TOP GAINS MINERALS MACAO COMMERCIAL OFFSHORE LTD v. TL RESOURCES PTE LTD

HCMP 1622/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1622 OF 2015

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D E C I S I O N

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Background

1.  On 3 July 2015, Barnes J granted an ex parte injunction (“Injunction”) on the application of the plaintiff, whereby the defendant was restrained from removing or disposing of its assets in Hong Kong, up to the value of US$2,520,552.  The application was made under s 21M of the High Court Ordinance and s 45 (2) and (5) of the Arbitration Ordinance, in aid of arbitration proceedings proposed to be commenced by the plaintiff against the defendant in Singapore (“Arbitration”). The Injunction was continued by Chow J on the return date on 17 July 2015, when the defendant failed to appear. 

2.  On 2 October 2015, the defendant applied to set aside the Injunction, essentially on the ground of material non-disclosure (of fact, law and procedure), lack of risk of dissipation, and other irregularities, as outlined below. It further opposes the continuation of the Injunction. 

Nature of the plaintiff’s claims

3.  The plaintiff is a company incorporated in Macau, whereas the defendant is a company incorporated in Singapore.  The plaintiff’s claims against the defendant are made under an agreement dated 10 April 2015 (“Sales Agreement”) between the parties, whereby the defendant agreed to sell to the plaintiff a cargo of iron ore (“Goods”), at a fixed price.  The Sales Agreement provided for the laycan, for loading of the Goods, to be between 30 April and 9 May 2015, and the latest shipment date to be 24 May 2015. 

4.  It is not disputed that after the execution of the Sales Agreement, there was a sharp rise in the market price of iron ore, which resulted in an increase in the price which the defendant had to pay to its own supplier under an agreement whereby the price payable by the defendant was “floating” and subject to adjustment and market changes.  The defendant failed to arrange for shipment of the Goods by the contractual date stipulated under the Sales Agreement with the plaintiff.  Nor did it notify the plaintiff of any departure of the vessel transporting the Goods, as required under the Sales Agreement.  On 27 May 2015, the plaintiff wrote to the defendant, claiming the defendant’s breach of the Sales Agreement, and asking if the defendant was seeking to postpone the laycan and shipment date.  In the absence of any response from the defendant, the plaintiff by its letter dated 28 May 2015 purported to accept the defendant’s repudiation of the Sales Agreement.

5.  The Sales Agreement contains an arbitration clause in Clause 15.1, which provides as follows:

“The Parties shall seek to resolve any dispute or claim arising out of or in relation to this Agreement by mutual accord. If the dispute or matter cannot be settled by mutual accord between the Parties, such dispute or claim shall be referred to Singapore International Arbitration Center (SIAC) for arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The English Laws shall apply. The board of arbitration shall be composed of 3 arbitrators, one of whom shall be chosen by the Buyer, one by the Seller, and the third by the two so chosen... The arbitration award is final and binding upon the parties and the arbitration fee shall be on the loser’s account.”

6.  Clause 15.2 provides for the location of the Arbitration to be Singapore.

7.  Clause 15.4 is in the following terms:

“No action in a court of law arising out of this Agreement shall be commenced by one Party against the other unless and until the dispute or claim has been referred to arbitration as provided in this clause.”

8.  It is not in dispute that having accepted the defendant’s repudiation on 28 May 2015, the plaintiff applied to the Singapore Court on 19 June 2015 for a worldwide Mareva injunction and disclosure order, in aid of the Arbitration it proposed to commence in Singapore under the Sales Agreement.  The Singapore Court refused the application, not being satisfied that there was any fraudulent, unconscionable or dishonest conduct on the part of the defendant to show that there was a real risk of dissipation of assets.

9.  On 4 July 2015, the plaintiff applied to the Court in Hong Kong for the Injunction, on the basis of there being new evidence having been collected by the plaintiff to demonstrate that the defendant’s conduct was of “unacceptably low commercial morality”, such that the Court should conclude that there is a real risk of dissipation of assets (paragraph 7 of the plaintiff’s skeleton argument relied upon at the ex parte hearing before Barnes J on 4 July 2015 (“ex parte Skeleton”)).  The Injunction was granted, together with an order for the defendant’s disclosure of its assets. 

10.  An Originating Summons was issued by the plaintiff on 4 July 2015, for service on the defendant in Singapore, pursuant to leave granted by the Court on the same day as the granting of the Injunction.

11.  After the grant of the Injunction in Hong Kong, on 14 July 2015, the plaintiff renewed its application in Singapore for the Mareva injunction sought.  Such application was, again, refused by the Singapore Court on 24 July 2015.

12.  On 15 July 2015, the plaintiff submitted its request to the Court of the International Chamber of Commerce (“ICC”) for arbitration in Singapore.

13.  The defendant was served with the Injunction, and with the summons returnable on 17 July 2015, in Singapore on 8 July 2015.  It failed to appear in Court on 17 July 2015, when the Injunction was continued by Chow J.  The defendant acknowledged service of the Originating Summons (which was amended on 17 July 2015) only on 18 September 2015.  It purported to file an affidavit in compliance with the disclosure order contained in the Injunction, and finally, on 2 October 2015, seeks the discharge of the Injunction in Hong Kong.

14.  The matters relied upon by the defendant for the discharge of the Injunction and in opposition to its continuation are manifold, which necessitates the unusual length of this Decision, but the defendant’s arguments can be summarized as follows:

(1) the plaintiff had misled the ex parte judge by referring to s 21M of the High Court Ordinance and to the wrong test for the grant of the Injunction, when the only applicable provisions are s 45 of the Arbitration Ordinance;

(2) the plaintiff had misled the Court when it informed the ex parte judge that the Singapore Court required evidence of fraudulent, dishonest or unconscionable behavior for the grant of a Mareva injunction;

(3) the Injunction in aid of the Arbitration should not have been granted, when the plaintiff had throughout relied on arbitration by ICC, whereas the arbitration clause in the Sales Agreement provides for arbitration by SIAC, such that ICC does not have jurisdiction over the parties’ dispute;

(4) there was no risk of dissipation of the defendant’s assets, to justify the grant of the Injunction;

(5) Hong Kong is not the appropriate forum and should not grant the Injunction;

(6) the plaintiff had failed to disclose the defendant’s possible defences to the ex parte judge;

(7) the Injunction was in a form which is irregular, for failing to follow the standard form of Mareva injunctions (set out in PD 11.2), and the plaintiff had failed to inform the ex parte judge of such departure;

(8) the plaintiff was itself in breach of the Court’s Order made on 3 July 2015, such that the Injunction should be discharged;

(9) the plaintiff had misled the judge as to its true financial position.

