XCHRX ABUNDANCE ASSETS LTD. v. SUN ASIA PACIFIC HOTELS and Another

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMMERCIAL LIST

1994, No: CL 19

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JUDGMENT

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Background and Chronology

1. On 3 September 1990, the owner of the Ramada Renaissance Hotel ("the hotel") in Hong Kong entered into a management agreement with Sun Asia Pacific Hotels Limited ("Sun Asia") under which Sun Asia would operate and manage the hotel. On 28 September 1990, Sun Asia assigned all benefits under this agreement to a company which changed its name to Allson Classic Hotel (Hong Kong) Limited ("Allson"). On 26 October 1990, the owner sold the hotel to Abundance Assets Limited ("Abundance"), and, on the same day, the owner, Sun Asia, Abundance and Allson subscribed to a deed amending the management agreement. Hereafter, I will refer to the management agreement and the deed amending it as "the management agreement"

2. On 20 November 1993, Abundance service a notice on Sun Asia and Allson purporting to terminate the management agreement. Two days later, Allson issued a generally endorsed writ in action 1993: CL 179 ("Action 179") claiming a declaration that the management agreement was still subsisting and injunctions to restrain Abundance from interfering with its rights under the agreement and to prevent Abundance from selling, assigning or otherwise deposing of the hotel.

3. Pressure followed from Abundance to persuade Allson to serve its points of claim culminating in an "unless order" granting Allson until 24 January 1984 to do so.

4. On 19 January 1994, Abundance sold the hotel.

5. On 24 January 1994, Allson filed a notice of discontinuance in Action 179.

6. On 27 January 1994, Allson filed a complaint by which it commenced civil proceedings in Hawaii ("the Hawaiian action") seeking relief in respect of breaches of the management agreement. The defendants cited in that action were Abundance, Sukamto Holding Corporation ("SHC") and three Sukamto brothers, Sukarman Sukamto, Sumitro Sukamto, Sutarman Sukamto.

7. On 16 February 1994, Abundance issued a generally endorsed writ in Hong Kong in action 1994: CL 19 ("Action 19") against Sun Asia and Allson claiming declarations in relation to the termination of the agreement, an account and damages. The points of claim in this action were filed on 24 March 1994.

8. On 4 March 1994, Abundance moved the Hawaiian court to dismiss Allson's complaint for lack of jurisdiction and forum non conveniens.

9. On 7 April 1994, Sun Asia issued a summons in Action 19 asking for an order staying the proceedings on the grounds of forum non conveniens and lis alibi pendens. On the same day, Allson issued a similar summons claiming the same relief on the same grounds.

10. On 2 May 1994, the Hawaiian court denied the motion by Abundance to dismiss the complaint.

11. On 13 May 1994, Abundance filed an answer to the complaint in the Hawaiian proceedings.

12. On 17 June 1994, Allson issued a generally endorsed writ in action 1994: CL 108 ("Action 108") claiming declarations under the Transfer of Business Ordinance "and/or" the relief claimed in the Hawaiian proceedings.

13. On 29 June 1994, Abundance moved a motion in the Hawaiian court to reconsider the denial of the motion to dismiss.

14. On 6 July 1994, Allson filed a summons claiming a stay of proceedings in Action 108 on the ground of lis alibi pendens.

15. On 4 August 1994, the Hawaiian court denied Abundance's motion for reconsideration of its order denying the motion to dismiss the complaint.

The Proceedings

16. In chronological order of their commencement, the following proceedings have arisen out of the termination of the management agreement -

Action 179

17. This is an action by Allson against Abundance commenced by a generally endorsed writ issued on 22 November 1993. No points of claim were ever served, but the endorsement on the writ stated that the plaintiff's claim was for -

1. A declaration that the management agreement was valid, subsisting and in full effect and would so remain until 30 September 2010.

