SCHINDLER LIFTS (HONG KONG) LTD v. SUI CHONG CONSTRUCTION AND ENGINEERING CO LTD

DCCJ 2784/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2784 OF 2014

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DECISION

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INTRODUCTION

1. This is the defendant’s application for the stay of the present proceedings on the ground that the parties have agreed to submit the dispute to arbitration.

2. It is not disputed that the present action falls within the scope of an arbitration clause.

3. The issues for the court to decide are:-

(1)  whether the defendant had, by participating in the parties’ dispute in the Small Claims Tribunal (“SCT”), submitted his first statement on the substance of the dispute or otherwise waived its right to arbitrate;

(2)  if so, whether a discretionary stay should nonetheless be ordered.

BACKGROUND

Factual background

4. In this action, the plaintiff, a lift contractor, is claiming outstanding debts for works done at a new church building known as the New Vine Centre.  The defendant was the main contractor for the works carried out at the building.  The “Employer” was Vine Church Ltd and the “Architect” was Synthesis Design Ltd under the contract.

5. It is common ground that the parties by conduct entered into a “Sub-Contract” that includes terms contained in a letter of acceptance dated 3 February 2010 and the tender documents included in an appendix in the letter such as the “Specification Preliminaries” issued by the employer.

6. Section 9.04 of the Specification Preliminaries provides that “[u]nless otherwise agreed, payments will be made to [the plaintiff] upon the Architect’s certification as set out below”:-

“(5)  5% six months after issue of the Substantial Completion Certificate by the Architect (“the Penultimate Payment”);

(6)  the remaining 5% upon the expiration of the Defects Liability Period [i.e. 12 months from the issuance of the Substantial Completion Certificate] for the whole of the Main Contract provided the Architect has certified [the “Defects Rectification Certificate”] that all defects have been made good (“the Final Payment”).”

7. Section 9.05 of the Specification Preliminaries states the relevance of the architect’s certification of payments.  It provides:-

“Provided always that …… payments shall be made to the Sub-Contractor [P] by the Contractor [D] in accordance with clause 33 of the Conditions of Sub-Contract within fourteen days of receiving payment from the Employer against the Architect’s certificate under clause 32 of the Conditions of Contract for the Main Contract.”

8. It is not disputed that the Final Payment is subject to the Architect’s issuance of the defects rectification certificate.

9. There are two disputes between the plaintiff and the defendant.  They are:-

 (1) 1^st Dispute: concerns the allegation that despite the substantial completion certificate having been issued on 22 September 2011, the defendant failed to make the Penultimate Payment (“the 1^st Dispute”).

 (2) 2^nd Dispute: concerns the allegation that despite the 12 month period having passed, the Architect did not issue the defects rectification certificate and the defendant failed to pay the Final Payment despite an implied term to the effect that the defendant must pay the Final Payment to the plaintiff within a reasonable period (“the 2^nd Dispute”).

10. The defendant’s primary case is that on a proper construction of the Sub-contract, the conditions precedent for the Penultimate and Final Payments have not been met in that:-

(1)  the Employer has yet to make the Penultimate and Final Payments to the defendant;

(2)  the Architect has yet to issue the defect rectification certificate; and

(3)  the Architect has yet to issue payment certificates under clause 32 of the Conditions of Contract for the Main Contract (“the Payment Certificate”).

Procedural history

11. On 16 January 2014, the plaintiff commenced Small Claims Tribunal Proceedings SCTC 002208/14 in respect of the 1^st Dispute concerning only the Penultimate Payment (“the 1^st SCT Proceedings”).

12. On 25 February 2014, the defendant filed its defence to the 1^st SCT Proceedings.

13. On 8 July 2014, the plaintiff commenced Small Claims Tribunal Proceedings SCTC 025287/14 in respect of the 2^nd Dispute concerning only the Final Payment (“the 2^nd SCT Proceedings”).

14. It is undisputable that the 1^st and 2^nd SCT Proceedings are separate sets of proceedings before the SCT concerning 2 separate disputes, ie the 1^st and 2^nd Disputes respectively.

15. On 9 July 2014, the plaintiff applied to consolidate and transfer the 1^st and 2^nd SCT Proceedings to the District Court on the grounds that (1) the claims, once consolidated, would exceed the SCT’s jurisdictional limit of HK$50,000; and (2) they involve a common question of fact: see the plaintiff’s letter to the SCT dated 9 July 2014.