Whether s 21M or s 45 applies

15.  Counsel for the defendant devoted much argument to the issue of whether s 21M of the High Court Ordinance (“s 21M”) is applicable at all, where an application is made for an injunction and other interim relief in aid of arbitral proceedings commenced or to be commenced outside Hong Kong, and whether s 45 of the Arbitration Ordinance (“s 45”) is exclusively applicable.  The gravamen of his claims is that it was wrong for the plaintiff to have applied s 21M, as s 21M (4) provides that the Court may refuse the interim relief if it is “unjust or inconvenient” to grant the application, whereas the Court should only interfere in arbitrations if special or exceptional reasons can be shown.  Applying The Lady Muriel [1995] 2 HKC 320, Mr Brown for the defendant argued that it would not be enough to show that it would be just and convenient to grant the interim relief, as the court “has to be satisfied, beyond peradventure,” that the plaintiff “would suffer serious damage if the order were not made” (p 324-326 of the reported judgment).  Mr Brown further cited Leviathan Shipping v Sky Sailing [1998] 4 HKC 347 and Executive Search International Limited v Ray & Berndston, unreported, HCCL 218 of 1999, 5 January 2000, to argue that before the Court can grant ancillary injunctive relief for an arbitration, the applicant has to show that it would otherwise suffer “serious and irreparable damage”.

16.  It should be borne in mind that The Lady Muriel and Leviathan Shipping were decided before the amendments which were made to s 2GC of the former Arbitration Ordinance Cap 341, which is now s 45 of the current Arbitration Ordinance Cap 609.  Section 45 now provides, in no uncertain terms, that the Court may grant an interim measure in relation to “any arbitral proceedings which have been or are to be commenced in or outside Hong Kong”.  At the time of the decisions in The Lady Muriel and Leviathan Shipping, the relevant s 2GC of Cap 341 referred to the grant of interim injunctions and measures “in relation to a particular arbitration proceeding”.  It was only in 2008 that amendments were made, for s 2GC (1) of Cap 341 to expressly provide for interim measures to be granted “in relation to particular arbitration proceedings which have been or are to be commenced in Hong Kong or in a place outside Hong Kong”.  Section 2GC (1B) was also introduced in 2008 to provide expressly that the Court may grant interim relief notwithstanding that the subject matter of the arbitration proceedings would not, apart from s 2GC (1B), give rise to a cause of action over which the Court would have jurisdiction, or the order sought to is not ancillary to any arbitration proceedings in Hong Kong.

17.  To the extent that any higher standard or more stringent test was applied by the Court in The Lady Muriel and Leviathan Shipping, the Courtwas exercising its inherent jurisdiction for the grant of relief for proceedings not already in place in Hong Kong.

18.  After the amendments made to s 2GC, and under the current s 45 (2) and (6), the Court is expressly authorized to grant interim relief in aid of arbitrations which are yet to be commenced outside Hong Kong, and it is no longer necessary for an applicant to establish a substantive cause of action in Hong Kong.  Under s 45 (3), such  powers may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal in relation to the same dispute.  Section 45 (4) provides only that the Court may decline to grant an interim measure on the ground that:

“(1) the interim measure sought is currently the subject of arbitral proceedings; and

(2) the Court considers it more appropriate for the interim measure sought to be dealt with by the tribunal.”

19.  Section 45 (5) sets out the requirements for the Court’s exercise of its powers in aid of arbitral proceedings, by providing as follows:

“In relation to arbitral proceedings which have been or are to be commenced outside Hong Kong, the Court may grant an interim measure under subsection (2) only if:

(a) the arbitral proceedings are capable of giving rise to an arbitral award (whether interim or final) that may be enforced in Hong Kong under this Ordinance or any other ordinance; and

(b) the interim measure sought belongs to a type or description of interim measure that may be granted in Hong Kong in relation to arbitral proceedings by the Court.”

20.  Under s 45 (7), further guidelines are set out as to the exercise of the Court’s powers, since the subsection provides that the Court “must have regard” to the fact that the power is “ancillary to the arbitral proceedings outside Hong Kong”, and is for the purposes of “facilitating the process of a court or arbitral tribunal outside Hong Kong that has primary jurisdiction over the arbitral proceedings”.

21.  Section 45 is accordingly the primary provision governing the Court’s grant of interim measures in aid of arbitral proceedings commenced, or to be commenced, in or outside Hong Kong.

22.  Section 21M was enacted under the Civil Justice Reform in 2009 to empower the Court to appoint a receiver or grant other interim relief in aid of proceedings outside Hong Kong, without requiring that the interim relief must be incidental to substantive proceedings commenced in Hong Kong.  For the grant of such relief, it is only necessary that the proceedings outside Hong Kong “are capable of giving rise to a judgment which may be enforced in Hong Kong under any ordinance or at common law” (s 21M (1) (b)).  Under s 21M (4), the Court may refuse the application for interim relief if, in the opinion of the Court, the fact that the Court has no jurisdiction apart from s 21M in relation to the subject matter of the proceedings concerned “makes it unjust or inconvenient” for the Court to grant the application. 

23.  The principles applicable to the determination of the grant of interim relief under s 21M are now set out in the Court of Appeal decisions in Compagnia Sud Americana De Vapores SA v Hin-Pro International Logistics Ltd [2015] 2 HKLRD 458 and Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang [2015] 1 HKLRD 830.  There is a two-stage test for determining the grant of interim relief : (1) whether the facts of the case warrant the grant of interim relief if substantive proceedings were brought in Hong Kong, and (2) under s 21M (4), whether it is unjust or inconvenient for the Court to grant the interim relief.

24.  The cases decided before the enactment of s 21M, such as The Lady Muriel and Leviathan Shipping (on the basis of which Mr Brown contends that a more stringent test of “serious and irreparable damage” applies when the Court is asked to grant a Mareva injunction in aid of arbitral proceedings not in place in Hong Kong), are further distinguishable on the basis of the express provisions now contained in s 21M (4).  The recent decisions of the Court, in Prema Birkdale Horticulture (Macau) Ltd v Venetian Orient Ltd [2009] 5 HKLRD 89 and Compagnia Sud Americana De Vapores SA v Hin-Pro International Logistics Ltd, are more relevant as guidelines to the Court’s exercise of its powers under s 21M, and in particular, regarding the matters to be considered when deciding (in the context of s 21M) whether it would be “unjust and inconvenient” to grant the application.

