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Cheung Kee Fung Cheung Construction Co., Ltd v Permanent Investment Co., Ltd

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date25 October 2019
Neutral Citation[2019] HKCFI 2595
Year2019
Judgement NumberHCCT26/2019
Subject MatterConstruction and Arbitration Proceedings
CourtCourt of First Instance (Hong Kong)
HCCT26/2019 CHEUNG KEE FUNG CHEUNG CONSTRUCTION CO., LTD v. PERMANENT INVESTMENT CO., LTD

HCCT 26/2019

[2019] HKCFI 2595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 26 OF 2019

________________________

IN THE MATTER of section 84 of the Arbitration Ordinance, Cap 609 and Order 73, rule 10 of the Rules of the High Court, Cap 4A
and
IN THE MATTER of an Interim Award dated 6 March 2019 (as corrected on 10 April 2019) by Paul Barrett

________________________

BETWEEN

CHEUNG KEE FUNG CHEUNG CONSTRUCTION CO., LTD. Applicant / Claimant
in the Arbitration
and
PERMANENT INVESTMENT CO., LTD. Respondent / Respondent
in the Arbitration

________________________

Before: Deputy High Court Judge Hall-Jones in Chambers
Date of Hearing: 16 October 2019
Date of Decision: 25 October 2019

________________________

D E C I S I O N

________________________


1. By her order dated 10 May 2019, Madam Justice Mimmie Chan made provision for the enforcement of an interim award made by a sole arbitrator, Mr Paul Barrett. (The interim award was dated 6 March 2019, as corrected on 10 April 2019).

2. The relief (given under section 84 of the Arbitration Ordinance (Cap. 609) (the “AO”)) and RHC Order 73, rule 10 included an order as to the payment of HK$5,038,264.40 from the respondent to the applicant. There were also some orders relating to the date of substantial completion of the works in question and to a surety bond given for those works. I shall refer to the order dated 10 May 2019 as the “Enforcement Order”.

Setting aside application

3. By a summons dated 29 May 2019, the respondent seeks to set aside the Enforcement Order on two grounds, namely:

(a) Failure by the applicant to make full and frank disclosure in its affidavit made in support of the ex parte application which led to the Enforcement Order.

(b) Other grounds as set out in the respondent’s supporting affidavit.

4. At the hearing of this summons, Mr Eric Chung, appeared for the respondent. Mr Simon Westbrook SC appeared for the applicant.

Application for leave to appeal (HCCT 27/2019)

5. I was advised that in separate proceedings, the respondent has sought leave to appeal against the above award (pursuant to AO, Schedule 2, section 6). That application was made in HCCT 27/2019, filed on 9 May 2029, the day prior to the date of the Enforcement Order. I shall refer to this application as the “Appeal Application”.

Order 73, rules 10(6) and 10A

6. The relevant rules for the setting aside application that is before me are set out below.

7. Order 73, rule 10(6) provides as follows:

“ Within 14 days after service of the order made under paragraph (4) or, if the order made under paragraph (4) is to be served out of the jurisdiction, within such other period as the Court may fix, the debtor may apply to set aside that order, and the settlement agreement, award, order, direction or emergency relief shall not be enforced until after the expiration of that period or, if the debtor applies within that period to set aside the order made under paragraph (4), until after the application is finally disposed of.”

8. The timelines in Order 73, rule 10(6) have been followed in this case.

9. We then come to Order 73, rule 10A, which is in these terms:

“ Where a debtor has applied under rule 10(6) to set aside an order made under rule 10(4), the Court may, either of its own motion or on an application made by the creditor, and if, having regard to all the circumstances of the case it thinks it just to do so, impose such terms, as to giving security or otherwise, as a condition of the further conduct of the application, as it thinks fit.”

Inter partes correspondence

10....

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