HCA189/2007
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A A
B HCA 189/2007 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATION REGION
D D
COURT OF FIRST INSTANCE
E ACTION NO. 189 OF 2007 E
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F F
BETWEEN
G G
H FUNG HING WANG 1st Plaintiff H
nd
H & S CONSULTANTS LIMITED 2 Plaintiff
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and
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K TANG CHUNG KEUNG RAYMOND Defendant K
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M Before: Hon Fung J in Court M
Date of Hearing: 7 March 2007
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Date of Judgment: 7 March 2007
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JUDGMENT
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1. The plaintiffs are applying for an interlocutory injunction until
S trial or further order to restrain the defendant from allowing water leakage S
at the roof of the plaintiffs’ guest bathroom.
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The facts
C 2. The 1st plaintiff is the registered owner of Flat B, 18/F, Block C
2, Elegant Terrace (“Flat 18B”), and the 2nd plaintiff is the tenant of Flat
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18B, which is occupied by Mr. Lawrence Ong, director of the 2nd plaintiff.
E The defendant is the registered owner of Flat B, 19/F, Block 2, Elegant E
Terrace (“Flat 19B”). Flat 19B is right on top of Flat 18B. Flat 19B is
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leased to Mr. Dennis Wong.
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3. On 20 September 2006, Mr. Ong found water dripping at the
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ceiling of the guest bathroom of Flat 18B. The defendant was notified of it.
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4. On 22 September 2006, the defendant and a plumber engaged
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by the management office visited Flat 18B and Flat 19B. The plumber
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inspected the bathtub joint and found it was in good condition. The
L plumber advised the defendant to seal the bathtub knob to see if that would
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rectify the leakage problem. On 23 September 2006, the defendant fixed a
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new coat of silicon on the bathtub knob.
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5. On 26 September 2006, the defendant was informed that the
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leakage continued. Another plumber of the management office advised
P that the hot water pipe to the bathtub and wash basin concealed in the wall P
of the bathroom of Flat 19B might be the possible source of water leakage.
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R 6. On 29 September 2006, the 2nd plaintiff instructed the firm of R
solicitors which he is a partner to issue a warning letter to the defendant.
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T 7. Meanwhile, the defendant instructed his own contractor to T
replace a hot water pipe. That was done on 30 September 2006.
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8. On 24 October 2006, the 2 nd plaintiff’s solicitors wrote again B
C stating that the leakage had aggravated since 23 October 2006. C
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9. The defendant’s son and the contractor carried out another
E inspection of the bathrooms of Flat 18B and Flat 19B. A test was E
conducted by pouring plenty of water into the bathtub in the guest
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bathroom of Flat 19B. There was no effect on the rate of leakage at the
G Flat 18B bathroom. The bottom of the bathtub in Flat 19B was dry. G
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10. Between 3 to 6 November 2006 (4 days), the defendant’s
I tenant stopped using the bathroom of Flat 19B. Then the defendant’s son, I
contractor and the representative of the management office carried out
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2 inspections. The non-use of the Flat 19B guest bathroom had no effect
K on the water leakage problem. K
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11. On 27 November 2006, the Joint Office of the Food and
M Environmental Hygiene Department (“FEHD”) and Buildings Department M
carried out a colour water test was on all drainage outlets of the bathroom
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of Flat 19B. No colour dye was discovered in the water samples collected
O on 5 December 2006. There was no evidence that the seepage problem O
was caused by defective drainage.
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Q 12. On 5 December 2006, a reversible water pressure test was Q
conducted. The main water supply to Flat 19B was turned off. There was
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no evidence that the seepage was caused by the water supply mains.
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13. On 22 December 2006, the 1st plaintiff instructed
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NY Architects and Associates to examine the water dripping problem. In
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the report dated 28 December 2006, Mr. Norman Yiu stated that he
C examined the ceiling of the guest bathroom of Flat 18B. He discovered C
clean water was dripping slowly onto the bathtub. The clean water was
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running, without any doubt, from the unit above, i.e. Flat 19B. It caused
E the ceiling plaster to become torn off and the bathtub traced with distinct E
worn-out mark. Mr. Yiu believed that the water leakage was caused by the
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concealed water supply pipe within Flat 19B. Unless prompt rectification
G work was carried out, it would cause serious damage to the steel G
reinforcement of the concrete slab as well as the building structure.
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I 14. On 2 January 2007, the defendant requested the management I
office to conduct a pressure test on the hot water pipes and the result
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showed that the hot water pipes were not leaking. The defendant also
K replaced all bathtub joints as a matter of caution. K
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15. Mr. Ong further affirmed that since 22 January 2007, the
M water began to drip to one further area immediately above the electric M
water heater, and he worried the electric water heater might explode if
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contacted with the dripping water.
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P Relevant principles P
16. Mr. Yung for the defendant submitted that although the
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interlocutory injunction is prohibitive in terms, it is in fact a mandatory
R injunction. In Tech Focus Ltd v. Austria Property Management Ltd R
& anor CACV 130/2003, Rogers VP held that an injunction to restrain the
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defendants from allowing water to seep from the roof area to the plaintiffs’
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property was in fact a mandatory injunction to prevent water leakage.
