Read the full judgment text of HCCT 87/2023 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 14 June 2024 before Hon Mimmie Chan J in Chambers.
Arbitration — Settlement agreement — Whether settlement agreement and procedural order terminating arbitration are treated as arbitral awards — Service out of jurisdiction — Whether serious question to be tried — Material non-disclosure — Substituted service — Costs. L commenced proceedings to set aside a Settlement Agreement between L and R and Procedural Order No. 7 terminating arbitration proceedings which had been commenced by R. The Settlement Agreement was not recorded by the tribunal as an arbitral award; instead, the tribunal issued a procedural order terminating the arbitration and deciding costs. L applied for and obtained leave to serve the summons out of jurisdiction on R by substituted service due to difficulties in effecting personal service. R applied to set aside the service out and substituted service orders on grounds including no awards capable of challenge and material non-disclosure. The court held that PO 7 was a final and binding arbitral award for enforcement and challenge purposes, that the Settlement Agreement is treated as an arbitral award under section 66(2) of the Arbitration Ordinance for enforcement purposes, and that L had demonstrated serious questions to be tried. The court also found no material non-disclosure and that the substituted service order was properly made. Costs of the summons were ordered against R on an indemnity basis, dismissing R’s application. The interlocutory skirmish was described as unnecessary, with the order affirming promoting speedy arbitration resolution under Hong Kong law.
Legal issues: Whether PO 7 constitutes an arbitral award · Whether the Settlement Agreement should be treated as an arbitral award under section 66(2) · Whether the Service Out Order should be set aside for lack of serious question to be tried · Whether there was material non-disclosure in L’s ex parte application for service out · Whether the Substituted Service Order was properly granted · Whether R should be awarded costs for the application to set aside the Dispensation and Substituted Service Orders
Outcome: The summons by R to set aside the Service Out Order was dismissed; L was declared the winner and R was ordered to pay L’s costs on an indemnity basis.
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