PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS

cacv 369/2006, CACV 370/2006 AND CACV 371/2006

CACV 369/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 369 of 2006

(on appeal from HCA NO. 2203 of 2004)

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CACV 370/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 370 of 2006

(on appeal from HCA NO. 2746 of 2004)

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CACV 371/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 371 of 2006

(on appeal from HCA NO. 2763 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  This aspect of the application is an application for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2.  The first ground is:

“	whether the principles applicable in allowing or refusing a re-grant of relief upon the discharge of an ex parte order on the ground of material non-disclosure in Mareva and Anton Piller cases are also applicable to applications for a re-grant of leave to serve out of the jurisdiction.”

3.  In my view, this court has followed authority which goes way back, more than 100 years, and was very clearly set out in the The King v The General Commissioners for the purposes of the Income Tax Acts for the District of Kensington ex parte Princess Edmund de Polignac [1917] 1 KB 486, which was nearly a hundred years ago.

4.  I see no merit in this and would not give leave to appeal.

5.  The next question is:

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whether the undertaking offered by the Plaintiff not to proceed with a parallel proceedings in Taiwan, nor seek judgment in Taiwan against Mr Hu Hung Chiu for loss relating to the properties forming the subject matter of the three Hong Kong actions, “while the Hong Kong proceedings are on foot,” is wrong in principle or whether it amounted to a proper election required of a party who is maintaining concurrent proceedings against the same defendant within and outwith the jurisdiction.”

6.  On this aspect, reliance is placed upon a statement in Dicey and Morris and upon a decision in the case of Australian Commercial Research and Development Limited v ANZ McCaughan Merchant Bank Limited [1989] 3 All ER 65 in which the passage is cited.

7.  Although the statement in Dicey and Morris indicates that the two actions cannot be on foot, it seems to me that the objection to having two actions is harassing defendants in two jurisdictions in respect of the same matter.  That is avoided, in this instance, by the undertaking and in my view that form of undertaking is sufficient to avoid the mischief which the rule is designed to obviate.  There may, indeed, well be reasons why proceedings should be allowed at least to be commenced and then stayed in a foreign jurisdiction.  There may be similar provisions with regard to time and the period within which actions can be commenced, and so forth, and, therefore, to preserve rights out of an abundance of caution it may be necessary that those proceedings are commenced but stayed.

8.  In the present instance, the two actions are firmly under the control of the Hong Kong court and there is nothing that the plaintiffs can do to breach that and at the same empower them to continue with the present proceedings because the defendants, if there were a breach, could come back to the Hong Kong court straight away and apply for the appropriate orders on the basis that the Plaintiffs were in breach of their undertaking to the court.

9.  On that ground, too, I would not give leave to appeal.

10.  The next ground is:

“	whether the limited circumstances in which the Court of Appeal may interfere with the Court of First Instance exercise of discretion in relation to a forum conveniens were present in this case.”

11.  In this case, I have to say that my view of these proceedings is that they were entirely necessary to be brought into Hong Kong because I could not see how the Plaintiffs could possibly get the relief to which they say they are entitled, on the facts which they say exist, without bringing the proceedings in Hong Kong, and so, unfortunately, I see absolutely no merit in that point at all.

12.  The next question is:

“	whether the Plaintiff has pleaded sufficiently an issue to be tried between it and the 21st Defendant in CACV 371 of 2006.”

13.  Again, really, the same thing applies.  I consider that there is certainly a serious issue to be tried in respect of the 21st Defendant and I cannot see how it can be said otherwise.  In any event, when one considers whether matters are of great general or public importance, this, as with the previous issue, is a matter of specific relevance to this case and is not, it seems to me, a matter of great general or public importance.

14.  Finally, the question is:

“	whether the service of the Writs of Summons on the Defendants in Taiwan by way of service was contrary to the law of Taiwan and therefore invalid under Order 11, Rule 5(2) of the Rules of the High Court.”

15.  This court took the view that the service, if it had been effected, of Taiwan proceedings in Taiwan may or may not have been void, but that did not affect the Rules of the Hong Kong court as to whether or not the service would be recognised as good service.

16.  In any event, on this issue, I see absolutely no point in this matter going to the Court of Final Appeal, interesting though it may be as a point of discussion.  It would delay these proceedings by another year before the matter got to the Court of Final Appeal and the upshot of it would simply be that the Plaintiff would have to re-serve again.  I see absolutely no point, other than delaying the action and raising more costs, in sending such a matter to the Court of Final Appeal.

17.  In all these matters, if the Court of Final Appeal wished to hear the matter, that is a matter for them.  But as far as this court is concerned, I do not consider that this court should give leave on any of these grounds.

Hon Le Pichon JA:

18.  I agree.