CHEN XIAO PEI v. WONG HOI KI

DCCJ 4684/2024

[2024] HKDC 2157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4684 OF 2024

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BETWEEN

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JUDGMENT

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Introduction

1.  This is a water leakage case concerning the premises situated at Apartment C, 7^th Floor, No 273 Tai Nan Street, Sham Shui Po, Hong Kong owned by the Plaintiff (“P’s Property”) and the premises at Apartment C, 8^th Floor immediately above in the same building owned by the Defendant (“D’s Property”).

2.  By Summons dated 16 October 2024 (“the Summons”), the Plaintiff (“P”) applies for final and interlocutory judgment be entered against the Defendant (“D”) in default of defence pursuant to O 19, r 7 of the Rules of the District Court, Cap 336H (“RDC”) and for injunctive relief and damages to be assessed.

Background Facts

3.  On 15 August 2024, P commenced the present action by issuing a Writ of Summons against D. The Statement of Claim (“SOC”) was filed on the same day.

4.  In the SOC, essentially it is pleaded that:

(1) P is the registered owner of P’s Property;

(2) D is the registered owner of D’s Property;

(3) D’s Property is situated immediately above P’s Property;

(4) Both P and D are bound by a Deed of Mutual Covenant dated 10 March 1965 registered at the Land Registry (“DMC”) that provides inter alia:

(a) “The costs and expense of keeping in good and tenantable repair and condition the interior of each floor and all the fixtures and fittings therein or appertaining thereto (including the sanitary and water apparatus and fittings thereof) and all the windows and doors and floor surface thereof shall be borne by the owner entitled to the exclusive use occupation and enjoyment of such floor who shall be responsible for and shall make good to any of his co-owners of the said premises any loss or damage which any of such co-owners shall sustain or suffer due to the act default neglect or omission on his part in keeping in good and tenantable repair and condition the interior of such floor and all such fixtures and fittings and windows and doors and floor surface as aforesaid.” (clause 6);

(b) “Each of the parties hereto shall not make any structural alteration to the said building or to the floor of which he is entitled to the exclusive use, occupation and enjoyment and shall not make any alteration to any installation or fixture so as to affect or likely to affect the supply of water, electricity or gas and shall not cut or damage any of the main walls or beams or floors of the said building.” (clause 8);

(c) “Each of the parties hereto shall not use or cause or suffer or permit to be used the floor of which he is entitled to the exclusive use, occupation and enjoyment or any part thereof for any illegal, unlawful or immoral purpose and shall not do or cause or suffer or permit to be done anything therein or thereupon which may create unnecessary noise or which may be or become a nuisance, annoyance or inconvenience to the occupiers of the other parts of the said building or of premises in the neighbourhood.” (clause 10);

(5) Further or alternatively, at all material times, D has a duty to maintain D’s Property in good repair and condition pursuant to s 34H of the Building Management Ordinance, Cap 344 (“BMO”);

(6) Further or alternatively, D as owners of D’s Property, owed a duty of care to P to keep and maintain D’s Property in good repair and condition, and to prevent water leakage and/or seepage therefrom to P’s Property thereby causing loss and/damage to P’s Property and/or to P;

(7) In September 2023, P discovered water leakage and/or seepage from D’s Property down to various locations of the bathroom and bedroom in Room C of P’s Property causing damage thereto;

(8) Since September 2023 there has been continuous, repeated and/or intermittent water leakage and/or seepage from D’s Property to P’s Property causing damage thereto;

(9) On 8 April 2024, P engage Hong Kong Building Inspection Limited to conduct a professional inspection and the report received on 28 May 2024 confirmed that the source of water leakage was D’s Property and that it was caused by freshwater facilities in the water usage area of D’s Property and inadequate waterproofing on the floor and surrounding walls of D’s Property which caused water molecules to accumulate in the floor of D’s Property and seep into P’s Property;

(10) Further, the said water leakage and/or seepage constituted a nuisance and/or annoyance to P and/or its lawful tenants, licensees and/or visitors and/or undue interference with the quiet enjoyment of P’s Property;

(11) Further or alternatively, by reason of the matters above, D was in breach of DMC;

