MAN SING GENERAL CONTRACTORS LTD v. THE INCORPORATED OWNERS OF ON TAI MANSION, WINSLOW STREET

HCCT 67/2019

[2020] HKCFI 2864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 67 OF 2019

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D E C I S I O N

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1.  Having reviewed the submissions in writing filed on behalf of the Applicant and the Respondent respectively, the order of the Court is that each of the parties should bear its own costs of the Originating Summons issued by the Applicant on 13 December 2019 (“OS”).

2.  The need to remit the Award to the Arbitrator was not due to any fault of the Respondent, and I accept its submissions that an order for remission cannot be equated with the Applicant being the successful party.

3.  Although it was clear from the OS and the Award that the Arbitrator had failed to give any reason for the decision on interest and on costs, and the Award was for that reason remitted to the Arbitrator following directions of the Court on 10 January 2020 and upon the consent of the parties finalized on 7 February 2020, the Applicant had by the OS also sought leave to appeal against the Award.

4.  Even in the submissions served by the Applicant for the hearing before the Court on 10 January 2020, the Applicant had maintained that leave to appeal should be granted and further, that the appeal should be allowed and the Award on costs should be varied upon allowing the appeal.

5.  The threshold for granting leave to appeal against an arbitral award (and in particular an order on costs) is high. Further, section 5 (7) of Schedule 2 to the Arbitration Ordinance states that the Court must not exercise its power to set aside an award on hearing an appeal, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.

6.  The Applicant’s insistence on the variation of the costs order to be made for the hearing of the OS on 10 January 2020 was unreasonable, if not unjustified.

7.  On the other hand, the Respondent should have consented to the remission of the Award, since it was indisputable that the Arbitrator had not given any reasons for his decision on interest and on costs.

8.  It was not until the Court raised the above matters at the hearing on 10 January 2020 that the parties proceeded to confer on the remission (as directed by the Court), and it was not until 7 February 2020 that the parties could confirm consent to the referral.

9.  In my view, both parties had failed to act reasonably and promptly to save costs, avoid delay and achieve the objectives of procedural economy.

10.  The only order for costs which this Court is prepared to make is that each party is to bear its own costs of the OS.