CHUN WO FOUNDATIONS LTD. v. BPL (HK) PRIVATE LTD.

HCCT59/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO.59 OF 2002

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D E C I S I O N

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1) The present application before the court is made by the Applicant, Chun Wo Foundations Limited ("Chun Wo"), seeking leave to amend the Originating Motion dated 6 June 2002.

2) Chun Wo was the sub-contractor for certain foundation works in relation to the construction of the Tin Shui Wai Station. The Respondent, BPL (HK) Private Ltd ("BPL") was in turn Chun Wo's sub-contractor for a portion of these works (mainly bore piling). There was a subcontract in writing dated 1 December 1999 ("the Subcontract").

3) Disputes having arisen between the parties, they were referred to arbitration pursuant to the arbitration agreement contained in the Subcontract. The Claimant in the arbitration was BPL and the Respondent, Chun Wo. On 22 May 2002, an Interim Award dated 17 May 2002 was made available to the parties by the arbitrator, Mr Anthony Houghton, dealing with both the claims and counterclaims.

4) By an Originating Motion dated 6 June 2002, Chun Wo appeals from the Interim Award and for this purpose seeks leave to appeal. The hearing of the application for leave to appeal is fixed to be heard by me on 19 December 2002. The Motion contains detailed grounds of appeal.

5) By a summons dated 9 July 2002 (a month after the Originating Motion was taken out), Chun Wo now seeks leave to amend the Originating Motion by making some minor amendments, adding two or three new grounds of appeal and deleting an existing ground.

6) Mr Jonathan Harris for Chun Wo submits quite simply that leave to amend should be given to enable the true controversy between the parties to be determined at the hearing on 19 December 2002.

7) Mr Geoffrey Shaw for BPL raises the argument that leave to amend should not be given where the applicant has, without compelling reason, delayed beyond the 21 day period referred to in Order 73, rule 5 (for the service of the Motion appealing from arbitration awards). He builds on this premise by referring to the need to comply strictly with the 21 day time limit and the approach of the courts to ensure the speedy resolution of disputes by arbitration. For example, any delay in prosecuting an appeal from an arbitration award may result in the striking out of the appeal for want of prosecution.

8) In my judgment, the premise on which BPL bases its argument is wrong. Order 73, rule 5 deals with the time for service of the Originating Notice of Motion and the entering of the appeal. Once the Originating Motion is served on time and the appeal or application for leave to appeal is prosecuted with due expedition, I can see no real reason why leave to amend applying the usual principles should not be given where appropriate.

9) In the present case, no real complaint is made by BPL as to the prosecution of the appeal as such, save in one respect, and certainly, there is no application to strike out made by it. That said, I can well see the applicability of the principle of speed and finality in arbitrations in applications for leave to amend, where the party applying has left it so late that either the prosecution of the appeal or the application for leave to amend is substantially delayed or an existing hearing date has to be vacated. However, in the present case, there is no suggestion that the 19 December 2002 hearing date is in jeopardy.

10) Mr Shaw suggested that delay has been caused by the summons for leave to amend and that had the application not been made, the hearing of Chun Wo's application for leave to appeal would have been dealt with sooner because directions would have been given at the hearing of the Originating Motion fixed for 11 July 2002 to ensure this. However, I am not convinced any delay has been caused by the application for leave to amend at all. True that it was made two days before the initial hearing date for the Originating Motion but the adjournment of that hearing had little or nothing to do with the application to amend. It could just as easily be said that it was BPL who had delayed the present proceedings, first by not serving its evidence in time for the 11 July 2002 hearing and secondly, by resisting the present application for leave to amend on grounds which are, in my view, erroneous.

11) Ultimately, it seems to me that if Mr Shaw were correct in his submissions, this would virtually eliminate any opportunity to amend Originating Motions seeking leave to appeal from arbitration awards. Nothing, in my view, in the Arbitration Ordinance, Order 73 or as a matter of principle, dictates this result. I therefore allow the application for leave to amend.