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T v W

Judgment Cited authorities 7 Cited in 1 Precedent Map Related
Vincent
Judgment Date20 January 2021
Neutral Citation[2021] HKCFI 160
Year2021
Judgement NumberHCA366/2020
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA366A/2020 T v. W

HCA 366/2020

[2021] HKCFI 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 366 OF 2020

_____________

BETWEEN

T Plaintiff

and
W Defendant

_____________

Before: Hon Mimmie Chan J in Chambers

Dates of Written Submissions: 18 December 2020, 4 & 8 January 2021

Date of Decision: 20 January 2021

_____________

D E C I S I O N

_____________


1. On 18 November 2020, this Court refused the Defendant’s application to stay these proceedings to arbitration. The Defendant now seeks leave to appeal against the Decision.

2. The definitions set out in the Decision are adopted.

3. Under section 20 (9) of the Ordinance, the leave of the court making the decision to refuse to refer the parties to arbitration is required for any appeal from that decision. No threshold or test for the grant of leave is specified in section 20 (9). Since the Decision is not a final decision, sections 14AA (1) and (4) of the High Court Ordinance, and the requirement of “reasonable prospect of success”, may apply.

4. This means that the prospects of the appeal succeeding must be “reasonable” and therefore more than “fanciful”, without having to be probable (SMSE v KL [2009] 4 HKLRD 125). The Court explained in Wynn Resorts (Macau) SA v Mong Henry unreported, HCA 192/2009, [2009] HKEC 1293 that to meet the reasonable prospect of success test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.

5. Under section 14AA (4) (b) of the High Court Ordinance, leave to appeal may be granted if there is some other reason in the interests of justice why the appeal should be heard.

6. The Defendant argued that the Decision was based upon the Court’s view that the Court of Appeal judgment in CA Pacific Forex Ltd v Lei Kuan Ieong [1999] 1 HKLRD 462 is binding, and hence applied the test of whether there was a plain manifestation in the arbitration clause that it is to apply to the Cheque. The Defendant maintained its argument that CA Pacific has been overtaken by developments in the law favouring “one-stop” dispute resolution, as advocated in Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951. Instead of presumptions against...

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