LAU TIN FAI v. GOLD REGAL INTERNATIONAL LTD

DCCJ 7008/2024

[2026] HKDC 311

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.  This is the hearing of the plaintiff’s summons, issued on 20 January 2026, seeking leave to enter the Defendant’s Property (as defined below) to carry out remedial works therein for the purpose of removing all causes of water seepage originating from the Defendant’s Property.

2.  At the hearing on 12 February 2026, Mr Choi, counsel for the plaintiff, informed the Court that the hearing bundle and the plaintiff’s skeleton submissions had not been served on the defendant. He requested for a short adjournment. I granted the adjournment to allow service to be effected and rescheduled the plaintiff’s summons to be heard before me on 27 February 2026.

3.  Having read the affirmation of service, I am satisfied that the hearing bundle and the plaintiff’s skeleton submissions were duly served on the defendant. I am also satisfied that the plaintiff’s summons was properly served. The defendant failed to appear at the hearing on 27 February 2026, and I proceed to hear the plaintiff’s summons in its absence.

Background

4.  The plaintiff is, and at all material times was, the sole registered owner of the property situated at Flat A1, 8/F, Block A, Paterson Building, No 47 Paterson Street, Causeway Bay, Hong Kong (the “Plaintiff’s Property”).

5.  The defendant is, and at all material times was, the sole registered owner of the property situated at Flat A1, 9/F, Block A, Paterson Building, No 47 Paterson Street, Causeway Bay, Hong Kong (the “Defendant’s Property”). The defendant is a limited company incorporated in Hong Kong and engaged in the business of property ownership. 

6.  The Defendant’s Property is located directly above the Plaintiff’s Property. 

This Action

7.  The plaintiff commenced this action as a result of water seepage originating from the Defendant’s Property and infiltrating the Plaintiff’s Property.

8.  From approximately mid-2022 onwards, the plaintiff discovered numerous instances of water leakage originating from the Defendant's Property into the Plaintiff’s Property, including:

(1)     Continuous dripping of water from the ceilings of the master bedroom, living room, guest bedroom, and corridor of the Plaintiff’s Property; and

(2)     Extensive dampness affecting substantial portions of the ceilings, structural beams, and walls throughout the master bedroom, living room, guest bedroom, and corridor, resulting in significant spalling, flaking, and cracking of the paint and underlying concrete surfaces.

9.  Upon becoming aware of the water seepage, the plaintiff promptly took action.  On 8 September 2022, the plaintiff notified the defendant and also gave notice to both the Food and Environmental Hygiene Department (the “FEHD”) and the Buildings Department (the “BD”).  The Plaintiff further contacted both departments by telephone on 21 September 2022.

10.  Following the plaintiff’s notifications, the FEHD conducted a series of inspections at both the Plaintiff’s Property and the Defendant's Property, and subsequently issued a Water Leakage Assessment Report on 29 November 2023.

11.  On 13 December 2023, the plaintiff personally delivered a letter to the Defendant's Property requesting that remedial works be undertaken to address the water seepage problem.  No remedial action was taken by the defendant.

12.  The plaintiff then engaged Mr Pau Chi Hoi, an architect registered under the Architects Registration Board (Registration No AP(A) 2/13) from Tappro Construction Company Limited, to conduct a detailed building survey of the Plaintiff’s Property to determine the source and extent of the water seepage. Mr Pau’s findings, set out in his report dated 6 June 2024 (the “Architect Report”),established that:

(1)     The water seepage at the Plaintiff’s Property originated from defective waterproofing systems serving the subdivided bathrooms of the Defendant's Property, specifically resulting from floor infiltration; and

(2)     There was no evidence whatsoever indicating that the water seepage was attributable to communal pipework or external wall defects.

13.  The water seepage remained unresolved.  The plaintiff therefore had no choice but to commence the present action. 

The Plaintiff obtained default judgment against the Defendant

14.  It is sufficient to note that the time for the defendant to file and serve its Defence had expired after the plaintiff had filed and served his Writ of Summons together with the Statement of Claim.  The plaintiff thereafter applied for default judgment against the defendant under Order 19 of the RDC, by way of a summons dated 9 April 2025.

