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Leung Po Po And Another v Olympic Leader International Ltd And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date19 April 2016
Year2016
Citation[2016] 2 HKLRD 1178
Judgement NumberDCCJ5004/2013
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ5004/2013 LEUNG PO PO AND ANOTHER v. OLYMPIC LEADER INTERNATIONAL LTD AND ANOTHER

DCCJ5004/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5004 OF 2013

---------------------------------

BETWEEN
LEUNG PO PO and
CHENG KAM CHAU (Joint Tenants)		 Plaintiffs
and
OLYMPIC LEADER INTERNATIONAL LIMITED 1st Defendant
HO LIN WAH 2nd Defendant
and
QBE GENERAL INSURANCE (HONG KONG) LIMITED formerly known as HANG SENG GENERAL INSURANCE (HONG KONG) COMPANY LIMITED Third Party

---------------------------------

Before: Deputy District Judge Phoebe Man in Chambers (Open to Public)
Date of Hearing: 13 April 2016
Date of Decision: 19 April 2016

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DECISION

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1. This is an appeal by the Third Party (“QBE”) against the decision and order of Master Daniel Tang dated 16 February 2016, granting leave to Olympic Leader International Limited (the “1st defendant”) to serve on QBE Interrogatories and ordered QBE to serve an answer to the interrogatories within 14 days of the Order.

BACKGROUND

2. The plaintiff was at all material times the registered owner of Flat A, 16/F, One Robinson Place (“P’s Premises”).

3. The 1st defendant is and was at all material times the registered owner of Flat A, 17/F (“D1’s Premises”). D1’s Premises is directly above P’s Premises.

4. The 2nd defendant was at all material times the tenant and occupier of D1’s Premises.

5. On 10 August 2010, an incident of water leakage occurred from D1’s Premises to P’s Premises. There is no dispute between the 1st defendant and QBE that the water leakage was caused by the 2nd defendant’s failure to turn off the kitchen tap properly.

6. The plaintiff has allegedly suffered loss and commenced an action in the Small Claims Tribunal (SCTC 20245/11) on 17 May 2011. The plaintiff subsequently withdrew the Small Claims action and commenced the present district court action against the 1st defendant and the 2nd defendant.

7. The plaintiff has obtained a default judgment against the 2nd defendant as a result of the 2nd defendant’s failure to file an acknowledgment of service.

8. The 1st defendant issued a third party notice against QBE, which issued an insurance policy on 16 January 2010 from 6 February 2010 to 5 February 2011. Thereafter QBE appointed Toplis and Harding (Hong Kong) Limited (“Toplis”) as the loss adjuster for the water leakage.

9. The insurance policy provided that:-

“(1) [QBE] will subject to the Limit of Indemnity in respect of any one accident and any one year specified in the Schedule indemnify the insured or any of his or her family members against all sums for which they shall become legally liable …… (b) as owner of the Home …”

10. Thus QBE’s position is that the insurance policy does not provide coverage for the water leakage incident because:-

(i) the water leakage was caused by the 2nd defendant, who was not an insured under the insurance policy;

(ii) insofar as any liability is attached to the 1st defendant by virtue of the DMC of Robinson Place, the same is expressly excluded from the insurance policy.

11. Nonetheless, QBE has instructed Toplis to provide the 1st defendant with assistance in dealing with the water leakage incident.

12. The 1st hearing of the plaintiff’s claim took place on 28 June 2011 at the Small Claims Tribunal. Mr Terence Cheng (“Mr Cheng”), a director of Toplis attended the hearing. QBE says that Mr Cheng was there for the purposes of observing the progress of the proceedings and reporting to QBE. Mr Cheng says he was instructed by QBE “to provide assistance in dealing with the matter, such as acting on behalf [the 1st defendant] to decline the relevant third parties in order to elaborate the legal liability aspect on [the 1st defendant’s] part and/or your tenant, as well as, transfer/forward the third party claims to your tenant for its direct handling and attention.”

13. The 1st defendant says that Mr Cheng had advised them not to settle with the plaintiff at HK$50,000 when the claim was initiated at the Small Claims Tribunal. This representation was understood by the 1st defendant to mean that QBE would insure the 1st defendant should the plaintiff commence such proceedings in the District Court; or alternatively, an estoppel arose against QBE.

