LEE YUI KAI v. TD CO., LTD AND OTHERS

DCEC 111/2015

[2018] HKDC 607

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 111 OF 2015

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J U D G M E N T

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1.  The Applicant (“A”) initially claims against the 1^st and 2^nd Respondents (“R1 and R2” respectively) for compensation under the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for his injury sustained whilst at work on 4 July 2014. There is no dispute that the accident would have been arisen out of and in the course of employment if either or both of R1 and R2 were found to be A’s employer. One of the questions for the trial initially was who was A’s employer at the time of his accident.

2.  Neither R1 nor R2 took out any insurance policy under the ECO at the date of accident. Pursuant to my order dated 12 July 2017, leave was granted to the Employees Compensation Assistance Fund Board to join in the proceedings as 3^rd Respondent (“R3”) for the limited purpose of examining witness and making submission.

3.  The Employees’ Compensation (Ordinary Assessment) Board (“OAB”) assessed the A to have suffered from 2% loss of permanent earning capacity. A certificate of assessment (Form 7) dated 31 July 2015 was issued[1]. Both the A and R2 were dissatisfied with the assessment. Each of them filed a Notice of appeal against the said assessment under s.18(1) of the ECO, respectively dated 9 December 2015 and 17 September 2015[2]. This was initially also another issue for the Trial.

4.  Trial was fixed for 4 days. It started as scheduled on 9 August 2017. At the end of the 2^nd day of trial, and after A and almost all R1’s witnesses had finished their evidence, Mr Alfred Cheng, counsel for R2, informed this Court that R2 was prepared to accept liability. Mr Patrick Lim, counsel for A, indicated that on this basis, A would withdraw his claim against R1. The outstanding issues between A and R2 then were therefore quantum which hinged on A’s earnings preceding the month of accident and his loss of earning capacity. Counsel for R3 indicated that on this basis, R3 would not participate further in the quantum argument between A and R2. The only issue for R3 was its costs.

5.  Though R1 was unrepresented, R1 asked for costs already incurred in the proceedings.

6.  This Court therefore:

i)   entered judgment for A against R2 on liability with quantum to be assessed;

ii)   granted leave to A to withdraw his claim against R1;

iii)   directed the parties to lodge with Court and serve on the others closing submission on costs and quantum on or before 18 August 2017; and

iv)   adjourned the matter further to 15 September 2017.

Brief Background

7.  A is a painter/decoration worker by occupation. He normally works on an as-and-when-required basis. On 4 July 2014 at about 1:30 pm, he was then working at Flat 1510, Vigor Industrial Building, 14 Cheung Tat Road, Tsing Yi, New Territories (“15/F premises”). He was asked by one Mr Lau Wing Yeung (“Lau”), a director of R1 who was then the tenant and occupier of the 15/F premises, to drill a hole in the concrete wall at height. While standing on the ladder and operating the pneumatic drill, he fell and sustained injury to his right hand. He immediately went to the Princess Margaret Hospital. Lau gave him $100 to take taxi.

8.  He was granted prolonged sick leave of 329 days from 4 July 2014 to 29 May 2015 (save and except 3 December 2014) for his injury. He was assessed to have suffered 2% permanent loss of earning capacity by the OAB on 17 July 2015. A certificate of Assessment (Form 7) was issued on 31 July 2015.

9.  At all material times R1 was the tenant and occupier of the 15/F premises. It is R1’s case that it intended to operate a hotel for pets on the 15/F premises. However, the contractor originally engaged by it to do the renovation, for reasons immaterial to the present case, had backed out. Through introduction of a management office staff of the building, R1 engaged R2 to carry out the unfinished works. A was only one of the many workers sent in to work for it by R2. R1 was of the firm view that R2 should be A’s employer.

10.  R2 is a renovation contractor. R2’s case is that he did not have time to take up R1’s engagement. Purely with a view to helping out, R2 introduced 3 workers, one of whom was A, to work for R1. They worked on the 15/F premises at the direction of R1’s directors. Wages and time of work were all fixed by R1. R2 denied to be A’s employer.

11.  A key issue for trial was whether R1 or R2 or both were A’s employers, or if he had an employer at all.

12.  Another issue that required this Court’s adjudication initially was A’s loss of earning capacity. A appointed Dr Fu Wai Kee while R2, on a without admission of liability basis, appointed Dr Ko Put Shui Peter to do a joint examination of A. They prepared a joint report dated 28 July 2016. Dr Fu considered that A had suffered 5% loss while Dr Ko took the view that the loss should remain at 2%[3].