2. A declaration that Allson was entitled to continue to manage the hotel.

3. An injunction restraining Abundance and others from interfering with Allson's right to manage the hotel.

4. An injunction restraining Abundance from disposing of the hotel.

5. Costs.

6. Further and other relief.

18. As I have said, Allson filed a notice of discontinuance in Action 179 on 24 January 1994.

Action 19

19. This is an action by Abundance as plaintiff and Sun Asia and Allson as defendants. It was commenced by writ on 16 February 1994. Abundance claims a declaration that the management agreement terminated on 20 November 1993 by Abundance's acceptance of Sun Asia's "and/or" Allson's repudiation. In the alternative, it claims declarations that Abundance was entitled to and did terminate the agreement by notice given on 20 November 1993. Abundance also claims a declaration that it is entitled to repayment of certain money received by Sun Asia "and/or" Allson as agent, an account, and damages for breach of contract and fiduciary duty.

20. It is in respect of this action that, on 7 April 1994, Sun Asia and Allson issued a summons asking for an order staying the proceedings on the grounds of forum non conveniens and lis alibi pendens. This summons is one of those before me.

The Hawaiian Action

21. This action is by Allson as plaintiff against Abundance, SHC, Sukarman Sukamto, Sumitro Sukamto, Sutarman Sukamto and a multiplicity of John Does and Doe Entities as defendants. Allson alleges a breach of the management agreement for which it claims compensatory damages, a tortious breach of the management agreement for which compensatory and punitive damages are claimed, fraud in respect of which compensatory and punitive damages are claimed and negligent misrepresentation for which Allson claims compensatory damages. The action was commenced by filing a complaint on 27 January 1994.

Action 108

22. This is an action by Allson against Abundance commenced by writ issued on 17 June 1994 in which Allson claims declarations that the Hawaiian action constitutes "proceedings" for the purpose of the Transfer of Business (Protection of Creditors) Ordinance, Chapter 49, and that the notice of transfer of business is deemed to be incomplete pending the final determination of the Hawaiian action. The action also claims damages "and/or" punitive damages on much the same basis as it claims this relief in the Hawaiian action.

23. In a letter to Abundance served with the writ, and in a similar letter to the purchaser of the hotel, Allson said ". . . the writ has been issued to preserve our client's rights under the Transfer of Business Ordinance pending determination of the rights in the proceedings . . . in Hawaii" and that ". . . in these circumstances we propose to seek a stay of these proceedings pending determination of the proceedings in Hawaii".

24. On 6 July 1994, Allson filed a summons claiming a stay of proceedings in this action on the ground of lis alibi pendens. This is the other summons before me.

The Summons in Action 19

25. It is convenient, I think, to consider firstly the summons issued in Action 19. Sun Asia and Allson ask me to stay this action on the grounds of forum non conveniens and lis alibi pendens.

26. One starts an inquiry of this nature, I believe, from the premise that a person is entitled to litigate a dispute in our courts where our courts have clear jurisdiction over the matter. No one doubts that our courts have jurisdiction in Action 19, if for no other reason than that the management agreement provides that they do. In order to persuade our courts to refuse to exercise that jurisdiction and to order a stay of proceedings, the party asking for that relief must show that it is entitled to it.

The Law

27. The basis on which such relief may be granted is now clearly established. The principles are set out in Spiliada Maritime Corporation v. Consulex Ltd. [1987] AC 460.

28. Reading the speeches in that case, I was impressed, with respect, by the words of Lord Templeman at 465C -

"I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days."

29. The speech of Lord Goff (commencing at page 466) approved at 474C the fundamental principle as stated by Lord Kinnear in Sim v. Robinow (1892) 19 R. 665, at 668 -

"the plea [of forum non conveniens] can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and the ends of justice."

30. Amongst other statements, Lord Goff made the following remarks, which I have found useful and have applied in this case -

At 474E ". . . I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but the suitability or appropriateness of the relevant jurisdiction."

At 476D ". . . in general the burden of proof rests of the defendant to persuade the court to exercise its discretion to grant a stay . . .. each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. . . . if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take

At 476F to 477 Lord Goff discusses whether the English courts will lightly disturb jurisdiction founded as of right in accordance with the law, and goes on at 477E to say - "In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right . . . ; and there is the further advantage that, on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions."

