ASTRO NUSANTARA INTERNATIONAL B.V. AND OTHERS v. PT AYUNDA PRIMA MITRA AND OTHERS

HCCT 45/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 45 OF 2010

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BETWEEN

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D E C I S I O N

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1.  The parties cannot agree on the timetable for the garnishee, AAL, to make the payment into court pursuant to para 50 of the judgment of the Court of Appeal, and so this case comes before me for determination today.

2.  AAL makes an application for leave to appeal against the decision of the Court of Appeal and for a stay of execution pending the determination of that appeal.  AAL therefore asks for a timetable under which they do not have to pay anything until 28 days after the determination of the application for leave to appeal and stay of execution or until further order.

3.  There is certainly no merit in such argument.  Stay of execution is a matter for the Court of Appeal, and this court should not therefore take into account the intended appeal in fixing the timetable.

4.  However, there was a new development last Friday on 14 September 2012.  On that day, AAL had been served with a copy of an order dated 12 September 2012 issued by the Indonesian National Board of Arbitrators (“the Arbitration Order”).  The Arbitration Order requires AAL to make payment on indebtedness to First Media under the Facility Agreement directly to First Media and not to any other party.  According to AAL, the Arbitration Order now compels AAL to pay the debt to First Media in Indonesia, and this constitutes a material change of circumstances.  AAL will therefore make an application to discharge the payment into court order made by me earlier by reason of the material change of circumstances.

5.  The question I have to consider now is, therefore, in view of such latest development, whether the court should proceed to fix the timetable today.

6.  Mr Man, counsel for Astro, submits that the court should scrutinize the conduct of AAL and not grant any further indulgence to AAL in relation to the payment into court.  According to him, AAL has refused to inform Astro about the progress of the arbitration proceedings in Indonesia until the serving of the Arbitration Order last Friday.  He seems to suggest that the whole arbitration proceedings were orchestrated for the purpose of frustrating the payment into court order made by me earlier.

7.  Obviously, the parties are fighting on the issue of timing.

8.  Despite the able submission of Mr Man, I am of view that the court should not go into the merits of the intended discharge application at this stage.  Undoubtedly, the making of the Arbitration Order is a change of circumstances which may have an impact as to whether AAL should be ordered to make an interim payment into court.  In such circumstances, it is unrealistic for this court to ignore the Arbitration Order and to proceed with the fixing of the timetable today.  I therefore direct that the intended discharge application should be heard within a tight schedule, and the question of fixing the time for the payment into court shall be considered after the determination of the intended discharge application.