Wong Shu Keung v. Kam Luen Consolidator Ltd

HCA 2384/2018

[2023] HKCFI 3043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2384 OF 2018

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DECISION

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1.This is a summary judgment application by the plaintiff, inter alia, to set aside (1) the judgment on liability against the defendant dated 8 September 2011 made by Master Marlene Ng (as she then was) and (2) the award on damages against the defendant dated 6 May 2013 made by Master J Wong, in HCPI 686/2010. The plaintiff also seeks to strike out the defendant’s counterclaim.

2.To provide the proper context to this decision, it is necessary to set out at some length the dealings between the parties since 2010. The factual background set out below is largely taken from the Decision on Costs of Marlene Ng J dated 30 June 2021 in HCPI 610/2016.

A.  THE RELEVANT BACKGROUND

3.The plaintiff claimed he was involved in an accident and suffered personal injuries on 11 March 2010 (“the Accident”).

A1.  HCPI 686/2010

4.On 28 December 2010, the plaintiff commenced HCPI 686/2010 (“the 2010 PI Proceedings”) to claim against the defendant for personal injuries, loss and damages on the basis that the Accident was caused by the negligence, breach of statutory duty, breach of common duty of care and breach of contract of employment by the defendant and its representatives, agents and/or servants. On the same day, the plaintiff filed his statement of claim in which he alleged, inter alia, that he was employed by the defendant as a general worker.

5.On 8 September 2011, Master Marlene Ng (as she then was), inter alia, entered judgment on liability in favour of the plaintiff against the defendant for damages to be assessed with costs on liability reserved (“Judgment on Liability”).

6.On 23 September 2011, the defendant’s employee’s compensation insurer, MSIG Insurance (Hong Kong) Ltd (“MSIG”), was informed about the Judgment on Liability.

7.On 10 April 2023, Master J Wong, inter alia, allowed MSIG to be joined as the 2^nd defendant in the 2010 PI Proceedings and proceeded to hear the assessment of damages.

8.On 6 May 2013, Master J Wong handed down reasoned judgment on the assessment of damages. Judgment was entered against the defendant and MSIG to pay awarded damages in the sum of $1,485,972 with interest to the plaintiff with costs (“Judgment on Damages”).

A2.  DCEC 638/2010

9.On 9 June 2010, the plaintiff commenced DCEC 638/2010 against the defendant to claim employee’s compensation.

10.On 5 October 2012, judgment on liability in DCEC 638/2010 was entered by consent in favour of the plaintiff against the defendant.

11.On 2 July 2013, MSIG applied to be joined as the 2^nd respondent in DCEC 638/2010. On 25 July 2013, MSIG’s joinder application was granted. On 1 August 2013, MSIG applied for an order to set aside the judgment on liability in DCEC 638/2010.

12.On 31 October 2013, Judge K Yee ordered that (1) the judgment on lability between the plaintiff and the defendant be set aside and (2) MSIG be allowed to challenge both liability and quantum of the plaintiff’s claim in DCEC 638/2010.

13.On 29 November 2013, Li Sing Ming (“Li Sr”) was joined as the 3^rd respondent in DCEC 638/2010. Subsequently, the plaintiff pleaded that he was employed by the defendant and/or Li Sr at the time of the Accident.

14.The trial in DCEC 638/2010 took place on 11 September 2014. The defendant did not appear at the trial. However, by its Answer, the defendant, inter alia, admitted that the plaintiff was under its employ at the time of the Accident. MSIG denied that the plaintiff was employed by the defendant. Li Sr did not file any Answer or witness statement and did not appear at the trial.

15.On 12 November 2015, Deputy District Judge Brian Mak handed down his judgment in DCEC 638/2010. The Judge found, inter alia, that (1) Li Sr was the plaintiff’s employer from 1 January 2010 up to the time of the Accident, (2) the defendant was not the plaintiff's employer, and (3) the plaintiff’s injuries from the Accident arose out of and in the course of his employment with Li Sr. The Judge ordered Li Sr to pay the plaintiff employee’s compensation in the sum of $326,558.30 with interest and dismissed the plaintiff’s claim against the defendant.