25.  In any event, the grant of interim relief in aid of arbitral proceedings is not unjustified interference in an arbitration, of which the courts are always cautious, and which is the principle highlighted in The Lady Muriel, when the Court required the heavy burden of “serious and irreparable damage” to be discharged by the applicant.  Article 9 of the Model Law, adopted by s 21 of the Arbitration Ordinance Cap 609, provides that it is not incompatible with an arbitration agreement for a party to request from a Court, before or during arbitral proceedings, an interim measure of protection, and for a Court to grant such measure.  So long as the Court recognizes that its powers to grant relief and measures under s 45 are merely ancillary to the arbitral proceedings, and for facilitating the process of the tribunal that has primary jurisdiction over the arbitral proceedings, the application to the Court and the grant of interim measures by the Court should not be seen as an encroachment on the powers of the tribunal to which the parties have agreed to submit the dispute, nor as breach of the arbitration agreement made between the parties.

26.  As can be seen in Prema and Compagnia Sud Americana, at the first stage of the consideration, the Court follows and applies the general principles governing the grant of interim relief in proceedings brought in Hong Kong, such that in the context of a Mareva type of relief, the plaintiff needs only to show a good arguable case, and that the balance of convenience is in favor of the grant of the injunction sought.  In Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang [2015] 1 HKLRD 830, the Court explained (in paragraph 27 of the judgment):

“Under s 21M (1) of the High Court Ordinance, the Court of First Instance may grant an interlocutory injunction in aid of foreign proceedings. As rightly observed by the Judge, a court in the exercise of this power is required to abide by the general principles governing interim relief, which means that the power is the same as if the order were granted under s 21L of the High Court Ordinance in relation to Hong Kong proceedings. It follows that in the context of ordering disclosure ancillary to a Mareva injunction, the principles are just the same, irrespective of whether the underlying proceedings are purely domestic or in aid of some foreign proceedings.”

27.  At the second stage, when the Court considers whether it would be unjust or inconvenient to grant the interim relief, the guidelines as to how the English Court exercises its discretion have been referred to and applied (Beyonics Technology Limited v Goh Chan Peng, unreported, CACV 244/2014 12 August 2015).  In Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113, the English Court of Appeal observed (in the context of whether it is “inexpedient” to make an order under a corresponding provision of the relevant English act):

“As the authorities show, there are five particular considerations which the court should bear in mind, when considering the question whether it is inexpedient to make an order. First, whether the making of the order will interfere with the management of the case in the primary court eg where the order is inconsistent with an order in the primary court or overlaps with it. That consideration does not arise in the present case. Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders. Third, whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state whether person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign defendant. Fourth, whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order. Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.”

28.  On my part, I would not say that s 21M and the cases decided under s 21M can have no relevance at all to an application for the grant of interim relief in relation to arbitral proceedings outside Hong Kong.  Section 21M refers to “proceedings” which have been, or are to be commenced outside Hong Kong, which are capable of giving rise to a judgment which may be enforced in Hong Kong under any Ordinance or at common law.  “Proceedings” can include arbitral proceedings. 

29.  There is similarity in the bases of s 21M and s 45, namely, to enable the Court to grant interim measures in relation to and in aid of proceedings which have been or are to be commenced outside Hong Kong, so long as such proceedings are capable of giving rise to a judgment which may be enforced in Hong Kong; and notwithstanding that the subject matter of the proceedings outside Hong Kong would not give rise to a cause of action over which the Court would have jurisdiction, apart from s 21M and s 45.  The orders to be made by the Court are only ancillary to, and to facilitate and aid the court or tribunal outside Hong Kong which has primary jurisdiction.  The guidelines set out by the Court in Compagnia Sud Americana De Vapores SA v Hin-Pro International Logistics Ltd, when a party seeks an injunction under s 21M in aid of legal proceedings outside Hong Kong would, in my view, be relevant and of assistance when the Court is asked to exercise its powers under s 45 to grant interim measures in aid of arbitral proceedings outside Hong Kong. 

30.  Even if Mr Brown is right, and s 21M is not applicable to an application for interim relief in aid of arbitral proceedings outside Hong Kong, I am not satisfied that there is any real distinction in the test applicable to the consideration of whether the Injunction should be granted under s 45.  The Court has to consider whether the interim measure sought in Hong Kong belongs to a type or description of interim measure that may be granted in Hong Kong in relation to arbitral proceedings by the Court, and where the relief sought is for a Mareva injunction, the test would still be whether the applicant can show a good arguable case, that there is a real risk of dissipation of assets, and that the balance of convenience is in favor of the grant.  At the second stage, the Court then considers, for the relief sought in aid of arbitral proceedings, whether it should be declined because (under s 45 (5)) the interim measure sought is “currently the subject of arbitral proceedings; and the court considers it more appropriate for the interim measure sought to be dealt with by the arbitral tribunal”.

31.  It can be seen from the ex parte Skeleton that the arguments for the grant of the Injunction were on the basis of the existence of a good arguable case, the alleged presence of a risk of dissipation, and the balance of convenience.  The plaintiff referred (inter alia) to both s 21M and s 45, to the fact that the relief sought was in aid of foreign arbitral proceedings to be brought, that the Arbitration is capable of giving rise to an enforceable Convention award and an enforceable judgment in Hong Kong, and to the two-stage approach set out in Compagnia Sud Americana De Vapores SA v Hin-Pro International Logistics Ltd. 

32.  References were made in the ex parte Skeleton (paragraph 18 (7)) to s 21M and s 21N.  So far as reference is made to the requirement for the Court to consider (under s 21N) that its power to grant the interim relief is ancillary to proceedings outside Hong Kong, and for the purpose of facilitating the process of a court outside Hong Kong that has primary jurisdiction over the proceedings, these are the same requirements under s 45(7), and there is no material difference in the substance of the matters to which the Court must have regard.

