MAN SAI MING v. MAINTOP ENGINEERING LTD AND ANOTHER

DCEC 228/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 228 OF 2014

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IN THE MATTER OF AN APPLICATION

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DECISION
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1.  The applicant (“Man”) claims compensation for alleged injury at work against the 1^st respondent (“Maintop”) as the employer and the 2^nd respondent (“Chi Shing”) as the alleged principal contractor from which Maintop contracted the work. Chi Shing now applies to strike out the claim against it on the ground that Chi Shing was never involved, and the work was subcontracted by its related company to Maintop. Man resists the striking out.

BACKGROUND

2.  The work in question took place on the 21^st Floor of Ho Lee Commercial Building, 38-44 D’Aguilar Street, Central.  There were 2 alleged accidents. The first one allegedly took place on 20 March 2012, when Man was dismantling wooden planks, and the second one allegedly took place on 23 March 2012, when Man was moving a tool box from the property to a goods vehicle.  On both occasions, he allegedly sprained his back.

3.  There is no dispute that Maintop was at the time the employer of Man.  This was admitted first by its Form 2 filed in August 2013.  The principal contractor however was not identified.  In November 2012, Maintop filed an amended Form 2, reporting that Chi Shing was the principal contractor.

4.  On 6 February 2014, the employees’ compensation application (“the Application”) was filed.  Maintop is said to be a subcontractor of Chi Shing, a principal contractor within the meaning of the Employees’ Compensation Ordinance.

5.  On 20 March 2014, the solicitors for Man received an email from C&I Limited (“C&I”), suggesting that Man has named the wrong respondent.  The documents subsequently disclosed reveal that Chi Shing and C&I are associated in that they share the same registered business address and director.  The solicitors for Man were requested to revise the Application.

6.  A week later, Maintop filed a re-amended Form 2.  Chi Shing’s name as the principal contractor was crossed out.  Somehow C&I’s name was put down but only to be crossed out as well.  Hanison Interior & Renovation Ltd (“Hanison”) was last stated to be the principal contractor.

7.  The answers filed by Maintop and Chi Shing do not help to clarify the situation.  Chi Shing filed its answer first, in July 2014, when it was not legally represented. There Chi Shing avers that it did not have any contractual relationship with Man in respect of what are alleged in the Application.  Such answer is curious, as there is never allegation of any contractual relationship between Man and Chi Shing.  In any event, Chi Shing denies everything alleged in the Application. However no positive assertion is made, including, as one would have expected, that C&I instead of Chi Shing should have been the principal contractor in respect of the work in question at the material time.

8.  Later in the same month, Maintop, through its solicitors, filed its answer whereby it admits that Man was its employee at the material time.  It also admits that it was “a sub-contractor” of Chi Shing.  No admission is made as to the rest.  As such, it may be said that the allegation that Chi Shing was the alleged principal contractor for the purpose of the Ordinance is strictly, albeit vaguely, not admitted.  Man is also put to proof of the happening and the circumstances of the alleged accidents.

9.  Chi Shing then disclosed an undated written contract between Maintop and C&I, and a summary of tender between Hanison and C&I dated 12 January 2012.  These tend to show that the work in question was contracted by Hanison to C&I, which in turn subcontracted to Maintop.  Chi Shing requested Man to withdraw the Application against it with costs.

10.  Witness statements were then filed.  That filed on behalf of Maintop explains that because of years of previous dealings with Chi Shing, contracts between them were concluded merely verbally, and Maintop did not have any clear idea which of Chi Shing and C&I was the actual contractor.  It was only after Man submitted his claim when Chi Shing informed Maintop that it was C&I which subcontracted the work in question to Maintop.  The undated Chinese contract mentioned above came about only then to set the record right.

11.  For the work in question, Maintop did send its invoices to Chi Shing back in 2012. However, the invoices were settled by cheque by C&I, and Maintop also issued receipt to C&I for the payment in the same year.  Both Hanison and C&I wrote to confirm that the work in question was indeed contracted to C&I in 2012, as evidenced by the summary of tender mentioned above.