A3.  HCPI 610/2016 & These Proceedings

16.On 31 May 2016, the plaintiff commenced HCPI 610/2016 (“the 2016 PI Proceedings”) against Li Sr as employer, tortfeasor and contractor for negligence, breach of statutory duty, breach of the common duty of care and breach of the plaintiff’s contract of employment with Li Sr in relation to personal injuries, loss and damages he suffered as a result of the Accident.

17.On 10 May 2017, Li Sr filed his Defence to deny liability. In particular, he denied that he employed the plaintiff as a general work at the site and claimed that the plaintiff was employed by the defendant at all material times.

18.On 27 February 2018, Master Roy Yu ordered a stay of the 2016 PI Proceedings for 6 weeks due to concerns over the Judgment on Liability and Judgment on Damages in the 2010 PI Proceedings in favour of the plaintiff against the defendant in respect of the Accident.

19.At the checklist review hearing on 21 August 2018, Master Roy Yu, inter alia, adjourned the 2010 PI Proceedings sine die with liberty to restore pending the setting aside of the Judgments on Liability/Damages in the 2010 PI Proceedings by the plaintiff, with costs to be paid to Li Sr.

20.On 10 September 2018, the plaintiff filed a notice of appeal against Master Roy Yu’s Order dated 21 August 2018. The plaintiff’s appeal was heard by Bharwaney J on 15 October 2018, who ordered the parties to agree on case management directions and adjourned the case to a date to be fixed with costs reserved.

21.On 10 October 2018, the plaintiff commenced HCA 2384/2018 (i.e. these proceedings) against the defendant. In the General Indorsement of Claim, the plaintiff sought an order to set aside the Judgments on Liability/Damages in the 2010 PI Proceedings and a declaration that the Judgments were null and void on the grounds that they were entered into by mistake and/or misrepresentation on the part of the defendant that it was the lawful and/or de facto employer of the plaintiff at the material time, and for costs and damages to be assessed.

22.On 9 March 2020, the plaintiff lodged a summons to seek inter alia the following reliefs (1) the plaintiff would undertake not to enforce the Judgment on Damages in the 2010 PI Proceedings pending the result in the 2016 PI Proceedings, or alternatively would set aside the Judgment on Damages in the 2010 PI Proceedings. The summons could not be filed as the High Court Registry was closed due to public health considerations.

23.On 23 March 2021, Marlene Ng J made the following directions to the plaintiff, the defendant and Li Sr in the 2016 PI Proceedings and in these proceedings: (1) all parties should attend a directions hearing on 6 May 2021, (2) the plaintiff should serve written directions and notice of hearing on the defendant, and (3) the plaintiff should address the court at the hearing on 6 May 2021 on, inter alia, the progress in relation to these proceedings and what step had been taken to seek leave to join Li Sr as the 2^nd defendant in these proceedings. The above directions did not reach the defendant.

24.On 6 May 2021, after hearing representatives for the plaintiff and Li Sr, Marlene Ng J ordered, inter alia, (1) leave be granted to the plaintiff to withdraw his summons dated 9 March 2020, (2) the appeal against Master Roy Yu’s order dated 21 August 2018 be dismissed, (3) the parties should jointly write to court to address on the issue of liability for costs in respect of certain reserved costs order and certain consequential costs issues to be determined by paper disposal, and (4) the costs of and occasioned by the plaintiff’s summons dated 9 March 2020 and the plaintiff’s appeal be paid by the plaintiff to Li Sr to be taxed forthwith if not agreed.