The Quantum

13.  A and R2 wrote in on 18 August 2017. They manage to agree on the following:

   i)   R2 do pay A:

   a)   compensation under section 9 at $30,096;

   b)   compensation under section 10 at $183,920;

   c)   interest on the above compensation at half (½) judgment rate from the date of the accident to the date of the order; and at judgment rate until payment thereafter;

ii)    R2 do pay A its costs in pursuing R2 (with   certificate for counsel), to be taxed if not agreed. Legal Aid taxation for A’s own costs; and

iii)   R2 do pay costs of R3 (with certificate for counsel), to be taxed if not agreed.

14.  When the matter resumed on 15 September, A, R1 and R2 came to agreement that R1’s costs, no matter to be paid by R2 or A, be fixed at $6,000. In Mr Lim’s written submission regarding who should pay R1’s costs, he raised an issue regarding the construction of section 2(1)(b) proviso of the ECO. This Court therefore directed further submission be lodged. Only submission on A’s behalf was received.

The Outstanding Issues

15.  The outstanding matters that require this Court’s adjudication are:

i)   costs of A in pursuing R1: whether A’s costs    should include his costs of pursing the claim against    R1 and be paid by R2; and

ii)   costs of R1: who of A or R2 should pay R1’s costs agreed at $6,000.

16.  Mr Lim, counsel for A, invited this Court to order R2:

i)   to pay A’s costs in pursuing R1, with certificate for    counsel; and

ii)   R2 should also pay R1’s costs of $6,000.

17.  The gist of Mr Lim’s submission is that it is reasonable in the circumstances to sue both R1 and R2 in the beginning as A was in genuine doubt as to who was his employer. It is because there was evidence suggesting R1 being his employer. It was not in dispute that R1 did pay him each day after his work and R2 disputed liability by saying that he was only introducing A to work for R1. It was therefore reasonable for A to sue both R1 and R2 until R2 admitted liability. Either a Sanderson or a Bullock order should be made.

18.  On the other hand, it was submitted by Mr Cheng on R2’s behalf that A should pay for the above costs. A Sanderson or a Bullock order should not be made.

19.  It is Mr Cheng’s submission that nothing in A’s Application suggested that R2 did anything to create doubt for A as to the identity of his employer prior to the commencement of the present case. On the other hand, A appeared to maintain in his witness statements both R1 and R2 were his employer. However, when A gave evidence in the witness box, his evidence showed clearly R2 was his employer; and he had not suggested R2 had ever misled him in believing R1 being his employer. It is therefore A’s conscious choice of suing both R1 and R2. He should therefore be responsible for the risk of litigation in the hope that there would be a better chance of a favourable judgment. For this choice A should pay for the price. 

20.  The outstanding costs issues depend on whether, in the circumstances, it was reasonable for A to sue both the respondents until R2 admitted liability. It will be necessary to examine A’s oral evidence in Court, and then compare the same with his pleaded case, his witness statements and cases of the other parties.

The Applicant’s Evidence

21.  The material part of his evidence in Court is this. On 23 May 2014 he started working for R2 as a painting worker on the 17^th floor of the same building (“17/F premises”) earning $950 per day. His work there was substantially completed on 31 May 2014. On that day, he was told by Mr To Hung Kei, i.e. R2, that starting the next day, i.e. 1 June 2014, he would work at the 15/F premises as painter[4] at the daily rate of $1,200 per day. However, R2 said A had to pay him back $100 on a daily basis as introduction fee (“介紹費” in his oral evidence). He did not raise any query and agreed because it was not uncommon for this sort of payment to be asked for in the trade. He called this “head tax” (“人頭税” in his oral evidence). He disagreed with R2’s evidence[5] that the $100 per day was a fee for renting of tools for use at the 15/F premises. He said he had never been so told by R2.

22.  Apart from himself, there were 2 other workers sent to work at the 15/F premises by R2 on 1 June 2014. They were Lee Kin Ming (“李見明”) (“Ming”), a mason worker, and Chan Chiu Cheung (“陳紹祥”) (“Cheung”)[6], an electrician. He said that he was introduced to work for R2 by Ming, and had worked for R2 on 2 previous occasions. Ming and he are clansmen coming from the same village in the mainland. As before, he did not sign any written contract with R2 this time.

