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

HCMP 1604/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1604 OF 2012

(ON AN INTENDED APPEAL FROM HCCT NO. 46 OF 2011)

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BETWEEN

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Before: Hon Kwan and Fok JJA

Date of Judgment: 5 October 2012

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.A dispute between the applicant and the defendant was referred to arbitration and resulted in an award dated 24 September 2010. The applicant was dissatisfied with the result and sought leave to appeal against the award. Although Saunders J dismissed that application for leave to appeal, the Court of Appeal granted the applicant leave to appeal out of time (in CACV 52/2011). The applicant duly issued an originating summons in HCCT 46/2011 pursuant to such leave.

2.The appeal against the award in HCCT 46/2011 was heard by Au J who, by his judgment dated 20 June 2012, allowed the applicant’s appeal and remitted the award to the arbitrator for his reconsideration in the light of the Court’s opinion on the various questions of law addressed in that judgment.  However, Au J refused to deal with certain other applications made by the applicant on the basis that they did not come within the proper ambit of the application to appeal against the award.

3.The applicant remains dissatisfied with the outcome of the appeal against the award and by summons dated 12 July 2012 applied for leave to appeal to the Court of Appeal against Au J’s refusal, in his judgment, to deal with its other applications.  The time limit for making that application was 14 days from 20 June 2012, i.e. 4 July 2012, so the application was out of time.

4.By his decision dated 25 July 2012, Au J dismissed the application for leave to appeal against his judgment because he held that he had no jurisdiction to extend time to entertain the out of time application and also because he considered it did not have any chance of success.

5.The present summons is a renewal of the application for leave to appeal against Au J’s judgment. There is not, but should be, an application for an extension of time for the leave to appeal application under RHC O.59 r.2A(3).  Had such an application been made it would be relevant to consider: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the intended appeal succeeding; and (4) the degree of prejudice to the other party if the application is granted.

6.The eight-day delay in the application to Au J was not substantial and, since the applicant appeared in person by one of its directors who thought the time limit for the application was 28 days, the delay on its own would not be a reason for dismissing an application for an extension of time.

7.However, we are in full agreement with Au J’s reasons for concluding that the proposed appeal has no chance of success whatsoever.  The applicant is seeking to complain that Au J failed to rule that the defendant breached Burrell J’s order staying the applicant’s court proceedings (in HCA 1551/2004) in favour of arbitration so that it was deprived of the opportunity to overturn the costs order made by Burrell J in that stay application.  The applicant also seeks to appeal on the basis that Au J did not rule on the errors made by the arbitrator in his costs award (which was an award dated 28 October 2010 and which was separate to the substantive award dated 24 September 2010).  For the reasons set out by Au J in paragraphs 15(1) and 15(2) of his decision dated 25 July 2012, we do not think there is any prospect of success in the proposed appeal.

8.For the above reasons, we would not have been minded to grant an extension of time in which to apply for leave to appeal had such an extension been sought.

9.It follows that the summons for leave to appeal is out of time.  For that reason, and also because we do not think the proposed appeal has any prospect of success, we dismiss that summons.  Moreover, we consider that the application is totally without merit and we therefore make an order, pursuant to RHC O.59 r.2A(8), that no party may request this determination to be reconsidered at an oral hearing inter partes.

10.We would add that, in Hondon Development Limited & Anor v Powerise Investments Limited & Anor, unrep., CACV 296/2003 (11.12.03), Yuen JA expressed doubt that RHC O.5 r.6 applies to proceedings in the Court of Appeal.  However, since the applicant appeared by its director before Au J and in CACV 52/2011, we were content to deal with this application on the papers without requiring the applicant to obtain legal representation.  Our doing so is not to be construed as indicating any disagreement with the views expressed by Yuen JA in Hondon.

11.As for costs, there is no reason why these should not follow the event and we make an order nisi that the plaintiff pay the defendant’s costs of the application for leave to appeal.

12.The defendant has submitted a statement of costs dated 22 August 2012 seeking costs of the application for leave to appeal in the sum of HK$25,940.  Item F1, being the costs of preparation of the statement of costs, will not be allowed: see PD14.3 §13.  If that item is excluded, the costs sought by way of summary assessment are HK$24,640.  We direct that the plaintiff file a response to the defendant’s statement of costs within seven days of hereof.  In the absence of such response, the defendant’s costs will be assessed in the sum of HK$24,640.

Written submissions by the Plaintiff/Applicant in person, represented by its director, Mr Elijah Saatori

Written submissions by Mr Josiah C M Chan, instructed by W. K. To & Co., for the Defendant/Respondent