16. At a hearing on 15 July 2014, the SCT made an order to discontinue both the 1^st and 2^nd SCT Proceedings.  The plaintiff did so accordingly.

17. Despite having filed its defence in the 1^st SCT Proceedings, the defendant had never submitted any defence in relation to the 2^nd Dispute or the 2^nd SCT Proceedings.

18. The plaintiff then commenced the present action, claiming the Penultimate and Final Payments, each of which amount to HK$26,950 only, making a total claim of HK$53,900.

DISCUSSION

The Arbitration Clause

19. It is not disputed that the Sub-contract contained an arbitration clause.

20. It is the plaintiff’s own pleaded case that:-

(1)  The Sub-contract includes the letter of acceptance dated 3 February 2010, which incorporates the tender documents and Specification Preliminaries by reference;

(2)  In turn, the Specification Preliminaries incorporate the “Agreement & Schedule of Conditions of Nominated Sub-contract” for use in the HKSAR 2005 Edition (“HKIA Conditions”) published by inter alia the Hong Kong Institute of Architects (“HKIA”); and

(3)  There existed the unsigned articles of agreement between the plaintiff and the defendant.

(see §§6-8 of the statement of claim)

21. Article 5 of the HKIA Conditions provides:-

“If a dispute arises under or in connection with the Sub-Contract the parties agree to resolve the dispute in accordance with the dispute settlement procedures in clause 42” [emphasis added]

22. Clauses 42.1 to 42.3 of the HKIA Conditions provide for the referral of the dispute to the parties’ designated representatives and for mediation, failing which Clause 42.4 applies:-

“(1) …… either party may give a notice to the other party, by special delivery, to refer the dispute to arbitration and the person to act as the arbitrator shall be agreed between the parties.

…… (5) The arbitration shall be a domestic arbitration conducted in accordance with the Arbitration Ordinance ……”

Issue 1: Mandatory Stay

Legal principles

23. Section 20 of the Arbitration Ordinance, Cap 609 provides for a mandatory stay of proceedings in favour of arbitration where the action is the subject of an arbitration agreement:-

“(1) Article 8 of the UNCITRAL Model Law, the text of which is set out below, has effect-

(1)   A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.”

…… (4)  If the court refers the parties in an action to arbitration, it must make an order staying the legal proceedings in that action.” [emphasis added]

24. Thus, the 3 requirements of Article 8(1) must be complied with before a mandatory stay can be ordered.

25. 1^st requirement: the applicant must request the court to refer the parties to arbitration not later than when submitting his first statement on the substance of the dispute.  This is one of the key issues to be resolved in this case.

26. 2^nd requirement: the agreement must not be null, void, inoperative or incapable of being performed. The onus is on the party seeking to resist going to arbitration to prove that the arbitration agreement is null, void, inoperative or incapable of being performed. The standard of proof in this respect is said to be “high”, denoting “impossibility, or practical impossibility, or certainly not mere inconvenience or difficulty”: Klockner Pentaplast GmbH v Advance Technology [2011] 4 HKLRD 262 at §19 per Saunders J.

27. 3^rd requirement: the action is brought in a matter which is the subject of an arbitration agreement. In this regard, I had summarized the now familiar principles in a recent decision of this court in Sunglow Supplies v Shing Hing Construction (unrep, DCCJ 1005/2013, 21.1.2014) at §§26-28.  They are:-

(1)  The test is whether there is a prima facie case that the parties were bound by an arbitration clause.  The onus is on the applicant to show this.

(2)  Unless the point is clear, the court should not attempt to resolve the issue and the matter should be stayed for arbitration.

(3)  When there is a dispute as to whether there was an arbitration agreement, the onus on the applicant means that he has to prove that there is a good prima facie or plainly arguable case, predicated on cogent, and not dubious or fanciful, evidence that an arbitration agreement existed.

(4)  There are four questions that the court must generally deal with:-

(i)  Is there an arbitration agreement between the parties?

(ii)  Is the clause in question capable of being performed?

(iii)  Is there in reality a dispute or difference between the parties?

(iv)  Is the dispute or difference between the parties within the ambit of the arbitration agreement?

Findings on Mandatory Stay

28. For the 1^st requirement, the question is whether by filing the defence in the 1^st SCT Proceedings, the defendant has submitted its “first statement on the substance of the dispute” within the meaning of Article 8(1) of the Model Law.  This is a point of law which concerns the interpretation of Article 8(1).