12.  In the absence of resolution, Chi Shing took out its summons on 22 January 2015 for striking out.  The ground relied on was that the Application discloses no reasonable cause of action according to O.18, r.19(1)(a) of the Rules of the District Court.  It was subsequently amended to include the other grounds under O.18, r.19(1)(b) and (d).

DISCUSSION

13.  It is trite that an order for striking out will be made only in plain and obvious case.

14.  As far as the ground of no reasonable cause of action is concerned, the court will only consider the pleading of the claimant without reference to evidence: O.18, r.19(2).  A reasonable cause of action is one which, on the face of the pleading, if proved, affords one that has some chance of success.  On this basis, I do not see that Chi Shing could succeed on this ground.

15.  Evidence, as referred to above, will be relevant to the consideration of the application on the other grounds.  Chi Shing contends that the claim against it is scandalous, frivolous, vexatious or otherwise an abuse of process.  Essentially it says that the circumstances are clear that it was not involved in the work in question that allegedly led to Man’s injuries.

16.  The issue is a factual dispute.  The court will form a view of the matter, whilst taking care not to try the dispute on affidavits.

17.  On behalf of Man, it is argued that in the absence of actual plea by Chi Wing in its answer that some other party, such as C&I, was the contractor from which Maintop contracted the work in question, it is not permitted to adduce evidence to that effect.  I do not think such argument works for the purpose of the present application.  The parties are obviously on the same page to address the issue now.

18.  It may be said that the witness statement of Maintop and the post-contractual written confirmation between Maintop and C&I came into existence for purpose of contesting Man’s claim.  However, the summary of tender between Hanison and C&I for the work and C&I’s payment in settlement of Maintop’s invoice for the work in question back in 2012 are indeed contemporaneous documentary evidence.  There are now also the written confirmations of not only C&I but also Hanison.  The chance of falsity or mistake of that, which Man does not even suggest, is low.  This is what Chi Shing puts forward in discharge of its burden in the present application.

19.  On behalf of Man, it is argued that much may still arise out of cross examination during the trial, and it is premature to conclude on this factual dispute on affidavits.  In my view, such argument would not take Man’s case any further.  By resisting the present application, Man maintains that Chi Shing, and not C&I, subcontracted the work in question to Maintop.  This will be Man’s burden of proof, if the issue goes to trial.  What does Man have to say in support of that?

20.  In Man’s witness statement, there is merely one line that to his knowledge or belief, Chi Shing was the principal contractor at the time.  In opposing the present application, Man in his affirmation refers to nothing in addition to the background set out above as the ground of his belief that Chi Shing was the principal contractor.  Whilst he claims to have not heard of C&I or Hanison before, he offers nothing that may serve to contradict the contemporaneous evidence adduced by Chi Shing.  There is also no assertion that Chi Shing was somehow involved between C&I and Maintop so that it could become the party subcontracting the work in question to Maintop.

21.  In discharge of his burden of proof at the trial, what Man asserts as his belief must give way to the fact, which is indeed evidenced as discussed above.  If the evidence, oral and documentary, that Man would adduce in this respect ends here, I do not see how he manages to discharge his burden of proving liability against Chi Shing.  For the present purpose, Man lays no plausible foundation, if at all, for me to take the view that what are now before the court in terms of the evidence, and thus the above observation about the tiers of subcontracting, would possibly differ, if this issue goes to trial.

22.  In the circumstances, I am satisfied that Chi Shing has discharged its burden of showing that there is no way Man could prove that Chi Shing subcontracted the work in question to Maintop and was a principal contractor for the purpose of the Ordinance.  This is a plain and obvious case for striking out.

ORDER

23.  The claim against Chi Shing herein is struck out.

24.  I make a nisi order that Man should pay Chi Shing the costs of defending the Application and the present application, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel. Man’s own costs shall be taxed in accordance with legal aid regulations.  The parties have 14 days to apply for variation or the nisi order shall become absolute.