33.  It is true that the Singapore Court declined the plaintiff’s application for Mareva injunction.  It is the arbitral tribunal in Singapore which has primary jurisdiction over the Arbitration to be commenced in Singapore.  The Singapore Court, of course, is the supervisory court in respect of the Arbitration.  In Compagnia Sud Americana, the Court of Appeal emphasized, in the context of interim relief sought from the Court in aid of legal proceedings outside Hong Kong, that:

“ ... Even before one comes to the 2^nd stage in terms of consideration under s 21M (4), the court must ask itself whether the facts of the case warrant the grant of interim relief if substantive proceedings were brought in Hong Kong. This entails the judge hearing the application to examine the strength and arguability of an applicant’s claim in the context of Hong Kong law rather than simply accepting a decision of the foreign court.” (Emphasis added)

34.  I have to agree that in the ex parte Skeleton, the plaintiff had only referred the judge to s 21M (4), as to whether it would be “unjust or inconvenient” for the Court to grant the interim relief, and not to s 45 (4), as to the Court’s power to decline the interim measure sought under the latter provision.  On its own, that may be misleading, when s 45 is clearly applicable to the Court’s grant of interim relief in aid of the Arbitration outside Hong Kong.

35.  For the plaintiff, Mr Lam SC pointed out that s 45 (4) has no application to the circumstances of this case, since there were no “current” arbitral proceedings which had been commenced at the time of the ex parte application.  There is no dispute that the plaintiff only filed its request for the Arbitration on 15 July 2015.  The plaintiff had already disclosed to the ex parte judge that the ICC Arbitration Rules permit the appointment of an emergency arbitrator to grant urgent interim measures before the constitution of the tribunal.  The plaintiff had explained, however, that any application to the emergency arbitrator has to be on notice to the opponent, and that in view of the risk of dissipation relied upon by the plaintiff, the appointment of an emergency arbitrator and the application for interim measures to the emergency arbitrator on inter-partes basis would frustrate the purpose of the Injunction sought.

36.  Bearing in mind the fact that the Arbitration had not been commenced at the time of the ex parte application, I agree that there were no arbitral proceedings in place on 3 July 2015, and s 45 (4) did not apply.  I therefore accept that the plaintiff’s failure to refer s 45 (4) to the ex parte judge does not constitute material non-disclosure.

37.  Overall, I cannot say that the plaintiff had misled the Court as to the basis of its application for the Injunction, and the matters to which the Court should have regard in the exercise of its discretion.

Whether there was material non-disclosure regarding the refusal of the relief in Singapore

38.  There is no dispute that the plaintiff had made disclosure to Barnes J of the fact that application had been made to the Singapore Court for a Mareva injunction, and that it had been refused.  The complaint is that the plaintiff had misled the Court, by informing the Court (in paragraph 8 (2) of the ex parte Skeleton) that the Singapore Court was not satisfied that the defendant had behaved in such a manner that is tantamount to acting fraudulently, dishonestly or unconscionably to give rise to an inference of a real risk of dissipation, and by distinguishing the refusal of relief in Singapore on the basis that “evidence of fraudulent, dishonest or unconscionable behavior is not essential to the exercise of (the Court’s) jurisdiction under Hong Kong law”.

39.  Mr Lam has highlighted that, in the affirmation of Yin Jianhua (“Yin”) relied upon by the plaintiff at the ex parte application, Yin had referred to the hearing before the Senior Judge in Singapore, his refusal of the plaintiff’s application, and exhibited the report of the hearing (“Hearing Report”) prepared by the plaintiff’s Singaporean lawyers, as well as the Senior Judge’s Notes of the evidence at the hearing.  Reviewing the Hearing Report, it seems clear that the Singaporean lawyers were referring to the fact that the Senior Judge had considered that it was not sufficient to show that there was any fraudulent, unconscionable or dishonest conduct on the part of the defendant, and thereby to satisfy him that there was any “real risk of dissipation of assets”.  According to Mr Lam, the Hearing Report had been read out to Barnes, J at the ex parte hearing, and there was no question of the learned judge having been misled.

40.  Not only was the Hearing Report exhibited to Yin’s affirmation.  Yin also dealt with the hearing, the Senior Judge’s dismissal of the application, and the reasons therefor as summarized in the Hearing Report, in paragraphs 10 and 12 of his affirmation.  In paragraph 12 (2), he had dealt clearly with the reasons why the Senior Judge had considered that there was no real risk of dissipation of assets to justify the grant of the Mareva injunction sought.

41.  In all, I am not satisfied that there had been material non disclosure of the reason for the dismissal of the plaintiff’s application to the Senior Judge in Singapore.  Nor am I satisfied that the ex parte judge dealing with the application in Hong Kong was misled.

42.  Any non-disclosure in this respect is not material, since I agree with Mr Lam that, as held by the Court of Appeal in Compagnia Sud Americana in the context of an application under s 21M, the Court in Hong Kong is bound to exercise its own independent discretion in deciding whether there is a real risk of dissipation of assets, as a matter of Hong Kong law.  Of course, as the Court of Appeal has also held in Beyonics Technology Limited v Goh Chan Peng, unreported, CACV 244/2014 12 August 2015, again in the context of an application for interim relief under s 21M in aid of legal proceedings outside Hong Kong, the Hong Kong Court in exercising its ancillary jurisdiction to provide assistance to a foreign court which is seized of the substantive proceedings must respect the view and the approach of the foreign court, and should be cautious and slow to take a different view.  That is not to say that it cannot take a different view.

Whether the ICC reference is capable of giving rise to an award that may be enforced in Hong Kong

43.  In the context of s 21M, the Court of Appeal held in Her Majesty’s Revenue & Customs v Shahdadpuri [2012] 1 HKLRD 2-3 that in order to establish this Court’s jurisdiction for the grant of Mareva injunction in aid of foreign proceedings, all that an applicant is required to demonstrate is that there is a good arguable case that the foreign proceedings are capable of giving rise to a judgment which may be enforced in Hong Kong.  In view of the similarity in the intent as well as the provisions of s 21M (1) (b) and of s 45 (5) (b), I consider that the test in Her Majesty’s Revenue & Customs v Shahdadpuri is applicable to s 45, and that an applicant for interim relief in aid of arbitral proceedings, which have been or are to be commenced outside Hong Kong, is only required to show that there is a good arguable case that the arbitral proceedings outside Hong Kong are capable of giving rise to an award that may be enforced in Hong Kong.

44.  At first blush, it may seem clear that the plaintiff has departed from the arbitration clause by initiating arbitration in Singapore by referring the dispute to the ICC, instead of SIAC.  However, this is a question of or challenge to the jurisdiction of the arbitral tribunal, which should be determined by the tribunal itself.  Neither the Hong Kong Court nor the Singapore Court should interfere by deciding the jurisdiction of the tribunal at this stage.  Even if the tribunal constituted by ICC should decide that it has jurisdiction over the Arbitration, and makes an award in the arbitral proceedings, it is still possible for the award to be recognized and enforced by the Hong Kong Court at the enforcement and recognition stage, either by exercise of its discretion on the facts of the case (as in China Nanhai Joint Service Corporation Shenzhen Branch v Gee Tai Holdings [1995] 2 HKLR 215), or because the award has not been set aside by the Singapore Court as the supervisory court (on jurisdiction, or any other ground).

