Gurung, Ram Prasad v. Wls Contractors Ltd and Another

DCEC1392/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1392 OF 2005

--------------------

IN THE MATTER OF AN APPLICATION BETWEEN:

--------------------

Coram : His Honour Judge Chow in Chambers

Date of Hearing : 30^th March, 2006

Date of Handing Down Decision : 4^th April, 2006

___________________

DECISION

___________________

1.This is an application by the Applicant for an order that the costs of and occasioned by the application of the Order for Examination be paid by the Respondents to the Applicant, to be taxed, if not agreed.

2.On 21 November 2005, the Applicant took out an application for compensation in respect of injury sustained by the Applicant in an accident arising out of and in the course of his employment as an employee of the 1^st Respondent and/or 2^nd Respondent.

3.On 18 January 2006, the parties reached a settlement.  The Consent Application was signed, filed and served on 19 January 2006, whereby it was agreed, inter alias, that “the said sum of HK$45,000 shall be paid to the Applicant through his solicitors, Messrs. John M. Pickavant & Co. within 21 days from date hereof (i.e. 9 February 2006)”.  On 19 January 2006, Her Honour Judge Ng made an order in terms of the Consent Application in relation to the settlement.  On 10 February 2006, the Applicant’s solicitors demanded payment of the sum of $45,000.  On the same day, the Respondents’ solicitors wrote to the Applicant’s solicitors, requesting an extension of 7 days from 10 February 2006 to pay the said sum of $45,000.  On 11 February 2006, the Applicant’s solicitors wrote back to the Respondents, declining the request for extension.  On 13 February 2006, the Respondents’ solicitors wrote to the Applicant’s solicitors, stating that “…… our client is prepared to pay the interest on the settlement sum as from 10 February 2006 until full payment.”

4.On 15 February 2006, the Applicant’s solicitors wrote to the Respondents’ solicitors, saying “Please note that if we do not receive the settlement sum of HK$45,000 together with interest thereon before 10:00 a.m. on 16 February 2006, we have instructions to apply for an Examination Order against your client.”  No payment was made by the Respondents.

5.On 16 February 2006, the Applicant’s solicitors applied by way of an ex-parte application for an Order for Examination.  On 18 February 2006, an Order for Examination was granted by Her Honour Judge Ng.  On 20 February 2006 the sum of $45,000 together with interest was paid by the Respondent to the Applicant’s solicitors. 

6.The Respondent objected to the Applicant’s application to pay costs of and occasioned by the application for the Examination Order made by Judge Ng on the following grounds:-

“(a) The application for the Examination Order was taken out pre-maturely, unreasonably and inappropriately;

(b) The Examination Order should not have been made or should be set aside because at the time when the ex-parte application for an examination order was taken out, the Applicant’s solicitors had failed to make full and fair disclosure of all material facts;

(c) No order for costs should be awarded to the Applicant as the Examination Order was proven abortive when the judgment debt and interest thereon had been fully satisfied before the order was perfected;

(d) The examination order application was a clear abuse of court process.”

Ground (a)

7.The Respondents submitted that they wrote to the Applicant’s solicitors on 3 separate occasions.  From the correspondence they had demonstrated a strong desire to pay, together with interest thereon to be calculate at judgment rate, within a short time.  The delay in payment of the judgment date was for a period of 11 days in total.  Given the strong desire to pay as demonstrated by the Respondents through their solicitors, it is only reasonable and appropriate for the Applicant to wait until at least the end of the 7 days’ period state in the Respondents’ letter of 16 February 2006, i.e. until 21 February 2006.  In my judgment, this is not correct.  On 10 February 2006, the Respondents’ solicitors wrote to the Applicant’s solicitors, requesting an extension of 7 days.  On 15 February 2006, the Applicant’s solicitors wrote to the Respondents’ solicitors, saying that the sum of $45,000, together with interest has to be paid on or before 10:00 a.m. on 16 February 2006, otherwise they will apply for an examination order.  This met the Respondents’ request for an extension of time to pay, but the Respondents did not pay.  If the Respondents had had the intention to pay, they should have made the payment on or before 16 February 2006, as indicated in its letter dated 10 February 2006.  The Applicant is under no obligation to grant any further extension of time.  So it is not correct to say that the Applicant took the application for an Order for Examination pre-maturely, unreasonably and inappropriately. 

Ground (b)

8.The Respondents submitted that the fact that the Respondents, through their solicitors, had indicated repeatedly within a short period of time that they were in the course of preparing payment for the judgment debt and interest thereon, and the time that the Respondents sought the Applicant’s consent for an extension of 7 days to pay, had been deliberately omitted from the Affidavit, such fact amount to nothing less than material facts in the ex-parte application for an examination order.  The Applicant’s solicitors’ failure to disclose the material fact of the Respondents’ repeated indication to pay and their seeking the Applicant’s consent for an extension of time to pay was extremely unfair to the Respondents who were kept at the dark at the time of the ex-parte application.  It also deprived the Learned Judge who made the Order for Examination of a proper consideration of all the facts of the case before exercising her discretion to make the Order for Examination.  Therefore, the Order for Examination is bound to be set aside.  Further  or alternatively, it is submitted that had these omitted material facts been put forward for the Learned Judge’s consideration at the time when the application for an Order for Examination was taken out, the Learned Judge would have refused to make the Order for Examination and dismissed the application.  Therefore, it is submitted that the Order for Examination should not have been made in any event, or that it should be set aside in light of the Applicant’s solicitors’ failure to give full and fair disclosure of all material facts when taking out the ex-parte application.

9.The Respondents have not made an application to set aside the Order for Examination, although they opined that the Order for Examination should not have been made, or should have been set aside.  It is for Judge Ng to consider whether the facts omitted from the Affidavit are material facts to her decision.  I am not in a position to stand in her place, and make judgment on her behalf.  This submission should be made to Judge Ng, and not to me.  If the Respondents opine that the facts omitted are material facts, they should make an application to set aside the Order for Examination.  So long as the Order for Examination remains valid, the Respondents’ argument must fail. 

Ground (c)

10.The Respondents submitted that the judgment debt and interests thereon were paid before the Order for Examination was perfected.  Therefore the Order for Examination was proven abortive.  The issue is whether the making of the application for an Order for Examination is proper.  In my judgment the Applicant was fully justified to make the application for an Order for Examination, because the Respondents did not pay the debt on time, although an extension had been given to them to make the payment.  Hence the Applicant is entitled to the costs of and occasioned by the application for the Order for Examination.  The fact that the examination did not proceed is not a factor not to award costs to the Applicant for the making of the application. 

Ground (d)

11.The Respondents submitted that the Applicant’s solicitors conducted the matter in a grossly unreasonably way and their conduct amounts to an abuse of the process of the court.  The Respondents have listed out the facts in their written submission to support this argument, but I simply fail to find any substance in this ground.  I therefore order that the costs of and occasioned by the application of the Order for Examination be paid by the Respondents to the Applicant, to be taxed, if not agreed. 

Costs

12.I make an order nisi, to be made absolute in 14 days’ time, that the Respondents do pay costs of this application to the Applicant, to be taxed, if not agreed. 

The Applicant : represented by Mr. Pickavant of Messrs. John M. Pickavant & Co., Solicitors.

The Respondent : represented by Miss D. Chu of Messrs. Kennedys, Solicitors.