At 477G Lord Goff said ". . . the court will look first to see what factors there are which point in the direction of another forum. These are the factors . . . indicating that justice can be done in the other forum at 'substantially less inconvenience or expense'". But he considered at 477H "that it may be more desirable . . . to adopt the expression . . . the 'natural forum' as being 'that with which the action had the most real and substantial connection'. So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction . . . and the places where the parties respectively reside or carry on business. If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay . . . It is difficult to imagine circumstances where, in such a case, a stay may be granted. If, however, the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction . . ."

Is There More than One Available Forum?

31. Clearly, the Hong Kong courts are available for the litigation of the dispute.

32. The judge in the Hawaiian action has dismissed forum non conveniens motions there, holding, until an inquiry into the facts on which jurisdiction is founded, that the Hawaiian court has jurisdiction. I, of course, must accept this as establishing that, at this stage, the Hawaiian court is another available forum having competent jurisdiction. It must be said, however, that, although no one doubts the jurisdiction of the Hong Kong courts, the jurisdiction of the Hawaiian court is being challenged. The decision of the Hawaiian court is not final. It may yet hold, on an investigation into the facts, that it does not have jurisdiction. Accordingly, I have before me a situation in which one competing jurisdiction is clearly established, but, in respect of the other, there is some doubt, however little that may be.

33. For present purposes, I accept that there are competing available fora having competent jurisdiction.

Consideration of the Relevant Factors

34. The central dispute is whether or not the management agreement was lawfully terminated. The parties to that agreement were Abundance on the one hand and Allson and Sun Asia on the other. On the face of the documents, no other legal persona were involved. The agreement governed the relationship between the parties regarding the management of a hotel in Hong Kong. The management agreement is governed by Hong Kong law. The assignment by Sun Asia to the company that became Allson is governed by Hong Kong law. The sale and purchase agreements relating to the hotel are governed by Hong Kong law. Whether or not the termination was lawful will be governed by Hong Kong law, and depends on disputes concerning factual events taking place or having effect in Hong Kong. The businesses of the parties as far as they concern the agreement were in Hong Kong.

35. On the face of it, without more, all this would lead one very firmly to the conclusion that the natural or appropriate forum for the litigation of the dispute would be undoubtedly the courts of Hong Kong.

36. Although the parties submitted to the jurisdiction of the Hong Kong courts, the fact that this was a non-exclusive submission indicates, Mr Griffiths argues, that the parties envisaged the possibility of litigation in another jurisdiction. And the fact that the agreement provides for arbitration in Stockholm is another pointer in this same direction. All this is true, but it goes nowhere along the path of deciding which of the two fora relevant here is the more natural or appropriate.

37. On what basis, then, is it said that the Hawaiian forum is clearly or distinctly more appropriate? What are the factors that show that Hong Kong is not the natural or appropriate forum for the trial, and the Hawaiian courts are clearly or distinctly more appropriate than the Hong Kong courts?

Approach

38. It may be helpful, at least to me, to consider the questions posed above without, initially, taking into account the existence of the proceedings in the Hawaiian courts, except to the extent that it is necessary to do so to assess properly the other factors that might indicate which forum is the more natural or appropriate. In other words, I propose to consider the matter, in the first instance, without bringing into play the undesirability of having the same matter litigated concurrently in different proceedings in different jurisdictions. Thereafter, I will consider, separately, whether the multiple proceedings argument makes any difference to the conclusion reached.

Superior Procedure and Remedies?

39. Allson has suggested that, from its point of view, the Hawaiian jurisdiction is to be preferred. It says the following advantages exist -

a) the Hawaiian trial should take place in early 1996; much earlier than Action 19 could come to trial;

b) the corporate veil may be more readily lifted in Hawaii;

c) punitive damages are available in Hawaii;

d) the tortious breach of contract could not arise in the same form in Hong Kong;

e) executable assets are readily available in Hawaii;

40. It is apposite here to quote the words of Lord Goff in Société Aerospatiale v. Lee Kui Jak [1987] 1 AC 873 at 899 A -

"In truth, the matters relied upon by the plaintiffs (viz. superior means of gathering evidence to mount a case . . . ; availability of expert counsel; the contingency fee system; prospects of an early trial) are not so much connecting factors with Texas which now render Texas the natural forum as advantages available to the plaintiffs in Texas of which, they submit, it would be unjust to deprive them."