45.  I am therefore not persuaded by the defendant’s argument, that there is no good arguable case that the Arbitration which has now been commenced by the plaintiff in Singapore is capable of giving rise to an award that may be enforced in Hong Kong.

Whether there is a risk of dissipation and material non-disclosure in respect thereof

46.  This is the real crux of the matter.

47.  In the context of discharging an ex parte order on the ground of material non-disclosure, the relevant legal principles are not in dispute.  Material facts are those which are material to the judge’s determination of the ex parte application when it was made.  Materiality is to be decided by the Court, and not by the assessment of the applicant or his legal advisers.  The applicant has the duty to make proper inquiries before making the application and the duty of disclosure applies not only to material facts as known to the applicant, but also to any additional facts which the applicant would have known if he had made such proper inquiries.  The extent of the necessary inquiries to be made depend on all the circumstances of the case, including the nature of the case which the applicant is making, the order for which application is made, the probable effect of the order on the defendant, and the degree of legitimate urgency and the time available for making inquiries.  (Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, Bank Mellat v Nikpour [1985] FSR 87)

48.  If material non-disclosure is established, the court will be “astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure...  is deprived of any advantage he may have derived by that breach of duty” (per Donaldson LJ in Bank Mellat v Nikpour [1985] FSR 87, at 91).  Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application.  The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.

49.  At the hearing of the inter-partes summons on 17 July 2015, the defendant did not appear despite having been served, and the Injunction was continued by Chow J.  In his Decision, Chow J pointed out that he was satisfied on the plaintiff’s evidence that the plaintiff had established a good arguable case on the merits and a real risk of dissipation of assets by the defendant, and that it would be in order for him to grant the Injunction.  He made it clear, however, that the continuation of the Injunction was without prejudice to the defendant to apply to discharge the Injunction on the ground of material non-disclosure, or any other ground.

50.  Essentially, the defendant’s case for discharge and discontinuance of the Injunction is that the plaintiff’s ex parte (and inter-partes) application was premised on the argument that the defendant had demonstrated conduct of low commercial morality, which justified the Court inferring that there was a real risk of the defendant’s dissipation of assets to defeat any judgment.  The defendant sought to argue that the evidence relied upon by the plaintiff demonstrated, at most, a breach of contract on the defendant’s part, but that it was insufficient to establish a real risk of dissipation.  The defendant further argued that the plaintiff had failed to disclose material facts at the ex parte application: that there had been prior dealings between the plaintiff and the defendant which are inconsistent with any sharp practice on the part of the defendant; that there had been meetings and negotiations between the parties in April 2015; that the defendant had informed the plaintiff during such meetings that it could not perform under the Sales Agreement unless the price could be increased; and that it had also informed the plaintiff at a meeting on 3 June 2015 that there had been a vessel malfunction (which is consistent with the defendant’s claim of force majeure, later raised on 10 June 2015).

51.  The defendant claimed that it had contracted to purchase the Goods from its source, Jianlong (Hong Kong) International Trade Co (“Supplier”), for sale to the plaintiff.  The price of the Goods under the defendant’s contract with the Supplier was “floating”, ie subject to market changes, whereas the defendant had agreed under the Sales Agreement to sell the Goods to the plaintiff at a fixed price.  The defendant’s purchase and sale was financed through back-to-back letters of credit.

52.  It is not disputed that after the Sales Agreement, the market price of iron ore rose sharply.  As a result, the price payable by the defendant to the Supplier significantly increased, and the letter of credit provided by the plaintiff to the defendant was significantly less than the amount of the letter of credit which the defendant had to provide to the Supplier to purchase the Goods.  The margin between the respective letters of credit was in the order of US $1.3 million, and the defendant was required by its bank to provide such margin before the defendant could purchase the cargo from the Supplier.  The defendant’s case is that since it could not cover the margin, it could not proceed with the purchase from the Supplier.

53.  The defendant accepts that “it is prima facie in breach of the Sales Agreement”, in that it did not deliver the Goods to the plaintiff, but claims that it had contractual defences of force majeure and limitation of liability under the provisions of the Sales Agreement.  The defendant disputes the plaintiff’s allegation that it had demonstrated conduct of low commercial morality, by seeking to pass on its loss to the plaintiff, either by getting out of the Sales Agreement or making the plaintiff agree to an increase in the contract price.  The plaintiff’s further evidence of the defendant’s deplorable conduct included its evasiveness, and failure in responding to the plaintiff’s inquiries as to the status of the shipment, and its belated reliance on an unmeritorious defence of force majeure.

54.  The defendant denies the plaintiff’s claim that the defendant had defaulted under the Sales Agreement because it had sold the Goods to a third party at a higher price.  On the defendant’s case, since it was not able to provide the margin for the back-to-back letter of credit, the defendant “arranged” for the cancellation of the sale and purchase between the defendant and the Supplier, and further “arranged” for the Supplier’s sale of the Goods to a “new buyer”, Sinochem International Oversea Co Ltd (“Sinochem”), and for Sinochem’s sale of the Goods to the defendant’s associated company TL Resources Ltd (“TLHK”). TLHK then sold the Goods to Shangdong Liagang/Winestone Developments Limited (“Ultimate Buyer”).  The defendant claims that it had sold the Goods which it had contracted to sell to the plaintiff, not for the purpose of making more profit, but because it was placed in a difficult situation, and was not able to purchase the Goods from the Supplier as a consequence of the rising market.

55.  According to the defendant, it had been upfront and forthright to the plaintiff, since it had informed the plaintiff in April and May 2015 that it would have great difficulty in performing the Sales Agreement, because it could not purchase the Goods from the Supplier due to the letter of credit problem.  The plaintiff accepted, even in the evidence it filed for the ex parte application, that the defendant had informed the plaintiff, by 28 April 2015 (if not before), that because the defendant had failed to hedge against the risk of increase in the market price of the Goods, the defendant would suffer losses under the Sales Agreement.  However, the plaintiff disputes that the defendant had been open and forthright about its position, that it had already disposed of the Goods. 

