COMPANIA SUD AMERICANA DE VAPORES S.A. v. HIN-PRO INTERNATIONAL LOGISTICS

HCMP 1449/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1449 OF 2014

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D E C I S I O N

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1.  I am satisfied that the plaintiff’s proposed grounds of appeal (i) set out in the draft Notice of Appeal annexed to the summons dated 20 October 2014 and (ii) in terms of paragraph 12 of Counsel for the plaintiff’s skeleton dated 21 November 2014 are reasonably arguable and not fanciful, and that the Court of Appeal should have the opportunity to review my decision dated 15 October 2014 (“my Decision”).

2.  In this regard, I take into account in particular:-

(1) the decision of the Court of Appeal in Compania Sud Americana de Vapores S.A. v Hin‑Pro International Logistics Limited, HCMP 1932/2014 (Judgment dated 16 October 2014), in particular paragraph 11 thereof, referred to at paragraph 18 of the draft Notice of Appeal; and

(2) the material change of circumstances referred to in paragraphs 21 to 23 of the draft Notice of Appeal. In particular, the fact that there is currently an English final monetary judgment immediately enforceable against the defendant and its assets frozen in Hong Kong.

3.  Accordingly, I make an order in terms of the plaintiff’s summons dated 20 October 2014.

4.  However, I am not satisfied that the implementation of my order dated 15 October 2014 should be further stayed until the determination of the plaintiff’s appeal.

5.  The plaintiff’s stay application is made on the basis that the appeal will be rendered nugatory if no stay is granted.  This brings into focus the relative prejudice that may be caused to the plaintiff and to the defendant by a stay of execution [see: Star Play Development Limited v Bess Fashion Management Co. Ltd., HCA 4726/2001 (Decision dated 28 May 2002)].

6.  In this case, I think the plaintiff’s position can be sufficiently protected (and the appeal not rendered nugatory) if (i) the defendant undertakes to pay into court the sum of HK$2,916,522.80 presently standing to the credit of its bank account, to abide with further order of the court; and (ii) upon the undertaking of the defendant recited in paragraph 45 of my Decision.  For the reasons stated in paragraphs 41 to 44 of my Decision, I think that is the course which seems likely to cause the least irremediable prejudice to one party or the other.

7.  Therefore, on the undertakings stated above, my interim stay granted on 24 October 2014 is discharged.

8.  Finally, on the defendant’s application, I clarify that the order of Deputy High Court Judge Saunders dated 21 July 2014 fixing the costs ordered within the 17 July 2014 Hin‑Pro Receivership Order is also discharged by my order of 15 October 2014.

9.  I shall now hear from Mr Scott SC as to his application for a short interim stay so as to “hold the fort” until a renewed application is made to the Court of Appeal for a stay of execution. 

[Discussion between Court and Counsel]

10.  Upon the plaintiff’s undertaking, if so advised, to apply to the Court of Appeal for a stay of the implementation of my order of 15 October 2014 and of this order, it is ordered that the implementation of the order referred to in paragraph 7 above be stayed for 21 days to permit the plaintiff to make the said application to the Court of Appeal.

11.  I am not prepared to give any further direction to the receivers at this stage.

12.  There be liberty to the parties to apply. 

[Discussion between Court and Counsel]

13.  Costs of the plaintiff’s Amended Summons dated 17 October 2014 and paragraph 2 of the defendant’s Summons dated 29 October 2014 be paid by the plaintiff to the defendant in any event.  Such costs to be taxed if not agreed (with Certificate for two counsel for today’s hearing). 

14.  Paragraphs 1, 3 and 4 of the defendant’s Summons dated 29 October 2014 and the plaintiff’s Summons dated 27 August 2014 be adjourned sine die, with liberty to restore (if necessary) after determination of the plaintiff’s appeal against my decision dated 15 October 2014.