41. These points do not, I find, lead in the direction of deciding that Hawaii is the more natural or appropriate jurisdiction.

Location of the Parties

42. Allson is a Hong Kong Company. Sun Asia is incorporated in the British Virgin Islands. It has submitted to jurisdiction of Hong Kong courts. It had a place of business in Hong Kong at all material times. It was a party to the management agreement.

43. Abundance is a company registered in the British Virgin Islands with a place of business in Hong Kong. It has not been disclosed who owns the shares in Abundance, but during the existence of the management agreement only five persons acted on its behalf: The three Sukamto brothers, two of whom are resident in Hawaii, Clement Chan, the financial controller, who is also in Hawaii, and SHC, a Hawaiian company. So, it is said, the supervision and control of the hotel business was exercised from Hawaii. The heart and mind of the business was there.

44. So, the parties to the management agreement have strong connections with Hong Kong. Others, who are not parties to that agreement, but directed Abundance, are associated with Hawaii.

45. This factor does not clearly favour a conclusion that Hawaii is the natural or appropriate forum with claims superior to those of Hong Kong.

Location of Witnesses

46. Allson says that, in the Hawaiian action, four potential witnesses on the Abundance/Sukamto side: Sukarman and Sumitro Sukamto, Clement Chan and Howard Kam are living in Hawaii. The three major witnesses on the Allson side: Patrick Allante, Joji Otomo and Paul Sun Asia Chung Li have agreed to testify in Hawaii for deposition and trial. The Sun Asia witnesses, other than one who is no longer connected with Sun Asia, have agreed to give evidence in Hawaii.

47. There are only four potential material witnesses in Hawaii. There is a potentially greater number of witnesses outside Hawaii. The major witnesses within Allson are not in Hawaii. The material witnesses connected with Sun Asia do not reside in Hawaii. There may be witnesses relating to the "due diligence" review by Abundance before purchasing the hotel who are probably in Hong Kong; or, at least not in Hawaii. There are several witnesses who may be called to relate their knowledge regarding business dealings at the hotel who are not in Hawaii.

48. The location of the witnesses does not show that there would be less inconvenience and expense if the matter were litigated in Hawaii.

Location of Documents

49. One side tells me that most of relevant documents are in Hong Kong. The other side says the important documents are in Hawaii. Abundance says that the initial production of documents for the Hawaiian proceedings took place in Hong Kong. Clearly, some documents are in Hawaii; some are in Hong Kong. Whatever the situation may be, documents, wherever the source documents are situated, are as available in one jurisdiction as the other.

50. The courts of Hong Kong and those of Hawaii share, to a large extent, a common language, so no translation problems arise.

51. Allson argues that discovery, which will be important, would be best policed in Hawaii, which has personal jurisdiction over three defendants

52. This factor is, from Allson's point of view, at best neutral.

Location of Commission of Unlawful Act

53. Allson contends that the decision to terminate the agreement was made in Hawaii, and that the tort was planned and executed in Hawaii, although there is some vagueness about this in the allegations in Allson's case in Hawaii. No allegation is made as to where the alleged misrepresentations were made.

54. Mr Griffiths argues that although the management agreement is subject to Hong Kong law and should be construed accordingly, there is no suggestion the Hawaiian court, another court of common law jurisdiction, would have any difficulty with this. The real issue, he says, is a factual one, which should present no unusual problems for the Hawaiian court. Although the making of the contract and its performance are connected with Hong Kong, he says that the central issue is more closely connected with Hawaii because the heart and mind of Abundance is in Hawaii

55. The fact that, if this is the case, that the conspirators plotted in Hawaii to bring about the downfall of Allson and Sun Asia, is of little moment. The bullet may have been fired in Hawaii, but the victim died in Hong Kong. There is no doubt that the agreement was terminated in Hong Kong, and the justification, or otherwise, for this will be the main concern of any court trying the matter.

56. It may be that a Hawaiian court will be able to make a workman-like job of applying Hong Kong law to the matter, but there can be no doubt that it is far more natural and appropriate that the task of applying Hong Kong law should be left to Hong Kong courts.

