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 full indemnity from R1 under s.24(2) including costs; however, because R1 has a substantive and arguable claim against its insurer Ming An and Ming An has effectively taken over conduct of the defence making it a de facto interested party, it is just and convenient to stay...

Source-derived case information.

Citation
TING KAM YUEN v. VIATECH ENGINEERING LTD AND ANOTHER
Parties
Applicant: Li Yuen Yau; Applicant: Lee Chiu Lan; Applicant: Ting Kam Yuen; 1st Respondent: Viatech Engineering Limited; 2nd Respondent: Zen Pacific Civil Contractors Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
6 August 2007
Case Number
DCEC241/2004
Procedural Posture
Employees Compensation / Assessment Judgment Delivered; Indemnity Application and Stay of Execution Hearing
Outcome
Indemnity in favour of R2 granted but execution stayed pending R1's insurer claim
Legal Topics
Section 24 Indemnity Under Employees Compensation Ordinance, Stay of Execution, Indemnity Between Principal Contractor and Subcontractor, Insurance Coverage Dispute, Piercing Corporate Veil/de Facto Party Analysis
Source Language
en
Employment Compensation Insurance Civil Procedure Contract Maritime Law Section 24 Indemnity Under Employees Compensation Ordinance Stay of Execution Indemnity Between Principal Contractor and Subcontractor +2 more

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Summary, issues, holding and outcome

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Parties

Li Yuen Yau

Applicant

Lee Chiu Lan

Applicant

Ting Kam Yuen

Applicant

Viatech Engineering Limited

1st Respondent

Zen Pacific Civil Contractors Limited

2nd Respondent

Procedural Posture

Employees Compensation / Assessment Judgment Delivered; Indemnity Application and Stay of Execution Hearing

Legal Issues

  1. 1 Whether principal contractor (R2) is entitled to full indemnity from employer (R1) under s.24(2) of the Employment Compensation Ordinance
  2. 2 Whether the indemnity under s.24(2) includes costs
  3. 3 Whether the court should stay execution of the indemnity order pending resolution of R1's claim against its insurer Ming An

Ratio Decidendi

The court held that R2 is entitled to full indemnity from R1 under s.24(2) including costs; however, because R1 has a substantive and arguable claim against its insurer Ming An and Ming An has effectively taken over conduct of the defence making it a de facto interested party, it is just and convenient to stay execution of the indemnity order pending determination of R1's insurance claim; R1 must commence that insurer claim within 42 days and pay interest at half judgment rate during the stay.

Court Disposition

Indemnity in favour of R2 granted but execution stayed pending R1's insurer claim

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