Compania Sud Americana De Vapores Sa v. Hin Pro International Logistics Ltd

HCMP 1449/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO1449 OF 2014

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D E C I S I O N

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1.I am going to dismiss the summons before me today. These are my short reasons. For the background of the case, I have read the judgment of the Deputy Judge Saunders dated 17 July 2014 concerning appointment of receivers for the defendant and the decision of 18 July 2014 concerning the freezing of assets of Soar. I have also considered the submissions for both sides and read the materials produced before me in bundle A. I am grateful to Mr Scott SC and Mr Hui, counsel for the plaintiff, in setting out in a succinct manner the background of this case.

2.I dismiss the summons today on 3 broad grounds.  Firstly, I query, whether or not, with the appointment of the receivers, the defendant, now acting through its director, still has the locus to take out the summons and seek the reliefs stated therein on behalf of the defendant. 

3.Secondly, paragraph 1 of the summons, asks for an order that the receivers be ordered “in not to interfere the defendant’s all proceedings against the plaintiff in China”.  The receivers have been appointed by the court and the order has been made on inter parte basis although the defendant has chosen not to appear at that hearing.  The appointment order is now under appeal. 

4.In a previous application for stay of execution before Deputy Judge Chu, her ladyship has questioned the jurisdiction of the court to entertain the application.  The appeal is still pending.  Similar to Deputy Judge Chu’s query, I likewise question the existence of jurisdiction of this court to deal with paragraph 1 of the summons.  That aside, the order sought would have the effect of defeating the anti-suit injunctions that are now in place. 

5.Furthermore, under the receivership order, the receivers have been empowered to intervene and take any necessary steps on behalf of the defendant in the PRC legal actions referred to in schedule 1 of the order and, if thought fit, to withdraw and discontinue the said legal actions.  The receivers have been given the discretion to consider how best to deal with the proceedings in the Mainland, of course, in the light of those anti-suit injunctions.  This court has been informed by the affidavit of the receivers, that the receivers have not yet decided on what to do, let alone to “interfere” with the proceedings in the Mainland. 

6.I am not satisfied that this court has the jurisdiction or should deal with paragraph 1 of the summons.

7.In relation to the paragraph 2 of the summons, the defendant and Soar asked for an order that the monthly and litigation expenses of the defendant and Soar International Logistics Limited be increased as per the annex. 

8.This is the 3^rd application by the defendant by summons for variation of the monthly and litigation expenses.  The 1^st one has been summarily dismissed by Deputy Judge Chu on the ground that the defendant had produced no meaningful evidence in support of the application.  The 2^nd summons went before Deputy Judge Ng who made an order for amendment so as to include Soar.  That amendment has not been pursued by the defendant to date.  Deputy Judge Ng gave directions for the variation application to be adjourned for arguments.  I have been told that the substantive hearing will take place on 11 September 2014, ie two weeks away.  There is no reason given by the defendant or Soar as to why another application of the same kind should be taken out before me before that substantive hearing. 

9.Overall I consider it an abuse of process for the defendant to repeat its applications and for the reasons I have given, I dismiss the summons.

Mr John Scott, SC and Mr John Hui, instructed by Stephenson Harwood, for the plaintiff

Mr George Chu, instructed by Damien Shea & Co, for the defendant and Soar International Logistics Limited

Mr Randall Arthur of Gall, for the joint and several receivers and managers of the defendant and Soar International Logistics Limited