25.By her Decision on Costs dated 30 June 2021 in the 2016 PI Proceedings, Marlene Ng J resolved the costs issues against the plaintiff and in favour of Li Sr. At §80 of the Decision on Costs, her Ladyship said:

“In the period after the 2018 Hearing [before Bharwaney J], P had the benefit not only (a) reminders by Li Sr’s solicitors prior to such hearing as to the lack of merits as regards P’s stance, but also (b) clear and cogent explanation by Bharwaney J at the 2018 Hearing that debunked P’s contentions and that shined a clear light on way forward for P …, and (c) further letters by Li Sr’s solicitors after the 2018 Hearing that reiterated the learned judge’s observations. Despite these reminders, P, who all along had legal advice, obstinately clung to the stance that the present action could proceed without actually setting aside the HCPI 686/2010 Liability/Damages Judgments. This was a conscious decision by P (which would keep the HCPI 686/2010 Liability/Damages Judgments against Kam Luen intact whilst he would proceed with the present action against Li Sr) because even though he commenced HCA2384/2018 and heard what fell from Bharwaney J at the 2018 Hearing …, he “changed his mind” after the 2018 Hearing and withheld service of the Writ of Summons in HCA 2834/2018 ... In my view, after the 2018 Hearing, P’s stance was an obviously hopeless and unwarranted one, which caused unnecessary stagnation of the present action for a significant period, and which put P at litigation uncertainty that the court might or might not exercise the discretion to extend the validity of the Writ of Summons in HCA2384/2018 for service on Kam Luen. In my view, it is plainly appropriate that Li Sr’s costs under the 1^st Costs Issue, ie costs consequent upon the 1^st Order, should be paid on indemnity basis.”

26.Marlene Ng J further deprecated the plaintiff’s conduct by way of postscript in §§84-86 of her Decision on Costs as follows:

“Bharwaney J at the 2018 Hearing colourfully described the developments in HCPI 686/2010, DCEC 638/2010, the present action and HCA 2384/2018 that led to the current confused state of P’s claim for common law damages in respect of the Accident as a “nightmare”. The fact P suffered the Accident more than 10 years ago and was thwarted from final resolution of his common law claim by legal conundrums is, to say the least, regrettable. Delay in litigation gathers costs as a rolling stone gathers moss. Delay in litigation also puts the litigant at litigation risk over legal time limits and over closefisted exercise of post-CJR discretion that sets its face against delay. Here, P was legally aided, so he was at risk over hike in the Director of Legal Aid’s first charge as litigation dragged on over the years.

At the 2021 Hearing, I urged P’s solicitors to henceforth take prompt action on behalf of P. Further, as P now has to progress HCA 2384/2018, P’s solicitors should carefully assess whether there is any potential conflict of interest, and whether their handling solicitor(s) will have to be witnesses in that action to justify and explain the need for setting aside the HCPI 686/2010 Liability/Damages Judgments, in which case they should carefully consider whether they can and/or ought to remain as solicitors on the record for P in that action.

Finally, to ensure that there be prompt progress in the future conduct of litigation on behalf of P as an aided person, I direct P’s solicitors to forthwith provide a copy of this Decision to the Director of Legal Aid, so that there will be close monitoring to avoid any further delay in progressing the relevant pieces of litigation arising from the Accident as a result of need to issue appropriate certificates and/or other solicitor-client considerations.”

27.On 13 May 2022, the Statement of Claim in these proceedings was issued on behalf of the plaintiff. The plaintiff alleges that the defendant has misrepresented to the court that it was the employer of the plaintiff. In the prayer, the plaintiff seeks, inter alia, to set aside the Judgments on Liability/Damages in the 2010 PI Proceedings.

28.On 29 September 2022, the defendant filed its Defence and Counterclaim, inter alia, (1) averring that it was the plaintiff’s employer at the material time, (2) denying that it made any misrepresentation to the court concerning the identity of the plaintiff’s employer and (3) counterclaiming that employee’s compensation that the defendant had paid to the plaintiff in the event that the defendant is found not to be the plaintiff’s employer at the material time.

