China Poly International Auction Ltd v. Poly Auction (Hong Kong) Ltd and Another

HCA 2155/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2155 OF 2012

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D E C I S I O N

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1.This is an application for leave to appeal against my order yesterday uplifting my ex parte order made on the day before yesterday but only for a few days.

2.This application is made under section 14AA(1) and (4) of the High Court Ordinance, Cap 4 and O 59 r 2B of the Rules of the High Court.  Section 14AA(4) provides:

“(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interests of justice why the appeal should be heard.”

I understand that the application has brought under (a).

3.It has been explained in the case of SMSE v KL [2009] 4 HKLRD 125 at para 17 per Le Pichon, JA that “reasonable” means more than fanciful but without having to be probable.

4.Yesterday’s application for discharge was made as a matter of urgency because an auction is to be held from today to day after tomorrow.

5.The court entertained the application without giving the plaintiff any opportunity to respond to the affidavit evidence of the defendant.

6.Legal arguments were made by both sides but the opportunity did not allow detail scrutiny by the court of some of the authorities.

7.Some of the arguments made against the plaintiff carry serious connotations.

8.In the light of the urgency of the matter, the court could not and did not take time to deliberate the submissions but had to render a decision that would carry the least risk of unfairness whatever may be the final outcome of the battle.  The court regarded such an approach as appropriate particularly for the reason that the inter partes hearing for the continuation of the ex parte order will take place on Friday, 30 November.

9.The court can reasonably expect that the evidence and arguments will be presented more comprehensively by both sides on the returnable date and there will be time for the court to properly deliberate on the merits of the ex parte injunction.

10.In the light of the circumstances in which the order being challenged was made, the fact that it was an exercise of the court discretion and that the returnable date will take place one week away, I do not think the proposed appeal has a reasonable chance of success.

11.I therefore dismiss this appeal with no order as the costs, because the plaintiff is not taking any stance.

12.I would however further order that despite the terms of the ex parte injunction, the defendant shall be at liberty to carry out all follow-up work including issuing invoices, accepting payments, issuing receipts, arranging delivery and shipment of goods and all other administrative or managerial work in relation thereto and the issuing of all necessary documents pursuant thereto after the conclusion of the auction so as to finalized all the sales and purchases effected in the auction and to wind up the auction completely.

13.I also order that the delivery up order in the ex parte injunction granted on 21 November 2012 be suspended until after the conclusion of the inter partes hearing for the continuation of the ex parte injunction.

Mr Wong Huk Kam, of JCC Cheung & Co, for the plaintiff

Mr John Yan, SC and Mr C W Ling, instructed by ONC Lawyers, for the 1st and 2nd defendants