LUI PUI KING v. HUNG SHING ENGINEERING CO LTD AND OTHERS

DCEC 366/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 366 OF 2016

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DECISION

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1.  This is the application of the 2^nd and 3^rd respondents (“Po On” and “Hip Hing” respectively) to strike out the claim in this action against the 1^st respondent.

2.  The application is opposed by the applicant (“Mr Lui”), who has not otherwise offered to amend his Application until very late in the day.

3.  I am puzzled by the combative stance taken by both sides.

Background

4.  For the purposes of this application, there is no dispute that Mr Lui was injured on 14 January 2015 whilst working in the worksite in question.

5.  On 14 March 2015, Hip Hing (as the principal contractor of the worksite) notified the Commissioner of Labour of the accident by means of a Form 2 wherein Po On was named as the direct employer of Mr Lui.

6.  On 1 April 2015, Hip Hing filed a second Form 2 providing different particulars of employer.  It was stated that Po On was merely a sub-contractor (ie “二判”) and the following information was handwritten on the form:

“直屬僱主：

鴻盛工程有限公司 Flat B, Block 1, 10/F, Grandeur Garden Tai Wai”

商業登記：53436349 Tel: 60104689

7.  On 22 October 2015, Hip Hing filed a third Form 2 reverting to the particulars of employer provided in the first Form 2.

8.  On 23February 2016, Mr Lui commenced this action to apply for employee compensation naming “Hung Shing Engineering Company Limited (鴻盛工程有限公司)” as the 1^st respondent and joining Po On and Hip Hing as respondents. It is Mr Lui’s pleaded case, according to his Application, that he was “an employee employed by the 1^st and/or 2^nd Respondent(s)”, and that Hip Hing is the principal contractor of the worksite and Po On its sub-contractor.

9.  Attempts to serve the Application on the 1^st respondent have not been successful and the 1^st respondent has so far not entered an appearance.

Discussion & Disposition

10.  Po On and Hip Hing now apply to strike out the claim against the 1^st respondent on the ground that it is an abuse of process.

11.  According to their counsel Mr Cheng, the 1^st respondent is non-existent and any judgment against a non-existent company would be null and void and any judgment already entered should be set-aside (Burr v Anglo-French Banking Corp Ltd [1933] All ER 802).  Po On and Hip Hing had warned Mr Lui before but no action was taken to rectify the error.  Mr Cheng submits that to claim against a non-existent company is hopeless and vexations and Mr Lui’s persistence in making such a claim amounts to an abuse of the court’s process.

12.  It is now common ground that:

(a) the 1^st respondent company is non-existent; and

(b) Mr Lui’s direct employer at the time of the accident was “鴻盛工程公司”.

13.  Thus, the particulars of employer provided in all three Form 2 filed by Hip Hing were incorrect.  The Commissioner has apparently been misled too, as the Form 5 issued in relation to the accident also named “鴻盛工程有限公司” (my emphasis) as Mr Lui’s employer.

14.  It is true that Po On and Hip Hing’s solicitors (Hastings) had questioned the existence of “Hung Shing Engineering Company Limited (鴻盛工程有限公司)” as early as on 2 August 2016.  Mr Cheng further complains that Mr Lui’s side had omitted to issue letter before action (in breach of the relevant Law Society circular) and notice to the principal contractor (in breach of s 24(7) of the Employees Compensation Ordinance, Cap 282). Had that been done, so it was argued, the error could have been identified even earlier.

15.  In their reply dated 3 August 2016, Mr Lui’s solicitors (Cap Chan) explained that they had been relying on the particulars of employer provided in the second Form 2 and, insofar as the particulars had been inaccurately reported, “our client does not object any proposal for amending the name of the 1^st Respondent, we do of the view that the 1^st Respondent [sic] should bear the costs of the amendments, if applicable.”

16.  Unfortunately, the parties did not try to agree on a suitable amendment and resolve their differences on costs.

17.  Not until 21 September 2016 did Hastings admit in an open letter that Mr Lui’s direct employer at the time of the accident should be “鴻盛工程公司”.

18.  Cap Chan replied on the same date that “we are to take remedial action for the name of the 2^nd (sic) Respondent as soon as possible.  For saving time and costs, please withhold taking out any application at this stage.”

19.  Hastings then took out this application on 29 September 2016 without further reference to the other side again.

20.  In my view, the application does not help to resolve the situation.

21.  If I grant the application, Mr Lui would be left with his alternative claim against Po On as his direct employer which is not in accordance with the undisputed facts of this case.

22.  On the other hand, Hastings have explained in their supporting affirmations that they receive instructions from the insurer and that “without a claim against the direct employer, the insurer has no right to obtain information and assistance from it to deal with this claim.”  An order striking out the 1^st respondent’s claim (as prayed for) would not bring in Mr Lui’s true employer so that Hastings may take instructions from him.

23.  Having discussed the above with Mr Cheng and Mr Chan, there is now an agreement for Mr Lui’s side to correct the nomenclature of the 1^st respondent.  By consent, I grant leave to the applicant to amend the name of the 1^st respondent to “鴻盛工程公司” and to make consequential amendments to the Application in terms of the draft placed before me within 28 days from the date hereof

24.  On costs, I am of the view that each side should bear its own costs of this application:

(a) This is clearly a case of misnomer, caused by the confusion in the three Form 2 filed by Hip Hing.  It was not unreasonable for Mr Lui to initially rely on the information provided therein to formulate his claim.

(b) The parties should have worked together to agree on a suitable amendment once it had become clear that there was a misnomer.  Instead, Po On and Hip Hing applied for striking out when Mr Lui had already indicated that he would be agreeable to an amendment.  On the part of Mr Lui, he chose to fight the application and asked for a dismissal without volunteering any amendment until today. 

(c) In my view, both sides and their legal representatives have not acted in accordance with the underlying objectives of the civil justice reform, see Order 1A, rules 1 and 3.

25.  I shall now give directions for the further progress of this case.