(12) Further or alternatively, by reason of the matters above, D was in breach of s 34H of BMO;

(13) Further or alternatively, by reason of the matters above, D was and is in breach of his tortious duty of care owed to P;

(14) Despite P repeatedly requested D to fully and satisfactorily rectify the said water leakage and/or seepage and to prevent or stop the same from continuing, D has wrongfully failed or refused to do so, and the said water leakage and/or seepage is still continuing and persisting;

(15) By reason of the aforesaid, P’s Property has been damaged and P has suffered loss and damages; and

(16) Accordingly, P claims: (a) an order that D do rectify the said water leakage and/or seepage by causing all such repair and/or maintenance works as may be necessary to be done so as to stop and prevent such water leakage and/or seepage from happening and continuing at D’s own costs, charges and expenses; (b) damages; (c) interest; (d) costs; and (e) further or other relief.

Service of process and non-appearance of D

5.  I am satisfied from the affirmations of service filed on behalf of P that the Writ of Summons and SOC were served on D by inserting the same through the letterbox for D’s Property, being the usual or last known address of D. I accept that the said service amounts to proper service on D under O 10, r 1(2)(b) of RDC.

6.  D has not filed or served any Acknowledgement of Service or defence.

7.  Furthermore, given that I am satisfied the Summons was properly served on D by inserting the same through the letter box of D’s Property, I am of the view that it is expedient to proceed with the hearing of the Summons under O 32, r 5 of RDC notwithstanding the absence of D at today’s hearing.

8.  Mr Wong, counsel, appeared on behalf of P at today’s hearing.

Applicable principles

9.  The applicable principles for default judgment under O 19, r 7 of RDC are well-settled. The power to grant judgment under O 19, r 7 is discretionary. The court is required to scrutinize whether the matters pleaded in the Statement of Claim entitle the plaintiff to the judgment sought. The court’s decision is made on the basis of pleaded facts, rather than on evidence. This is because where no defence is filed, the court will assume that the Statement of Claim has been impliedly admitted. See Hong Kong Civil Procedure 2025, Vol 1, §§19/7/1, 19/7/11 and 19/7/14.

10.  As for injunctive relief, it is now well-established that the court has jurisdiction to grant injunctions in default judgment: see Hong Kong Civil Procedure 2025, Vol 1, §19/7/17; Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, §§12-13; and Times Square Limited v Lee Kwun Kit trading as JL Music & Anor [2020] HKCFI 438, §14(5).

11.  Mandatory injunctions requiring the defendants to abate or remedy water leakage have been granted in similar cases: see eg Victory Success Trading Limited v Cheung Kin Ying [2020] HKDC 753; Kuo Tsz Wai v Wong Sau Yuen [2024] HKDC 214; Ho Sai Cheong & Anor v Honest Gate Company Limited [2024] HKDC 633 and Tam Tze Hang Antony v Ngai Ping Yuen [2024] HKDC 1102. As explained by Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] AC 655 at 706C, “It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction…”.

Analysis

12.  Having carefully considered the SOC and the submissions of Mr Wong, I am satisfied that based on the pleaded facts, P has a valid claim based on breach of the DMC and/or BMO, nuisance and/or negligence against D in respect of the water leakage and/or seepage from D’s Property to P’s Property which has caused damage to P’s Property.

13.  D is taken to have impliedly admitted the matters pleaded in the SOC in default of filing any defence.

14.  I am satisfied that, in all the circumstances, it is appropriate to exercise my discretion to grant default judgment against D.

15.  Furthermore, on the basis of matters pleaded in the SOC, I am of the view that there is a genuine need for injunctive relief compelling D to carry out the necessary repairs to stop and prevent water seepage and/or leakage.

Disposition and Orders

16.  Accordingly, I would make an order in terms of the draft order as amended by me. In particular, the order against D should specify that D is to carry out the rectification work within 8 weeks from the service of the sealed order.

17.  Interlocutory judgment should be entered against D in favour of P with damages to be assessed.

18.  Costs should follow the event. I therefore order D pay to P the costs of this action, including costs of the Summons, summarily assessed at HK$60,000.