HKCFI 1630
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 4 OF 2019
||OUE LIPPO HEALTHCARE LIMITED
||DAVID LIN KAO KUN
Before: Hon Coleman J in Chambers
Date of Hearing: 25 June 2019
Date of Judgment: 25 June 2019
J U D G M E N T
1. On 15 January 2019, B Chu J made an Order (“Enforcement Order”) on the plaintiff’s ex parte originating summons (“Originating Summons”) filed on the same date. The Enforcement Order granted leave to the plaintiff to enforce against the defendant an arbitration award (“Award”) in the same manner as a judgment or order of this Court.
2. The Award was dated 7 January 2019 and registered in the SIAC Registry of Awards as Award No 002 of 2019, following the arbitral proceedings in SIAC Arbitration No 6 of 2018.
3. As usual, the Enforcement Order allowed the defendant 14 days after service of it on him to apply to set aside the order, and further ordered that the Award should not be enforced until the expiration of that period or, if the defendant were to apply within that period to set aside the order, until the set aside application is disposed of.
4. Paragraph 3 of the Originating Summons, which sought a Mareva injunction against the defendant, was adjourned to the Summons Judge on 25 January 2019, but an interim injunction (“Injunction Order”) was made until that date.
5. On 16 and 22 January 2019, the plaintiff issued a summons seeking continuation of the Mareva injunction (“Continuation Summons”) and a summons seeking ancillary disclosure (“Disclosure Summons”).
6. On 23 and 24 January 2019 respectively, the defendant issued a summons seeking to discharge the Mareva injunction (“Discharge Summons”) and a summons seeking variation of the Enforcement Order (“Variation Summons”).
7. On 25 January 2019, DHCJ Field made various orders on the various summonses. First, he extended time for the defendant to apply to set aside leave to enforce the Award (“Set Aside Application”), and within which the Award should not be enforced. Secondly, he adjourned the Continuation Summons, the Discharge Summons, the Variation Summons, paragraph 3 of the Originating Summons and the Set Aside Application (if any) for substantive argument with one day reserved, fixed in consultation with counsel’s diaries and at the earliest possible date.
8. The hearing for that substantive argument was fixed for 3 June 2019.
9. The deputy judge also made an order continuing the Mareva injunction up to the substantive argument date, with the amendment to permit the defendant to draw an increased sum of money for legal advice and representation in these proceedings.
10. On the last day of the extended period, 15 February 2019, the defendant issued his Set Aside Application.
11. On 10 May 2019, the defendant issued a summons asking for the substantive hearing of the Continuation Summons, the Discharge Summons, the Variation Summons and paragraph 3 of the Originating Summons fixed for 3 June 2019 to be heard, but asking for the substantive hearing of the Set Aside Application also fixed for 3 June 2019 to be adjourned to be heard before a judge with one day reserved, fixed in consultation with counsel’s diaries at the earliest possible date.
12. An extension of time within which the defendant might file further evidence for the Set Aside Application was also sought (though the defendant had not identified the nature of the additional evidence he said he wished to file, or what further enquiries he might make to be able to do so).
13. It can at once be pointed out that there was an incongruity in the defendant’s seeking to put off his application to set aside the leave for enforcement, yet wanting at the same time to argue against the measures of protection put in place to aid and achieve practical enforcement. At the hearing, Mr Anson Wong SC, then acting for the defendant, recognized that incongruity and accepted that if the matter were to be adjourned, then all matters would have to be adjourned, and the ring held in the meantime.
14. Another reason why the defendant said an adjournment should be granted was because he had applied to set aside the Award in Singapore, and a hearing on that application has been fixed for 22 July 2019, which Mr Wong emphasized was less than two months away. Of course, in such a situation, I may exercise a discretion as to whether or not to adjourn the proceedings. But I agreed with Mr Maurellet SC for the plaintiff that the fact that an award debtor has commenced proceedings to challenge the Award in another jurisdiction does not of itself require the Hong Kong Court to refuse enforcement for the time being. I also noted that the defendant had offered no security in the meantime (consistent, of course, with his originally wanting to discharge the Mareva injunction that day).
