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HCCT 2/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 2 OF 2006
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BETWEEN
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SUEN WAH LING trading as KONG LUEN
CONSTRUCTION ENGINEERING COMPANY
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Applicant |
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and |
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CHINA HARBOUR ENGINEERING
COMPANY (GROUP)
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Respondent |
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Before: Hon Reyes J in Chambers
Date of Hearing: 29 August 2006
Date of Judgment: 29 August 2006
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J U D G M E N T
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1. Mr. Suen took out a writ in October 1999 against China Harbour. That action (HCA 16541/1999) was stayed to arbitration.
2. The arbitration commenced in October 2002 before Mr. Yeung Ming Tai as Arbitrator. After a hearing starting in March 2004, the Arbitrator published an Award and Amended Award against Mr. Suen on 28 December 2004 and 17 January 2005 respectively.
3. In January 2005 Mr. Suen applied by motion (HCCT 8/2005) to set aside the Award and Amended Award on the ground (among others) that the Arbitrator was apparently biased. This was because the Arbitrator had previously advised him in conference on the subject matter of HCA 16541/1999 in June 1999, before the action had commenced. By the time of the Arbitration in 2002, both the Arbitrator and Mr. Suen had forgotten this.
4. On 19 May 2005 Mr. Suen (then represented by Herbert Smith) issued a summons to discontinue HCCT 8/2005. I made an Order for HCCT 8/2005 to be discontinued on 23 May 2005. It is Mr. Suen's case, however, that he never authorised Herbert Smith to discontinue HCCT 8/2005.
5. On 26 May 2005 Mr. Suen applied for legal aid. That application was refused. Appeal against refusal of legal aid was dismissed by the Court on 23 August 2005.
6. Mr. Suen claims not to have known about the discontinuance of HCCT 8/2005 until around 2 June 2005.
7. By another proceeding (HCMP 1952/2005) started on 14 September 2005 Mr. Suen applied to the Court of Appeal to set aside my Order of May 2005. Mr. Suen asked to be allowed to resume HCCT 8/2005. Tang JA dismissed the appeal on 7 October 2005 on the ground that Mr. Suen should have applied to the Court of First Instance.
8. On 20 October 2005 Mr. Suen then issued a Summons in HCCT 8/2005 to set aside my May 2005 Order. He again asked to be allowed to resume HCCT 8/2005. That application was withdrawn on 12 January 2006, by which time Mr. Suen was represented by Wilkinson & Grist.
9. On 18 January 2006 Mr. Suen took out the present summons in HCCT 2/2006. Previously in HCCT 8/2005 Mr. Suen relied on a number of grounds for setting aside the Arbitrator's Awards. But by the present summons, he relies solely on apparent bias said to arise from the Arbitrator having previously advised him in 1999.
10. In my view, the application is way out of time. The time for appealing against an arbitration award or for applying to set it aside has long since passed.
11. By the time he took out HCCT 8/2005 Mr. Suen must have realised that the Arbitrator had previously advised him in 1999. Whether or not he instructed Herbert Smith to discontinue HCCT 8/2005, I cannot understand why Mr. Suen did not take out the present application until January 2006.
12. I do not think that the appeal to Tang JA and the application in HCCT 8/2005 to set aside my May 2005 Order justify the long time that has elapsed before the present application.
13. To my mind, in or around June 2005 as soon as Mr. Suen believed that Herbert Smith had wrongly taken out an application to discontinue HCCT 8/2005, the obvious course would have been to take urgent steps to set aside my May 2005 Order or restore his application to remove the Arbitrator for bias.
14. By any yardstick, the procedural history of this matter has not been propelled by any sense of urgency. Legal aid, for example, was finally refused on 23 August 2005, but no procedural step was taken until until 14 September 2005.
15. There must be finality to arbitrations.
16. Even supposing that Mr. Suen has a case on apparent bias, I do not think that can justify the long period before the present application. While in the ordinary course of events I might have been sympathetic to Mr. Suen's substantive case on apparent bias, I do not think that can justify setting aside the award now at this late stage.
17. I am fortified in my thinking by evidence from the Arbitrator to the effect that, in the course of preparing his Award and Amended Award, he neither remembered nor used anything that he might have been told by Mr. Suen about the subject matter of HCA 16541/1999. In practical terms, as far as I can see, there seems to be no case of actual or real (as opposed to merely apparent) bias.
18. For the above reason, the present application is refused.
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(A.T. Reyes)
Judge of the Court of First Instance
High Court |
Mr Russell Coleman, SC and Ms Queenie WS Ng, instructed by Messrs Wilkinson & Grist, for the Applicant
Mr Ronny KW Tong, SC and Mr Danny Choi, instructed by Messrs Leung, Chan & Pang, for the Respondent
Appeal by the Applicant to Court of Appeal dismissed. Please refer to CACV336/2006 dated 25 April 2007 |