WONG KAI YUNG v. CHIEF CONSTRUCTION CO LTD AND ANOTHER

WONG KAI YUNG v. CHIEF CONSTRUCTION CO LTD AND ANOTHER

The Rules and Practice Direction governing employees compensation proceedings do not provide for counterclaims; a counterclaim is in substance a separate application and must be brought by the appropriate r.16 application form. Consequently the Proposed Counterclaim is procedurally impermissible and leave to file it...

Source-derived case information.

Citation
WONG KAI YUNG v. CHIEF CONSTRUCTION CO LTD AND ANOTHER
Parties
Applicant: Applicant; 1st Respondent: Company Limited; 2nd Respondent: Man Kit Construction Company Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 April 2017
Case Number
DCEC498/2016
Procedural Posture
Employees Compensation Proceedings / Interlocutory Summons for Leave to File Fresh Answer and Counterclaim; Decision on Procedural Objection
Outcome
Summons for leave to file fresh Answer and Counterclaim dismissed; leave refused; First Answer and Counterclaim to be withdrawn
Legal Topics
Employees Compensation Ordinance S.10 Periodical Payments, Admissibility of Counterclaim in Statutory Employees Compensation Proceedings, Unjust Enrichment, Procedural Rules Rr.16 19 and PD 18.2
Source Language
en
Employment Law Compensation Law Civil Procedure Employees Compensation Ordinance S.10 Periodical Payments Admissibility of Counterclaim in Statutory Employees Compensation Proceedings Unjust Enrichment Procedural Rules Rr.16 19 and PD 18.2

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Parties

Applicant

Applicant

Company Limited

1st Respondent

Man Kit Construction Company Limited

2nd Respondent

Procedural Posture

Employees Compensation Proceedings / Interlocutory Summons for Leave to File Fresh Answer and Counterclaim; Decision on Procedural Objection

Legal Issues

  1. 1 Whether a respondent may institute a cross-claim by way of counterclaim in employees compensation proceedings governed by the Employees Compensation (Rules of Court)
  2. 2 Whether the Proposed Counterclaim is premature given applicant's unresolved s.10(5) application
  3. 3 Whether the Proposed Counterclaim in substance seeks an unlawful set-off prohibited by s.10(4) and whether the unjust enrichment plea is adequately pleaded

Ratio Decidendi

The Rules and Practice Direction governing employees compensation proceedings do not provide for counterclaims; a counterclaim is in substance a separate application and must be brought by the appropriate r.16 application form. Consequently the Proposed Counterclaim is procedurally impermissible and leave to file it is refused; respondents may pursue their claim by a proper r.16 application (likely Form 3).

Court Disposition

Summons for leave to file fresh Answer and Counterclaim dismissed; leave refused; First Answer and Counterclaim to be withdrawn

Orders

  • The respondents' Summons for leave to file a fresh Answer and Counterclaim is dismissed and the First Answer and Counterclaim are to be withdrawn
  • A costs order nisi that the respondents do pay the applicant the costs of the Summons, to be taxed if not agreed