29.On 16 December 2022, the plaintiff took out a summons to seek summary judgment to rescind the agreement leading to the Judgment on Liability in the 2010 PI Proceedings, set aside the Judgments on Liability/Damages in the 2010 PI Proceedings, and strike out the defendant’s counterclaim.

B.  PLAINTIFF’S CLAIM TO SET ASIDE JUDGMENTS

B1.  Plaintiff’s Pleaded Basis to Set Aside the Judgments

30.In his Statement of Claim, the plaintiff pleads the following matters to seek to set aside the Judgments on Liability/Damages in the 2010 PI Proceedings.

(1)  On or about 15 March 2010, Li Ho Cheong (“Li Junior”), the sole shareholder and sole director of the defendant, represented both to the Commissioner of Labour and the plaintiff that the defendant was the employer of the plaintiff at the time of the Accident and such representation turned out to be untrue (paragraph 5).

(2)  From about 19 March 2010 onwards, the defendant further represented to the plaintiff by conduct that the defendant was the plaintiff’s employer at the time of the Accident (paragraph 6).

(3)  On 8 September 2011, by admitting to the entry of the Judgment on Liability, the defendant expressly and impliedly further misrepresented to the court and the plaintiff that it was the plaintiff’s employer (paragraph 9).

(4)  On 6 December 2010, Li Junior gave a witness statement for the defendant in DCEC 638/2010 to confirm that the defendant was the employer of the plaintiff, which turned out to be false and untrue (paragraph 14).

(5)  The plaintiff relied on the defendant’s misrepresentations to agree the entry of the Judgment on Liability (paragraph 18).

(6)  Further or alternatively, the Judgment on Liability was entered into by mutual mistake (paragraph 21).

(7)  The defendant’s conduct and acts were both untruthful and unlawful because the defendant well knew or ought to know that it was the employer of the plaintiff but by falsely pretending and admitting itself to be the employer of the plaintiff (paragraph 22).

31.In essence, the plaintiff alleges that the defendant has made misrepresentations regarding the identity of the plaintiff’s employer, and relies on misrepresentation and mistake as grounds to seek to set aside the Judgments in the 2010 PI Proceedings (as well as to rescind the agreement leading to the making of the Judgment on Liability in the 2010 PI Proceedings).

B2.  The Relevant Legal Principles

32.There is a principle of public policy that there must be a finality to litigation. In The Ampthill Peerage [1977] AC 547, Lord Wilberforce said at 569A-E:

“English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes … Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth …, and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”

33.As recognised by Lord Wilberforce, one of the ways in which the finality policy becomes compatible with justice is when the law exceptionally allows judgments to be set aside on the ground they were procured by fraud. In Spencer Bower & Handley: Actionable Misrepresentation (5^th ed 2014) at §20.02, the learned editor stated:

“It has been established since the time of Coke that ‘acts of the highest judicial authority’ though ‘not to be impeached from within’ yet ‘are impeachable from without’ if they were procured by fraud or collusion (fraud). ‘Although it is not permitted to show that the court was mistaken, it may be shown that they were misled.’ Fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. ‘Fraud is an insidious disease and if clearly proved to have been used so that it might deceive the court, it spreads to and infects the whole body of the judgment.’ Accordingly, at the suit of the injured party, and if the parties colluded to deceive the court, at the suit of a party, the Attorney-General or an interested stranger, judicial acts of English tribunals can be rescinded on proof that they were procured by fraud. There must be conscious and deliberate dishonesty and the judgment must be obtained by it. The power of the superior courts to grant such relief has frequently been exercised for both first instance and appellate decisions. It does not matter whether the decision was final or interlocutory, made after a hearing, or by consent, or by default, or whether or partial recission is sought.”

34.In Jonesco v Beard [1930] AC 298, Lord Buckmaster at 300 said that “[it] has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires”.

