Case Document

100%Judiciary

DCEC 887/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 887 OF 2002

DCEC 317/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 317 OF 2004

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IN THE MATTER OF AN APPLICATION BETWEEN

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	CHIU KWOK HUNG BAN	Applicant
	and
	NG FU WING trading as WING KEE AQUARIUM ENG CO	1^st Respondent
	LAU PAK YIN (劉伯賢)	2^nd Respondent
	LEE CHI KWONG trading as HOYOH CONSTRUCTION DECORATION CO	3^rd Respondent
	SEEDTRON DEVELOPMENT CONSULTANTS LIMITED	4^th Respondent

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(Consolidated pursuant to the Order dated 5^th December 2005)

Coram: HH Judge E. Yip in Court

Dates of Hearing: 30^th & 31^st December, 2009 and 4^th January 2010

Date of Handing Down of Judgment: 1^st February 2010

Date of Handing Down of Decision: 26^th March 2010

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Decision on Costs

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Background

1.On 1 February 2010, this Court handed down its Judgment whereby the Applicant partially succeeded in his claim against the 2^nd, 3^rd and 4^th Respondents but lost his whole claim against the 1^st Respondent. An order nisi for costs to follow the event was made at the end of the Judgment.

2.The Applicant applies to vary the costs order for a Sanderson or Bullock Order so that the 1^st Respondent’s costs shall practically be borne by the 3^rd and 4^th Respondents. The 1^st Respondent does not oppose a Bullock Order but opposes a Sanderson Order. The 2^nd Respondent has been absent well before the present action and has remained so up till now. The 3^rd Respondent, understandably as he acts in person, has made no application or submissions on costs. The 4^th Respondent opposes a Sanderson or Bullock Order, and in addition, applies to reduce the Applicant’s costs to reflect the Applicant’s limited success in the present action.

3.No hearing is held as the parties have filed full written submissions on this issue of costs.

Appropriateness of Sanderson or Bullock Order

4.The precondition of either a Sanderson or Bullock Order is that the plaintiff has had difficulty ascertaining which defendant to sue and has properly, in the court’s view, sued two defendants in the alternative but succeeds against only one [HKCP 2010, Vol 1, 62/1/5 & 62/1/6].

5.Mr. Wong acting for the Applicant submits that the 1^st Respondent’s conduct had brought about the present action because he had not checked properly before signing Form 2, which stated that he was the Applicant’s employer. I think the 1^st Respondent’s stance, of being misled by the 2^nd Respondent to sign Form 2, had been made clear and consistent at the stage of pleadings. On the contrary, the Applicant had throughout been content with the state of his own pleadings which worded his claim against each respondent as “and/or”. The Applicant only sought to clarify his stance vis-à-vis each respondent before trial commenced. However, he still maintained his claim against the 1^st Respondent on the one hand as against the 3^rd and 4^th Respondents on the other hand.

6.Apart from Form 2, there was no evidence to against the 1^st Respondent. The Applicant’s cause of action against the 1^st Respondent was patently inconsistent with that against the other respondents. When the pleadings had closed, there would have been no difficulty ascertaining which parties to sue. Since then, the Applicant ought not to have proceeded against the 1^st Respondent. In the premises, his application for a Sanderson or Bullock Order must fail.

Applicant’s partial success and costs

7.In deciding what order for costs to make, the court must take into account the extent to which a party has succeeded [HKCP 2010, Vol 1, 65/5/7].

8.Mr. Kwong acting for the 4^th Respondent submits that the Applicant should only be entitled to 25% of the costs from the 4^th Respondent as the Applicant had failed in most issues as follows and only obtained less than 15% of the claim:

(1) Failing to prove 20 days per month as the level of monthly wages as the Court found only 9 days;

(2) Failing to prove he earned $16,000 per month as the level of monthly wages as the Court found only $7,200;

(3) Failing to persuade the Court to use the Hong Kong Paper Mill Formula;

(4) Failing to prove sick leave of 801 days as the Court found only 492 days;

(5) Failing to recover interest for 2 lengthy periods before trial due to inordinate delay in pursuing the action.

9.In my judgment, the most important issue, which the Applicant had failed to prove, was the number of working days hence monthly wages. As a result, the award was substantially less than his claim. Other parts of the award based on the sick leave period and interest were less important issues of the action.

10.I agree with Mr. Kwong’s submissions that the Applicant should only get 25% of his costs with certificate for counsel from the 4^th Respondent. I make the same order in respect of the Applicant’s costs to be paid by the 3^rd Respondent as both the 3^rd and 4^th Respondents are in the same situation.

Costs of present submissions

11.The Applicant shall pay the costs of the 1^st and 4^th Respondents’ submissions with certificate for counsel. The Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations. The costs order for this argument on costs shall become absolute after 28 days from today.