15.  On 15 July 2025, DDJ J. Remedios entered default judgment against the defendant in favour of the plaintiff, granting the following orders (the “Default Judgment Order”): -

(1)     Judgment in default of defence to the plaintiff’s claim, as stated in the Statement of Claim dated 26 November 2024, be entered against the defendant;

(2)     The defendant shall, within 56 days from service of the sealed order and at its own costs, remove all causes of water seepage from the Defendant’s Property into the Plaintiff’s Property by replacing all defective parts, including pipes and membranes if any, of the waterproofing system in all bathrooms in the Defendant’s Property with parts which are functional and non-defective;

(3)     The plaintiff’s agent(s) be allowed to carry out investigations and tests to ensure/confirm that such remedial/rectification works have been completed, and the costs of carrying out such investigations and tests by the plaintiff’s agent(s) shall be borne by the defendant, but shall not exceed HK$10,000; and

(4)     Damages to be assessed.

Events Subsequent to the Entry of Default Judgment 

16.  The sealed copy of the Default Judgment Order was duly served on the defendant on 16 September 2025 at approximately 2:30 pm by the plaintiff’s solicitor, by insertion into the letter box of the registered address of the Defendant at Flat A1, 2/F, Paterson Building, 47 Paterson Street, Causeway Bay, Hong Kong.

17.  Further, on 8 October 2025, the plaintiff sent a copy of the Default Judgment Order to the defendant’s director, Mr Lin, via WhatsApp. Mr Lin acknowledged receipt on the same day. 

18.  In or around late October 2025, Mr Lin informed the plaintiff that he had already engaged a contractor to carry out remedial works at the Defendant’s Property.  However, as late as November 2025, the Plaintiff’s Property continued to suffer water seepage affecting the ceilings and walls of the master bedroom, guest bedroom, living room, and corridor. 

19.  The plaintiff then re-engaged Mr Pau, who attended the Plaintiff’s Property on 20 November 2025 to conduct Infrared Thermography Tests and Moisture Content Measurements. 

20.  On 28 November 2025, the plaintiff’s solicitors issued a letter demanding that the defendant take action to address the problem. 

21.  In that letter, the plaintiff made reasonable proposals to the defendant, including an alternative solution whereby the defendant would permit contractors engaged by the plaintiff to enter the Defendant’s Property and perform all necessary remedial works to resolve the problem once and for all. The plaintiff also noted that his contractor would be available to carry out inspection and remedial works, and reminded the defendant that an application under Order 45 Rule 8 of the RDC would be the only alternative if no constructive response was received. 

22.  Regrettably, neither the defendant nor Mr Lin provided any reply. 

23.  In late December, the plaintiff received a supplementary test report from Mr Pau dated 17 December 2025 (the “Supplemental Test Report”).  At page 16 of the Supplemental Test Report, Mr Pau concluded:

(1)     Location 2 (the living room) and Location 3 (the guest bedroom) continued to suffer from water leakage.

(2)     Water seepage at Location 1 (the master bedroom) and Location 4 (the corridor) had ceased following purported repair works carried out by the defendant.

(3)     The said repair works did not successfully rectify the water seepage problem.

24.  As of now, the water seepage problems at Location 2 and 3 persist. Worst still, in mid-January 2026, concrete from the ceiling at Location 3 fell, posing a serious risk to the plaintiff’s personal safety as he continues to reside at the Plaintiff’s Property. 

25.  In light of Mr Pau’s conclusions and the defendant’s attitude, the plaintiff has no alternative but to take out the plaintiff’s summons. 

Discussion 

26.  Order 45 rule 8 of the RDC provides: -

“If a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.”

27.  Order 45 rule 8 of the RDC empowers the court to direct that an act required to be done by a party under a mandatory order, an injunction, or a judgment may instead be carried out by the party in whose favour the order or judgment was made. See Ever International Investment Holdings Limited v Lee Wah, DCCJ 886/2014 (unreported, 1 February 2016), a water seepage case in which DDJ Phillis Loh (as she then was) granted leave to the plaintiff to enter the defendant’s premises to carry out remedial works in order to stop the water leakage problem.

28.  Similarly, in Tsai Hsiu Yun v Lim Goine, DCCJ 862/2015 (unreported, 22 August 2016), another water seepage case, DDJ Mak granted an injunction compelling the defendant to take remedial action to rectify water leakage/seepage. His Honour observed (at [29]) that “[i]f the defendant fails to comply with an injunction, the plaintiff is entitled to invoke Order 45 rule 8 of the Rules of the District Court to seek an appropriate order.”

29.  In Yip Yuet Ming & Another v Liu King Wa[2025] HKDC 1279, DDJ Vincent Chen followed Ever International and observed that, since there had been non-compliance with an earlier injunction order requiring the defendant to carry out all necessary actions to rectify and eradicate water seepage from the defendant’s premises into the plaintiff’s premises, leave was granted to the plaintiff to enter the defendant’s premises and carry out remedial works therein.  