56.  In the evidence filed in support of the ex parte application, the plaintiff did disclose that it had meetings with the defendant, but it claims that the defendant had only asked the plaintiff to share the defendant’s burden of losses by agreeing to an increase in the contract price, and further, to pay a higher price for goods which the plaintiff would purchase from the defendant in the future.  The plaintiff refused to accede to this.  It emphasized that at a meeting held on 3 June 2015, when the plaintiff had asked the defendant’s director and sole shareholder (“Liang”) outright, whether the defendant had sold the Goods to a third party, Liang did not answer the question, and instead feigned ignorance and claimed (for the first time) that he was only an employee of the defendant who had no say in the matter. 

57.  The plaintiff further emphasized that before the defendant had, through TLHK, entered into a contract on 3 June 2015 for the sale of the Goods to the Ultimate Buyer, the defendant had sent an email to the plaintiff on 2 June 2015.  In this email, the defendant denied the plaintiff’s right to terminate the Sales Agreement, and demanded for the plaintiff to withdraw such wrongful termination.  It is not disputed that on 28 May 2015, the plaintiff had issued a letter to the defendant, whereby the plaintiff purported to accept the defendant’s repudiatory breach (by reason of its failure to ship the Goods by 24 May 2015).  The plaintiff’s case is that while the defendant purported to claim on 2 June 2015 that the Sales Agreement was still in place, it procured TLHK on 3 June 2015 to sell the Goods to a third party and withheld this fact from the plaintiff.

58.  On the evidence, there are other factual matters which are hotly disputed by the parties, such as: (1) whether the earlier dealings between the parties demonstrate, as the defendant alleges, the plaintiff’s breach of agreement when the market price was against the plaintiff; and (2) whether the defendant had indeed informed the plaintiff at the meeting of 3 June 2015 that there had been a vessel malfunction.  The plaintiff denies that there had been any breach in its prior dealings with the defendant, and further claims that the defendant only raised force majeure as a defence when it claimed, for the first time, in an email of 10 June 2015 that the vessel nominated for the carriage of the Goods had failed on 22 May 2015. 

59.  In this regard, the remarks made in the judgment of Sir Nicholas Browne-Wilkinson VC in Dormeuil Freres SA v Nicolian International (Textiles) Ltd [1988] WLR 1362 are pertinent:

“To discover whether an ex parte order has been improperly obtained, the court first has to consider the evidence as it was at the time of the application for the ex parte order and then a mass of evidence designed to demonstrate that the evidence was misleading or failed to make full disclosure. The real question at the time of the inter partes hearing should not be what has happened in the past but what should happen in the future. On the hearing of the inter partes motion it is impossible to make any concluded findings of fact, yet the court is being asked to reach a conclusion on the issue of non-disclosure without full knowledge of the circumstances. This attempt involves a minute examination of detailed allegations and counter allegations, the exact materiality of which may not be clear to the judge in the interlocutory hearing, in circumstances when that is not necessary for the future conduct of the case.”

60.  Bearing in mind the court’s impossible task at the inter- partes stage to resolve disputed facts, the Vice Chancellor concluded in Dormeuil Freres SA v Nicolian International (Textiles) Ltd that applications for discharge of ex parte orders should, save in exceptional cases, be dealt with at trial.

61.  At this stage, I am neither able, nor prepared, to resolve the facts which are hotly in dispute between the parties as to what had allegedly transpired at the meetings in April, May and June 2015, and what was allegedly said at these meetings.  These will be for cross-examination at trial.  Suffice it to say that I am not satisfied at this stage that the plaintiff had failed to make full and frank disclosure of the conduct and the material events on which it relied at the ex parte hearing, to argue that there was a risk of the defendant’s dissipation.  The defendant does not deny that it had disposed of the Goods in the manner complained of by the plaintiff.  It only seeks to justify the disposal by what it claims now to be its motives and intentions at the material time, most of which were not disclosed to the plaintiff, even on the defendant’s own case. 

62.  On the evidence filed at this stage, I find the defendant’s assertions to be somewhat incredible.  If the defendant had indeed been as upfront with the plaintiff in the latter part of April, in May and in early June as it now claims, I find it incredulous that it would have failed to explain to the plaintiff at their meeting on 3 June 2015, if not before and during the re-negotiations over the price under the Sales Agreement, that it had been compelled to “arrange” for TLHK’s “purchase” or acquisition of the Goods from the Supplier, instead of being tight lipped about it.  This is particularly so, if the defendant’s sole intention was indeed, simply to buy back the Goods from TLHK for supply to the plaintiff, as Liang claims (in paragraphs 46 and 53 of his 2^nd affirmation).  The defendant’s claim, that it would buy back the Goods from TLHK or the Ultimate Buyer, in a rising market, for supply to the plaintiff, is also incredible.  As is its claim raised in early June 2015, that it could rely on force majeure.  If the malfunction or failure of the vessel had, allegedly, occurred on 22 May 2015, it is improbable that no hint was made of such malfunction until 3 June 2015 (even on the defendant’s case).

63.  The defendant sought to explain that it did not make any profit from the sale of the Goods to the Ultimate Buyer.  The issue at this stage is not whether the plaintiff will make a profit under the “arrangements”, for Sinochem to purchase the Goods from the Supplier in place of the defendant, and for TLHK to acquire the Goods from Sinochem, for sale to the Ultimate Buyer.  The plaintiff’s complaint is that the defendant ignored its contractual obligations to deliver the Goods to the plaintiff under the Sales Agreement, and chose to avoid its losses under the Sales Agreement by contracting with or procuring its associated company to sell to the Ultimate Buyer.  The plaintiff’s case is that this shows the defendant’s propensity to avoid its legal obligations and any judgment that may be obtained against it, such that there is a real risk of its dissipating its assets to frustrate any such judgment.

64.  I accept without hesitation that the Court should not too readily infer a real risk of dissipation from what is alleged to be a  defendant’s conduct which demonstrates low commercial morality (Hornor Resources (International) Co Ltd v Savvy Resources Ltd [2010] 4 HKC 50).  However, having considered the entirety of the materials made available at this stage by both the plaintiff and the defendant, I maintain that there is enough evidence, from the defendant’s dealings and conduct in this case, for the Court to conclude that there is a real risk that the defendant will not honour its obligations under any order or judgment of the Court made against it, and that at the end of the litigation, the plaintiff may have difficulty in getting the fruits of any judgment that may be given in its favor, in the absence of the Injunction. 

