Acada Development Co. Ltd. v. Epco Undustrie-ausruestungen Gmbh

HCMP001350/1985

BETWEEN

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Coram: Cons, Fuad & Kempster, JJ.A.

Date of hearing: 7th June, 1985.

Date of delivery of judgment: 7th June, 1985.

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JUDGMENT

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Cons, J. A.:

1. The Defendant in these proceedings is a foreign company. It has a dispute with the Plaintiff over an alleged breach of a contract for the purchase of oil. There is a further dispute as to whether the contract contains an arbitration clause.

2. On the 12th February this year the Plaintiff took out an Originating Summons for the appointment of an arbitrator and then obtained an order for a concurrent summons with leave to serve outside the jurisdiction. The Defendant disputed the jurisdiction, but on the 10th April Mayo J. rejected its argument and refused to set aside the Originating Summons. The Defendant wishes to appeal against that decision.

3. The normal time for appeal in interlocutory matters is 14 days, which would have set the latest day as the 24th April, had the order been perfected on the day that it was made: Order 59 rule 4(1)(a). For reasons which we think unnecessary to relate the order was not perfected that day, indeed not until the 1st of May, so that a fourteen day period would have ended on the 15th of May. The Defendant had not served its Notice of Appeal by then. That was not achieved until the 24th.

4. In the meantime the Plaintiff went ahead with the reference to arbitration. Instructions to counsel have been complied with and Points of Claim are well on their way to being perfected. The arbitrator, who was appointed later on the 10th May, has set the 11th June, i.e. next week, for the preliminary hearing. We should add that the Plaintiff has kept the Defendant well informed of the progress of the reference.

5. The Defendant now applies to this Court for an extension of time to appeal. If of course the decision of Mayo J. was final rather than interlocutory then the application is unnecessary, for the Notice was served within time. There has been some argument before us this morning as to the true nature of that decision. We are satisfied that it was interlocutory. The proceedings would not have disposed of the action, which must remain in being until the arbitration, unless the appeal be successful, is concluded.

6. Mr. Bleach, who appears for the Defendant, puts his arguments under four heads. The first relates to the delay, that is a period of 10 days. It has been urged against him that there were considerable delays earlier when the Plaintiff was pressing the Defendant for payment. In our view the earlier delays, if they were indeed such are not relevant. Certain delays are inherent in litigation in the form of appeals, whatever the merits, with times provided by the Rules of Court. These times run from the date of the particular decision. What happens earlier can be relevant only in very unusual circumstances. We do not see such circumstances here.

7. The second head concerns the explanation put forward. It is admittedly not as explicit as it might have been. It turns on the time taken by the Defendant to raise and remit to this jurisdiction sufficient funds for the appeal to be pursued. In this respect ten days in the case of a foreign company, of which the persons in charge may not be fully conversant with the niceties of our procedures, does not seem to us an unreasonable period.

8. As regards the merits of the appeal, which is the third of counsel's heads, we certainly cannot say that the appeal is unarguable.

9. The fourth and final head is the question of prejudice. We can see none that cannot be cured, if necessary, by the payment of costs. On the other hand it is clear that time ought to be extended only upon terms. After hearing both counsel as to the form and amount of the security that ought to be provided we are prepared to extend the time within which Notice of Appeal may be served for 14 days from today, provided that the Defendant within that period pays to the Plaintiff's solicitors, on the usual undertakings, the sum of $150,000.

Representation:

Mr. John Bleach (M/s Deacons) for Defendant/Appellant.

Mr. William Waung (M/s Lo, Wong & Tsui) for Plaintiff/Respondent.