14. QBE denies that Mr Cheng ever advised the 1st defendant to reject the plaintiff’s settlement offer. Mr Cheng says he only reminded them that QBE would not pay any settlement sum for the 1st defendant. It was the Adjudicator/Officer of the Small Claims Tribunal who suggested that the plaintiff should, in light of the amount of their claim, discontinue their proceedings in the Small Claims Tribunal and commence an action in the District Court.

15. It is the dispute on the different versions of what transpired at the Small Claims Tribunal hearing, in particular, whether Mr Cheng made to the 1st defendant the representation or advice not to settle the claim in the Small Claims Tribunal that led to the 1st defendant taking out a summons under Order 26 Rules 1 and 2 of the Rules of the District Court to serve interrogatories on QBE.

THE INTERROGATORIES ALLOWED BY MASTER DANIEL TANG

16. The Interrogatories which were allowed by Master Daniel Tang are summarized as follows:-

(i) Interrogatory No 5 requires Mr Cheng to answer whether he had a telephone conversation with Mr Ng (of the 1st defendant) during the adjournment of the Small Claims Tribunal hearing on 28 June 2011, and if so did Mr Ng ask Mr Cheng of advice on the settlement proposal of the plaintiff’s; and whether Mr Cheng advised Mr Ng not to settle the claim at the time.

(ii) Interrogatory No 6 requires Mr Cheng to answer whether Toplis received an email allegedly sent by Ms Mok at 12:02 pm on 31 August 2011.

(iii) Interrogatory No 7 requires Mr Cheng to answer whether he had a telephone conversation with Mr Ng shortly after 12:02 pm on 31 August 2011, and if so, whether Mr Cheng advised Mr Ng not to instruct solicitors to deal with matters and not to reply to the letter from the plaintiff’s solicitors dated 30 August 2011.

(iv) Interrogatory No 8 requires Mr Cheng to answer whether Toplis sent a letter to Messrs Ho, Tse & Wai.

17. The Interrogatories were served on QBE but at the end of them there was a note which says: “Mr Terence Cheng, a director of Toplis and Harding (Hong Kong) Limited, the Third Party’s agent, is required to answer Interrogatories Nos 1 to 8 above.” (the “Note”)

The law

18. Parties agree that the relevant legal principles are governed by Order 26 of the Rules of the District Court.

GROUNDS OF APPEAL

(i) The Rules of District Court do not provide for witnesses or agent of a party to answer interrogatories

19. Counsel for QBE, Ms Szeto, accepts that the Interrogatories were deemed to have been served on QBE and that QBE would (subject to the 2nd limb of their argument) have no objections to them if:-

(i) they were to be answered by an officer of QBE (Ms Szeto accepts that QBE would be obligated to make enquiries with Mr Cheng); and

(ii) the Note did not specifically require Mr Cheng to answer them.

Ms Szeto submits that this is because under the Rules of District Court, Mr Cheng is not in a position to be compelled to answer Interrogatories for QBE.

20. Ms Szeto argues that under the Rules of the District Court, Rule 1(1) stipulates that interrogatories have to be served on parties, not witnesses or other third parties. The duty to answer interrogatories also rests on the relevant party. She submits that the Rules do not provide for witnesses or agent of a party to answer interrogatories.

21. Rule 1(1) provides:-

“(1) A party to any cause or matter may apply to the Court for an order—

(a) giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter; and

(b) requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order. ……”

22. Ms Szeto also relies on other references to “a party” in Rule 6 in support of her argument. Rule 6 provides:-

“(1) If a party against whom an order is made under rule 1 or 5(2) fails to comply with it, the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

(2) If a party against whom an order is made under rule 1 or 5(2) fails to comply with it, then, without prejudice to paragraph (1), he shall be liable to committal.”

23. Ms Lee, counsel for the 1st defendant points out that Order 26 rule 3A of the District Court Rules expressly provides:-

“Where interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party, a note at the end of the interrogatories shall state which of the interrogatories each party or, as the case may be, an agent or servant is required to answer, and which agent or servant.” (emphasis added)

24. Ms Lee submits that Rule 3A clearly and expressly provided and intended for an agent or servant of a party to answer interrogatories.

25. Ms Lee submits that in light of Rule 3A, there can be no complaint made on the Interrogatories as there is no dispute that:-

(i) QBE is a party for present purposes;

(ii) Toplis is QBE’s agent when dealing with the 1st defendant;

(iii) Toplis being a company, a natural person, (and in this case Mr Cheng, being the person handling the case) would need to answer any interrogatories served on it. In fact there is no suggestion that...

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