35.An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action: Takhar v Gracefield Developments Ltd [2020] AC 450 at §60 (Lord Sumption).

36.It does not seem to me that a plaintiff can bring a claim to set aside a judgment on a ground other than fraud in the course of the proceedings: Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165 at §§54-55 (Kiefel CJ, Gageler, Keane, Gordon & Edelman JJ). In The Ampthill Peerage, Lord Wilberforce considered that “some kind of equitable fraud or lack of frankness” would not be sufficient to set aside a judgment (571A-B).

37.In Royal Bank of Scotland plc v Highland Financial Partners [2013] 1 CLC 596, Aikens LJ at §106 set out the legal principles to be applied if one party alleges that a judgment must be set aside because it was obtained by the fraud of another party:

(1)  there has to be “conscious and deliberate dishonesty” in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned;

(2)  the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be “material”, in that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did, or that it would have entirely changed the way in which the first court approached and came to its decision; and thus the conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was; and

(3)  the question of “materiality” of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.

38.The legal principles from the Royal Bank of Scotland case were expressly adopted in Takhar v Gracefield (above) at §§57 (Lord Kerr JSC), 67 (Lord Sumption), 76 (Lord Briggs JSC), 104 (Lady Arden JSC); Mayer Corporation Development International Ltd v Alliance Financial Intelligence Ltd [2019] HKCA 777 at §72 (Kwan VP); Lu Yongliang v Bank of China Ltd, Dongguan Branch [2020] HKCA 1089 at §21 (Lam VP).

39.Mr Meyrick Wong, counsel for the plaintiff, relied on GM-SA aka DG, M-S v DDPJ (No 3) [2022] 6 HKC 32 at §28 to contend that a plaintiff may seek to set aside a judgment on the basis of misrepresentation and non-disclosure. In that paragraph, Chow JA said that the “relevant principles for setting aside a consent order on the ground that it was induced by misrepresentation or material non-disclosure can conveniently be found in the judgment of the English Court of Appeal in Roocroft v Ball [2017] 1 WLR 1137”. It can readily be seen from the principles which his Lordship adopted from Roocroft that they were made in the context of parties having reached agreement on their financial arrangements in divorce proceedings. This was why Chow JA referred to the “principle that each party owes a continuing duty to the other party and to the court to make full and frank disclosure” (§28(3)). I do not consider that such principles have any application where a party seeks to set aside a judgment in a non-matrimonial context.

C.  PLAINTIFF’S SUMMARY JUDGMENT APPLICATION

40.In his written Speaking Note, Mr Wong submitted that the plaintiff alleges fraudulent misrepresentation and innocent misrepresentation against the defendant. I will examine each of the plaintiff’s case in turn.

C1.  Fraudulent Misrepresentation

41.On the basis of the authorities mentioned above, the plaintiff may seek to set aside the Judgments on Liability/Damages in the 2010 PI Proceedings on the ground that they were procured by fraud, including fraudulent misrepresentation on the part of the defendant.

42.It is well-established that in a summary judgment application, the statement of claim must be complete and good in itself, and any defect or omission cannot be corrected or supplemented by the plaintiff’s affidavit: Hong Kong Civil Procedure 2024 vol 1 para 14/1/5.

43.In a claim to set aside a judgment on the ground of fraud, the particulars of fraud must be clearly and fully pleaded (Jonesco v Beard (above) at 300), just like how a case of fraud would normally be expected to be pleaded (Hong Kong Civil Procedure 2024 vol 1 paras 18/8/19 & 18/12/18). Specifically, the plaintiff needs to plead “conscious and deliberate dishonesty” on the part of the defendant in relation to the relevant evidence given, or action taken, or statement made, which is relevant to the judgment now sought to be impugned (see paragraph 37(1) above).

