LEUNG WAI LIN v. LAM SAN CHUEN t/a 123 STUDIO

LEUNG WAI LIN v. LAM SAN CHUEN t/a 123 STUDIO

The mother's acceptance of the sanctioned payment was irregular because she lacked authority to bind the absent father; the irregular acceptance was set aside and the proper remedy is joinder of the father, substituted service approved by a Master, filing of affirmation evidence of service and authority, and adjournment of the hearing so the father's substantive rights can be protected; leave was granted to accept the sanctioned payment out of time up to the adjourned hearing date.

Citation
[2018] HKDC 757
Parties
Applicant (in Representative Capacity for Family of Cheung Tsz Fung, the Deceased): Leung Wai Lin; Respondent (employer): Lam San Chuen trading as 123 Studio; Interested Party (father): Cheung Tak Wah
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
6 July 2018
Case Number
DCEC147/2017
Procedural Posture
Employees' Compensation (eco Ss 6 & 6 A) / Interlocutory Application for Determination and Apportionment Following Sanctioned Payment; Directions and Joinder Ordered
Outcome
Summons adjourned; acceptance of sanctioned payment by applicant set aside as irregular; father to be joined and served; leave granted to accept sanctioned payment out of time up to adjourned hearing date; costs reserved.
Legal Topics
Employees' Compensation Ordinance Ss 6 & 6 a, Apportionment of Statutory Compensation (schedule 7 Eco), Representative Capacity and Authority, Joinder and Substituted Service, Procedural Fairness and Setting Aside Irregular Steps
Source Language
EN
Employment Law Personal Injury/compensation Civil Procedure Employees' Compensation Ordinance Ss 6 & 6 a Apportionment of Statutory Compensation (schedule 7 Eco) Representative Capacity and Authority Joinder and Substituted Service Procedural Fairness and Setting Aside Irregular Steps

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Parties

Leung Wai Lin

Applicant (in Representative Capacity for Family of Cheung Tsz Fung, the Deceased)

Lam San Chuen trading as 123 Studio

Respondent (employer)

Cheung Tak Wah

Interested Party (father)

Procedural Posture

Employees' Compensation (eco Ss 6 & 6 A) / Interlocutory Application for Determination and Apportionment Following Sanctioned Payment; Directions and Joinder Ordered

Legal Issues

  1. 1 Whether the applicant (mother) had authority to accept the sanctioned payment on behalf of all family members, specifically the absent father
  2. 2 Whether the acceptance of a sanctioned payment by a representative without authority is irregular and liable to be set aside
  3. 3 Whether absent family members whose substantive rights will be affected must be joined and given notice

Ratio Decidendi

The mother's acceptance of the sanctioned payment was irregular because she lacked authority to bind the absent father; the irregular acceptance was set aside and the proper remedy is joinder of the father, substituted service approved by a Master, filing of affirmation evidence of service and authority, and adjournment of the hearing so the father's substantive rights can be protected; leave was granted to accept the sanctioned payment out of time up to the adjourned hearing date.

Court Disposition

Summons adjourned; acceptance of sanctioned payment by applicant set aside as irregular; father to be joined and served; leave granted to accept sanctioned payment out of time up to adjourned hearing date; costs reserved.

Orders

  • Summons adjourned to a date to be fixed before a Judge with 1 hour reserved; applicant may fix hearing date not earlier than 30 September 2018
  • Father (Cheung Tak Wah) to be joined as an interested party pursuant to Rule 24 of the ECR