Whether Hong Kong is the appropriate forum to grant the Injunction

65.  The defendant argued that, without prejudice to its position that the plaintiff’s relief should have been sought in the SIAC Arbitration, the plaintiff is not entitled to seek relief from the Hong Kong Court and should instead have made any application for the Injunction to the Singapore Court. 

66.  Clause 15.4 of the Sales Agreement, to which the defendant referred in support of its claim that the Court should not grant the Injunction, does not assist its case.  This provides as follows:

“No action in a court of law arising out of this Agreement shall be commenced by one Party against the other unless and until the dispute or claim has been referred to arbitration as provided in this clause.”

67.  It is pertinent to note that under s 21 of the Arbitration Ordinance (and Article 9 of the Model Law) (already referred to in the earlier part of this Decision), it is not incompatible with an arbitration agreement for a party to request from a court, before or during arbitral proceedings, an interim measure of protection, and for a court to grant such measure.  On the basis that the defendant has assets in Hong Kong, the plaintiff is entitled to come to this Court to seek the Injunction as an interim measure under s 45 of the Arbitration Ordinance, as an aid to the Arbitration it intended to commence, and has by now commenced, under the arbitration clause of the Sales Agreement.  There is no question of whether Hong Kong, or Singapore, is the appropriate forum for the determination of the dispute which has arisen between the parties under the Sales Agreement - the dispute and its determination are matters for the arbitral tribunal.

68.  The Singapore Court, as the supervisory court of the Arbitration in Singapore, has its jurisdiction in respect of the Arbitration, including the grant of interim measures.  Likewise, the Court in Hong Kong has the jurisdiction provided for under the Arbitration Ordinance.  In the exercise of its jurisdiction, the Court will have regard to the matters set out in s 45 (4), (5) and (7).

Whether there was material non-disclosure of the possible defences

69.  Apart from Clause 15.4, the defendant seeks to rely on clause 23 of the Sales Agreement as a defence to the claims made by the plaintiff.  The defendant argues that the plaintiff should have brought this possible defence to the attention of the ex parte judge.

70.  Clause 23 provides:

“No consequential loss

Notwithstanding anything to the contrary elsewhere in this Agreement, the Parties agree that no party is in any circumstances liable in respect of any breach of this Agreement to the other party for:

(a) any loss of profit, loss of revenue, loss of use, loss of contract, loss of goodwill, or increased cost of working; or

(b) any indirect or consequential loss.”

71.  I agree with Leading Counsel for the plaintiff, that there is no merit in such purported defence.  Clause 23 seeks to exclude the defendant’s liability for indirect and inconsequential loss.  The plaintiff’s claims in the Arbitration are for damages sustained as a result of the defendant’s breach of the Sales Agreement, and its failure to deliver the Goods under the Sales Agreement.  The measure of damages for such breach is clearly the difference between the contract price and the market price of the Goods at the time when they ought to have been delivered under the Sales Agreement.  This is what the plaintiff seeks to claim in the Arbitration, as the direct loss that flows from the defendant’s breach.  If the defendant can establish, in the Arbitration, that any element of the plaintiff’s claim constitutes indirect loss which can be excluded under Clause 23 as being too remote, that is a matter for the tribunal’s decision.  The plaintiff clearly has a good arguable case, and I do not agree that the failure to refer to the tenuous defence under clause 23 constitutes any material non-disclosure at the ex parte application.  It is not incumbent on a claimant, even on an ex parte application, to explore even the most inconceivable defences that may be raised by the opponent.

Whether the form of the Injunction is irregular

72.  In short, the defendant claims that the plaintiff failed to incorporate in the form of the Injunction the standard undertakings set out in PD 11.2, that the plaintiff:

(1) will cause a written guarantee in favor of the defendant to be issued from a bank and to be served on the defendant (“Standard Undertaking 2”); and

(2) will cause an affidavit to be sworn and filed confirming the substance of what was said to the court by the plaintiff’s counsel (“Standard Undertaking 4”).

73.  The footnote to Standard Undertaking 2 states that the undertaking is to be included “in those cases where the judge considers that a guarantee should be provided prior to the return date”.  The ex parte judge did not order any guarantee to be provided by way of fortification of the plaintiff’s undertaking as to damages.  The plaintiff already disclosed in the affidavit in support of the Injunction that it is a company incorporated in Macau.  I do not regard the Injunction to be irregular in form.  Nor do I regard the failure to disclose the absence of Standard Undertaking 2 in the draft order submitted to Barnes J to be material non-disclosure. 

74.  Standard Undertaking 4 is applicable for inclusion where the plaintiff seeks an order in such urgent circumstances that no affidavit can be made in time to support the application, or the affidavit can only be prepared in draft without its being signed and sworn to by the dependent.  It is also applicable where the Court is informed of material and relevant matters at the hearing, that are not deposed to in the affidavit sworn and filed at the time of the application. 

75.  Even without inclusion in the draft order, Standard Undertaking 4 will be implied.

76.  The ex parte judge had referred to the affirmation of Wong Wei (“Wong”) sworn on 2 July 2015.  That exhibited an unsigned affirmation of Yin.  Wong’s affirmation was filed on 4 July 2015, and Yin’s affirmation was signed and then filed on 14 July 2015.  The Order made on 3 July 2015 was served on the defendant in Singapore, together with sealed copies of the Concurrent Originating Summons, the affirmation of Wong in support of the Injunction and the ex parte Skeleton.  In these circumstances, I consider that the plaintiff in substance complied with Standard Undertaking 4.  The failure to inform the ex parte judge of the absence of Standard Undertaking 4 in the draft order does not constitute non-disclosure of a material fact to justify the discharge of the Injunction.

77.  The defendant also argued that the form of the Injunction should contain an undertaking that the plaintiff should commence the Arbitration as soon as practicable, instead of the standard form of undertaking that the plaintiff will issue and serve on the defendant the relevant writ or  originating summons as soon as practicable.  Even in the absence of such an express undertaking, any applicant for a Mareva injunction has the duty to progress the underlying proceedings with diligence.  The Injunction already includes the undertaking from the plaintiff that it will issue and serve as soon as practicable the concurrent originating summons issued in these proceedings, as well as the documents in support of the ex parte application and the inter-partes summons. I do not consider that the absence of the undertaking referred to by the defendant is a material fact which was withheld from the Court, to justify the discharge of the Injunction.

