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Chiu Kwok Hung Ban v Ng Fu Wing T/a Wing Kee Aquarium Eng Co And Others

Judgment Cited in Precedent Map Related
Vincent
Judgment Date26 March 2010
CourtDistrict Court (Hong Kong)
Judgement NumberDCEC887/2002
Subject MatterEmployee"s Compensation Case
DCEC000887B/2002 CHIU KWOK HUNG BAN v. NG FU WING t/a WING KEE AQUARIUM ENG CO AND OTHERS

DCEC 887/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 887 OF 2002

DCEC 317/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 317 OF 2004

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IN THE MATTER OF AN APPLICATION BETWEEN

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CHIU KWOK HUNG BAN Applicant
and
NG FU WING trading as WING KEE AQUARIUM ENG CO 1st Respondent
LAU PAK YIN (劉伯賢) 2nd Respondent
LEE CHI KWONG trading as HOYOH CONSTRUCTION DECORATION CO 3rd Respondent
SEEDTRON DEVELOPMENT CONSULTANTS LIMITED 4th Respondent

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(Consolidated pursuant to the Order dated 5th December 2005)

Coram: HH Judge E. Yip in Court

Dates of Hearing: 30th & 31st December, 2009 and 4th January 2010

Date of Handing Down of Judgment: 1st February 2010

Date of Handing Down of Decision: 26th March 2010

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Decision on Costs

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Background

1. On 1 February 2010, this Court handed down its Judgment whereby the Applicant partially succeeded in his claim against the 2nd, 3rd and 4th Respondents but lost his whole claim against the 1st Respondent. An order nisi for costs to follow the event was made at the end of the Judgment.

2. The Applicant applies to vary the costs order for a Sanderson or Bullock Order so that the 1st Respondent’s costs shall practically be borne by the 3rd and 4th Respondents. The 1st Respondent does not oppose a Bullock Order but opposes a Sanderson Order. The 2nd Respondent has been absent well before the present action and has remained so up till now. The 3rd Respondent, understandably as he acts in person, has made no application or submissions on costs. The 4th Respondent opposes a Sanderson or Bullock Order, and in addition, applies to reduce the Applicant’s costs to reflect the Applicant’s limited success in the present action.

3. No hearing is held as the parties have filed full written submissions on this issue of costs.

Appropriateness of Sanderson or Bullock Order

4. The precondition of either a Sanderson or Bullock Order is that the plaintiff has had difficulty ascertaining which defendant to sue and has properly, in the court’s view, sued two defendants in the alternative but succeeds against only one [HKCP 2010, Vol 1, 62/1/5 & 62/1/6].

5. Mr. Wong acting for the Applicant submits that the 1st Respondent’s conduct had brought about the present action because he had not checked properly before signing Form 2, which stated that he was the Applicant’s employer. I think the 1st Respondent’s stance, of being misled by the 2nd Respondent to sign Form 2, had been made clear and consistent at the stage of pleadings. On the contrary, the Applicant had throughout been content with the state of his own pleadings which worded his claim against each respondent as “and/or”. The Applicant only sought to clarify his stance vis-à-vis each respondent before trial commenced. However, he still maintained his claim against the 1st Respondent on the one hand as against the 3rd and 4th Respondents on the other hand.

6. Apart from Form 2, there was no evidence to against the 1st Respondent. The Applicant’s cause of action against the 1st Respondent was patently inconsistent...

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