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17. In the present case, having considered the concealed nature of
C the source of the water seepage, and what the defendant has already done C
in response to the problem, I agree that the interlocutory injunction sought
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is mandatory in nature.
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18. The principles in relation to the grant of interlocutory
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mandatory injunctions are summarized by Chadwick J in Nottingham
G Building Society v. Eurodynamics Systems PLC [1983] FSR 468,474: G
“In my view, the principles to be applied are these, first, this
H being an interlocutory matter, the overriding consideration is H
which course is likely to involve the least risk of injustice if it
I turns out to be ‘wrong’ in the sense described by Hoffmann J in I
Films Rover International Limited v. Canon Films Sales Limited
[1987] 1 WLR 678 at 68E-F; that is :
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‘In the sense of writing an injunction to a party who
fails to establish his right at the trial (or would fail if
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there was a trial); or alternatively in failing to grant
an injunction to a party who succeeds (or would
L succeed) at the trial.’ L
Secondly, in considering whether to grant a mandatory injunction
M the court must keep in mind that an order which requires a party M
to take some positive step at an interlocutory stage, may well
carry a greater risk of injustice if it turns out to have been
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wrongly made than an order which merely prohibits action
thereby preserving the status quo.
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Thirdly, it is legitimate, where a mandatory injunction is sought,
to consider whether the court does feel a high degree of
P assurance that the plaintiff will be able to establish his right at a P
trial. That is because the greater the degree of assurance the
Q plaintiff will ultimately establish his right, the less will the risk of
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injustice if the injunction is granted.
R But, finally, even where the court is unable to feel any high R
degree of assurance that the plaintiff will establish his right, there
may still be circumstances in which it is appropriate to grant a
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mandatory injunction at an interlocutory stage. Those
circumstances will exist where the risk of injustice of this
T injunction is refused sufficiently outweigh the risk of injustice if T
it is granted.”
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19. The summary above was approved by the English Court of
C Appeal in Zockoll Group Ltd v. Mercury Communications Ltd [1998] C
FSR 354.
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E 20. Further, it is very important that mandatory injunctions are E
framed in precise terms so that the defendant knows exactly what he must
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do and what steps he must take (see Tech Focus Ltd v. Austria Property
G Management Ltd & anor). G
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Plaintiffs’ case
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21. Ms. Cheng for the plaintiffs referred to Third Schedule of the
J Deed of Mutual Covenant of Elegant Terrace which provided that each J
owner shall at his sole expense repair and maintain the water supply:
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potable and flushing water installation, including storage tanks, pipework
L control valves, water heaters, taps and sanitary facilities (para. 8(a)(i)), and L
drainage installations: waste pipes and sewage waste drainage
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(para. 8(a)(v)).
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22. Ms. Cheng referred to s.34H(1) of the Building Management
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Ordinance (Cap. 344) which provides that:
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"Where a person who owns any part of a building, has the right
to the exclusive possession of any part of a building or has the
Q exclusive right to the use, occupation or enjoyment of that part, Q
as the case may be, but the deed of mutual covenant in respect of
the building does not impose an obligation on that person to
R maintain the part in good repair and condition, that person shall R
maintain that part in good repair and condition."
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23. The plaintiff relied on the expert report of Mr. Norman Yiu
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that the leakage was caused by the concealed water pipe within Flat 19B.
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Ms. Cheng submitted that there is no contrary expert opinion to contradict
C Mr. Yiu. C
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24. Approaching the matter differently, Ms. Cheng referred to the
E floor plan of Block 2 and the photographs of the ceiling of the Flat 18B E
guest bathroom, showing a contained spot of dampness in the ceiling. She
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referred to the pamphlet of FEHD in that water will travel the shortest
G distance. She submitted that visual inspection will raise the presumption G
of res ipsa loquitur, and in the absence of contrary evidence, an inference
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that the source of the leakage was from Flat 19B guest bathroom right on
I top is to be drawn. I
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25. Ms. Cheng also complained of the uncooperative attitude of
K the defendant. Although the defendant undertook certain remedial K
measures on his own initiative, he never sought the opinion of the expert,
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nor sought to approach the matter jointly with the plaintiffs’ expert.
M Ms. Cheng criticized that the defendant’s action was wrong. Hence, the M
defendant failed in its duty to identity the source of the water leakage.
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Defendant’s case
P 26. Mr. Yung submitted the owner of the downstairs premises P
cannot assume that whenever water leakage occurs, the cause is necessarily
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the damaged water pipe within the upstairs premises (see 張秀玲及吳炳漢
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對 鄭 禮 莊 (Cheung Sau-ling & Ng Bing-hon v. Cheng Lai-chong R
S (transliteration)) CACV 268/98 per Leong JA (as he then was) at para. 21), S
and the burden is on the plaintiff to prove the source of water leakage is
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from the defendant’s premises.
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27. The colour water test for the drainage pipes and the reversible
C water pressure test for the main water supply did not identity any source of C
water leakage.
