RAI NARAYAN PARSHAD v. CHIT HING CONSTRUCTION ENGINEERING AND OTHERS

RAI NARAYAN PARSHAD v. CHIT HING CONSTRUCTION ENGINEERING AND OTHERS

AXA's letters of 5 March and 14 April 2009 amounted to a repudiation/rejection of D3's indemnity claim by 14 April 2009; Condition 10(e)'s three-month limitation survives such repudiation; third party proceedings commence only when a third party notice is sealed and issued by the court registry; the 1st TPN was never in the custody of the court and its defect was not curable so the only valid commencement date is the 2nd TPN (23 July 2009), which was outside the three-month period; accordingly D3's third party claim was time-barred and plainly unsustainable and was struck out

Citation
RAI NARAYAN PARSHAD v. CHIT HING CONSTRUCTION ENGINEERING AND OTHERS
Parties
Plaintiff: Rai Narayan Parshad; 1st Defendant: Chit Hing Construction Engineering; 2nd Defendant: Paul Y Construction Co, Ltd; 3rd Defendant: Wai Hung Logistics Limited; Third Party: AXA General Insurance Hong Kong Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 November 2010
Case Number
HCPI604/2008
Procedural Posture
Personal Injuries Action No. 604 of 2008 / Third Party Proceedings Before Master; Strike Out Application (decision)
Outcome
Third party claim by 3rd Defendant (Wai Hung Logistics Limited) against AXA General Insurance Hong Kong Limited struck out and dismissed
Legal Topics
Policy Interpretation, Limitation Clause, Repudiation of Contract, Striking Out for Abuse of Process, Third Party Notice Issuance, Notice/notification Conditions
Source Language
EN
Insurance Law Contract Law Civil Procedure Personal Injury Employment/workers Compensation Policy Interpretation Limitation Clause Repudiation of Contract +3 more

Case Brief

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Parties

Rai Narayan Parshad

Plaintiff

Chit Hing Construction Engineering

1st Defendant

Paul Y Construction Co, Ltd

2nd Defendant

Wai Hung Logistics Limited

3rd Defendant

AXA General Insurance Hong Kong Limited

Third Party

Procedural Posture

Personal Injuries Action No. 604 of 2008 / Third Party Proceedings Before Master; Strike Out Application (decision)

Legal Issues

  1. 1 Whether AXA (Third Party) had 'rejected' D3's indemnity claim within meaning of Condition 10(e)
  2. 2 Whether an 'action or suit' was commenced within three months of rejection under Condition 10(e)
  3. 3 Whether the unsealed first third party notice (1st TPN) constituted commencement or was curable by O.2 r.1

Ratio Decidendi

AXA's letters of 5 March and 14 April 2009 amounted to a repudiation/rejection of D3's indemnity claim by 14 April 2009; Condition 10(e)'s three-month limitation survives such repudiation; third party proceedings commence only when a third party notice is sealed and issued by the court registry; the 1st TPN was never in the custody of the court and its defect was not curable so the only valid commencement date is the 2nd TPN (23 July 2009), which was outside the three-month period; accordingly D3's third party claim was time-barred and plainly unsustainable and was struck out

Court Disposition

Third party claim by 3rd Defendant (Wai Hung Logistics Limited) against AXA General Insurance Hong Kong Limited struck out and dismissed

Orders

  • Strike out the 2nd Third Party Notice and dismiss the 3rd Defendant's claim against the Third Party
  • Action restored for Checklist Review hearing before the Master on 23 December 2010 at 2:30pm; 3rd Defendant to notify other parties of the result and the adjourned hearing