厦門新景地集團有限公司 formerly known as 厦門市鑫新景地房地產有限公司 v. ETON PROPERTIES LTD AND OTHERS

CACV 88/2010 AND CACV 89/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 88 OF 2010 AND 89 OF 2010

(ON APPEAL FROM HCA NO. 961 OF 2008)

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J U D G M E N T
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Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal. The written judgment of this Court was handed down on 15 December of last year. The matter concerns what, in this Court’s view, is a question of enforcement of an arbitral award.

2.  The questions which are said to raise matters of great general or public importance within section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 are as follows:

(1) Whether the action is not seeking the determinative jurisdiction of the court but is within the enforcement jurisdiction and powers of the court in view of the spirit and objective of the New York Convention and the legal functions of an enforcing court.

(2) On the assumption that (1) is answered in the affirmative, are such enforcement jurisdiction and powers of the court not ousted by Article 8 of the UNCITRAL Model Law such that the action should not be stayed even though the disputes under the action fall within the scope of the arbitration clause agreed by the parties.

3.  I have to say that, as a general matter, I do not consider that the issues the defendants wish to take to the Court of Final Appeal are matters of great general or public importance.  It seems to me that these are fact-sensitive to this particular case.  In any event, it seems to me that the questions are, to a large extent, hypothetical and, particularly in respect of the second question, I regret to say and with due respect to whoever drafted it, that question is muddled in its thought.

4.  For those reasons, I would not give leave to appeal to the Court of Final Appeal.

Hon Le Pichon JA:

5.  I agree.

Hon Kwan JA:

6.  I also agree.

(Submissions on costs)

Hon Rogers VP:

7.  In relation to costs, costs would naturally follow the event.  Mr Barlow has drawn our attention to the provisions which are now in the Rules following the Civil Justice Reform.  In view of what has been said in respect of this application, I have to say I have sympathy with what he has said and I consider that he is right. This Court should adhere to the decision which it gave.  This application was muddled and there should be costs on an indemnity basis.

Hon Le Pichon JA:

8.  I agree.

Hon Kwan JA:

9.  I agree.