XCHRX WO HING ENGINEERING LTD. AND ANOTHER v. HONG KONG CONSTRUCTION (HOLDINGS) LTD.

HCCT 123/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 123 OF 2000

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J U D G M E N T

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1. This is the Defendant's application in effect for an interim stay of execution of the default judgment entered on 18 December 2000. The relevant history of this action is as follows.

2. The Writ of Summons was issued on 9 November 2000. On 8 December 2000, the Defendant took out an application for stay of this action for arbitration pursuant to s. 6(1) of the Arbitration Ordinance. This will be heard on 12 January 2001. Evidence has now been filed by both parties regarding, among other things, the matter(s) in dispute between the parties which the Defendant contends ought to be left for arbitration.

3. It appears that Burrell J has been well versed with the matters involved in this action. Notwithstanding the Defendant's said application dated 8 December 2000, he directed on 14 December 2000 that:

"Judgment may be entered [in default of a defence]. If, defendants apply to set it aside, that application should be heard at same time as stay application on Jan. 12. In the interim no further unnecessary costs should be incurred."

Although no application to set aside the judgment has yet been taken out, Mr Choi for the Defendant indicates that this would be done tomorrow.

4. It is unclear as to what Burrell J meant when he referred to "no further unnecessary costs should be incurred" but it seems to me that this application is one of the matters he was trying to avoid. Unfortunately, his above remarks failed to prevent the parties from disputing a matter as trivial as the present application.

5. The period of stay involved between today and 12 January 2001 is around 16 days. Despite the arguments of Mr Cheung for the Plaintiff, I do not agree that such a stay should unduly prejudice the Plaintiff. The application pending hearing on 12 January 2001 is related to a matter going to the jurisdiction of the court. As I observed earlier, Burrell J appears to be fully aware of the whole situation and it is therefore unlikely that any attempt to unduly delay these proceedings will go unnoticed.

6. In these circumstances, I consider that an order should be made for there to be an interim stay of execution of the judgment dated 18 December 2000 up to and including 12 January 2001.