29. I agree with Mr Jason Yu, counsel for the defendant that, according to the language of Article 8(1), the correct principle is that the defendant’s “first statement” must be submitted in the action sought to be stayed and not in another action.

30. The words in Article 8(1) “[a] court before which an action is brought …… when submitting his first statement on the substance of the dispute” envisage the “first statement” being a statement submitted in either in the arbitral process as was found by the Canadian court (see Bab Systems v McLurg [1994] Carswell Ont 4226 at §10) or in the action sought to be stayed as found by the Hong Kong court (see Paladin Agricultural v Excelsior [2001] 2 HKC 215 at 222F-223D per Burrell J).

31. In my view, it is clear that a “statement” in this context does not mean a statement in another action before another court or tribunal.

32. I further agree with Mr Yu’s submission that it would be wrong to construe Article 8(1) narrowly to mean that a defendant is debarred from invoking the mandatory stay in other proceedings if he had made a statement in other proceedings before another court. 

33. In this regard, I find what Waung J. said in the leading case on the interpretation of Article 8(1) in Louis Dreyfus Trading v Bonarich [1997] 3 HKC 597 at 606B-E particularly helpful:-

(1)  The tenor of the Model Law is strongly in favour of arbitration and the court should not construe the bar to mandatory stay too narrowly.  It is not the intention of the Model Law to take away the strong right of mandatory stay easily by any casual act of the defendant.

(2)  The bar to the right must be some formal act of consequence on the part of the defendant “in the court action”.

(3)  Article 8(1) requires the act of such defendant to be inter alia a first statement which is “submitted to the court” by the defendant.  [emphasis added]

34. The defendant further cited the Analytical Commentary on the Draft Text of a Model Law on International Commercial Arbitration (1985) contained in the Report of the Secretary General to the 18^th Session of the United Nations Commission on International Trade Law to support its argument.  It is worth noting that the Working Group which had drafted the Model Law initially considered debarring a party from relying on the arbitration agreement in “other proceedings” if it had failed to invoke the agreement by way of a timely request, but it ultimately decided not to incorporate such a provision of such general effect.  The Commentary on Article 8 reads (pp 23-24):-

“4. As regards the effect of a party’s failure to invoke the arbitration agreement by way of such timely request, it seems clear that article 8(1) prevents that party from invoking the agreement during the subsequent phases of the court proceedings. It may be noted that the Working Group, despite the wide support for the view that the failure of the party should preclude reliance on the agreement also in other proceedings or contexts, decided not to incorporate a provision of such general effect because it would be impossible to devise a simple rule which would satisfactorily deal with all the aspects of this complex issue.” [emphasis added]

35. Based on the above, the defendant submits that, to construe Article 8 to mean that the defendant’s filing of a defence in the 1^st SCT Proceedings has the general effect of precluding the defendant from relying on the arbitration agreement to stay other proceedings, such as the present action, would be directly contrary to the legislative intent contained in the Analytical Commentary.

36. I agree.

37. I further agree with the defendant that, consistent with the above, the English implementation of Article 8(1) had been interpreted to mean that the right to seek a stay of judicial proceedings will be lost to the applicant “after he has taken any step in those proceedings to answer the substantive claim”: Patel v Patel [2000] QB 551 at 5556C-D per Lord Woolf MR and 558B per Otton LJ.  This lends weight to support the defendant’s argument.

38. The plaintiff on the other hand submits that the ‘court” under Article 8 refers to the Hong Kong judicial system as a whole rather than a particular court.

39. Mr Shaw, solicitor representing the plaintiff, submits that the word “court” is defined in Article 2 of the Model Law as “a body or organ of the judicial system of a State”.  Thus, the distinction is between dispute resolution by a court system as contrast to that by arbitration: See Commentary §§1&2, p15 of the Report of the Secretary General of the UN General Assembly.

40. With respect, I cannot accept such interpretation.  It is clear to me that the “court” Article 8(1) refers to is the same court or tribunal and not different courts or tribunals within a particular judicial system.  In this regard, I do not accept that the plaintiff’s submission that the defendant has misconstrued the findings in Patel v Patel, supra and Louis Dreyfus Trading v Bonarich, supra.

