厦門新景地集團有限公司 Formerly Known As 厦門市鑫新景地房地產有限公司 v. Eton Properties Ltd and Others

HCA961/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 961 OF 2008

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Before: Hon. Fok J, in Chambers (Open to the public)

Date of Hearing: 14 January 2011

Date of Ruling: 14 January 2011

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R U L I N G

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1.This is an application by summons by the 1st and 2nd Defendants for an order extending time for them to file a defence until after the determination of an application for leave to appeal to the Court of Final Appeal, and, in the event leave is obtained, until after the disposal of that appeal.

2.The 3rd to 5th Defendants have also issued a summons in which they seek an order to stay the discovery order that was the consequence of my judgment on 16 March last year, and also an order extending the time for the filing of the defence pending their application for leave to appeal to the Court of Final Appeal, and, in the event leave is obtained, the subsequent appeal.

3.So far as the 1st and 2nd Defendants are concerned, the Court of Appeal has held, reversing my judgment, that there should be no stay for arbitration.  The effect of that is that the 1st and 2nd Defendants should proceed to participate in the action. Unless and until leave to appeal is granted, and subsequently the appeal is allowed, there is no possibility of the 1st and 2nd Defendants not having to participate in the action.

4.I am prepared to accept that the Court of First Instance has jurisdiction to extend time for the filing of the defence in these circumstances in relation to the 1st and 2nd Defendants.  However, it seems to me that it would be wrong to do so unless leave to appeal were to be granted by the Court of Appeal.  It seems to me that it cannot be said that costs will be incurred unnecessarily unless, firstly, leave to appeal is granted, and secondly, the appeal ultimately succeeds.

5.A decision as to leave will be made on the 1st and 2nd Defendants’ application to the Court of Appeal on 25 January this year.  It seems to me that it is more appropriately a matter for the Court of Appeal to consider at the time it deals with the leave to appeal application whether the 1st and 2nd Defendants should also have an extension of time for the filing of their defence.  I therefore would refuse, in the exercise of my discretion, an extension of time to the 1st and 2nd Defendants as sought in their summons. 

6.So far as the 3rd to 5th Defendants’ application is concerned, there are two aspects of it.  First, in relation to the disclosure order, that is an order which stands to be complied with.  The consequence of the Court of Appeal decision is that that order remains an extant order to be complied with by the 3rd to 5th Defendants.  It seems to me that the application before me today is, in substance, an application to stay the order pending the proposed appeal to the Court of Final Appeal.  That is an application which in my view should be made to the Court of Appeal and I would not grant an order in terms of paragraph 1 of the 3rd to 5th Defendants’ summons.

7.As far as the 3rd to 5th Defendants’ defence is concerned, their position seems to me to be weaker than that of the 1st and 2nd Defendants.  At the hearing before me, I did not grant a stay of the action against them, even though I did stay the action against the 1st and 2nd Defendants.  Even on the basis of my judgment, the action would proceed against the 3rd to 5th Defendants in any event.  In the circumstances, I do not think it would be right to extend time for the filing of the defence unless the Court of Appeal were to grant leave to appeal against the refusal of a stay to the 3rd to 5th Defendants and so I consider that this should also be left to the Court of Appeal to deal with on the hearing of the 3rd to 5th Defendants’ application for leave to appeal.

8.Accordingly, I dismiss both summonses that are before me. 

(Submissions on costs)

9.I order that the costs of the two summonses be paid by the 1st to 2nd Defendants and the 3rd to 5th Defendants respectively to the Plaintiff, to be taxed if not agreed.

Mr Anson Wong, instructed by Messrs Stephenson Harwood, for the Plaintiff

Mr Richard Khaw, instructed by Messrs Mayer Brown JSM, for the 1st and 2nd Defendants

Mr Jin Pao, instructed by Messrs Wilkinson & Grist, for the 3rd to 5th Defendants