YAU KAR KWAI v. SHAN JIGESH RAJNIBHAI AND ANOTHER

YAU KAR KWAI v. SHAN JIGESH RAJNIBHAI AND ANOTHER

Defendants failed to acknowledge service and did not file a defence, thus the allegations in the statement of claim are treated as admitted; given the admitted breach of the DMC negative covenant and ongoing seepage with no remedial action by defendants, the court exercised its discretion to grant the mandatory injunction, substituted the deceased plaintiff's daughter, and awarded costs summarily assessed at HK$25,000.

Citation
[2018] HKDC 75
Parties
Plaintiff: YAU KAR KWAI; 1st Defendant: SHAN JIGESH RAJNIBHAI; 2nd Defendant: SHAN MANSI JIGESH
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
5 January 2018
Case Number
DCCJ4752/2017
Procedural Posture
Civil Property (nuisance / DMC Breach) / Decision on Default Judgment Application (chambers)
Outcome
Default judgment entered for plaintiff; mandatory injunction granted; plaintiff's daughter substituted for deceased plaintiff; costs awarded to plaintiff.
Legal Topics
Default Judgment, Mandatory Injunction, Service of Process, Substitution of Party on Death, Costs Assessment
Source Language
EN
Civil Procedure Property Law Nuisance Injunctions Contract (deed of Mutual Covenant) Default Judgment Mandatory Injunction Service of Process +2 more

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Parties

YAU KAR KWAI

Plaintiff

SHAN JIGESH RAJNIBHAI

1st Defendant

SHAN MANSI JIGESH

2nd Defendant

Procedural Posture

Civil Property (nuisance / DMC Breach) / Decision on Default Judgment Application (chambers)

Legal Issues

  1. 1 Whether default judgment should be entered for failure to file a defence
  2. 2 Whether a mandatory injunction should be granted to require defendants to repair the source of seepage
  3. 3 Whether the deceased plaintiff's daughter should be substituted as party

Ratio Decidendi

Defendants failed to acknowledge service and did not file a defence, thus the allegations in the statement of claim are treated as admitted; given the admitted breach of the DMC negative covenant and ongoing seepage with no remedial action by defendants, the court exercised its discretion to grant the mandatory injunction, substituted the deceased plaintiff's daughter, and awarded costs summarily assessed at HK$25,000.

Court Disposition

Default judgment entered for plaintiff; mandatory injunction granted; plaintiff's daughter substituted for deceased plaintiff; costs awarded to plaintiff.

Orders

  • Judgment entered against the 1st and 2nd defendants in terms of the draft order placed before the court
  • Order substituting the plaintiff's daughter as party to the proceedings and allowing the proceedings to be carried on as if she had been substituted for the deceased