44.It is clear to me that the plaintiff’s Statement of Claim fails to disclose a case of fraud (or fraudulent misrepresentation) against the defendant. The Judgment on Liability was given on 8 September 2011. The plaintiff has pleaded two matters which are said to have induced him to agree to the making of the Judgment on Liability (see paragraphs 30(1) and 30(2) above). However, both of these matters are consistent with innocence and it is not open to the court to find fraud on the basis of them (Hong Kong Civil Procedure 2024 vol 1 para 18/8/19). The plaintiff has simply not made any allegation of “conscious and deliberate dishonesty”, or other similar allegations, against the defendant in the Statement of Claim. The plaintiff’s allegation (in paragraph 22 of the Statement of Claim) that the defendant “well knew or ought to know that it was not the employer of the Plaintiff but by falsely pretending and admitting itself to be the employer of the Plaintiff at the material time” is not a clear and unequivocal allegation of actual knowledge and does not support a finding of fraud (Hong Kong Civil Procedure 2024 vol 1 para 18/8/19). All of this was put beyond doubt when Mr Wong acknowledged during the hearing that it was a deliberate decision on his part not to plead fraud in the plaintiff’s Statement of Claim.

45.Insofar as the plaintiff seeks to set aside the Judgments on Liability/Damages in the 2010 PI Proceedings on the ground of fraud, the plaintiff plainly cannot obtain summary judgment on the basis of his existing Statement of Claim.

C2.  Non-Fraudulent Misrepresentation

46.I now proceed to examine the plaintiff’s summary judgment application to set aside the Judgments on Liability/Damages in the 2010 PI Proceedings on the ground of non-fraudulent misrepresentation or mistake.

47.Mr Wong has not cited any authority to support the view that a judgment may be set aside on a ground other than fraud, despite the fact that the cases of Takhar v Gracefield (above) and Lu Yongliang (above) were drawn to the parties’ attention by the court prior to the hearing. For the reasons given in paragraph 39 above, the legal principles recited in the matrimonial case relied upon by Mr Wong do not seem to me to be applicable in a case such as the present one. On the basis of the authorities mentioned above (and in particular Clone Pty Ltd v Players Pty Ltd (above)), it does not appear the court can set aside a judgment on the basis of misrepresentation or mistake which does not amount to fraud.

48.Even assuming in the plaintiff’s favour that the court can set aside a judgment on a ground other than fraud, I am firmly of the view that there are triable issues as to whether the Judgments on Liability/Damages in the 2010 PI Proceedings were procured as a result of any misrepresentation by defendant or mutual mistake.

(1)  The plaintiff claims in the present action that the Judgments on Liability/Damages in the 2010 PI Proceedings were procured by the alleged misrepresentation of the defendant and mutual mistake.

(2)  The defendant’s defence is that there had not been any misrepresentation or mistake as to the identity of the plaintiff’s employer, and hence the Judgments in the 2010 PI Proceedings were not procured by any misrepresentation or mistake.

(3)  Specifically, the defendant has pleaded in paragraphs 2(4) to 2(11) of its Defence and Counterclaim dated 29 September 2022 the circumstances under which the plaintiff came to work for the defendant and the details of his employment with the defendant. By reason of the pleaded matters, the defendant denies the plaintiff’s allegations of misrepresentation or mutual mistake.

(4)  I note that the plaintiff’s summons for summary judgment was issued on 16 December 2022, after the defendant filed its Defence and Counterclaim.

(5)  It seems clear to me that there are triable issues on whether the defendant made any misrepresentations or whether either party was labouring under any mistake.

(6)  The plaintiff is unable to suggest why the defendant’s denial of misrepresentation or mistake is incredible or unbelievable, or that it does not give rise to triable issues. The consistent theme of Mr Wong’s submissions is that there cannot be any dispute on whether the defendant was the employer of the plaintiff because the issue had already been determined in DCEC 638/2010. Such submissions fail to address the principal issue in the present action, namely whether there was any misrepresentation by the defendant or mutual mistake.

