Lafarge S.A. and Others v. Continental Cement Corporation and Another
Read the full judgment text of HCCT 33/2006 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 16 June 2006 before Hon Reyes J.
Enforcement of foreign arbitral award — Mareva injunction — Prohibition order — Examination of defendants as debtors — Abuse of process — Asset dissipation risk — Medical urgency — The plaintiffs sought enforcement of a Singapore arbitral award rendered enforceable as a Hong Kong Judgment under section 2GG of the Arbitration Ordinance (Cap. 341). The defendants challenged the Mareva and prohibition orders obtained ex parte on grounds of material non-disclosure and abuse of process, relying also on claims of urgent medical needs of the 2nd Defendant. The court ruled no material non-disclosure or subterfuge occurred, and that the enforcement relief did not constitute abuse of process despite the foreign nature of parties and assets, given the award’s enforcement as Hong Kong Judgment and principles of international comity. There was credible evidence of a real risk of dissipation of assets, justifying continuation of the Mareva injunction. The medical evidence was insufficient to show urgent need beyond Hong Kong. The court also granted an order for examination of defendants as debtors and ancillary prohibition to prevent the 2nd Defendant leaving jurisdiction, to ensure effective enforcement of the award. All orders were made with liberty to apply. Costs and further matters were to be addressed subsequently.
Legal issues: Validity of Mareva injunction and prohibition order · Abuse of process in seeking enforcement relief in Hong Kong · Risk of dissipation of assets · Urgency and adequacy of medical attention for 2nd Defendant · Appropriateness of order for defendants' examination as debtors and ancillary prohibition
Outcome: Mareva injunction continued; prohibition order granted against 2nd Defendant; order for examination of defendants as debtors made
Cites 1 case
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HCCT 33/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 33 OF 2006 ____________
____________ BETWEEN
____________ Before: Hon Reyes J in Chambers Date of Hearing: 16 June 2006 Date of Ruling: 16 June 2006 __________ R U L I N G __________ 1.I think that the Mareva injunction should be continued as sought by the relevant Plaintiffs’ summons. I will also make an Order for examination of the Defendants as debtors pursuant to the Plaintiffs’ summons of 14 June 2006. The latter summons asks for a prohibition order against the 2nd Defendant. I grant such order as well. 2.My reasons are as follows:- 3.First, contrary to Mr. Barlow’s submission on the Defendants’ behalf, I am not persuaded that there was material non-disclosure or subterfuge in the obtaining of the ex parte Mareva and prohibition orders. 4.Second, I do not accept Mr. Barlow’s argument that it is an abuse for the Plaintiffs to seek Marevas, prohibition orders or other enforcement-type relief in Hong Kong. 5.Mr. Barlow suggests that there is abuse because the Plaintiffs and Defendants are foreign, there are apparently no assets in Hong Kong, and the arbitral award was obtained in Singapore under an agreement with a Filipino proper law. 6.But I believe that Mr. Whitehead SC is right to point out that there is now an effective Hong Kong Order making the arbitral award enforceable as a Hong Kong Judgment. There is no reason why the Plaintiffs should be barred from using all means available (including a worldwide Mareva) within the Hong Kong jurisdiction to ensure that what is now a Hong Kong Judgment is satisfied. I note that there has been no application by the Defendants to set aside the Hong Kong Order and Judgment. 7.I also accept Mr. Whitehead’s submission that, because one is dealing with an arbitral award enforceable under international convention, comity points to the Hong Kong Court assisting a judgment creditor to enforce such award to the greatest extent possible. 8.Third, like Mr. Justice Barma at the ex parte hearing, I believe that there is evidence of a real risk of dissipation of assets. I am thinking of the matters stated in Ms. Chan’s affidavit in support of the Plaintiffs’ Mareva application, especially the transfer of overseas properties to the 2nd Defendant’s relations. 9.Fourth, I am not persuaded by the medical evidence adduced that the 2nd Defendant is in urgent need of medical attention. Even if he were, I believe that he should be able to receive an adequate standard of medical attention for his condition in Hong Kong. 10.Fifth, although the Mareva already includes an order for disclosure of assets, I believe that it is still appropriate to make an order for examination of the Defendants at this stage, rather than later. I hope that this will mean that the 2nd Defendant can be examined as soon as possible and that he will not be detained in Hong Kong any longer than necessary. I accept Mr. Whitehead’s submission that, without an ancillary prohibition, a mere order for disclosure on affidavit and a mere order for examination as a debtor may be ineffective. The 2nd Defendant would otherwise simply leave the jurisdiction. 11.On all orders made, there will be a liberty to apply. 12.I shall now hear the parties on costs and any other outstanding matters.
Mr Robert Whitehead, SC and Mr Robin Mcleish, instructed by Messrs Dibb Lupton Alsop, for the Plaintiffs Mr B Barlow, instructed by Messrs Jesse HY Kwok & Co., for the Defendants |
Cases cited in this judgment
Further hearings and rulings under HCCT 33/2006