23.  On 31 May 2014, he and R2 transported a trolley of tools, which included electric drills, pneumatic drills and other electricity-driven tools from the 17/F premises to the 15/F premises for use there. He did not know what were the arrangement between R1 and R2. Neither did he know who bought the paints for use on the 15/F premises. He presumed they were bought by R1[7].

24.  It was A’s evidence that he worked between 15 to 20 days between 1 June and 4 July 2014 at the 15/F premises. If he did not show up he would call Lau of D1. He agreed to the suggestion of Ms Leung, counsel for R3, that it was he who decided whether to show up. However, he said as a matter of courtesy he would notify Lau. While working on the 15/F premises, he was paid in cash of $1,200 by Lau of R1 every day immediately after work. Although his wages from 23 to 31 May 2014 (i.e. while still working for R2) remained outstanding as at the time of accident, he did not immediately ask R2 for it. During re-examination he said he had never been told by R2 that while working at the 15/F premises, he would be paid cash daily. However, he welcomed the way in which he was paid. During his work at the 15/F premises he spent about half his time as a painter while the other half doing other works as might be directed by Lau from time to time, e.g. welding, drilling.

25.  He said when he started to work at the 15/F premises, the work for which he was initially engaged at the 17/F premises required touch-up. He recalled on one occasion, upon R2’s requests, he and Ming had to return to the 17/F premises after 6 pm to do such touch-up works for R2. He worked up to about 7 pm that day.

26.  After the accident, he asked Lau of R1 twice to pay him several thousand dollars as compensation. He explained since he was prevented from work by the injury sustained while working for R1, it would be natural for him to ask for compensation from R1. Lau, however, told him to go to R2 for compensation on the ground R2 should instead be his employer. Lau deposited his wage for the date of accident into R2’s account. R2 then called him asking for his account number and transferred $1,200 to him. He admitted that in his report[8] and statement[9] to the Labour Department both of 8 August 2014, he described R1 as his employer. However, he then had received no legal advice.

27.  Regarding wages between 23 to 31 May 2014, he said some time after the accident, he called R2 for payment. They eventually met up in a restaurant. He was paid his outstanding wages after deducting $100 for each day of work at the 15/F premises. He has no re-collection of how much he ended up receiving from R2. He admitted prior to working at the 15/F premises and in 2014, his average daily earning was around $950. Now, he had resumed work as a renovation worker. His daily rate was still around $900 to $950. He admitted never before had he earned $1,100 or $1,200 a day except working on the 15/F premises.

The Application

28.  A issued the present Application under the ECO through his present solicitors Alan Wong & Co on 21 January 2015. It was amended subsequently but the amendment only concerned A’s average daily wages over respectively the past 12 months and for the month immediately preceding his accident. Both figures were amended from $1,200 to $1,100. The Application and the amended version were drawn up in English. The Application was verified by A through a statement of truth.

29.  Paragraph 1 of the Application stated that A was “a plasterer employed by the Respondents” (my emphasis). No alternative or other grounds have been pleaded. In subsequent paragraphs, A went on to plead the circumstances of the accident, his earnings and details of his injury. In paragraph 9, it was stated the Respondents (my emphasis) were fully aware of the accident. It follows from his pleadings that from the very beginning, A (or his legal advisors) regarded A’s case simple and straight forward. Both R1 and R2 were his employers.

R2’s Answer & His Witness statements

30.  In R2’s Answer, he basically denied he being A’s employer and put A to strict proof of everything. It is fair to say that in his Answer, R2 had neither pleaded nor suggested in any way A was employed by R1[10].

31.  R2 filed and served a witness statement dated 3 November 2015 and a supplemental one dated 30 March 2017. After perusal of these statements it is also fair to conclude that he had never asserted R1 being A’s employer. He simply set out the facts he considered relevant and said that by reasons thereof he should not be considered A’s employer.

R1’s Answer & Witness Statements on its Behalf

32.  On the other hand, apart from denying being A’s employer, R1 in its Answer suggested that R2 should be A’s employer as all matters concerning time, payment and mode of work were arranged and tools provided by R2[11].

