厦門新景地集團有限公司 Formerly Known As 厦門市鑫新景地房地產有限公司 v Eton Properties Ltd And Another

Judgment Date20 October 2008
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV197/2008
Subject MatterCivil Appeal
CACV000106/2008 厦門新景地集團有限公司 formerly known as 厦門市鑫新景地房地產有限公司 v. ETON PROPERTIES LTD AND ANOTHER

cacv 106/2008 & CACV 197/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal noS. 106 AND 197 of 2008

(on appeal from HCCT NO. 54 of 2007)

________________________

IN THE MATTER of Sections 2GG and 40B of the Arbitration Ordinance (Cap. 341)
and
IN THE MATTER of the Arbitration Award dated 27 October 2006 awarded by China International Economic and Trade Arbitration Commission

________________________

BETWEEN

厦門新景地集團有限公司 formerly known as
厦門市鑫新景地房地產有限公司
Applicant
and
ETON PROPERTIES LIMITED
(裕景興業有限公司)
1st Respondent
ETON PROPERTIES (HOLDINGS) LIMITED
(裕景興業(集團)有限公司)
2nd Respondent

Before: Hon Rogers VP in Chambers

Date of Hearing: 20 October 2008

Date of Decision: 20 October 2008

________________________

D E C I S I O N

________________________

1. This is an application by the appellants themselves to stay two appeals. The appeals are against decisions of Reyes J and they arise in this way. There was an arbitration agreement and to put it as blandly as possible, it was for development of land and, in short, the party who I shall call “the applicant” for convenience but is actually the respondent to these appeals, was to develop the land which was in control of the respondents.

2. The arbitration which arose in these circumstances, arose because the respondents, instead of passing the land over to the applicant, developed it themselves. I am not going to go into the reasons why that happened and as to whether those were reasons which caused the land to be developed by the respondents were valid, because that is what happened.

3. So the arbitration took place and it seems that, at that stage - the stage when the CIETAC Award was made - the original agreement could be put into effect one way or another. The arbitration award was that first, RMB1,275,000 should be paid by the two respondents to the applicant and, secondly, that the respondents shall continue to perform the agreement that had been made in July 2003. That is what happened. Then application was made to enforce that CIETAC Award in Hong Kong and that application was acceded to.

4. The first matter which came before Reyes J was on 31 March this year when there was an application by the respondents to admit the evidence of Mr Zhong Gang. That application fell on very unsympathetic ears and Reyes J seemed to have very little difficulty in rejecting that application.

5. That decision of Reyes J is the subject of the first appeal and that appeal has been set down for three hours on 23 December. Then Reyes J heard what would really be the substantive matter to set aside the enforcement and he heard that on 24 June. Again he dismissed that application, and that is the subject of the second appeal. The estimate of time for that has been given as two hours. I think that the two estimates are probably the wrong way round but, be that as it may, it does not matter, no date has been fixed for that appeal. In my view - and I don't think counsel disagree with this...

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