GRUPO PACIFICA INCORPORADA v. WORLDWIDE MARINE PRODUCT LTD AND OTHERS

HCMP 1909/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1909 OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 2640 OF 2014)

________________________

________________________

________________________

REASONS FOR DECISION
________________________

Hon Lam VP (giving the Reasons for Decision of the Court):

1. We have before us an application for interim relief pending our consideration of the Plaintiff’s application for leave to appeal against the order of Chung J [“the judge’] of 18 June 2015. By that order, the Judge dismissed the inter partes summons of the Plaintiff seeking Mareva injunction against the 1^st Defendant and discharged the ex parte injunction granted earlier. Leave to appeal was refused by the Judge on 29 July 2015.

2. On 29 July 2015, the Judge also granted a stay of his order of 18 June 2015 up to 13 August 2015 to facilitate the Plaintiff’s applying to this court.

3. Though the Plaintiff took out a summons to seek leave from this court on 6 August, and included in that summons was a prayer for the extension of the stay, the Plaintiff did not take step to expedite the hearing of the application for stay.

4. We take this opportunity to remind litigants and their lawyers that a summons seeking a stay does not operate as a stay. If a party wishes to obtain an interim stay pending the hearing of the summons, it is his (or his solicitor’s) duty to bring this to the attention of the court.

5. Further, in the Court of Appeal, applications for leave to appeal are usually processed in accordance with Order 59 Rule 2A, the Rules of the High Court. Under that rule, the opposite parties are given 14 days after the applications are served to file statements of opposition. Thus, the papers will not be considered by the court until that time has expired.

6. Hence, if a party wishes the court to consider whatever applications included in a summons for leave on an expedited basis, he or his solicitor must bring this to the attention of the court and at the same time when he files the summons, he must lodge a certificate of urgency signed by counsel (see Citibank NA v Days Properties Ltd CACV 192 of 2013, 29 November 2013; Motorola Solutions Credit Co LLC v Uzan HCMP 1237 of 2014, 26 May 2014).

7. Regrettably, solicitor for the Plaintiff did not take these steps in the present case. Instead he only took out a summons for interim stay on 14 August 2015, after the lapse of the stay ordered by the Judge. The summons was only brought to a judge’s attention in the evening of 14August 2015 whereupon the court directed the application be heard on 17 August 2015.

8. There were 2 periods during which the Plaintiff did not have the protection of any interim injunction against the 1^st Defendant after the ex parte orders were discharged: (1) between 18 June to 29 July; (2) between 13 and 17 August 2015. Ms Wong (counsel for the Plaintiff) told us that at these times, a freezing order obtained by the police was in place. Hence, the position of the Plaintiff was secured, though by another means.

9. At the hearing before us, Mr Wong (counsel for the 1^stDefendant) told us that the 1^st Defendant would not oppose the interim stay. We also accept the submission of Ms Wong that if no interim relief is granted, the intended appeal could be rendered nugatory.

10. Mr Wong told us that the 1^st Defendant opposed the leave application and a statement of opposition would be filed by this Friday.

11. We shall not pre-empt this court’s decision on the leave application. But we would not say at this stage that the Plaintiff’s application for leave is so hopeless that we should not preserve the position at this stage.

12. In the circumstances, we granted the interim stay pending the determination of the leave application. We also ordered the costs of this interim application for stay be in the cause of the application for leave.