CHAN WAI KEUNG v. LI YAU HING AND ANOTHER

DCEC 1232/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1232 OF 2010

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D E C I S I O N

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1.  The 2nd respondent has applied today for a variation of the costs order of my judgment of 11 April 2013.

2.  His application is that the 2nd respondent’s costs should be borne by the 1st respondent because the 1st respondent has shifted the blame onto the 2nd respondent for being the applicant’s employer throughout.  The 2nd respondent also asks for certificate for counsel for the conduct of these proceedings.

3.  The 2nd respondent’s application is supported by the applicant, but opposed by the 1st respondent.

4.  Mr Yip, representing the 1st respondent, explained that the 1st respondent had merely pleaded that he was acting as an introducer introducing the applicant as the worker on this job.

5.  On the other hand, the applicant’s pleaded case was both the 1st and/or the 2nd respondent was his employer.  He further pleaded the alternative case that the 2nd respondent was the main contractor and the 1st respondent was the subcontractor on this job.

6.  It was my finding after trial that the 1st respondent was the employer of the applicant and the 2nd respondent was the owner of the house, not the main contractor or the employer of the applicant. 

7.  Therefore, the claim against the 2nd respondent was dismissed at the end of the trial.

8.  Both Mr Chung and Mr Lau, representing the 2nd respondent and the applicant, submitted that costs should follow the event and the 2nd respondent’s costs should be borne by the 1st respondent, following the Sanderson rule that the unsuccessful defendant should bear the costs of the successful defendant.

9.  After careful consideration of the submissions, I accept that the trial was prolonged because of the issue to find out who was the applicant’s employer.  Even though the facts of the case were not complicated, the particular issue was.

10.  I have also considered that had the 1st respondent not shifted all the blame to the 2nd respondent, the trial would have taken much less time and the issue straightforward.

11.  After careful consideration of the submissions of counsel, I agree the costs order should be varied and the Sanderson order should apply, and I have also been assisted by counsel and there should be counsel’s certificate for the trial.

12.  The costs order is therefore varied as follows:

(1) The applicant and the 2nd respondent’s costs to be borne by the 1st respondent, to be taxed if not agreed;

(2) the 2nd respondent’s costs before he was granted Legal Aid to be taxed on a party and party basis.  After he was granted Legal Aid, his costs shall be taxed in accordance with Legal Aid Regulations;

(3) the applicant’s costs to be taxed in accordance with Legal Aid Regulations;

(4) counsel’s certificate for these proceedings.

(Discussion re costs)

(5) costs of today’s application and hearing be borne by the 1st respondent, to be taxed if not agreed, with certificate for counsel;

(6) all parties’ costs to be taxed in accordance with Legal Aid Regulations.