SHE v. YLC

HCCT 104/2023

[2024] HKCFI 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 104 OF 2023

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D E C I S I O N

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1.  I dismiss the Plaintiff’s Originating Summons issued on 29 December 2023 to set aside the Award of 1 December 2023. Order 73 rule 5 (4)(a)  RHC states that in relation to an application to set aside an award under section 81 of the Arbitration Ordinance, the originating summons must state the grounds of the application, and under rule 5(4)(b)(i), if the application is founded on evidence by affidavit, a copy of every affidavit intended to be used must be served with the originating summons. In the case of Free Form Construction Co Ltd v Shinryo (Hong Kong)  Ltd [2008] 3 HKC 415 and KB v S HCCT 13/2015, [2015] HKEC 2042, the Court held that it is an abuse of process to issue a summons under Order 73 rule 5(5)  and rule 10(6A)  without an affidavit filed at the same time as the summons, and that the summons should be dismissed. This is all in accordance with the object and principles of the Model Law and the Arbitration Ordinance, and in furtherance of the underlying objectives of the CJR. The same principles apply with equal force to a summons for setting aside issued under Order 73 rule 5(4). I repeat and rely on the reasons set out at paragraphs 19 and 24 of the reasons for my Decision of 15 September 2015 in KB v S.

2.  In this case, the Originating Summons was issued on 29 December 2023, for setting aside the Award dated 1 December 2023. The summons was not filed with any affidavit in support to state the facts and evidence relied upon in support of the application to set aside. It was only on 19 February 2024 that the Plaintiff purported to file the affirmation in support of the summons, stating the facts relied upon in support of the grounds for setting aside, and exhibiting the relevant documents including the Award. There has been no explanation for the substantial delay of nearly 2 months from the issue of the summons, and there is no possible justification why the Plaintiff was not in a position in December 2023 to state the relevant facts when the originating summons was issued. All the facts relating to the arbitration and the award should have been known to the Plaintiff in December 2023. There is clearly an abuse of process, and a clear failure to comply with the mandatory provisions of Order 73 rule 5(4)  to justify a dismissal of the application. Further, to leave the status of an award uncertain and indefinite is neither conducive to the principles of the Arbitration Ordinance nor in accordance with the objectives of the CJR.

3.  I am also not satisfied that the substantial grounds set out at paragraphs (1)  to (5)  of the Originating Summons disclose any valid ground to set aside the Award under section 81 of the Arbitration Ordinance. The other grounds rely substantively on the matters stated in paragraphs (1)  to (5).

4.  The costs of the Originating Summons and its dismissal are to be paid by the Plaintiff on indemnity basis.