WONG BIK LING KITTY v. CROWE INSURANCE GROUP (HONG KONG) LTD

CACV 266/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 266 OF 1999

(ON APPEAL FROM HCCT 30 & 31/1999)

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J U D G M E N T

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Rogers, J.A. :

1. This is an appeal from a decision of Findlay, J. given on 4th May this year whereby he extended time for making an application under Order 73 rule 5 in respect of arbitration proceedings.

2. The Plaintiff in this matter, Madam Wong Bik Ling Kitty was the owner of a motor car which was insured by the Defendant, Crowe Insurance Group (Hong Kong) Limited. She had an accident. Apparently, the Defendant was suspicious because the circumstances of the claim threw up, in an automatic fashion, the need to review it. It was thought that perhaps the claim was fraudulent. The claim, however, is now accepted to be genuine.

3. The Plaintiff had had her car towed to a nearby garage. When the Defendant was given the quotation and details of the repairs that were necessary to the car, it wanted the car taken to the distributors of that motor car, namely Dah Chong Hong. The Plaintiff was unwilling to do so unless the insurer was willing to pay for the costs of that and that is how the dispute started.

4. Eventually, the Plaintiff had the car repaired. The Defendant refused to pay for the cost of the repair and the matter was taken to arbitration. The Arbitrator made a basic award of $130,000 plus consequential amounts of interest and costs. That arbitration award was ready on 17th December of last year. The Plaintiff could not afford the Arbitrator's fees of some $64,605 and was not able to retrieve the arbitration award for some time. The arbitration award was not picked up for a period of months.

5. Eventually, on 23rd March, the Defendant made application to Court under Order 73 rule 5 to have the arbitration award reviewed on the basis that it was wrong in law and that either it should be varied or set aside or remitted to the Arbitrator.

6. That application was considered before the Judge below. On 30th April, he issued the first of the two decisions in the matter. He said that he considered that the Arbitrator was wrong in his conclusions on the construction of the policy which led him to make the award; he avoided categorising the degree of error by the Arbitrator but said that he considered it justified the grant of leave to appeal. He did not deal specifically with what the consequences would be of that error if the appeal were successful, but he said that it seemed to have been assumed by counsel that, if the construction point was wrongly decided, the award was wrong, but that the matter could then be argued when the appeal came to be argued.

7. The Plaintiff, on the other hand, had applied for leave to enforce the award. The Judge refused to grant leave to enforce the award, notwithstanding normally successful litigants receive the fruits of their success immediately, because there was a chance that the award would be set aside.

8. After the Judge had handed down his judgment, he realised that he had not included in it his decision and reasons on the point which had been raised by Mr. Tracy, counsel for the Plaintiff, that the application for leave to appeal was out of time. The Judge sought to remedy this by a further decision which he handed down on the 4th May.

9. It is accepted that the Arbitrator published his award on 17th December 1998, albeit neither of the parties actually received the award on that occasion, but the application for leave to appeal was not made until 23rd March 1999 which is well outside the 21-day time limit set down in Order 73 rule 5. The Judge acknowledged that the Plaintiff was the claimant in the arbitration, and, in the ordinary course of events, one would have expected the claimant to uplift the award but the claimant did not do so until the 12th March of this year.

10. The Judge continued that, whilst appreciating that the Defendant could have uplifted the award itself, he thought that it would not be usual for the Defendant to do so for what he said were obvious reasons, namely that the Defendant had no expectation of an award in its favour, other than in relation to costs, and, therefore, no pressing reason to obtain the award so that it could enforce it.

11. Having said that, the Judge alluded to the fact that he had already found that the Defendant had succeeded in showing that it is likely that the Arbitrator was wrong in his construction of the policy and to refuse to allow the Defendant to proceed with an appeal would mean that the Plaintiff would keep an award that, "probably", she should not have obtained. The Judge felt that that would not be just. The Judge held that, although the Defendant might have put itself in a position to be able to apply for leave within the time limit, its failure to do so was not so unreasonable as to justify a refusal to condone the late filing of the application for leave where the result of this would be to allow an award that is "probably" wrong to remain undisturbed.

12. The Judge then exercised his discretion to condone the late filing of the application.

13. In my view, the Judge erred in principle in relying on these matters as a basis for exercising his discretion to extend time. The fact that one party may not feel that a decision might not be in his favour or that he had little to gain from it other than costs is no ground for extending time to appeal when he subsequently finds out that his worst feelings might be right.

14. The fact that the award might be wrong in itself is not a ground on its own for extending time although it is, of course, a consideration to be taken into account.

15. In those circumstances, it then falls upon this Court to exercise its own discretion.

16. Arbitration proceedings are quite separate from Court proceedings. The point of them is that they are the choice of the parties. The matter is left to the parties and the Arbitrator except in exceptional circumstances. The Court only interferes in the outcome of arbitration proceedings in exceptional circumstances and certainly not just because the Court might feel that the decision might be wrong.

17. As to the merits of this proposed appeal upon which we were addressed, in my view, there are arguments which go both ways. The argument turns upon the construction of the insurance policy and in particular, sections 1.1 and 1.5 thereof. Under section 1.1, it is provided that :-

"The company will indemnify the Insured against loss of or damage to the Motor Vehicle and its accessories and spare parts whilst thereon

At its own option the Company may pay in cash the amount of the loss or damage or may repair reinstate or replace the Motor Vehicle or any part thereof or its accessories or spare parts"

18. Under section 1.5, it is provided that :-

"The Insured may authorise the repair of the Motor Vehicle necessitated by damage for which the Company may be liable under this Policy provided that

(a) the estimated cost of such repair does not exceed the Authorised Repair Limit

(b) a detail estimate of the cost is forwarded to the Company without delay"

19. The authorised repair limit is $1,000. The point at issue was that the Judge below considered that the Arbitrator was wrong in reading section 1.5 as if the word "or" were inserted between (a) and (b).

20. As has been pointed out by Mr. Tracy, on behalf of the Plaintiff, there was a finding of fact by the Arbitrator that the insurer had not exercised its option to repair the motor vehicle but only requested the motor vehicle be removed to a garage of its own choice pending a decision in that respect.

21. It seems to me, first of all, the point as to construction of section 1.5 is arguable. But even if the word "or" should not be inserted, the question still arises as to whether a claim could be made under section 1.1. The matter is by no means open and shut, in my view.

22. But in this case, there was a delay of some months. The Defendant need not have waited to lift the award. It knew that the Plaintiff was impecunious. It could have paid the Arbitrator's fees and sought to recover as best it could had it been successful. It chose not to do so. It let the time pass when an application under Order 73 rule 5 should have been made. It did so whilst it was advised by lawyers. It never applied for an extension of time nor filed evidence as to any grounds upon which extension should be granted. In my view, it must abide by its own decision and it is too late to come to the Court months later and complain of a wrong decision in the arbitration.

23. In my view, the appeal against the decision to extend time for making the application under Order 73 rule 5 should be allowed and this Court should therefore not even go on to consider the merits of whether this is an appropriate case where leave should have been given.

Mayo, J.A. :

24. I agree entirely and there is nothing that I can usefully add. Accordingly, the appeal is allowed.