Hung Chiu Kwan Danka v. Lui Chi Mun Teddy Formerly t/a Sammy Exhibition Design Production Co and Another
Read the full judgment text of DCEC 703/2012 on BabelCite. This District Court judgment was delivered on 30 December 2015.
1. The applicant by summons dated 25 September 2015 sought to vary the costs order nisi that I made on 14 September 2015.
Cited by 3 cases
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DCEC 703/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 703 OF 2012 --------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
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----------------------------------- REASONS FOR DECISION ----------------------------------- Introduction 1.The applicant by summons dated 25 September 2015 sought to vary the costs order nisi that I made on 14 September 2015. 2.In essence, the applicant asked for:-
Background 3.The costs order nisi was made in relation to an application for employees’ compensation by the applicant as employee relating to an accident at work brought against the 1st respondent as the applicant’s employer, and alternatively, against the 2nd respondent also as the applicant’s employer (this being the applicant’s fall-back position) should the court find the 1st respondent not to be the employer but instead a principal contractor under section 24 of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”). 4.The 1st and the 2nd respondents both denied their employer status. In addition, the 2nd respondent asserted that he himself was an employee of the 1st respondent and that it was he (the 2nd respondent) who introduced the applicant to the 1st respondent as a co-employee. 5.In the same proceedings resulting in the judgment dated 14 September 2015, the applicant also lodged an appeal against the reviewed assessment of the Employee’s Compensation (Ordinary Assessment) Board under section 18 of the Ordinance. The appeal was unopposed. 6.In the end, I held for the applicant by finding that for the purposes of the Ordinance, the 1st respondent was the applicant’s employer, and in that employment, personal injury by accident arising out of and in the course of the employment had been caused to the applicant as described in the evidence. However, I found that the applicant’s alternative case failed in that the 2nd respondent was not the applicant’s employer and was not liable to pay compensation to the applicant under the Ordinance. 7.I also allowed the applicant’s appeal lodged under section 18 of the Ordinance. 8.As costs followed the event, one of the orders I made nisi was that “costs of this application insofar as the applicant is concerned be paid by the 1st respondent, to be taxed if not agreed”. 9.However, because I held that the applicant gained a benefit by adding the 2nd respondent into the proceedings (for which he had to pay a price), another order nisi that I made was that “the 2nd respondent’s costs of opposing this application be paid by the applicant, to be taxed if not agreed”. Preliminaries 10.As the only party which appeared in the inter partes summons hearing herein was the applicant (by counsel), I made enquiries regarding proper service of notice and relevant papers. 11.It appeared after enquiries that although proper service had been made on the unrepresented 1st respondent, the same could not be said in the case of the now unrepresented 2nd respondent. There therefore existed the real possibility that the 2nd respondent might not have been made aware of the hearing. 12.A short adjournment was permitted to enable the applicant to consider how to proceed in such circumstances. 13.On resumption of proceedings, the applicant informed the court that it would not proceed with the intended variation of the costs order in favour of the 2nd respondent. Consideration 14.Having satisfied myself that in light of the applicant’s change of position, the 2nd respondent’s interests would not be prejudiced, I allowed the proceedings to continue in the absence of the 2nd respondent (and of course the 1st respondent as well). 15.I went on to consider the applicant’s intended addition of counsel certificate to the costs order in his favour. It is clear from the records that no mention was made by the applicant of the matter of counsel certificate in the trial proceedings. 16.Having heard counsel and read the submissions filed on behalf of the applicant, I came to the view that the attendance of counsel in the trial proceedings was proper in the circumstances of the case. Order 17.For the above reason, I order that the part of the costs order nisi made on 14 September 2015 dealing with the applicant’s costs of the original application be varied to the extent that:-
18.Because of the peculiar circumstances under which the present application came to be made, I order that there be no order as to costs of this summons. I also order that the applicant’s own costs of this summons are to be taxed in accordance with Legal Aid Regulations.
Mr Stephen Fong instructed by Wong, Kwan & Co, assigned by the Director of Legal Aid, for the applicant The 1st respondent was not represented and was absent The 2nd respondent was not represented and was absent |
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