57. There is nothing here that leads me to favour Hawaii as clearly the natural venue.

Are the Parties Identical?

58. In Action 19, only Abundance, Sun Asia and Allson are parties.

59. In the Hawaiian action, Abundance and Allson are parties. Sun Asia is not a party, although both Allson and Sun Asia clearly regard Sun Asia as very much involved in the business of the hotel. There are four (or three) other parties in the Hawaiian litigation who are not parties in Action 19.

60. Abundance has not counter-claimed in Hawaii, nor joined Sun Asia. If it counterclaims, it fears it may be held to have submitted to the jurisdiction, although the applicable law seems to be that counter-claiming in respect of the same subject matter is not taken as a submission.

61. Sun Asia, which Abundance has described as an indispensable party, has agreed to submit to US jurisdiction.

62. This is clearly not a case where the parties in the litigation in the two different jurisdictions will be the same. Mr Griffiths, with his usual skill, has sought to turn this to his advantage by arguing convincingly that it is better that all the issues between all the parties be decided in one set of proceedings. This may be so, but it is not my function to oblige Abundance to join in the Hawaiian litigation to achieve this by staying Action 19 where otherwise such an order would not be justified.

Are the Issues Identical?

63. Certainly, the principal dispute in both actions will be the conduct of the parties leading up to the purported termination of the management agreement. In Action 19, Abundance will be seeking to show that the conduct of Allson "and/or" Sun Asia justified termination. In the Hawaiian action, Allson will be attempting to establish that there was no such justification, and that Abundance and the other parties plotted to get rid off Allson and Sun Asia so that they could sell the hotel for an enhanced price unencumbered by the management agreement.

64. The dispute between Allson and Sun Asia on the one hand and Abundance on the other, as far as the issues between them are concerned, can be as well litigated in Hong Kong as Hawaii. It is true that, in Hong Kong, it may be that Allson will not be able to join the other parties in the Hawaiian action, but that is a procedural disadvantage, not a point that goes towards showing that the connections to Hawaii are more natural or appropriate. In any event, if it is so that the other Hawaiian parties conspired unlawfully with Abundance to bring about the termination of the management agreement, I cannot believe that Hong Kong law does not provide a remedy. The contractual relationship is between Allson, Sun Asia and Abundance. I see nothing unnatural or inappropriate in saying to a party to a contract that is most closely associated with Hong Kong that he must litigate in the jurisdiction where he can sue only the other party to the contract, if this is only what the Hong Kong law provides,.

Conclusion at This Stage

65. In my judgment, without considering the concurrent proceedings point, the factors indicate overwhelmingly that Abundance has instituted its proceedings in the most natural and appropriate jurisdiction. Without more, in my view, the Hawaiian court comes a very poor second. Certainly, Allson and Sun Asia have nowhere near demonstrated that Hawaii is clearly or distinctly the natural or appropriate forum to be favoured over Hong Kong. The only significant factor pointing to Hawaii is the presence within that jurisdiction of some legal persona who are the directing hands of Abundance, but not parties to the agreement in dispute. That factor, in my opinion, does not begin to move the balance against the weight of all the other factors that favour Hong Kong as the natural forum.

The Foreign Proceedings and Multiplicity of Actions

66. I consider now the effect of the existence of foreign proceedings on the exercise of my discretion.

Comparative State of Litigation

67. Allson says the Hawaiian action is considerably more advanced than Action 19, and there can be doubt about this. Answers have been filed by Abundance, Sukarman Sukamto and SHC. A fair number court documents have been filed. Documentary discovery is well advanced. Oral discovery will commence with witness Howard Kam on 1 December 1994.

68. Abundance, on the other hand, points out that the pleadings have not been closed, and that one of the parties, Sumitro Sukamto, has not even been served.

69. I do not attach much weight to this aspect of the matter. The state of the proceedings in Hawaii cannot make it clearly or distinctly the natural or appropriate forum if it is not so. In any event, on Allson own arguments, if the factual issues are much the same in the two jurisdictions, most of the work will not need to be done twice; the Hong Kong proceedings will have the advantage of the work done in respect of the Hawaiian action.