33.  One Ms Chan, a director of R1, filed a witness statement dated 17 November 2015 on its behalf. She basically set out how and under what circumstances R1 engaged R2 as its contractor to renovate 15/F premises. A was only one of R2’s workers working there. Another witness Lau filed a statement dated 18 November 2015. The gist of Lau’s statement was that it should be R2 instead of R1 who was A’s employer[12].

A’s Witness Statements

34.  A prepared 2 statements respectively dated 19 November 2015[13] and 2 March 2017[14] (respectively “A’s 1^st statement” and “A’s 2^nd statement”). Both were written in Chinese.

35.  On the most controversial issue of employment relationship, A did not appear to particularly address it in both statements. He did not elaborate in his 1^st statement why he considered both R1 and R2 his employers. It is noted in his 1^st statement he said the following:

i)   prior to working for R1 on 1 June 2014, he knew R1 would operate a hotel for dogs on the 15/F premises. He was told of this by R2 on 30 May 2014 (第二答辯人通知本人由…起到…第一答辯人的狗酒店工作)[15]; and

ii)   when he said his daily income was $1,200 “during his employment with the respondent(s) (答辯人)”, he did not distinguish whether he was then referring to R1 or   R2 or both as it was not apparent from his Chinese statement[16]. It can be inferred that he was referring to    R1, as he had never ever received $1,200 a day from R2.

36.  In A’s 2^nd statement, A stated:

i)   he started to work for R2 as from 23 May 2014. He went to work at the 15/F premises at R2’s direction (按第二答辯人指示由6月1日開始…在15字樓工作)[17] (my emphasis);

ii)   R2 would deduct $100 from the $1,200 he received from R1 for the purpose of setting off the unpaid wages owed to him by R2[18];

iii)   because Lau of R1 paid him $1,200 every day after work, he therefore believed R1 was also his employer (故本人相信第一答辯人亦為本人的僱主)[19] (my emphasis); and

iv)   the wages for his day of accident was paid to him by    R1 through R2[20].

Form 2

37.  In his notice of accident (Form 2)[21] and declaration to the Labour Department[22], A stated that R1 was his employer.

38.  However, during cross-examination by R2’s counsel on these documents, he maintained R2 also his employer because R2 was the one who directed him to work at the 15/F premises. However, he also regarded whoever paid him wages would be his employer[23].

Discussion

39.  The principles governing the grant of a Sanderson or Bullock Order are well settled. There is no dispute between counsel of the parties on these principles. In Chong Ngan Seng v China Harbour Engineering Company Limited & Ors[24], the Court of Appeal (“CA”) stated:

“5. Where a plaintiff sues a number of defendants, the court may order an unsuccessful defendant to pay the costs of a successful defendant. It may do so in one of two ways: either by a Sanderson order^[25] whereby the unsuccessful defendant is ordered to pay the costs of the successful defendant directly; or by a Bullock order^[26] whereby the plaintiff pays the costs of the successful defendant but is indemnified in respect of that liability by the unsuccessful defendant, thereby indirectly requiring the unsuccessful defendant to pay those costs.

6. In deciding whether to make a Sanderson or Bullock order and, if so, which of the two orders to make, the court is exercising its discretion.

7. It was common ground that, in deciding whether to exercise that discretion, the court looks to see whether it was reasonable in all the circumstances of the case for the plaintiff to join the successful defendant in the action: see Leung Lai-ha and Another v Hon Sau-ling and Another [1993] 1 HKLRD 86, a decision of this court, and see also, as a recent example of the statement of this principle, the judgment of Bharwaney J in Fung Chun Man v Hospital Authority [2012] 1 HKC 531 at §5.”

(Emphasis added)

40.  As explained by Bharwaney J in [5] of Fung Chun Man (supra), the rationale for a Sanderson or Bullock order is that the costs of suing the wrong party form part of the reasonable costs of the action, and the following passage of Vaughan Williams LJ stated in Besterman v British Motor Cab Co Ltd [1914] 3 KB 181 at p.187 was referred to in [5] of Fung Chun Man, supra in support:

“… The proper way is - do not join any defendant unreasonably; if the facts are such that it is reasonable to join them both and reasonable to be in a state of uncertainty as to which of the two is the really guilty one, then it is part of the reasonable costs of the action that the costs of the action which you have launched against one of those defendants, and who has succeeded in defending himself, should be borne by the man who is to blame.”