41. I also reject the plaintiff’s argument that the language employed by the SCT is unimportant. The plaintiff submits that when SCT ordered the case to be discontinued, that was effectively a “transfer” to the District Court.  I reject such argument due to the fact that (i) the SCT would not have jurisdiction to transfer 2 cases with a combined claim exceeding HK$50,000 to the District Court in any event; and (ii) the presiding officer would not have ordered the cases to be discontinued had he wanted to have them merely transferred to the District Court instead. 

42. In this regard, I agree with Mr Yu’s submission that, in the present case, the only opportunity for the defendant to have done an act constituting a submission of a first statement would occur after the commencement of the present action.  There can be no dispute that the defence in the 1^st SCT Proceedings was submitted to a court of record of an entirely separate statutory jurisdiction created under the Small Claims Tribunal Ordinance. Cap 338 (cf Section 3(2)).

43. In my opinion, judging from the order made by the presiding officer on 15 July 2014, those proceedings in the SCT were discontinued and not “consolidated and transferred” to this Court as the plaintiff contends.  It follows therefore that the present action is a fresh action in which no defence or first statement has been filed.  

44. In my judgment, whatever was done before the commencement of the present action in another court would not be a submission of a first statement to this court.  In the premises, I consider the defendant is not barred from a mandatory stay of the action.

45. However, by passing, I would like to say that I do not accept the defendant’s submission that the defence filed by the defendant in the 1^st SCT Proceedings was related to the defendant’s counterclaim concerning an overpayment made by the defendant to the plaintiff only and therefore was not strictly speaking a “defence” as such.  While accepting that its contents are not identical to the defendant’s preliminary position to the 1^st and 2^nd Disputes in the present action which is, based on the failure of conditions precedent, that document starts with the unequivocal heading of “Defence to Claim……” and with the printed words of “I dispute the plaintiff’s claim for the following reasons……”. Thus, there is no doubt in my mind that the “defence” would have been sufficient to amount to a “first statement” had it not been filed in a separate proceedings and in a different court or tribunal.  But my view on this matter will have no substantive effect on my decision over the 1^st issue.

46. For the 2^nd requirement, the onus is on the plaintiff to prove that the arbitration agreement is null, void, inoperative or incapable of being performed. 

47. The plaintiff submits that the court should not grant a stay in this case as the arbitration agreement is inoperative or incapable of being performed.

48. The plaintiff submits that the arbitration agreement is inoperative because the condition precedents to the arbitration agreement’s operation, such as reference of the dispute to mediation, have not been met: Arbitration in Hong Kong, A Practical Guide, 2^nd Edition, §12.125.  The plaintiff further relies on Westco Airconditioning Ltd v Sui Chong Construction Engineering Co Ltd, (1998) HCA No 12848 of 1997, unreported, (3 February 1998; Findlay J.) where it was held that an agreement that requires the parties to submit their disputes ultimately to arbitration, albeit through a procedure, is overall an arbitration agreement in order to make good its point.

49. I have no hesitation to reject the plaintiff’s submission on this for 2 reasons. 

50. First, there is absolutely no evidence filed by the plaintiff to support such an argument.  Despite the fact that the registrar had made an order back on 5 September 2014 ordering the plaintiff to file its affidavit in reply to the defendant main affidavit in support of the present application on or before 19 September 2014, the plaintiff did not do so until 9 October 2014.  It did so belatedly without leave of the court or explaining the cause of the delay.  That affidavit does not include any evidence in relation to this argument.  It was subsequently filed with the consent of the defendant subject to the issue of costs.

51. On 11 November 2014, which was 2 days before hearing the application, the plaintiff’s solicitors attached an affidavit of one of its handling solicitors Geoffrey Shaw sworn on 5 November 2014 as “Appendix A” to the plaintiff’s skeleton submissions and sought leave to rely on the same at the hearing.  This affidavit included some correspondence which would form the evidential basis for the plaintiff to argue the 2^nd requirement.

52. I ruled against the plaintiff for such a novel, if not rather arrogant, way of introducing evidence without leave of the court during the hearing.  To my mind, a party is not at liberty to introduce additional evidence as and when they feel like and in the manner they choose.  There are set procedures and time tables in an application like this for the parties to do so.  In this case, the registrar had made it clear in his order dated 5 September 2014 that the parties are not permitted to file further affidavit without the leave of the court.  To attach a fresh affidavit as an “appendix” to a skeleton submission with a view of making use of it at the hearing is a blatant disregard of the order.  I therefore ordered the further affidavit to be taken out and any submissions based on the affidavit be expunged from the plaintiff’s skeleton submission at the beginning of the hearing.