30.  I am satisfied that there has been non-compliance with the Default Judgment Order on the part of the defendant, which required the defendant to remove all causes of water seepage from the Defendant’s Property to the Plaintiff’s Property as particularized therein. I am further satisfied that the water seepage from the Defendant’s Property into the Plaintiff’s Property continues to persist. The plaintiff ought therefore to be granted leave to enter the Defendant’s Property to carry out remedial works.

Order 

31.  Accordingly, I grant an order in terms of the plaintiff’s summons, with modifications made by me at the hearing on 27 February 2026, as follows:

(1)     Leave is granted to the plaintiff, his agents and/or servants, to enter the Defendant’s Property and carry out remedial works therein for the purpose of removing all causes of water seepage from the Defendant’s Property into the Plaintiff’s Property, by replacing all defective parts of the waterproofing system (including, where applicable, pipes and membranes) in all bathrooms of the Defendant’s Property with functional and non-defective parts, within 60 days from today;

(2)     Upon completion of such remedial works at the Defendant’s Property, the defendant shall pay to the Plaintiff all costs and expenses thereby incurred, within 14 days after service upon the defendant of a written demand by the plaintiff setting out a breakdown of such costs and expenses, together with supporting proof;

(3)     A penal notice shall be granted and endorsed upon this Order; and

(4)     The costs of this application shall be paid by the defendant to the plaintiff, such costs being summarily assessed at $50,000.  

32.  Lastly, I wish to thank Mr Choi for his able assistance.   

DCCJ 7008/2024

[2025] HKDC 1098

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.  Before me is an application by the Plaintiff, made by summons filed on 9 April 2025, seeking default judgment against the Defendant pursuant to Order 19, rule 7 of the Rules of the District Court, Cap 336H, for injunctive relief and damages to be assessed (the “Summons”).

RELEVANT BACKGROUND

2.  On 26 November 2024, the Writ of Summons, indorsed with a Statement of Claim (the “SOC”), was issued by the Plaintiff against the Defendant.

3.  The Plaintiff’s case, as against the Defendant, is founded upon allegations of negligence and nuisance arising from alleged water seepage emanating from the Defendant’s premises into the Plaintiff’s premises.

The facts pleaded in the SOC

4.  From the SOC, the following salient facts have been pleaded:-

(1)  The Plaintiff is the registered owner of Flat A1, 8/F, Block A, Paterson Building, No 47 Paterson Street, Causeway Bay, Hong Kong (“P’s Property”);

(2)  The Defendant is the sole registered owner of Flat A1, 9/F, Block A, Paterson Building, No 47 Paterson Street, Causeway Bay, Hong Kong (“D’s Property”);

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

(4)  At all material times, the Defendant owes a duty of care to the Plaintiff, which includes but is not limited to, a duty not to damage P’s Property and not to cause nuisance to the Plaintiff;

(5)  Since in or around mid-2022, there had been multiple instances of water seepage from D’s Property into P’s Property (the “Water Seepage”). Particulars of such instances have been pleaded by the Plaintiff as being:-

(a)  Water dripping from the ceiling of the master bedroom, living room, guest bedroom and corridor of P’s Property; and

(b)  Multiple large areas of the ceiling, beams and walls of the master bedroom, living room, guest bedroom and corridor being significantly dampened and spalled, flaked and/or cracked with flaking of paint and damage to the concrete underneath.

(6)  The Water Seepage has caused loss and damage to the Plaintiff and the following particulars have been pleaded:-

(a)  Multiple instances of spalling, flaking and/or cracking in the ceiling, the beam and/or the walls of the master bedroom, living room, guest bedroom and/or corridor of P’s Property;

(b)  Multiple areas of the ceiling and/or walls of the master bedroom, living room, guest bedroom and/or corridor have been dampened and/or are exposed to black mould;

(c)  Multiple areas of the ceiling of the master bedroom, living room, guest bedroom and corridor have expanded and bulged up;

(d)  Furniture including but not limited to beds, mattresses, sofa, wi-fi router, and desktop computer placed in the master bedroom, living room, guest bedroom and/or corridor sustained water damage.

(7)  Upon discovery of the Water Seepage, it is averred that the Plaintiff notified the Defendant as well as the Food and Environmental Hygiene Department (“FEHD”) and the Buildings Department by mail in early September 2022.

