Zebra Industries (Orogenesis Nova) Ltd - [Zion] v. Wah Tong Paper Products Group Ltd

HCCT 46/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 46 OF 2011

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D E C I S I O N

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1.This is Zebra’s application for leave to appeal against the judgment (“the Judgment”) I handed down on 20 June 2012.

2.This decision should be read together with the Judgment. I also adopt in this decision the abbreviations used in the Judgment. 

3.In the Judgment, I allowed Zebra’s appeal made under s 23(2) of the old Arbitration Ordinance (Cap 341) (“the AO”) and remitted the Award (as defined in the Judgment) to the arbitrator for reconsideration together with the court’s opinion on the questions of law as explained in the Judgment. Zebra was therefore the successful party in this part of the Judgment.

4.At paragraphs 66-68 of the Judgment, I dealt Zebra’s “other applications”.  I refused to deal with them as they did not come within the proper ambit of application to appeal against the Award.  The reasons are as follows:

“66. In the originating summons, Zebra also asks for other various reliefs which effectively ask this court to revisit the outstanding issue of costs and Burrell J’s Stay Order made under HCA 1551. It has also asked the court to set aside and lift the Burrell J’s Stay Order.

67. On 9 January 2012, Zebra further sought to make a ‘Secondary Appeal Application’ to ask for a Final Court Order … to state that [Wah Tong] now owes [Zebra’s costs in the amount of] HK$764,340.00.

68. In my view these applications are unrelated to the appeal against the Award and are outside the scope of the present appeal under the AO.  Further, some of these applications also relate to matters which have already been judicially decided and Zebra is effectively seeking to re-open the issues again.  The Court would not and cannot deal with these applications.”

5.By its summons dated 12 July 2012, Zebra now applies for leave to appeal against the Judgment.  Zebra seeks to appeal against the Judgment on the basis that I have not ruled that Wah Tong had breached and violated the Burrell J’s Stay Order (in itself not making an application for arbitration after that stay order), and on the arbitrator’s assessment of costs which was also allegedly wrong.

6.Pursuant to s 23(7) of the AO, no appeal shall lie to the Court of Appeal from the Judgment unless this Court or the Court of Appeal gives leave.  Thus, Zebra needs to obtain leave to appeal to the Court of Appeal against the Judgment.

7.In relation to applying for leave to appeal to the Court of Appeal, O 59 r 2B(1) of the Rules of the High Court (Cap 4A) provides as follows:

“(1) … an application for leave to appeal against -

…

(c) any other judgment or order of the Court against which an appeal may be made with leave of the Court or the Court of Appeal,

may only be made to the Court in the first instance within 14 days from the date of the judgment or order.” (emphasis added)

8.Thus, any such application for leave to appeal has to be made to the Court of First Instance within 14 days of the date of the subject judgment or order.

9.It has also been decided that, on a proper construction of O59 r 2B(1), this Court (as Court of First Instance) does not have any power to extend the 14 days time limit and therefore would not have power to deal with an application for leave made out of time.  See: Wynn Resorts (Macau) SA v Mong Henry[2009] 5 HKC 515 at paragraphs 10-15 per Chu J (as she then was); Menno Leendert Vos v Global Fair Industrial Ltd (unrep, HCA 4200/1995, 23 April 2010) at paragraphs 5-8 per To J.

10.I agree with these decisions.

11.The present application for leave to appeal to the Court of Appeal is governed by O 59 r 2B(1)(c), and such an application has to be made within 14 days of the Judgment[1].

12.In the present case, the 14 days limit to apply for leave to appeal against the Judgment (which is dated 20 June 2012) expired on 4 July 2012.  This application was taken out on 12 July 2012, which is out of time.

13.In the premises, I have no power to deal with this application.  I would refuse it on this ground alone.

14.Further, in case I am wrong above and have jurisdiction to consider this leave application, I would have refused it as I am of the view that the intended appeal does not have any chance of success. 

15.Given that Zebra may apply to the Court of Appeal to ask for leave, I would only explain my reasons why the intended appeal grounds have no chance of success very briefly:

(1)   In relation to the intended appeal relating to my failure to rule on matters Wah Tong’s alleged breach of Burrell J’s Stay Order, other than that this had not be properly raised before me at the substantive hearing, this in my view is in any event clearly outside the scope of the original application made under s 23 of the AO to appeal against the Award.  This has nothing to do with the Award itself.

(2)   The leave to appeal granted to Zebra by the Court of Appeal under its decision dated 16 November 2011 was related to the Award only[2].  The substantive appeal before me was thus also related only to the Award (dated 24 September 2010).  The arbitrator’s assessment on costs (which were the costs of the arbitration and its referral, and having been awarded to Zebra by the arbitrator under another award dated 28 October 2010) was made on 23 December 2011.  All these subsequent costs awards are separate from and not part of the Award, and are therefore not part of the substantive application (of which leave was granted) before me when I heard it in March 2012.

16.In the summons, Zebra further applies under s 25(1) of the AO to remove the current arbitrator and to replace him by two arbitrators who are “Confirmed, Baptized, Practising, Church Going Christians…”.

17.This “application” is clearly outside the scope of these proceedings and the intended appeal against the Judgment.  The court will not deal with it.

18.For the above reasons, I refuse Zebra’s application for leave to appeal.

19.There are no reasons why costs should not follow the event. I further order that costs of this application be to Wah Tong, to be taxed if not agreed.

Plaintiff, in person, represented by its director, Mr Elijah Saatori

Mr Josiah Chan Chung Ming, instructed by W K To & Co, for the defendant