41.  The Tribunal will be guided by the aforesaid principles in approaching the liability of A and R2 respecting the costs of R1.

42.  From the matters set out between [21] to [38], this Court observes:

i)   from R2’s pleadings and the witness statements, R2 only denied he being A’s employer. He had never positively asserted or blamed R1 being A’s employer. At least A put in no evidence indicating that as at the date of the Application, R2 did not do anything positively to mislead or make A confused as to who A’s employer was;

ii)   A seems to have a conception (or misconception) that whoever pays him for his service would be his employer. He therefore reported to the Labour Department that R1 was his employer. Payment may perhaps be one of the many considerations for an employment relationship but it is normally not a decisive factor. According to his evidence in Court, he   then had not yet received any legal advice. From what A had told the Court during cross-examination, there was no doubt he firmly believed R2 being his   employer while working for R1. That may perhaps explain why when the Application was issued, both R1 and R2 were named as his employers. Such choice,   as discussed above, was not prompted by anything   from R2. His state of mind may perhaps provide an   explanation as to why he chose to sue both. However, whether it will amount to a good excuse for including an unsuccessful party at the start is entirely a different matter; and

iii)   Despite both R1 and R2 denying being his employer, A’s 2 written statements were too brief on this most controversial issue. They did not touch upon many   other essential factors necessary for determination of an employment relation, e.g. who had provided tools for his work, and whether A was employed for the purpose of R1’s and/or R2’s trade or business, given section 2 of the ECO. At trial, apart from confirming that he was asked to work on the 15/F premises by R2,   A also told that he and R2 had transported a trolley of   R2’s tools to R1’s premises for use there. This was an important factor in favour of R2 being his employer, and to a certain extent, discounted R1 being A’s   employer. However, matters on provision of tools was   totally lacking in the statements. As observed by this Court, A was very forthcoming and straightforward in   his evidence. There was no question that he would intentionally withhold anything until trial. On the   other hand, A’s statements are sufficient to ring a bell. He has stated clearly as early as in his 1^st statement (in   fact in both statements) that R1 was going to operate a   dog hotel on the 15/F premises for which he was engaged to   renovate[27]. The question of whether or   not section 2(1)(b) proviso is engaged must arise.   The materials stated in A’s statements, though simple, are, in my judgment sufficient to prompt further   investigation into these disputed issues. It will shed light as to whether R1 should be made a party when commencing the Application.

43.  Under section 2 of the ECO, an “employee” for the purpose of the ECO is defined basically to mean any person who has entered into a contract of service with an employer. However, the proviso under section 2(1)(b) excludes:

“any person whose employment is of a casual nature, and who is employed otherwise than for the purpose of the employer’s trade or business …”

44.  As said above, A knew R1 was intending to operate a dog/pets hotel at the 15/F premises after the renovation. His employment for R1 at the 15/F premises was apparently of a casual nature. Obviously, he was not employed for the purpose of R1’s trade or business, i.e. for its dog hotel business. Had these obvious facts been investigated earlier, it would not have been difficult for A to come to a view R1 might not be his employer. It was not raised or investigated until Mr Lim, and I think correctly and professionally, raised this in his opening skeleton.

45.  On the other hand, section 3 of the ECO defines an “employer” to include:

“… where the services of an employee are temporally lent or let on hire to another person by the person with whom the employee has entered into a contract of service …, the latter shall, for the purposes of this Ordinance, be deemed to continue to be the employer of the employee whilst he is working for that other person…”

46.  In the present case A as a renovation worker worked for R2 who was a renovation contractor. He had worked for R2 before at different locations, and this time at the 17/F premises. After the work on the 17/F premises had substantially completed, A was directed by R2 to work at the 15/F premises for R1 with R2’s tools. He, however, was asked to work again for R2 at the 17/F premises while working for R1. He was apparently still under the control of R2. Apparently, the present situation was caught by section 3: R2 remained A’s employer when he let on hire A’s service to R1, even R1 was not considered A’s employer.

47.  It does not appear from the evidence that A or his legal advisor has, before suing R1 and R2, addressed their mind to these matters which would point to the suggestion R1 not being A’s employer.

48.  By reasons of the above, this Court is not satisfied that A was really in genuine doubt as to who was his employer. Even if (for the purpose of discussion) he might have misconception or difficulty in deciding who was his employer, they were not caused by R2. It is a question that can only be answered by A and/or his legal team after a full investigation of the facts. A mere denial by R2 is insufficient for A to drag in R1 and shift any adverse consequence that may arise to be shouldered by R2.

