A Co v B Co And Others

Judgment Date25 May 2021
Neutral Citation[2021] HKCFI 1477
Judgement NumberHCCT25/2020
Subject MatterConstruction and Arbitration Proceedings
CourtCourt of First Instance (Hong Kong)
HCCT25/2020 A CO v. B CO AND OTHERS

HCCT 25/2020

[2021] HKCFI 1477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 25 OF 2020

________________________

IN THE MATTER of Enforcement of Arbitration Award
and
IN THE MATTER of Sections 84(1) and 92(1) of the Arbitration Ordinance, Cap 609 and Order 73 Rule 10(1) of the Rules of the High Court, Cap 4A
and
IN THE MATTER of the Arbitral Award dated 28th June, 2018 in China

________________________

BETWEEN

A Co Applicant
and
B Co 1st Respondent
C Co 2nd Respondent
D Co 3rd Respondent
E Co 4th Respondent
F Co 5th Respondent
G Co 6th Respondent
H 7th Respondent
I 8th Respondent
J 9th Respondent

________________________

Before: Hon Mimmie Chan J in Chambers

Date of Hearing: 17 March 2021

Date of Decision: 17 March 2021

Date of Reasons for Decision: 25 May 2021

________________________

REASONS FOR DECISION

________________________


1. On 27 May 2020, this Court granted leave to the Applicant to enforce an arbitral award made by the Shenzhen Court of International Arbitration on 28 June 2018 (“Award”), in an arbitration between the Applicant and nine Respondents (“Arbitration”). Under the Award, the Respondents were ordered to pay to the Applicant RMB 62,970,416.38, interest, legal costs and arbitration fees. The order for leave to enforce the Award as a judgment of this Court (“Enforcement Order”) was made pursuant to the ex parte application made by the Applicant on 21 May 2020, under section 92 of the Arbitration Ordinance (“Ordinance”).

2. On 12 June 2020, the Respondents issued their summons to set aside the Enforcement Order (“Summons”). The Summons was supported by the affirmation of Fung (“Fung Affirmation”) filed on the same day as the Summons. The grounds relied upon for setting aside the Enforcement Order, as disclosed in the Fung Affirmation, are that: (1) the Respondents were not given proper notice of the appointment of the arbitrator or of the arbitral proceedings, or were otherwise unable to present their case; (2) the Applicant had applied in the Mainland for enforcement of the Award, and such application for enforcement has not been completed or concluded on the Mainland; (3) there was material non-disclosure in the Applicant’s ex parte application for the Enforcement Order. As the Court directed prior to the hearing, these disclosed grounds are the only grounds which can be relied upon and which will be considered at the hearing (KB v S, HCCT 13/2015 15 September 2015).

3. At the conclusion of the hearing of the Summons on 17 March 2021, I set aside the Enforcement Order. The following sets out the reasons for my decision.

4. It is clear that on the date when the Applicant applied for leave to enforce the Award in Hong Kong, the Applicant had already applied for enforcement of the Award on the Mainland, and such enforcement proceedings had not been completed nor concluded.

5. The provisions of section 93 of the Ordinance are clear. The section was explained by Cheung J (as the Chief Justice then was) in Shenzhen Kai Long Investment and Development Co Ltd v CEC Electrical Manufacturing (International) Co Ltd HCMP 1885/2000, unreported, 30 October 2003, in the context of section 40C of the repealed Arbitration Ordinance Cap 341. Where a party in whose favour an award was made has applied to the Mainland courts for enforcement, and the application has been accepted by the Mainland courts, then, during the subsistence of the enforcement procedure in respect of the award, that party cannot apply to the Hong Kong Court for enforcement of the same award until the enforcement procedure on the Mainland is “completed or concluded”. The rationale of the provision in the Ordinance is not only to prevent double recovery, but to prevent double enforcement (paragraph 57-59 of the Judgment). Execution procedure on the Mainland in respect of property claimed to be owned by the respondent within the jurisdiction of the Mainland court would be “completed” where such execution has completely come to an end, with all relevant results disclosed and without the need for...

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