Trinity General Insurance Company Limited v. To Ying Kow and Another

HCMP001291/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: The Hon. Mr. Justice Jones in Chambers.

Date of hearing: 10th June 1985.

Date of delivery of Judgment: 10th June 1985.

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JUDGMENT

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1. This is an application by the plaintiff the Trinity General Insurance Company Limited for a declaration that it is entitled to avoid a policy of motor insurance which was dated the 4th May 1984 which it entered into with the 1st defendant. The two defendants were the two authorised drivers to drive the motor vehicle under the policy of insurance. Both defendants appeared before main person. On the 2nd September 1984 the 2nd defendant whilst driving the vehicle knocked down a pedestrian who died as a result of the injuries that she suffered. The plaintiff seeks to avoid any liability under the policy on the grounds of non-disclosure of a material fact namely that the 2nd defendant had been convicted for an offence of careless driving within a period of five years before the date of the policy. No claim has yet been made against the plaintiff under the policy for damages on behalf of the victim or by the policy holder. However, the plaintiff formally repudiated liability by a letter to the 1st defendant dated the 19th March 1984.

2. Mr. Yu who appeared for the plaintiff placed reliance upon Section 10(3) of the Motor Vehicles Insurance (Third Party Risks) Ordinance Cap.272 which provides as follows:

"         No sum shall be payable by an insurer under the foregoing provisions of this section, if, in an action commenced before, or within 3 months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy, he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it."

3. While I agree with Mr. Yu that a declaration may be obtained under this section, I do not consider that it is appropriate to make a declaration at this juncture. Reference need only be made to the Commentary in the Supreme Court Practice 1985 Vol.1 p.218 at 15/16/2 that a declaration can only be made after proper argument and the court will not generally decide an academical or hypothetical question. Nor can a person against whom no claim has been made obtain a declaration that no such claim exists. In addition it is clear that a declaration will not be made against a person who has asserted no right nor formulated any specific claim. See Commentary on p.218 at 15/16/3.

4. No authority was cited by Mr. Yu to support the proposition that a declaration could be made when no formal claim had been submitted, and where the exercise as here is purely academic. The proper time to raise the issues put forward by the plaintiff will be after full argument at any trial that may take place. For the above reasons and in the exercise of my discretion the application for a declaration will be refused.

Representation:

Mr. Denis Yu (Fairbairn & Kwok) for plaintiff.

Mr. To Ying Kow, 1st defendant, in person.

Mr. To Hoi Yip, 2nd defendant, in person.