49.  Further, this case was not proceeded on basis of A being an employee of one respondent who was a sub-contractor of the other. The pleaded case wasboth (my emphasis) were R1 and R2 A’s employer. In my judgment, it was quite an unusual situation and would require further pleaded facts for justification, which were totally lacking in the present case. It will therefore be difficult to understand what problems or doubts then A had at the material time. In the Court’s judgment, had the matter been more thoroughly investigated, A should not have sued R1 or should have discontinued wholly as against R1 after investigation when this issue was raised in the Answers. Choosing the right defendant to sue is an incident of litigation. The duty rests on the party suing. It will only be in limited circumstances as outlined above that the Court will regard the costs of suing a successful defendant being the plaintiff’s reasonable costs and thus will direct them to be borne by the unsuccessful defendant. Having a difficulty in choosing who to sue per se is no reason for suing all.

50.  In the closing submission, Mr Lim tries to argue on the Applicant’s behalf that the proviso to the definition of employee under section 2(1)(b) inapplicable or otherwise should not be allowed to operate and thus A is not excluded from being R1’s employee.

51.  Mr Lim submits no one can rely on the proviso because it has not been pleaded. He referred me to the CA’s decision in On Hang Chu v Chan Ngun[28] in which Hon Cheung JA considered in order to rely on the proviso, it has to be expressly pleaded.

52.  In On Hang Chu (supra), the plaintiff was a construction worker and the defendant was in the construction trade. The plaintiff initially worked for the defendant in flat A. He was later asked to work in the adjacent flat B where he met an accident. Both flats were owned by companies of which the defendant was a shareholder. The defendant denied being the employer of the plaintiff because the work in flat B had been contracted to the plaintiff together with others.

53.  After trial, the court found as a matter of fact the defendant being the plaintiff’s employer while working in flat B. The trial judge found that despite being a shareholder of the owner of flat B, the defendant decorated flat B for gain and thus for the purpose of trade and business. The plaintiff, though a casual worker, was employed by the defendant for the purpose of the defendant’s trade and business. The proviso was held not applicable.

54.  The defendant in On Hang Chu (supra) brought the appeal attacking the finding of the trial judge in relation to the proviso in section 2(1)(b). The CA concluded the defendant was not entitled to rely on the proviso as it was not pleaded.

55.  There is no doubt this Court is bound by On Hang Chu (supra). There is also no doubt that neither R1 nor R2 had relied on the said proviso and thus it was not pleaded, and the dispute did not turn on the proviso. However, that will not prohibit this Court to take the said proviso into account in the context of a Sanderson or Bullock order, or whether to grant such order at all. It is because when the employment relation was in dispute, one would be expected to re-assess one’s own case by reviewing the facts against relevant legal tests for employment relationship (including the apparent statutory definitions of employer and employee under the ECO). After a reasonable review, the chance of R1 being A’s employer would be slim, and the pursuit or otherwise of R1 will become apparent. In the Court’s judgement, On Hang Chu (supra) cannot assist A.

56.  Mr Lim also seeks to argue that R1 planned to renovate the 15/F premises and to use it solely as a hotel for pets. Renovation for which A was engaged was preparatory work to start a new business. It had a close connection with the purpose of the new business. The business cannot commence without the renovation works. The work A did at the 15/F premises therefore had a close connection with the purpose of R1’s business of a pet hotel. The proviso is therefore not engaged according to Mr Lim.

57.  I cannot accept Mr Lim’s submission. It is too far-fetched, artificial and against common sense. As pointed out by the learned editors of Willis’s Workmen’s Compensation Acts[29], there can be no general principle for determining whether an employee was employed for the purposes of the employer’s trade. Each case has to depend on its own fact. In my judgment, a person employed to renovate a premises for use as a dog hotel cannot be regarded as employed for the purpose of dog hotel operator’s trade or business.

Disposition

58.  For the above reasons,

i) this Court made an order in terms set out in [13] above;

ii) A do pay R1’s costs of the proceedings, assessed summarily at the agreed amount of $6,000;

iii) R2 is not liable for A’s costs in proceeding after R1; and

iv) A’s own costs be taxed in accordance with the Legal Aid Regulations.