The Law

70. I set out below extracts from the authorities on this aspect of the matter -

In The Abidin Daver [1984] 1 AC 398, Lord Diplock said at 410A ". . . not only was [the foreign jurisdiction] the country with which the matter litigated had the closest connections, but also the natural and appropriate forum from the point of view of convenience and expense has, from the outset, been and still remains [the foreign court]. . . . One thing, however, is self-evident; it must be more expensive to litigate about liability for the same collision in two jurisdictions that it would be to litigate in one alone."

And at 411G, about ". . . the crucial question of what influence upon the exercise of his discretion whether to grant a stay of the English proceedings or not the judge should have attributed to the fact that at the time the stay was applied for there was already proceeding in a natural and appropriate forum . . . litigation between the same parties about the same subject matter in which the roles of plaintiff and defendant were reversed.", he said "Where a suit about a particular subject matter between a plaintiff and a defendant is already proceeding in a foreign court which is a natural and appropriate forum for the resolution of the dispute between them, and the defendant in the foreign suit seeks to institute as plaintiff an action in England about the same matter to which the person who is plaintiff in the foreign suit is made defendant, then the additional inconvenience and expense which must result from allowing two sets of legal proceedings to be pursued concurrently in two different countries which the same facts will be in issue and the testimony of the same witnesses required, can only be justified if the would-be plaintiff can establish objectively by cogent evidence that there is some personal or judicial (sic) advantage that would be available to him only in the English action that is of such importance that it would cause injustice to him to deprive him of it."

At 412B, he said "Quite apart from the additional inconvenience and expense, if the two actions are allowed to proceeded concurrently in the two jurisdictions the courts of the two countries may reach conflicting decisions . . . an unseemly race to be the first to obtain judgment . . . might well ensue; and novel problems relating to estoppel per rem judicatam and issue estoppel . . . might also arise. Comity demands that such a situation should not be permitted to occur as between courts of two civilised and friendly states. It is a recipe for confusion and injustice."

In Du Pont v. Agnew [1987] Ll. L. R. 585, Bingham L. J. said - "In approaching a case of this kind it is appropriate to bear in mind the general undesirability of concurrent proceedings between the same parties in different jurisdictions. . . . The general undesirability of such concurrent proceedings is, however, but one consideration to be weighed as part of the overall assessment. It cannot necessarily lead to a stay or setting aside of the English proceedings. . . . The policy of the law must nonetheless be to favour the litigation of issues only once in the most appropriate forum.

In de Dampierre v. de Dampierre [1988] AC 92, Lord Goff said at 108 - ". . . the court in this country looks first to see what factors there are which connect the case with another forum. If, on the basis of that inquiry, the court concludes that there is another available forum which, prima facie, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless be granted. . . . The same principal is applicable whether or not there are other relevant proceedings already pending in the alternative forum. . . . However, the existence of such proceedings may, depending on the circumstances, be relevant to the inquiry. . . . if, for example, genuine proceedings have been started and have not merely been started but have developed to the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing effect, then this may be a relevant factor to be taken into account when considering whether the foreign jurisdiction provides the appropriate forum for the resolution of the dispute between the parties."

In Meadows Indemnity Ltd. v. Insurance Corp. of Ireland [1989] Ll. L.R. 298 Hirst J. said - "The existence of foreign proceedings was a relevant factor in the equation when the court had to consider whether the foreign forum was clearly more appropriate; its weight would depend on all the circumstances . . . but it was not a decisive factor in the equation so as to shift the burden of proof . . ." Neill L. J. approved this statement at 305 - "he had well in mind the general undesirability of concurrent proceedings in two different jurisdictions but nevertheless reached the conclusion that the proceedings in England should not be stayed."

