Rich Village Ltd v. Grand Pride Holdings Ltd and Another

HCA 867/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 867 OF 2012

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J U D G M E N T

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1.There are three applications before me. Firstly, there is the application to vary the costs order nisi made on 27 August 2012. I accept that the said order does not reflect the fact that the defendants’ application to discharge the Injunction was not argued save for the jurisdiction point (see paragraphs 1 and 2 of the Decision dated 27 August 2012 (“the Decision”). Having considered the submissions made by the parties, I believe that the said order should be varied such that one-third of the costs of the hearing be costs in the cause of this action.

2.Secondly, there is the application by the defendants for leave to appeal against the Decision. The defendants maintain that the jurisdiction clause in question is an exclusive one and that this court has erred in holding that it is a non-exclusive jurisdiction clause.

3.I approach this application with an open mind, recognising that I may be wrong however convinced that I am as to the correctness of the Decision. Further, the threshold which the defendants have to meet for the purpose of this application is not a very high one.  They have to demonstrate that the appeal is more than just arguable, but not that it will probably succeed - see Hong Kong Civil Procedure (2012) Vol 1 1033 59/2A/4.

4.With respect, I am not persuaded that the draft grounds of appeal or the submissions made to me by Mr Lane on behalf of the defendants have identified anything which this court had overlooked in the course of the construction exercise.  The thrust of the submissions is that insufficient weight had been given to the assertive terms of the jurisdiction clause. 

5.However, whilst I am not convinced as to the merits of the appeal, I am satisfied that it is more than arguable.  As stated in paragraph 32 of the Decision, the answer to the construction exercise was not an obvious one.  Further, the Court of Appeal will be in as good a position as this court in reaching an answer on the construction exercise.  On balance, I am prepared to grant leave to appeal, and such leave is granted on the condition that the defendants do prosecute this appeal with all due expedition.

6.Thirdly, in respect of the application for stay pending appeal, Mr Lane has fairly accepted that with the plaintiff’s undertaking not to take any point on submission to jurisdiction (see paragraph 2 of plaintiff’s response submission on defendants’ application for stay of execution) the nugatory argument falls away.

7.Despite Mr Lane’s argument to the contrary, I do take the view that the trial preparation should proceed in parallel with the appeal.  Given the subject matter of this dispute, it is clearly desirable that the dispute be resolved as soon as possible. The parties are in agreement that with the evidence already filed in this action the dispute is more or less ready to be tried.  The trial will of course have to be fixed to be heard shortly after the conclusion of the appeal.  Although there will be wasted costs should the defendants succeed in this appeal, I believe that given the value of the shares in question such factor does not outweigh the consideration that these matters be resolved as soon as possible.

8.In the circumstances, I decline the defendants’ stay application.

(Submissions on costs)

13. By consent of the parties, the costs of today be costs in the cause of the appeal.

Mr Neville Sarony, SC and Mr Conrad Wan, instructed by Tang, Wong & Cheung, for the plaintiff

Mr Jeffrey Haydn Lane, of King & Wood Mallesons, for the 1st and 2nd defendants