Aggressive Construction Co Ltd v. Data-form Engineering Ltd

HCMP 2151/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2151 OF 2009

(ON AN INTENDED APPEAL FROM HCA NO. 2143 OF 2008)

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Before: Hon Rogers VP

Date of Decision: 9 November 2009

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D E C I S I O N

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1.This is an application for leave to appeal from a decision of Deputy High Court Judge To (as he then was) given on 4 August 2009.  The matter before the judge was an application by the plaintiff to have the defendant’s counterclaim stayed in favour of arbitration.  The judge granted that order.

2.The defendant then applied to the judge for leave to appeal.  On that occasion the defendant changed counsel and new grounds were advanced.  The judge dealt with those new grounds in his reasons for decision handed down on 13 October 2009.

3.In short, it is the defendant’s case that because no steps were taken towards proceeding with the requested arbitration proceedings following the defendant’s request that the matter be submitted to arbitration and also because the plaintiff has commenced these proceedings, the plaintiff is in repudiatory breach of the arbitration agreement.  Alternatively it is suggested that the plaintiff has abandoned the arbitration agreement.  It is also suggested that there has been waiver by estoppel.  Finally, there are two other matters.  It is said that the judge was wrong in considering that arbitration proceedings had been commenced because the matter had not been referred to a single arbitrator.  It is also said that there is a risk of conflicting decisions.

4.In my view none of these points have any merit whatsoever.  This is an attempt at satellite litigation of the type which the Civil Justice Reform is designed to prevent.  The primary argument rests upon what is said to have been a 5 months delay.  That argument is little short of being absurd.  I consider that the judge was entirely correct in his approach in his detailed reasons for decision of 13 October 2009.  I do not consider that there is any reasonable prospect of success in the appeal sought to be launched.

5.This application is therefore dismissed with costs to the plaintiff.