15. But on 3 June 2019 I acceded to the application on the part of the defendant to adjourn the hearing to permit the filing of further evidence. Essentially, I accepted that the defendant had faced at least a tight timetable for filing responsive evidence, and Mr Wong had accepted candidly that without the chance to file further evidence the defendant would have an uphill task in seeking to set aside the enforcement of the Award, and therein lay the prejudice if no adjournment were granted.
16. Mr Wong asked for 14 days (namely until 17 June 2019) for the defendant to file his evidence, which I allowed, and I fixed the adjourned hearing for 25 June 2019. Because of the relatively short time between the dates, I did not require security to be provided in the interim between 3 and 25 June 2019 (ie today). In short, I was prepared only to give a short adjournment, to allow the defendant the requested 14 days for filing his evidence, and because I happened to be able to fix an early date for the hearing a week or so after that deadline.
17. The defendant did not file evidence within the time allowed, and instead on 17 June 2019 issued a summons seeking an extension of time for him to do so by 19 June 2019 (“Time Summons”). However, the defendant did not file evidence then either. I am told that he also failed to file evidence in further support of his own application in Singapore by the deadline set there of 14 June 2019, though he may have been granted an extension of time until today and may do so today. Nor did the defendant file any skeleton argument by the deadline on 20 June 2019.
18. Rather, in the afternoon of 20 June 2019, the defendant’s solicitors wrote to say their client was withdrawing the Set Aside Application. They enclosed a draft consent summons, but – unheralded by the letter – that draft also had a provision for an indefinite stay of the Enforcement Order. Unsurprisingly, the plaintiff refused to give such consent, pointing out that withdrawal of a summons requires the leave of the Court.
19. The Court was sent or copied into the various correspondence between the parties, including by which the defendant’s solicitors notified that they had been instructed not to file evidence, nor to file any skeleton argument. On 21 June 2019 I directed that if the defendant were to seek to withdraw the Set Aside Application, he would need to issue a proper summons for that purpose.
20. Against this chronology, Mr Christopher Chain, now acting for the plaintiff, submits it is clear that the defendant never had any answer to the plaintiff’s evidence, that he has simply tried to buy time, and that he continues to seek to delay or frustrate the enforcement of the Award. That submission has force, but it is not of itself the answer to the various matters which remain before the Court for decision. But it does seem with the benefit of hindsight that allowing time for him to file evidence but fixing an early hearing might have called the defendant’s bluff.
21. Anyway, on 24 June 2019 the defendant issued a summons seeking leave to withdraw the Discharge Summons, the Variation Summons, the Seta Aside Application and the Adjournment Summons as well as the Time Summons. Although not formally seeking an abridgement of time, it was made returnable before me this morning. The plaintiff opposes that application.
22. Although a summons has now been issued seeking leave to withdraw the Set Aside Application, I do not grant leave. It seems to me that there is an Award, and whether it might be enforced in Hong Kong is a question that needs to be – and can be – answered now, one way or the other. Voluminous evidence has been filed, and the defendant sought and was given the opportunity to file whatever other evidence he might wish to file in support of his position.
23. As Mr Chain has reminded me, the plaintiff brought the four deponents of its affidavit material at the hearing on 3 June 2019, so that they might be tendered for cross-examination in oral evidence. Of course, the hearing was adjourned, but I indicated that I did not think oral evidence would be of greater assistance than the material contained on the papers. Certainly, it was understood that the whole purpose of the adjournment of the matter to today was to conduct a consideration of factual matters, in light of the materials already filed and any other materials put forward by the defendant.
24. I should add that before issuing the summons seeking leave to withdraw his various applications, the defendant’s solicitors had written to the plaintiff’s solicitors (copied to the Court) saying that they had instructions to agree the directions proposed by Mr Chain in his skeleton argument about dismissing the defendant’s applications...