(8)  Since September 2022, FEHD has carried out multiple inspections of both P’s Property and D’s Property and on 29 November 2023, a Water Leakage Assessment Report was issued by the FEHD. Strangely, the conclusion and/or findings, as set out in this report, has/have not been pleaded by the Plaintiff. It has only been pleaded that such a report was issued.

(9)  In addition to the notification by mail in or about early September 2022, the Plaintiff avers that:-

(a)  On 13 December 2023, a letter was delivered by the Plaintiff to the post box of D’s Property, requesting the Defendant to remedy the Water Seepage; and

(b)  On 19 December 2023, the Defendant’s director Lin Sze Kit (“Mr Lin”) acknowledged receipt and provided the Plaintiff with Mr Lin’s contact information. Mr Lin orally expressed that he would follow-up with the remedial works over the telephone.

(10)  The Plaintiff engaged one Mr Pau Chi Hoi, an architect of Tappro Construction Company Limited, to perform inspections in P’s Property and to identify the source of the Water Seepage. Pursuant to the report prepared by Mr Pau, dated 6 June 2024, the Water Seepage was identified as being due to defective water-proofing systems in bathrooms of the subdivided units of D’s Property.

(11)  The Water Seepage remained unresolved as at the date of the Writ of Summons.

(12)  In breach of the duty of care owed by the Defendant to the Plaintiff, the Defendant has negligently caused and permitted the Water Seepage.

(13)  Further or alternatively, the Defendant negligently failed to maintain the water-proof layer of the D’s Property and/or negligently omitted to cease and/or prevent the Water Seepage.

(14)  P further alleges that the Defendant has “created nuisance to the Plaintiff by damaging P’s Property and interrupting the Plaintiff’s quiet enjoyment”.[1] Although strangely worded in the SOC, I understand this averment to contend that, the Water Seepage, and the damage caused thereby, constitutes nuisance caused or permitted by the Defendant.

(15)  The Plaintiff has pleaded damages for (a) renovation costs in the sum of HK$156,000; (b) accommodation costs for 3 weeks for repair in the sum of HK$54,000; (c) costs of replacement furniture in the sum of HK$97,000; (d) general loss and damages in the sum of HK$50,000; (e) the Architect’s Water Leakage Report fee in the sum of $18,000 and (f) general damages for nuisance to be assessed.

(16)  The Plaintiff has further pleaded a prayer seeking an injunction requiring the Defendant to immediately do all necessary acts to cure, cease and prevent the Water Seepage.

Service and procedural history

5.  Pursuant to Order 10, rule 1(2)(b) RDC, on 26 November 2024, the Plaintiff served the Writ of Summons and the SOC on the Defendant at the registered address of the Defendant, namely No A1, 2/F, Paterson Building, 47 Paterson Street, Causeway Bay, Hong Kong (“D’s Registered Address”), by inserting through the letter box of the D’s Registered Address, a sealed envelope addressed to the Defendant and containing the Writ of Summons and SOC, together with a covering letter dated 26 November 2024.[2]

6.  Up to the date of this hearing, the Defendant has failed to file and serve any Acknowledgment of Service or a defence. Unsurprisingly, the Plaintiff decided to take steps to seek default judgment against the Defendant.

7.  The Plaintiff had originally taken out a summons for default judgment on 20 March 2025 and which was heard by Deputy District Judge Kenneth Lam on 3 April 2025. Dissatisfied with the wording of the relief sought in that summons, the application was dismissed by the learned Deputy District Judge. Deputy District Judge Kenneth Lam did, however, stipulate in his judgment that the dismissal was without prejudice to the Plaintiff’s right to issue a fresh summons.[3]

8.  Reflecting on the concerns expressed by learned Deputy District Judge, the wording of the summons was reformulated, and the Plaintiff issued the Summons on 9 April 2025.

9.  On 11 April 2025, the Summons was served on the Defendant at D’s Registered Address by inserting a cover letter and the Summons into the letterbox thereat.[4]

10.  I note that a Notice of Intention to Enter Judgment was filed by the Plaintiff on 19 March 2025. At the time of the hearing, there was, however, no evidence that this Notice was ever served on the Defendant by the Plaintiff.

11.  I assume that the aforementioned Notice of Intention to Enter Judgment was filed by the Plaintiff out of an abundance of caution.

