TING KAM YUEN v. VIATECH ENGINEERING LTD AND ANOTHER

TING KAM YUEN v. VIATECH ENGINEERING LTD AND ANOTHER

The court held that R2 is entitled to a full indemnity from R1 under s.24(2) of the Ordinance (including costs) but, applying the inherent jurisdiction and relevant stay factors, it was just and convenient to stay execution of that indemnity order pending determination of R1's substantive claim against its insurer Ming An because Ming An had a special, de facto role in the proceedings and R1's claim against Ming An was of substance and effectively a countervailing claim; conditional procedural steps and interest directions were ordered.

Citation
TING KAM YUEN v. VIATECH ENGINEERING LTD AND ANOTHER
Parties
Applicants: Applicants (Li Yuen Yau; Lee Chiu Lan; Ting Kam Yuen acting as lawful attorney for multiple widows/family members); 1st Respondent / Employer / Sub Contractor: Viatech Engineering Limited; 2nd Respondent / Principal Contractor: Zen Pacific Civil Contractors Limited; Insurer (ming An): Ming An Insurance Company (Hong Kong) Ltd; Insurer (sop / P&i): Shipowners Mutual Protection and Indemnity Association
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
6 August 2007
Case Number
DCEC242/2004
Procedural Posture
Employees Compensation (post Judgment Indemnity and Stay Applications Under S.24 of the Employment Compensation Ordinance) / Post Judgment Applications: Determination of S.24 Indemnity and Stay of Execution Following Assessment Hearing and Judgment Dated 20 March 2007
Outcome
R2 awarded full indemnity by R1 under s.24(2) but execution of the indemnity order stayed pending determination of R1's claim against Ming An; procedural directions and costs order made.
Legal Topics
Employer/principal Contractor Liability, Statutory Indemnity Under S.24 Employment Compensation Ordinance, Stay of Execution, Insurance Coverage Dispute, Costs Recovery Under Indemnity
Source Language
EN
Employment Law Insurance Law Civil Procedure Employer/principal Contractor Liability Statutory Indemnity Under S.24 Employment Compensation Ordinance Stay of Execution Insurance Coverage Dispute Costs Recovery Under Indemnity

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Parties

Applicants (Li Yuen Yau; Lee Chiu Lan; Ting Kam Yuen acting as lawful attorney for multiple widows/family members)

Applicants

Viatech Engineering Limited

1st Respondent / Employer / Sub Contractor

Zen Pacific Civil Contractors Limited

2nd Respondent / Principal Contractor

Ming An Insurance Company (Hong Kong) Ltd

Insurer (ming An)

Shipowners Mutual Protection and Indemnity Association

Insurer (sop / P&i)

Procedural Posture

Employees Compensation (post Judgment Indemnity and Stay Applications Under S.24 of the Employment Compensation Ordinance) / Post Judgment Applications: Determination of S.24 Indemnity and Stay of Execution Following Assessment Hearing and Judgment Dated 20 March 2007

Legal Issues

  1. 1 Whether the principal contractor (R2) is entitled to a full, indefeasible indemnity from the employer (R1) under s.24(2) of the Employment Compensation Ordinance
  2. 2 Whether the s.24(2) indemnity includes costs
  3. 3 Whether execution of the indemnity order should be stayed pending resolution of R1's claim against its insurer (Ming An) and whether the insurer can be treated as a de facto party for stay purposes

Ratio Decidendi

The court held that R2 is entitled to a full indemnity from R1 under s.24(2) of the Ordinance (including costs) but, applying the inherent jurisdiction and relevant stay factors, it was just and convenient to stay execution of that indemnity order pending determination of R1's substantive claim against its insurer Ming An because Ming An had a special, de facto role in the proceedings and R1's claim against Ming An was of substance and effectively a countervailing claim; conditional procedural steps and interest directions were ordered.

Court Disposition

R2 awarded full indemnity by R1 under s.24(2) but execution of the indemnity order stayed pending determination of R1's claim against Ming An; procedural directions and costs order made.

Orders

  • R2 to be fully indemnified by R1 for all compensations paid to any Applicant together with all costs and interests incurred pursuant to the order dated 20 March 2007
  • R1 to file a claim against Ming An under the contract of employees compensation insurance within 42 days