G v. X AND OTHERS

HCCT 58/2021

[2024] HKCFI 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 58 OF 2021

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REASONS FOR DECISION

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1.  Before this Court is an application made by the 1^st Respondent by his summons issued on 19 January 2024 (“Summons”), for leave to set aside this Court’s order made on 19 December 2023 (and served on 5 January 2024), whereby leave was granted to the Applicant to enforce an award (“Enforcement Order”).

2.  The facts of the disputes between the parties have been set out in a Decision handed down by this Court on 19 December 2023, and will not be repeated here.  The nomenclature used in the Decision is adopted.

3.  The Enforcement Order was made after substantive arguments had been made by the parties at inter-partes hearings on 1 June 2022 and 29 September 2023, on G’s application for enforcement of the Award, X’s opposition thereto on substantive evidence filed, and X’s application for a stay of the enforcement proceedings in Hong Kong pending determination by the Mainland Court of his application to set aside the Award. Notwithstanding that, X claims that he is still entitled, after the Enforcement Order made, to apply and set aside same under Order 73 rule 10(6).

4.  For the same reasons set out in this Court’s decision (on an application made by G for payment out of money in Court), handed down shortly before the hearing of the Summons, I dismissed X’s application to set aside as made in paragraph 1 of the Summons. The 2 decisions may be read together. In my view, there is simply no basis for another application to be made under rule 10(6), after the Enforcement Order was made and the Decision was handed down. If there is any further recourse by reason of the allegedly new matters set out in the Summons which were allegedly not argued or considered by the Court at the hearing on 29 September 2023 and dealt with in the Decision, it should not be by way of an application under Order 73 rule 10(6). To construe rules 10(1), 10(4)  and 10(6)  as permitting a party to argue his case in opposition to an application for the Enforcement Order before it is made, and again in setting aside the Enforcement Order after it is made, is fundamentally inconsistent with the aims and principles of the Arbitration Ordinance and in stark contradiction to the objectives set out in Order 1A, RHC.

5.  The application in paragraph 1 of the Summons is, on the facts of this case, an abuse of process.

6.  There is no valid or proper application to be amended, and the application to amend is accordingly dismissed.

7.  As for the application for a stay of enforcement of the Award, made under paragraph 2 of the Summons and the inherent jurisdiction of the Court, that application was adjourned at the conclusion of the hearing for further and substantive arguments to be made at an early date to be fixed. I saw no basis to grant any interim stay.

8.  The costs of the application for setting aside and to amend are to be paid by X to G, with certificate for 2 Counsel, and the costs of the application for stay are reserved. The usual order as to costs of an unsuccessful application to set aside or to resist enforcement of an award, on indemnity basis, is to apply.

9.  If there should be further unreasonable and unwarranted applications made, the Court will consider the appropriateness of a wasted costs order under Order 62 rule 8. In this regard, legal advisers are referred to the observations made by this Court in paragraphs 1 to 3 of CNG v G & G [2024] HKCFI 575 handed down on 27 February 2024.