Read the full judgment text of HCCT 53/2015 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 8 July 2021 before Master Jonathan Wong.
Construction Arbitration — Garnishee Proceedings — Arbitral Immunity — RHC Order 49, rule 1 — Abuse of Process — Full and Frank Disclosure — Arbitration Ordinance Cap 609 s.105(1) — Companies (Winding Up and Miscellaneous Provisions) Ordinance Cap 32 s.269(1) This case concerns cross applications by the judgment creditor HKK2 to make a garnishee order absolute against HKIAC, who holds a security for costs sum ordered to be returned to the judgment debtor Chenming by a separate arbitral award. Chenming challenged the garnishee order on the grounds of lack of attachable debt due to HKIAC’s arbitral immunity, abuse of process due to inconsistent enforcement routes pursued by HKK2, and failure of full and frank disclosure in obtaining the ex parte order. The court examined the meaning of "debt" under RHC Order 49, rule 1 and the scope of arbitral immunity under Cap 609 s.105(1). Applying the purposive approach to statutory interpretation and relevant authorities, it held that the immateriality of HKIAC’s act of paying over the sum does not attract immunity preventing garnishee proceedings. The court rejected Chenming’s abuse of process argument confirming that a creditor may pursue concurrent enforcement actions in winding-up and garnishee proceedings. The disclosure obligations were also considered satisfied given the factual disclosures made and the unforeseeable legal arguments. The summons to discharge the garnishee order was dismissed and the order was made absolute. Costs were awarded to HKK2 with a certificate for two counsel and assessment on paper ordered.
Legal issues: No attachable debt · Abuse of process · Full and frank disclosure
Outcome: Chenming’s summons to discharge the Nisi Order dismissed; Nisi Order made absolute.
Cited by 7 cases · Cites 4 cases