HCMP 835/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 835 OF 2014
(ON AN INTENDED APPEAL FROM HCCT NO. 45 OF 2010)
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BETWEEN
(1) ASTRO NUSANTARA INTERNATIONAL B V Applicants/ Claimants in the Arbitration/ Judgment Creditors Judgment Creditors Claimants in the Arbitration Judgment Creditors
AND
(1) PT AYUNDA PRIMA MITRA
Defendants/ Respondents in Arbitration/ Judgment Debtors
AND
ACROSSASIA LIMITED Garnishee
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Before : Hon Cheung and Barma JJA
Date of Decision : 25 June 2014
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D E C I S I O N
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Hon Cheung JA (giving Decision of the Court) :
1. The eight claimants are collectively known as Astro in these proceedings.
2. Astro obtained arbitration awards in Singapore against PT First Media TBK (‘First Media’) which is one of the defendants in these proceedings to the sum of over US$130 million.
3. Leave was granted by the Hong Kong Court to Astro to enforce the awards in Hong Kong. Judgment was entered on 9 December 2010.
4. Astro obtained a garnishee order nisi against Acrossasia Limited (‘AAL’) in respect of debts owing by AAL to First Media.
5. Astro also entered a similar judgment in Singapore against First Media based on the arbitration awards. However First Media applied to set aside the Singapore judgment. It also applied out of time to set aside the Hong Kong judgment. The latter application will be heard on 8 December 2014.
6. Astro then obtained an order dated 21 March 2012 from Deputy Judge Lok who stayed the Hong Kong proceedings pending the resolution of the Singapore setting aside application and ordered AAL to pay all sums due by it to First Media into Court.
7. On 10 August 2012, the Court of Appeal affirmed Judge Lok’s order. AAL, however, did not pay the money into Court.
8. Deputy Judge Mayo on 31 October 2013 granted the garnishee order absolute.
9. On the same date i.e. 31 October 2013 the Singapore Court of Appeal ordered that leave to enforce the arbitration awards in Singapore be refused on the basis that there was no valid arbitration agreement between Astro and First Media. In other words the arbitration awards were made without jurisdiction.
10. AAL then moved to stay the garnishee order absolute of Judge Mayo. On 24 January 2014 Mimmie Chan J ordered unconditional stay of the garnishee order absolute.
11. Astro’s application for leave to appeal was refused by Mimmie Chan J. It now renews the leave application before us on paper. It contends that Mimmie Chan J ought to have imposed the stay conditional on AAL paying all debts due to First Media into Court.
12. We will refuse leave as we are not satisfied that Astro has a reasonable prospect of success in its appeal.
13. We disagree that Mimmie Chan J in exercising her discretion had overlooked the issue of condition when she ordered stay. Conditional stay was Astro’s alternative position before Mimmie Chan J. Its basic position was to oppose the stay. By ordering unconditional stay, Mimmie Chan J must have been satisfied that this was not a case where condition should be imposed. She had properly taken into account the weight of the Singapore Court of Appeal judgment which after all is the court of the seat of the arbitration. She considered that First Media has a high prospect of success in its application to set aside the Hong Kong judgment. In our view it will indeed be remarkable if, despite the Singapore Court of Appeal judgment on the invalidity of arbitration awards, Astro will still be able to enforce a judgment here based on the same arbitration awards that were made without jurisdiction.
14. Accordingly the application is dismissed.
15. We will, pursuant to Order 59 Rule 2A(8), further order that Astro is not allowed to apply for an oral hearing to reconsider this application.
16. Astro is ordered to pay AAL and First Media’s costs of this application before us which we will assess summarily at $100,000 each.
(PETER CHEUNG)
(AARIF BARMA)