Wong Ki v. Chan Lai Kun Formerly t/a Moon Shing Engineering Co and Others

DCEC 835/2007 & 74/2008
(consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 835 OF 2007

AND 74 OF 2008

BETWEEN

Before:  Her Honour Judge Mimmie Chan in Chambers (Open to Public)

Date of Hearing:  8 May 2009

Date of Delivery of Decision:  8 May 2009

D E C I S I O N

1.The 3rd Respondent, BOC, applies to vary the costs order nisi which I made on 16 April 2009, when I entered judgment in favour of the Applicant against the 4th Respondent, TS, with costs against TS and the 2nd Respondent, Moon Shing.  BOC now seeks an order that its costs of the action are to be paid by either Moon Shing, or TS, or Moon Shing and TS jointly and severally.  The application is opposed by Moon Shing and TS. 

2.BOC had successfully applied to be joined as a party in these proceedings by a Summons issued on 21 August 2007 under Order 15 of the Rules of the District Court, sections 43 and 44 of the Employees’ Compensation Ordinance, and rule 24(1) of the Employees’ Compensation (Rules of Court) Rules.  The application for joinder was granted by the Court with the consent of Moon Shing, and without objection from the Applicant.

3.Under Order 15 rule 6, the court may order to be added as a party in the proceedings :

(1)     any person who ought to have be joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(2)   or any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the court, it will be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

4.The purpose of Order 15 rule 6 is to prevent multiplicity of actions, to enable the Court to determine disputes between all parties to them in one action, and to prevent the same or substantially the same questions or issue being tried twice with possibly different results (see paragraph 15/6/7 Hong Kong Civil Procedure). 

5.Sections 43 and 44 of the Employees’ Compensation Ordinance concern the liability of an insurer under a policy of employees’ compensation insurance, and the right of an injured party to proceed against such an insurer.

6.Rule 24(1) of the Employees’ Compensation (Rules of Court) Rules relates to the Court’s joinder of any person appearing to be interested in the proceedings. 

7.It is accordingly clear from the parties’ consent to BOC’s application for joinder, and the order made by the Court allowing the joinder, that the parties and the Court were satisfied that there existed between BOC and the parties in the proceedings a common question or issue arising out of or relating to the claim or remedy sought in these proceedings, and that BOC has a direct and legitimate interest in the action and the outcome of the action, such that its presence is necessary to ensure that all matters in dispute between the parties may be completely determined, and to avoid multiplicity of actions and the same issues being tried again. 

8.It is also clear from the Judgment delivered on 16 April 2009 that the Court did determine the common issue affecting the parties, namely, the Applicant’s employer being TS, the 4th Respondent, and that TS was the sub-contractor of Moon Shing.  This determination affects BOC’s liability under its insurance contract with Moon Shing. 

9.Having thus determined the relevant issues in favour of the Applicant and BOC, and against TS and Moon Shing,  it follows that BOC as the party which has succeeded on these issues should be entitled to its costs against Moon Shing and TS, the parties contending otherwise. 

10.As made clear in the case of Ada Limited v Sing Tao Holdings Limited, CACV 131/1990, BOC having been added as the defendant at its own request should not be regarded as some form of indulgence having been granted by the Court, when it has the right to be joined.  Nor should it be deprived of the right to its costs when it has succeeded on the issue. 

11.For the above reasons, and also taking into consideration the matters highlighted in paragraph 47 of my Judgment, I now order that the costs order nisi be varied to further provide that BOC’s costs of the action, which include the costs of the Summons to vary issued on 24 April 2009, are to be borne by Moon Shing and TS jointly and severally, to be taxed if not agreed, with certificate for counsel. 

12.The 3rd Respondent’s solicitors should draw up the Order in Chinese for service on the 4th Respondent, and the 4th Respondent, if he wishes to have a copy of the Order and the reasons that I have just given to be translated in Chinese, may so apply.  

Mr Leung Chong-Shing, of Messrs Lily Fenn & Partners (assigned by DLA) for the Applicant

Mr A Sin, of Messrs S H Chan & Co., for the 2nd Respondent

Mr Ashok Sakhrani, instructed by Messrs Lau Chan & Ko, for the 3rd Respondent

4th Respondent, in person, present