(7)  The plaintiff sought to rely on the doctrine of issue estoppel to argue that the determination in DCEC 638/2010 would prevent the defendant from contending that it was the plaintiff’s employer. I do not believe the doctrine can be invoked in this way to resolve the disputes, just like the doctrine cannot be utilised to set aside the determination in DCEC 638/2010 on the basis of the Judgments on Liability/Damages in the 2010 PI Proceedings in a summary fashion.

49.For these reasons, even assuming that the court has power to set aside a judgment on the ground of misrepresentation or mistake which does not amount to fraud, this is plainly a case which is unsuitable for summary judgment. The defendant has adequately set out its position and defence in its Defence and Counterclaim and the plaintiff clearly knew of them before he took out the summary judgment application. I am of the view that this is a clear case for the court to dismiss the summary judgment application. See RHC O.14, r.7(1); Hong Kong Civil Procedure 2024 vol 1 para 14/7/3.

D.  PLAINTIFF’S STRIKE-OUT APPLICATION

50.The defendant’s counterclaim is made on the basis that it has previously paid a total sum of HK$263,500 to the plaintiff under the Employees’ Compensation Ordinance and that the same should be returned to the defendant under the law of unjust enrichment in the event that the defendant is found not to be the plaintiff’s employer on the basis that there was a mistake.

51.The plaintiff relies on paragraphs 88 and 89 of the Judgment in DCEC 638/2010 to contend that the court had applied the sum of HK$263,500 to reduce the total amount payable by Li Sr to the plaintiff. The plaintiff argues that he has not been enriched by HK$263,500 as a result of such a reduction, and therefore the counterclaim should be struck out.

52.However, it was in fact recorded at paragraph 88 of the DCEC 638/2010 Judgment that the plaintiff had received advanced payment in the sum of HK$263,500. The fact that the court made an order affecting the sum of HK$263,500 (at paragraph 89 of the DCEC 638/2010 Judgment) after the plaintiff’s receipt of HK$263,500 does not necessarily mean that the plaintiff was not enriched of the same.

53.Accordingly, I am not satisfied that it is plain and obvious that the defendant’s counterclaim should be struck out. The plaintiff’s strike-out application must also be dismissed.

E.  DISPOSITION

54.The plaintiff’s applications for summary judgment and strike-out must be dismissed.

55.On the basis of what I said above, I consider that the summary judgment application should never have been taken out by the plaintiff. The strike-out application is entirely ancillary to the summary judgment application. In the particular circumstances of the case, I consider that it is appropriate to order costs against the plaintiff on a higher basis. I make an order nisi that the costs of and occasioned by the plaintiff’s summons dated 16 December 2022 be paid by the plaintiff to the defendant, on an indemnity basis, to be summarily assessed on paper.

56.I further direct (1) the defendant should lodge and serve a statement of costs within 7 days from the date of this decision, (2) the plaintiff should lodge and serve written submissions of not more than 3 pages to set out any disagreement on the defendant’s costs within 7 days thereafter, and (3) the defendant should lodge and serve written submissions in reply of not more than 3 pages within 7 days thereafter. The time referred to in the above directions should include Saturdays and Sundays.

57.I make an order that the plaintiff’s own costs be taxed in accordance with legal aid regulations.

58.I cannot leave this decision without expressing similar sentiments as those made by Marlene Ng J in her Decision on Costs in the 2016 PI Proceedings as quoted in paragraphs 25 and 26 above. Despite the reminders given by her Ladyship over 3 years ago on the lack of progress of the plaintiff’s claim, I am dismayed by the decision of the plaintiff’s legal representatives to pursue the present applications, thus causing further delay in the proceedings. I direct the plaintiff’s solicitors to forthwith provide a copy of this Decision to the Director of Legal Aid.

Mr Meyrick Wong, instructed by Messrs Yu Sun Yau Mak & Lawyers, for the plaintiff

Mr Gary KH Chung, instructed by Messrs Cheung & Yeung, for the defendant