53. In the absence of such evidence, I am of the view that the plaintiff has plainly failed to make out a case based on this requirement.

54. Second, even if there were such evidence, I do not consider that the plaintiff will succeed in showing that the arbitration agreement cannot be performed or inoperative purely based on the reason that it has not gone through the “muti-tier dispute resolution mechanism”.  In this regard, I find the comments made by Findlay J. in Westco Airconditioning Limited, supra at p4 of the judgment particularly helpful:

“There is, therefore, as I see it, a clear “agreement by the parties to submit to arbitration” their disputes.  It matters not, it seems to me, that the parties must, firstly, take some other step before this is done.  It cannot possibly have been the intention of the parties that, if one of them issues a writ before that step is taken, their joint wish to avoid proceedings at law is frustrated.  And it would make a complete nonsense of the arbitration agreement if it were so that one party could issue a writ on the eighty-ninth day, and the court was not bound to grant a stay then, but it must grant it on the ninety-first day because the period has then expired.  I have no doubt that I have before me an arbitration agreement, and, that being the case, I am required by the statute to refer the parties to arbitration.

In my view, what the statute means when it says “refer the parties to arbitration” is not “refer the dispute to the arbitrators”, as Lord Mustill suggests in relation to the Convention, but refer the parties to the process of arbitration that the parties have agreed to undertake, and, if this involves a preliminary step that the parties have agreed, to complete that step.  Accordingly, I find that the arbitration agreement is not “null and void, inoperative or incapable of bring performed.”, and I am bound, in terms of the statute, to refer the parties to the arbitration to which they agreed.”

55. For the 3^rd requirement, the following are not disputed:-

(1)  there is an arbitration agreement;

(2)  the clause in question is capable of being performed;

(3)  there is a dispute between the parties on the 1^st and 2^nd Disputes.

56. The remaining question is whether the 1^st and 2^nd Disputes fall within the ambit of the arbitration clause.  Here, the arbitration clause defines a “dispute” referable to arbitration as a dispute that “arises under or in connection with the Sub-contract”.

57. In Tommy CP Sze v Li & Fung [2003] 1 HKC 418 at §§54-57, Ma J (as he then was) held that:-

(1)  The court is required to construe the arbitration agreement in order to identify exactly what matters are required to be referred to arbitration.

(2)  In particular, words like “in connection with” or “connected therewith” are wide in nature and will cover all disputes other than those “entirely unrelated to the transaction covered by the contract”.

58. I agree with Mr Yu that the court should take a liberal view as to the scope of what is “in connection with” the Sub-contract.  In my judgment, the claim for the Penultimate and Final Payments are claims under the Sub-contract and are “in connection with” the Sub-contract.

59. For the foregoing reasons, I shall order this action be stayed pending arbitration.

Waiver of right to arbitrate

60. In my judgment, the plaintiff’s suggestion that the defendant had “waived” its right to arbitrate must fail for the following reasons.

61. A party may unilaterally waive his right under a term of the agreement if the effect of that contractual term is entirely to his benefit.  In the present case, the arbitration clause in the Sub-contract is clearly for the benefit for both parties as either party may invoke it.  Hence, in my view, there can be no unilateral waiver: Aggressive Construction v Data-Form Engineering (unrep, HCA 2143/2008, 4.8.2009) at §30.

62. I agree with the defendant’s submission that the plaintiff will have to rely on waiver by estoppel. In order to establish this, it must prove some promise or conduct by the defendant which is clear and unequivocal and that the plaintiff must have suffered detriment on the promise such that it would be unjust to allow the defendant, the promisor, to go back on his promise.  However, the plaintiff is unable to refer to any promise or conduct of the defendant to raise an estoppel: Aggressive Construction at §§31-32.

63. It is important to bear in mind that under the order given by the SCT, the plaintiff was obliged to discontinue the Small Claims Proceedings.  The plaintiff’s case at its highest is that the defendant did not object to the discontinuance of the Small Claims Proceedings or to starting a claim in the District Court.  I agree with the defendant’s submission that the defendant had no role to play and nothing to object, for the Tribunal had no jurisdiction to hear the two proceedings.  I do not see how the defendant’s silence can be seen as a representation or promise to waive the assertion of its right to arbitrate sufficient to establish an estoppels of any sort.

