CITY SCAFFOLDING FACTORY LTD v. LEUNG MAN YI

CITY SCAFFOLDING FACTORY LTD v. LEUNG MAN YI

The court made the Commissioner\u2019s Form 21 certificate an order under s.6D(9) and permitted acceptance of the employer\u2019s sanctioned payment as satisfying the protective function of payment into court for the minor beneficiary, subject to compliance with O.80 RDC formalities (proper title, filing of the certificate and supporting documents and appointment/consent of guardian ad litem). This resolves the lacuna in the statutory scheme on protecting disability interests and avoiding surcharge where the beneficiary is under disability.

Citation
CITY SCAFFOLDING FACTORY LTD v. LEUNG MAN YI
Parties
Applicant: Applicant (employer); Respondent (mother/next Friend): Chiu Sui Ching for Leung Man Yi; Named Beneficiary (minor): Leung Man Yi
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
9 February 2017
Case Number
DCEC1944/2015
Procedural Posture
Employees' Compensation Ordinance Fatal Case S.6 D(9) Application to Make Form 21 Certificate an Order / Chamber Application/summons for Order; Adjourned Hearing and Directions Compliance
Outcome
Form 21 certificate made an order of the court; sanctioned payment accepted to protect minor\u2019s interest; leave granted for respondent to accept sanctioned payment through the mother subject to compliance with O.80 RDC
Legal Topics
Employees' Compensation Ordinance, Section 6 D(9), Form 21 Certificate, Sanctioned Payment (o.22 Rdc), Payment Into Court, Guardian Ad Litem, Order 80 RDC Compliance, Surcharge for Late Payment
Source Language
EN
Employment Law Workers' Compensation Civil Procedure Guardianship/minor Protection Employees' Compensation Ordinance Section 6 D(9) Form 21 Certificate Sanctioned Payment (o.22 Rdc) +4 more

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Parties

Applicant (employer)

Applicant

Chiu Sui Ching for Leung Man Yi

Respondent (mother/next Friend)

Leung Man Yi

Named Beneficiary (minor)

Procedural Posture

Employees' Compensation Ordinance Fatal Case S.6 D(9) Application to Make Form 21 Certificate an Order / Chamber Application/summons for Order; Adjourned Hearing and Directions Compliance

Legal Issues

  1. 1 Whether a Form 21 certificate issued by the Commissioner can be made an order of the court under s.6D(9)
  2. 2 Whether an employer can avoid the s.6D(3) surcharge by making a sanctioned payment (O.22 RDC) or payment into court in a s.6D(9) application
  3. 3 Whether a person under disability (minor) must be represented by a guardian ad litem and the consequences of non-compliance with O.80 RDC

Ratio Decidendi

The court made the Commissioner\u2019s Form 21 certificate an order under s.6D(9) and permitted acceptance of the employer\u2019s sanctioned payment as satisfying the protective function of payment into court for the minor beneficiary, subject to compliance with O.80 RDC formalities (proper title, filing of the certificate and supporting documents and appointment/consent of guardian ad litem). This resolves the lacuna in the statutory scheme on protecting disability interests and avoiding surcharge where the beneficiary is under disability.

Court Disposition

Form 21 certificate made an order of the court; sanctioned payment accepted to protect minor\u2019s interest; leave granted for respondent to accept sanctioned payment through the mother subject to compliance with O.80 RDC

Orders

  • Certificate (Form 21) made an order of the court pursuant to s.6D(9)
  • Leave granted for respondent to accept the employer\u2019s sanctioned payment as constituting protective payment for the minor\u2019s share to be received via the mother