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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Before: Deputy High Court Judge Sakhrani in Chambers

Date of Hearing: 29 November 2012

Date of Decision: 29 November 2012

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D E C I S I O N

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1.By his decision given on 27 August 2012, Recorder A Chan SC, dealt with a number of applications before him at that time. One of the applications was an application to set aside leave given to the plaintiff to serve a writ out of the jurisdiction on the defendants. By the agreement of the parties, the Recorder dealt with the jurisdiction issue.

2.Having heard arguments, he decided against the defendants and he dismissed the jurisdictional challenge that had been mounted on behalf of the defendants.  He directed that there should be a speedy trial of the action and the parties were to agree a set of directions for that purpose.

3.Not being satisfied with his decision, the defendants applied to the Recorder for leave to appeal his decision.  That came before the Recorder on 19 September 2012.  He gave leave to the defendants to appeal his decision but he refused the defendants’ application for a stay of the order pending appeal. 

4.At paragraphs 6 to 8 of his judgment of 19 September 2012, the learned Recorder said this:

“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 the 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. A 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.”

5.Having been granted leave to appeal, the defendants issued a notice of appeal.  The notice of appeal was filed on 4 October 2012 in Civil Appeal No. 224 of 2012.

6.The matter before me today is an application by summons dated 17 October 2012 by the defendants for an order that there be an interim stay of the order of the Recorder made on 27 August 2012 until the determination of the stay application made by the defendants to the Court of Appeal.

7.On the very same day, 17 October 2012, the defendants issued another summons returnable in Civil Appeal No. 224 of 2012 asking for an order that the execution of the said order of the Recorder be stayed until determination of the appeal. 

8.I understand that the hearing of that summons before the Court of Appeal will be heard tomorrow before Kwan JA. 

9.That being so, it seems to me that it is a complete waste of time and money for the defendants to persist in the application before me which they have persisted right up to this very moment.  In effect, they are asking for a stay for one day until Kwan JA deals with the matter tomorrow.

10.It seems to me that in seeking an interim stay before me today namely, an interim stay of the order for a speedy trial made by the Recorder, the defendants are asking me to review the Recorder’s order made on 19 September 2012 refusing the defendants’ application for stay of his order.

11.The order of the Recorder made on 19 September 2012 has been sealed and perfected. It was filed on 19 October 2012.  His order can only be reviewed by the Court of Appeal and not by another judge of the Court of First Instance.  I have no jurisdiction to review the Recorder’s order of 19 October 2012.  Only the Court of Appeal can do that. In any event, that was a case management decision made by the Recorder.

12.The fact that Mr Lane of the defendants’ solicitors accepted before the Recorder that the undertaking by the plaintiff not to take any point on submission to jurisdiction meant that the nugatory argument falls away demonstrates, in my view, that there is no merit whatsoever in any submission that by participating in the procedural steps leading to a speedy trial, including the filing of a defence and counterclaim, the defendants would be considered to have submitted to the jurisdiction of the Hong Kong court.  There is absolutely no merit in that submission in view of the circumstances of this case.

13.I see no merit in the present application, and I dismiss the application.

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

Ms Teresa Wu, instructed by King & Wood Mallesons, for the 1st and 2nd Defendants