Guo Xin International Ltd v. Cheung Ping Kwong and Another

HCA973/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 973 OF 2010

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Before : Hon Yam J in Chambers

Date of Hearing : 7 September 2010

Date of Ruling : 7 September 2010

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R U L I N G

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1.The defendants applied for stay of this action for arbitration. This application was made after the plaintiff had applied for summary judgment under Order 14 of the RHC for hearing today. The plaintiff then applied for adjournment of its Order 14 summons to be heard immediately after the hearing of the Arbitration summons before Saunders J on 17 September 2010.

2.However, the defendants then applied by summons to adjourn the plaintiff’s Order 14 summons sine die with liberty to restore as they objected to the plaintiff’s application to adjourn the Order 14 to be heard immediately after the defendants’ summons.

3.I cannot accept the submissions of counsel for the defendants.  The Order 14 summons was issued on 6 August and that was exactly one month ago.  On 26 August, the defendants issued a summons and ask for a stay of the proceedings for arbitration.  That summons for stay was issued on 1 September and because of the urgency of the matter, it was fixed before me today.  Today is also the first date for the Order 14 summons of the plaintiff, thus before me there are two summonses.

4.On one hand the plaintiff argued that whichever way Saunders J will go on 17 September after hearing the arbitration summons, the Order 14 summons will have to be dealt with immediately thereafter as follows :

(i)      on one hand, if Saunders J dismissed the arbitration summons on the ground that there is no triable issues, then as surely as night follows day, the Order 14 summons should succeed on the same ground ; or

(ii)     on the other hand, or on the contrary, if the defendants succeed in persuading Saunders J that there are triable issues and thus, according to what they called the “2^nd Agreement”, the whole matter should be decided by arbitration.  Then the action should be stayed pending arbitration.  In that event the defendants will surely request the judge to dismiss the Order 14 summons on the same ground.

5.For the aforesaid reason I consider that, as a kind of case management, the Order 14 summons should be heard immediately after the arbitration summons.  There is no reason why the Order 14 summons should be adjourned sine die with liberty to restore.

6.If the defendants succeed, then the defendants would have to pay another set of lawyer’s fee in restoring the Order 14 summons.  But, of course, in that event, I think Saunders J would persuade the defendants to restore it right away before him and I do not know what the plaintiff will say in that event.  But the plaintiff has always been saying that the Order 14 summons should be heard immediately after the arbitration summons.  I do not see any difficulty in that event.

7.But then the difficulty would arise if the plaintiff succeeded in persuading Saunders J that there is absolutely no triable issue in this case and therefore there is nothing between the parties to arbitrate about.  In that event, on the same ground they should succeed on the Order 14 summons.  There is absolutely no reason why the Order 14 summons should not be heard immediately after the arbitration summons. 

8.The only ground raised by Mr Lawrence Cheung for the defendants is this : “We have no time to file affidavits to face the Order 14 summons.”  Now, they have no time because of their own doing.  Immediately after 6 August when they received the Order 14 summons, they should issue the summons for arbitration but they waited for some time and eventually said : “There is an arbitration clause, shall we have arbitration?”

9.Now, in the new CJR, we will not accept a delay or a submission of “no time” when the “no time” argument was created by the defendant’s own doing.  For that reason, we must enforce strict timetable for the parties to observe.  This will be overcome by imposing on the party who is guilty of delay to observe certain strict directions.  Before 17 September, we have 9 days, we will divide this 9 days into two slots.  If the defendants want to file an affidavit, then they have to do it expeditiously and I understand that the plaintiff is desirous of hearing the Order 14 summons immediately after the arbitration summons.  In that event, I feel sorry for the plaintiff who has to comply with the strict directions as to time as well.

10.The decision today is : the defendants’ summons dated 1 September 2010 is dismissed.  I shall deal with costs later.

[Discussion with counsel re dates]

11.The Order 14 summons is adjourned to 17 September 2010 for argument and shall be heard immediately after the defendants’ arbitration summons dated 26 August 2010.

[Discussion re time]

12.The defendants shall file and serve an affidavit in response to the plaintiff’s affidavits at or before 11 a.m., Saturday 11 September 2010 for plaintiff to file and serve an affidavit in reply, if any, at or before 4 p.m. Tuesday, 14 September 2010.

13.The plaintiff shall file and serve a hearing bundle with the clerk to Saunders J and to serve the same on the defendants’ solicitors at or before noon, Wednesday, 15 September 2010.

14.The defendants shall file and serve their counsel’s skeleton argument before noon on Wednesday 15 September 2010.

15.The plaintiff to file his skeleton arguments before noon on Thursday 16 September 2010.

[Discussion re costs]

16.The costs of the hearing today in respect of the plaintiff’s Order 14 summons and the costs of the defendants’ summons today shall be to the plaintiff in any event to be taxed, if not agreed, and shall be paid forthwith.  All other costs shall be costs in the cause.

Mr Eric Chow, instructed by Messrs C.L. Chow & Macksion Chan, for the Plaintiff

Mr Lawrence L. K. Cheung, instructed by Messrs K.H. Yiu & Associates, for the 1^st and 2^nd Defendants