|
CACV 52/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 52 OF 2011
(ON APPEAL FROM HCA 1551 OF 2004)
________________________
BETWEEN
|
ZEBRA INDUSTRIES
(OROGENESIS NOVA) LTD |
Plaintiff
|
|
and
|
|
|
WAH TONG PAPER
PRODUCTS GROUP LTD |
Defendant
|
Before : Hon Cheung, Yuen JJA and Au J in Court
Date of Hearing : 11 October 2011
Date of Decision : 11 October 2011
Date of Reasons for Decision and Decision on Costs : 16 November 2011
________________________
REASONS FOR DECISION
________________________
Hon Cheung JA (giving Reasons for Decision and Decision on Costs
of the Court) :
Leave to appeal
1. The plaintiff applied to Saunders J for leave to appeal out of time against an arbitral award dated 24 September 2010. The Judge refused the application. On appeal to this Court we allowed the appeal and granted the plaintiff leave to appeal out of time. We now give our reasons.
2. Under Order 73, Rule 5(2) the time limit for appeal is 30 days. The plaintiff had delayed by five days. We are, however, concerned with the merits of the appeal. The arbitrator awarded the plaintiff $58,000. The plaintiff had indeed pleaded a claim of $58,000 as loss of profit for the first run of 2000 pieces of the product. But it had also, after the oral hearing before the arbitrator, submitted a statutory declaration dated 12 August 2010 in which, among other things such as submitting further new evidence, it amended the claim from $58,000 to $268,000 with particulars. By an ‘Order for Directions’ dated 1 September 2010 the arbitrator ordered the plaintiff to have leave to rely on the statutory declaration. The defendant did not lodge any reply to the amended claim. The arbitrator did not address the amended claim in his award. In our view the amount of the amended claim was a matter that needed to be resolved by the arbitrator before he made the award. We considered that the plaintiff has overcome the threshold on the merits in its application for leave to appeal. Considering the short delay of five days, leave to appeal out of time should be granted.
3. For the avoidance of doubt, we have not restricted the appeal to only the issue of the amount of profit of the first 2,000 pieces.
Other issues
4. Subsequent to the decision, the plaintiff submitted, by way of written submission, that this Court had not addressed two issues at the hearing. First, this Court should lift the stay of proceedings in High Court Action No. 1551/2004 (‘HCA 1551/2004’) ordered by Burrell J on 17 December 2004. Second, costs in respect of that action.
5. The first issue was not a matter that this Court needed to address. The background is that the plaintiff first commenced HCA 1551/2004 against the defendant for breach of contract and sought damages for $3,500,500. Because of the arbitration provision in the contract, Burrell J, on the defendant’s application, stayed the action for the parties to arbitrate. As Saunders J observed, there was no application by the plaintiff to lift the stay. Further there was no appeal on this issue. Hence the Court’s jurisdiction was not engaged on the first issue. Saunders J, for the purpose of saving costs had treated the summons issued by the plaintiff (under the title of HCA 1551/2004) for leave to appeal against the arbitral award as the originating summons as required by Order 73, Rule 2(2) of the Rules of the High Court. This Court had after granting leave, by a direction dated 12 October 2011, ordered the plaintiff to issue an originating summons in a fresh proceedings for its appeal against the arbitral award and not under the title of HCA 1551/2004.
6. As to the second issue, it is difficult to understand the point raised by the plaintiff. It said that it would like to maintain HCA 1551/2004 as the basis of the litigation and ‘incorporating the resultant costs issue’.
7. Burrell J, when ordering the stay of HCA 1551/2004, also ordered costs of the application in favour of the defendant. He did not deal with the costs of the action itself.
8. The plaintiff had applied for leave to appeal against Burrell J’s order. It was refused with costs by Rogers VP. On further appeal it was also dismissed by this Court (Tang VP and Sakhrani J). Neither Saunders J nor this Court had any jurisdiction to revisit the costs order made by Burrell J.
Decision on Costs
9. The plaintiff is successful on appeal. It is entitled to the costs of the appeal.
10. The plaintiff had delayed in seeking leave to appeal against the arbitral award. We agree with Saunders J that it had not given a reasonable explanation for the delay. As it sought indulgence for its delay, it must bear the costs of the application below. We will not disturb the Judge’s order for costs save that it is to be taxed on party and party basis and not on indemnity basis as ordered.
(PETER CHEUNG)
Justice of Appeal |
(MARIA YUEN)
Justice of Appeal |
(THOMAS AU)
Judge of the Court of
First Instance |
Plaintiff, in person, represented by its director, Mr. Elijah Saatori
Mr. Josiah Chan Chung Ming, instructed by Messrs W. K. To & Co., for the Defendant
|