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E 28. Mr. Yung submitted that the plaintiffs failed to demonstrate by E
any persuasive evidence that the source of the water leakage is from
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Flat 19B. He criticized Mr. Yiu’s opinion as highly speculative and of
G little evidenctial value. Mr. Yiu never attended Flat 19B. He merely made G
observation from Flat 18B. He did not conduct any scientific test, and
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proferred the belief that the source of the water leakage was the concealed
I water pipe within Flat 19B. I
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29. Mr. Yung also criticized Mr. Ong’s allegation of explosion of
K the water heater as far-fetched. K
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30. The defendant exhibited the plan of Elegant Terrace which
M shows that the guest bathrooms of Block 1 and Block 2 are adjoining. Mr. M
Yung suggested that possible sources of leakages such as bathrooms of
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other flats could not be excluded.
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31. Mr. Yung also queried the 1st and 2nd plaintiffs’ interests in
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maintaining the cause of action of nuisance. The 1st plaintiff has entered
Q into an agreement to sell Flat 18B with completion on 29 March 2007, and Q
the 2nd plaintiff’s tenancy agreement has expired on 7 January 2007 and he
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is holding over. It was submitted that the 1st and 2nd plaintiffs’ interests in
S Flat 18B will probably have ceased at the time of trial. S
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Consideration
C 32. The affidavit evidence on each side are not challenged and I C
take them at face value as the relevant circumstances.
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E 33. Liability for water seepage may be founded in negligence or E
knowingly suffering the nuisance, but the key issue is the source of the
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water leakage. Without identification of the source, the liability of the
G defendant is not founded, let alone the framing of the precise terms of the G
injunctive order which can be complied with by the defendant, and
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supervised and enforced by the court. In looking at the evidence at the
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interlocutory stage, I must be satisfied to a sufficiently high degree of
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assurance that the source of the water leakage emanated from Flat 19B.
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34. Much have been said about the colour water test. But the test
L was targeted at the sewage drainage system. Likewise, the water pressure
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test only targeted the main water supply. Sources of water leakage may go
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beyond the drainage system and the main water supply, and lie in say,
N concealed hot water pipe or other joining pipes. Be that as it may, those N
tests are inconclusive in the present case.
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P 35. Ms. Cheng submitted that water travels the shortest distance, P
and the guest bathrooms of Block 1 and Block 2 are separated by thick
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adjoining wall, and it is impossible for water to seep from Block 1 to
R Block 2. However, it is generally known that water does not only travel R
vertically down the concrete floor slap, but also horizontally through
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weakness points in the concrete. Shortest distance must be taken to mean
T the shortest distance through paths of weaknesses. Hence, visual T
observation of the ceiling is not a scientific and reliable test of determining
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the source of water seepage. It is trite that the worth of an expert opinion
C lies in the foundation upon which the opinion is expressed. With respect, C
Mr. Yiu’s opinion seems to have been based on belief and little else, and I
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fail to see the probative value thereof.
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36. I note that in the letter dated 21 December 2006 by the
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management company to the defendant, it was stated that the water
G dripping at the ceiling of the premises below might be due to several G
sources.
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I 37. Modem technology such as infra red thermo scanner which I
detects difference in temperature caused by the seepage of water may be
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helpful in determining the trail and source of water seepage with more
K accuracy and assurance than visual inspection. K
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38. In neighbourhood water seepage cases, cooperation of the
M neighbours concerned is very important. Unwillingness to cooperate in M
allowing access or facilities in finding out the source of leakage and/or
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remedying the problem may be relevant in finding liability. Unreasonable
O refusal to cooperate may of course be remedied by suitable interlocutory O
order by the court. However, I do not find that the defendant has been
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guilty of unreasonableness as suggested by the plaintiffs. Further, I cannot
Q axiomatically say that simply because the water seepage persisted, the Q
remedial action taken by the defendant such as the replacement of the hot
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water pipe is wrong and misguided. It may be possible that the problem
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lies elsewhere. S
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39. I find that the duty lies on the plaintiffs to prove the source of
C the seepage has emanated from Flat 19B. They have sought to do so by C
their expert, but the expert and all the circumstances do not give me
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sufficient assurance of the source of the problem. I suggest that the
E plaintiffs’ expert visit Flat 19B, or the adjoining flat in Block 1, if E
necessary, to conduct the necessary test to identify the source of the
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seepage.
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40. In view of my conclusion on the identification of the source of
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water seepage, it is not necessary to deal with the points of the 1 st and 2nd
I plaintiffs’ interests in Flat 18B. But had I been satisfied on the evidence I
before me, I see no reason why an occupant for the time being could not
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have sought an interlocutory injunction if the cause of action in negligence
K were made out. K
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41. In the circumstances, the application for interlocutory
M injunction is refused. M
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42. After hearing the parties on costs, I order that the plaintiffs do
O pay the costs of the application to the defendant, to be taxed if not agreed. O
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S (B. Fung) S
Judge of the Court of First Instance
T High Court T
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Ms Eleanor CHENG of Messrs Ong & Chung, for both Plaintiffs
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Mr YUNG Chun-wan of Messrs Liu, Chan & Lam, for the Defendant
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