12.  In light of the fact that the Defendant has never filed any Acknowledgement of Service and not given notice of intention to defend these proceedings, the requirement to serve a Notice of Intention to Enter Judgment pursuant to Order 19, rule 8A RDC (and to file an affidavit in relation to service of the same) is not engaged. Order 19, rule 8A RDC does not apply where no notice of intention to defend the proceedings has been filed by a defendant. It only applies where such notice has been filed.[5]

13.  By failing to file evidence of service of the Notice of Intention to Enter Judgment on the Defendant before the hearing of the Summons, the Plaintiff has not, in the circumstances, fallen foul of Order 19, rule 8A RDC.

14.  From the affirmations of service filed on behalf of the Plaintiff, I am satisfied that the Writ of Summons (containing the SOC) and the Summons  was duly served on the Defendant by the Plaintiff and that such service amounts to proper service under Order 10, rule 1(2)(b) RDC.

15.  Given that I am so satisfied, I am of the view that it is expedient to proceed with the hearing of the Summons under Order 32, rule 5 RDC, notwithstanding the absence of the Defendant at the hearing.

16.  The Plaintiff was represented by counsel, Mr Eric Chau, at today’s hearing.

THE APPLICABLE LEGAL PRINCIPLES

17.  The legal principles applicable to the granting of default judgment under Order 19, rule 7 RDC are well-settled and have been usefully summarised by Deputy District Judge Kay Seto in her judgment in Ho Sai Cheong & Anor v Honest Gate Company Limited[2024] HKDC 633 at §§7-8. In considering the present application, I bear in mind the following principles:

(1)  In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the Plaintiff appears to be entitled to judgment on the matters pleaded in the SOC: Seto Yim King v Soo Hooyet Dew[2019] HKCFI 2640, §10.

(2)  The court cannot receive any evidence, and it is thus not necessary for the Plaintiff to prove their case by evidence: Times Square Limited v Lee Kwun Kit trading as JL Music and Anor[2020] HKCFI 438, §14(3).

(3)  Notwithstanding the wording in Order 19, rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: Times Square Limited (supra), §14(4).

(4)  The court has jurisdiction to grant permanent injunctions in default judgment applications: Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658, §§12-13; Times Square Limited (supra), §14(5).

18.  I also note that mandatory injunctions requiring defendant(s) to abate or remedy water leakage have been granted in previous similar cases. See, for example, 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 (supra); Tam Tze Hang Antony v Ngai Ping Yuen[2024] HKDC 1102 and Joy Asia Limited v Wong Chui Hong & Anor[2024] HKDC 1522.

ANALYSIS & ORDERS

19.  On the basis of the facts pleaded by the Plaintiff in the SOC, I am satisfied that:-

(1)  The Plaintiff has made out a valid claim against the Defendant for negligence and/or nuisance in respect of the Water Seepage from D’s Property into P’s Property and the consequential damage to P’s Property caused thereby.

(2)  It is appropriate, in all the circumstances, for the me to exercise my discretion in favour of the granting default judgment against the Defendant.

(3)  The Plaintiff has suffered loss and damage as a result of the Defendant’s nuisance/Water Seepage.

(4)  Further, it would be appropriate, and there is a genuine need, for a grant of injunctive relief compelling the Defendant to repair and/or take remedial action to abate the Water Seepage. Without an injunction ordering the Defendant to abate and remedy the Water Seepage, it is more likely than not that the nuisance would persist and continue to cause damage to P’s Property and further deprive the Plaintiff of enjoyment of their property.

20.  I therefore make the following orders:-

(1)  Judgment in default of defence to the Plaintiff’s claim as stated in the SOC, dated 26 November 2024, be entered into against the Defendant;

(2)  The Defendant shall, within 56 days from the service of the sealed order, at the Defendant’s own costs, remove all causes of Water Seepage from D’s Property to P’s Property by replacing all defective parts, including pipes and membranes if any, of the waterproofing system in all bathrooms in the Defendant’s Property with parts which are functional and non-defective;

(3)  The Plaintiff’s agent(s) be allowed to carry out investigations and tests to ensure/confirm that such remedial/rectification works have been completed, and the costs of carrying out such investigations and tests by the Plaintiff’s agent(s) shall be borne by the Defendants, but shall not exceed HK$10,000; and

(4)  The Plaintiff’s claim for damages be assessed.

21.  Costs should follow the event. I therefore order that the costs of this action, including the costs of the Summons, be paid by the Defendant to the Plaintiff, in any event, to be taxed if not agreed, with certificate for counsel.

Mr Eric Chau Hin Chung, instructed by Paul W Tse, for the Plaintiff

The Defendant was not represented and did not appear

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.

Mr Eric Chau, instructed by Paul W Tse, for the plaintiff

The defendant was not represented and did not appear