LUI PUI KING v. HUNG SHING ENGINEERING CO LTD AND OTHERS

bjbj DCEC 366/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES COMPENSATION CASE NO 366 OF 2016 -------------------- BETWEEN LUI PUI KING Applicant and HUNG SHING ENGINEERING COMPANY LIMITED 1st Respondent PO ON ENGINEERING LIMITED 2nd Respondent HIP HING CONSTRUCTION COMPANY LIMITED 3rd Respondent -------------------- Coram : His Honour Judge Ko in Chambers (open to public) Date of Hearing : 28 November 2016 Date of Decision : 28 November 2016 -------------------------------------------------- DECISION -------------------------------------------------- This is the application of the 2nd and 3rd respondents ( Po On and Hip Hing respectively) to strike out the claim in this action against the 1st respondent. The application is opposed by the applicant ( Mr Lui ), who has not otherwise offered to amend his Application until very late in the day. I am puzzled by the combative stance taken by both sides. Background For the purposes of this application, there is no dispute that Mr Lui was injured on 14 January 2015 whilst working in the worksite in question. On 14 March 2015, Hip Hing (as the principal contractor of the worksite) notified the Commissioner of Labour of the accident by means of a Form 2 wherein Po On was named as the direct employer of Mr Lui. On 1 April 2015, Hip Hing filed a second Form 2 providing different particulars of employer. It was stated that Po On was merely a sub-contractor (ie z gP FUmi{v z gP pleaded case, according to his Application, that he was an employee employed by the 1st and/or 2nd Respondent(s) , and that Hip Hing is the principal contractor of the worksite and Po On its sub-contractor. Attempts to serve the Application on the 1st respondent have not been successful and the 1st respondent has so far not entered an appearance. Discussion & Disposition Po On and Hip Hing now apply to strike out the claim against the 1st respondent on the ground that it is an abuse of process. According to their counsel Mr Cheng, the 1st respondent is non-existent and any judgment against a non-existent company would be null and void and any judgment already entered should be set-aside (Burr v Anglo-French Banking Corp Ltd [1933] All ER 802). Po On and Hip Hing had warned Mr Lui before but no action was taken to rectify the error. Mr Cheng submits that to claim against a non-existent company is hopeless and vexations and Mr Lui s persistence in making such a claim amounts to an abuse of the court s pro z gP z gP ach of s 24(7) of the Employees Compensation Ordinance, Cap 282). Had that been done, so it was argued, the error could have been identified even earlier. In their reply dated 3 August 2016, Mr Lui s solicitors (Cap Chan) explained that they had been relying on the particulars of employer provided in the second Form 2 and, insofar as the particulars had been inaccurately reported, our client does not object any proposal for amending the name of the 1st Respondent, we do of the view that the 1st Respondent [sic] should bear the costs of the amendments, if applicable. Unfortunately, the parties did not try to agree on a suitable amendment and resolve their differences on costs. Not until 21 September 2016 did Hastings admit in an open letter that Mr Lui s direct employer at the time of the accident should be is application on 29 September 2016 without further reference to the other side again. In my view, the application does not help to resolve the situation. If I grant the application, Mr Lui would be left with his alternative claim against Po On as his direct employer which is not in accordance with the undisputed facts of this case. On the other hand, Hastings have explained in their supporting affirmations that they receive instructions from the insurer and that without a claim against the direct employer, the insurer has no right to obtain information and assistance from it to deal with this claim. An order striking out the 1st respondent s claim (as prayed for) would not bring in Mr Lui s true employer so that Hastings may take instructions from him. Having discussed the above with Mr Cheng and Mr Chan, there is now an agreement for Mr Lui s side to correct the nomenclature of the 1st respondent. 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