SINOM SHANGHAI IMPORT & EXPORT CO LTD v. EXFIN (INDIA) MINERAL ORE CO PVT LTD

HCCT 45/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 45/2006

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D E C I S I O N

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1.  This is an ex parte application for a Mareva injunction order brought by the plaintiff (the intended plaintiff at the time of this application) from the mainland against the defendant (the intended defendant at the time of this application) located overseas.

2.  Having read the materials placed before me and having heard the plaintiff, I am not satisfied that there is sufficient urgency to justify an ex parte application.

3.  The alleged non-delivery of goods by the defendant to the plaintiff happened as early as in late April 2006 (about one month earlier).  There has apparently been some discussions aiming for settlement of the matter since then which, according to the plaintiff, was not fruitful.

4.  In the course of the settlement discussions, the defendant has mentioned that they had engaged a Hong Kong firm of solicitors, namely, Messrs Homan, Fenwick & Willan.  The paying bank of the letters of credit (letters of credit being the mode of payment prescribed in the sale contract) has as early as on 19 May 2006 informed the plaintiff that it would be paying the defendant shortly. 

5.  In these circumstances, the plaintiff ought to have applied much earlier (if it considered that the application is justified (and not necessarily ex parte even at that stage)).  In any event, the matter should have been proceeded with either inter partes, or at the very least ex parte on notice. 

6.  For these reasons, the application is refused. 

7.  The plaintiff also applies for an interim order of some kind, between now and the intended inter partes (or ex parte on notice) application for an injunction.  I do not regard it appropriate to grant such an order in the circumstances either.