71. So, on these authorities, the existence of the Hawaiian action is a relevant consideration to be taken into account by me in deciding which is the most appropriate forum. Clearly, the court must guard against giving this factor too much weight. If it were regarded as anything approaching decisive, it would not be the court that decides which is the most natural or appropriate forum, but the litigant who commences the action in the foreign jurisdiction. This approach would lead to, and encourage, an unseemly rush for litigants to commence proceedings in the jurisdiction of their choice so that they would have a strong argument to prevent the opposition from litigating in a jurisdiction the winners did not like. Put crudely, why should Allson have a decisive edge over Abundance because it commenced the Hawaiian action some three weeks before Abundance commenced Action 19? On the other hand, I make nothing of the fact that Allson itself commenced earlier proceedings in Hong Kong because the relief sought in those proceedings essentially concerns Hong Kong. Nevertheless, Allson is not confined to proceedings in the foreign jurisdiction. It is entitled to counterclaim in the proceedings by Abundance, although, in those proceedings, and perhaps in other proceedings, it will be limited in its choice of the parties against whom it may seek relief, and may be limited in the type of relief available.

72. It seems to me that the conclusion to be drawn from the authorities is that the fact that a litigant has commenced proceedings in a foreign jurisdiction cannot make, of itself, a natural or appropriate jurisdiction out of what is not a natural or appropriate jurisdiction, but what is a natural or appropriate jurisdiction may become one which is clearly or distinctly so because there are already proceedings pending there. This factor may, I believe, tip the balance in favour of the foreign jurisdiction where other considerations make the choice between the two jurisdictions otherwise a close one.

73. The conclusion I reached earlier in this judgment that Hong Kong was overwhelmingly the natural or appropriate forum, and that, certainly, it had not shown to me that Hawaii is clearly or distinctly the natural or appropriate forum, cannot, in my view, be disturbed by the existence of the Hawaiian action. The scale is not so balanced that the foreign proceedings make any appreciable difference to the weight in favour of Hong Kong.

74. Of course, I accept that it is undesirable that there should be two sets of proceedings, but, if Allson is right in believing that it can obtain peculiar relief against legal persona in Hawaiian not available to it in Hong Kong, then the Hawaiian action is not a duplication of Action 19. Allson is not litigating to same ends in two different jurisdictions, and, if it successful, then, from its point of view, the exercise will be worthwhile.

Personal or Juridical Advantage

75. This aspect only becomes relevant if the court has found that the foreign jurisdiction is the natural or appropriate forum, but the personal or juridical advantages of allowing the proceedings to continue in the home jurisdiction are such that substantial justice cannot be done if the party is confined to that foreign jurisdiction. This does not arise on my findings.

Overall View

76. For the avoidance of doubt, in case it should be thought that by examining the factors individually I have lost sight of the need to have regard overall to the interests of all the parties and the ends of justice, and to favour the jurisdiction in which the dispute between the parties may be litigated with substantially less inconvenience or expense, I say that this is not the case. However imperfectly, I have tried to keep these ideas, and the authorities that state them, in my mind during my inquiry.

Conclusion on Action 19

77. Accordingly, I refuse the stay in this action.

Action 108

78. There remains the summons filed by Allson on 6 July 1994 to stay of its own proceedings in Action 108 on the ground of lis alibi pendens.

79. As I have said, this is an action designed to protect Allson's position under Chapter 49. Allson never had any intention of proceeding with the action concurrently with the Hawaiian action, and made this quite clear to Abundance and the purchaser of the hotel by letters at the time of the issuance of the writ. The idea is that these proceedings will lie dormant, incurring no expense or inconvenience, until the rights of the parties are settled. In a sense, Allson is seeking to hold onto some form of security in Hong Kong while it litigates a dispute elsewhere. As I understand the authorities, the courts tolerate this, and I see no reason why I should not do so.

80. Quite different considerations arise here to those relevant to the summons in Action 19. It would indeed be strange if I were to find in Action 19 that Hong Kong is the natural and appropriate forum, but here Allson is not entitled to invoke a remedy that is available only here.

81. Accordingly, I grant the stay in this action.

Costs

82. There seems no reason why Allson and Sun Asia should not pay the costs of the summons in Action 19, and I make an order nisi accordingly.

83. In Action 108, Allson sought a discretionary order from the court, and should pay the costs of the summons itself. I have found, however, that the stay in this action should be granted. On the face of it, I think Abundance should pay the costs occasioned by opposing the stay, and I make an order nisi in those terms.