The plaintiff’s breach of the Order of 3 July 2015

78.  The defendant complains that the plaintiff failed to permit or consent to the bank’s release of the defendant’s expenses, for which provision has been made in the Order of 3 July 2015 as exceptions to the Injunction.  The defendant refers to the permitted legal expenses of $500,000, and the fact that when the defendant’s bank required the plaintiff to consent to the release of $500,000 from the defendant’s account, the plaintiff refused or delayed to give its unconditional consent. 

79.  As I made clear in the course of the hearing on 23 October 2015, the Injunction clearly permits the defendant to utilize $500,000 of its assets for legal advice and representation, notwithstanding the Injunction.  The consent of the plaintiff is not required, and the Court looks with disfavor on unreasonable restraints created by any plaintiff on a defendant’s access to the funds in its account where provision has been expressly made in the order of the Court. 

80.  In any event, the defendant has been able, after some delay, to utilize the funds in its bank account.  The conduct of the plaintiff will be taken into consideration when the Court exercises its discretion in the circumstances of the case, as to whether to discharge, re-grant or continue the Injunction, and in the grant of any relief sought by the parties.

Whether the judge had been misled as to the plaintiff’s financial position

81.  As for the plaintiff’s financial position, its balance sheet was produced when the plaintiff referred in Zhang Xiao Jie’s affirmation to its current assets.  Such assets included its cash and bank balances of US$4.2m (referred to in the ex parte Skeleton), in addition to the receivables, amounts due from directors and related companies, and pledged bank deposits (of which the defendant complains).  I do not consider that there was material non-disclosure as to the plaintiff’s financial state.

Whether the Injunction should be continued

82.  I do not consider that there has been material non-disclosure to justify the discharge of the Injunction, as the defendant seeks. 

83.  To the extent that the Court was not asked by the plaintiff, at the hearing of the inter-partes summons on 17 July 2015, to consider whether the Court should continue the Order, in the exercise of its ancillary jurisdiction and bearing in mind the provisions of s 45 (4) and (7), or in the event that I am wrong and there was non-disclosure of any material matter, I now deal with the question whether the Injunction should be continued, or granted afresh. 

84.  I was informed at the hearing on 23 October 2015 that the tribunal for the Arbitration was in the course of being empanelled.  For any interim relief to be obtained from the tribunal even on an emergency basis, it will take some days for a procedural timetable to be fixed, and for the inter-partes hearing to take place.

85.  The only assets identified in Hong Kong are the defendant’s bank accounts.  Such assets can be transferred and removed with ease.

86.  The plaintiff applied for and obtained the Injunction on 3 July 2015. The grant of the Injunction was notified to the defendant on 6 July 2015, and the Injunction and accompanying papers were served on the defendant on 8 July 2015.  The request for arbitration was issued by the plaintiff on 14 July 2015. The provisional advance payable to the ICC was due from the plaintiff on 24 August 2015, and the plaintiff obtained an extension for payment up to 21 September 2015.  The provisional advance was duly paid in full by the plaintiff on 18 September 2015, before the service of the defendant’s Answer to the plaintiff’s request for Arbitration.  I cannot see that the extension of time granted for the plaintiff’s payment of the provisional advance has prejudiced or delayed either the defendant’s nomination of arbitrator, or its service of an Answer in the Arbitration. 

87.  In all the circumstances, I do not consider that there has been any undue delay on the plaintiff’s part in the commencement and conduct of the Arbitration.

88.  I bear in mind, however, the defendant’s complaint that when it sought the plaintiff’s consent on 18 August 2015 to the release of funds in its bank account in Hong Kong for legal fees, the plaintiff withheld and delayed its consent.

89.  On the other hand, the defendant did not comply with the Order made by the Court on 3 July 2015 for disclosure of its assets within 7 days of the service of the Injunction.  It only purported to comply with the Order on 23 September 2015.   After having been notified of the Injunction, and having been served on 8 July 2015 with the Injunction and the inter-partes summons, the defendant only applied to discharge the Injunction on 2 October 2015, over 12 weeks after the Injunction.

90.  Delay does not deprive the defendant of its right to apply for the Injunction to be discharged.  However, when the Court considers the balance of convenience, or in balancing the risks of the injustices that may be caused by the grant or refusal of an interim injunction, delay is relevant in the balancing.  As Rogers VP succinctly put it in King Fung Vacuum & ors v Toto Toys Ltd & ors [2006] 2 HKLRD 785: it stands to reason that if a party is prepared to allow matters to proceed and takes no action with respect to matters which have been extant for lengthy periods, it lies ill in their mouth to say that there is likely to be irreparable damage.

91.  There is no evidence of the tribunal having made, or been asked by any party to make, any order which may be inconsistent with the Injunction.  I do not envisage that the Injunction will interfere with the tribunal’s management of the Arbitration at this stage, nor that the Injunction (which affects the defendant’s assets in Hong Kong only) will give rise to any disharmony or confusion by virtue of any orders made by the tribunal, or by virtue of any order of the Singapore Court. 

92.  In all the circumstances of this case, I do not consider that it is “more appropriate” for the Injunction to be considered and dealt with by the tribunal which has primary jurisdiction over the Arbitration.  The tribunal will be applying the same principles to the same matters made available to this Court.  It is particularly pertinent that the tribunal cannot make an order which effects or binds any third party other than the plaintiff and the defendant, being the only parties to the arbitration agreement.  It cannot grant an Injunction which binds banks of the defendant, and any third party notified of the Injunction and which knowingly assists in or permits a breach of the Injunction.

93.  Finally, even if I am wrong on the question of material non-disclosure, I would, in the exercise of my discretion and applying the principles summarized in Arena Corp Ltd v Schroeder [2003] EWHC 1089 (Ch), have granted the Injunction afresh.

94.  For all the above reasons, I find that the Injunction should be continued, until any further or other order of the tribunal made in the Arbitration.

Orders made

95.  The application to discharge the Injunction is dismissed, with costs to the plaintiff, and certificate for counsel.  The Injunction is continued until any further or other order of the tribunal in the Arbitration.

Postscript

96.  Finally, I have to remind parties of the provisions of PD 5.4, and the manner in which bundles for hearings should be compiled. Ironically, although the defendant complains of the plaintiff’s non-compliance with PD 11.2, the defendant has itself totally disregarded PD 5.4.  The bundles compiled by the defendant’s solicitors have been most unhelpful.  Exhibits have been put together with affirmations, and it has been most confusing in this case where there are numerous affirmations exhibited to affirmations, and the defendant has chosen to group everything together, without even a clear index.