LAFARGE S.A. AND OTHERS v. CONTINENTAL CEMENT CORPORATION AND ANOTHER

HCCT 33/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 33 OF 2006

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R U L I N G

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1.  I think that the Mareva injunction should be continued as sought by the relevant Plaintiffs’ summons.  I will also make an Order for examination of the Defendants as debtors pursuant to the Plaintiffs’ summons of 14 June 2006.  The latter summons asks for a prohibition order against the 2^nd Defendant.  I grant such order as well.

2.  My reasons are as follows:-

3.  First, contrary to Mr. Barlow’s submission on the Defendants’ behalf, I am not persuaded that there was material non-disclosure or subterfuge in the obtaining of the ex parte Mareva and prohibition orders.

4.  Second, I do not accept Mr. Barlow’s argument that it is an abuse for the Plaintiffs to seek Marevas, prohibition orders or other enforcement-type relief in Hong Kong.

5.  Mr. Barlow suggests that there is abuse because the Plaintiffs and Defendants are foreign, there are apparently no assets in Hong Kong, and the arbitral award was obtained in Singapore under an agreement with a Filipino proper law.

6.  But I believe that Mr. Whitehead SC is right to point out that there is now an effective Hong Kong Order making the arbitral award enforceable as a Hong Kong Judgment.  There is no reason why the Plaintiffs should be barred from using all means available (including a worldwide Mareva) within the Hong Kong jurisdiction to ensure that what is now a Hong Kong Judgment is satisfied.  I note that there has been no application by the Defendants to set aside the Hong Kong Order and Judgment.

7.  I also accept Mr. Whitehead’s submission that, because one is dealing with an arbitral award enforceable under international convention, comity points to the Hong Kong Court assisting a judgment creditor to enforce such award to the greatest extent possible.

8.  Third, like Mr. Justice Barma at the ex parte hearing, I believe that there is evidence of a real risk of dissipation of assets.  I am thinking of the matters stated in Ms. Chan’s affidavit in support of the Plaintiffs’ Mareva application, especially the transfer of overseas properties to the 2^nd Defendant’s relations. 

9.  Fourth, I am not persuaded by the medical evidence adduced that the 2^nd Defendant is in urgent need of medical attention.  Even if he were, I believe that he should be able to receive an adequate standard of medical attention for his condition in Hong Kong.

10.  Fifth, although the Mareva already includes an order for disclosure of assets, I believe that it is still appropriate to make an order for examination of the Defendants at this stage, rather than later.   I hope that this will mean that the 2^nd Defendant can be examined as soon as possible and that he will not be detained in Hong Kong any longer than necessary.  I accept Mr. Whitehead’s submission that, without an ancillary prohibition, a mere order for disclosure on affidavit and a mere order for examination as a debtor may be ineffective.  The 2^nd Defendant would otherwise simply leave the jurisdiction.

11.  On all orders made, there will be a liberty to apply.

12.  I shall now hear the parties on costs and any other outstanding matters.