Issue 2: Discretionary Stay

64. The defendant’s fallback position is that if the defendant’s application for a mandatory stay fails, the defendant submits that the discretionary stay is engaged under the inherent jurisdiction of the court and/or Order 1B, rule 1(2)(e) of the Rules of the District Court (Cap 336H).

65. Section 48(5) of the District Court Ordinance (Cap 336) provides for an inherent jurisdiction to stay proceedings.  The defendant submits that nothing in the Arbitration Ordinance takes away this inherent jurisdiction: Choi Yick Interior Design v Fortune World [2010] 2 HKC 360 at §§14-19.

66. In Marshall-Karson v Kowloon Canton Railway (unrep, HCCT 38/1994, 9.6.1995), the defendant took a step in the proceedings thus precluding it from invoking the Arbitration Ordinance, but nevertheless persuaded the court to grant a stay under its inherent jurisdiction on the principle that the court makes people abide by their contracts, and therefore, will restrain a plaintiff from bringing an action which he is doing in breach of his arbitration agreement.

67. I accept that it will be for the plaintiff to show goods reasons for departing from the arbitration agreement: Marshall-Karson §16.

68. I further agree with the defendant counsel’s submission that the following factors would tilt the balance strongly in favour of staying the action in this case:-

(1)  The plaintiff had agreed to arbitrate its disputes with the defendant.  Applying Marshall-Karson, this is a sufficient reason to stay the action under the court’s inherent jurisdiction.

(2)  The defendant has not waived its right to arbitrate.  The fact that the defendant had submitted a first statement so as to disentitle it from a mandatory stay under the Arbitration Ordinance does not mean it had waived its right to arbitrate: Louis Dreyfus at 607F, Choi Yick at §24(b).

(3)  Without a stay, the 1^st and 2^nd Disputes may have to be resolved in two different tribunals.  Since the defence that the defendant filed in the SCT only related to the 1^st Dispute, and the 2^nd Dispute did not arise until the 2^nd SCT Proceedings, nothing in Article 8(1) prevents the defendant from requesting a referral to arbitration of the 2^nd Dispute, in respect of which the defendant had not filed a defence on the substance of the dispute (that had yet to arise) in any proceedings.

(4)  It is highly undesirable to have the 1^st Dispute heard by the court and the 2^nd Dispute heard by an arbitrator, as it would cause added delay and expense and a risk of inconsistent findings.

(5)  It is necessary to have the 1^st and 2^nd Disputes heard together with the defendant’s potential dispute against the Employer in a single arbitration pursuant to clause 43 of the HKIA Conditions.  The defendant is yet to be paid by the employer in respect of the Penultimate and Final payments: see 1^st affidavit of Ng Sui Keung at §17.  If the defendant is found by the court liable to pay the plaintiff these sums, it will need to claim these sums against the employer in a separate arbitration.

69. The plaintiff accepts that even if the defendant is barred from seeking a referral to arbitration under section 20(1) of the Ordinance, the court has the inherent jurisdiction to grant a stay of proceedings.  This is so if the defendant is barred from referring to arbitration under section 20(1) of the Ordinance the current proceedings or only the part relating to the 1^st part of the retention.

70. For the above reasons, even if I were wrong on the 1^st issue, I would have exercised my discretion to allow the proceedings to be stayed under section 48(5) of the District Court Ordinance, Cap. 336. 

CONCLUSION

71. In the aforestated premises, I would make an order for the stay of the action pending the referral of the disputes to arbitration. 

Costs

72. Costs should follow the event.  I shall make an order nisi that the costs of this application, including the costs wasted by the plaintiff’s application for leave to introduce the new affidavit at the beginning of this hearing, to be borne by the plaintiff with certificate for counsel.  Such order shall become absolute unless the parties apply within 14 days from the date of this order to vary the same.

73. I would also like to summary assess the costs of the application on paper.  For this purpose, the defendant is directed to lodge its statement of costs with copy to the plaintiff within 7 days from the expiry of the above period and the plaintiff to submit its statement of objection, if any, within 7 days thereafter, with copy to the defendant, for my assessment.   

74. It remains for me to thank counsel for the defendant and solicitor for the plaintiff for their helpful assistance.