will continue unless restrained by this court. Since March 2024, P, P’s solicitors, and the Management Office have written to D to rectify the water seepage problem but to no avail. There are also safety concerns for P’s property unless D rectifies the water seepage problem, given that it poses a significant risk of electrical leakage and/or electrical shock since any electrical leakage would result in a complete power outage throughout P’s property.

Disposition

33.  I make an order in terms of the Summons. Interlocutory judgment should be entered in favour of P, with damages to be assessed.

34.  Costs should follow the event. I order that costs of this application, be paid by D to P to be taxed if not agreed.

35.  I thank Ms Lee for her assistance.