ZEBRA INDUSTRIES (OROGENESIS NOVA) LTD v. WAH TONG PAPER PRODUCTS GROUP LTD

HCMP 2044/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2044 OF 2008

(ON AN INTENDED APPEAL FROM HCA NO. 1551 OF 2004)

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IN THE MATTER OF an application for extension of time to serve Notice of Appeal against the Order of the Honourable Mr. Justice Burrelldated 17th December 2004
and
IN THE MATTER OF Order 3, rule 5 of the Rules of High Court

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BETWEEN

ZEBRA INDUSTRIES (OROGENESIS NOVA) Plaintiff
LIMITED
and
WAH TONG PAPER PRODUCTS Defendant
GROUP LIMITED

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Before: Hon Rogers VP in Chambers

Date of Hearing: 3 November 2008

Date of Decision: 3 November 2008

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D E C I S I O N

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1. This is an application for leave to appeal out of time. The decision in respect of which leave is sought is a decision made fouryears ago, or nearly four years ago. The order that was made stayed these proceedings for the purpose of arbitration.

2. Had it not been for the delay I might have given leave to appeal in this matter because I am not sure that the so-called agreementto arbitrate really was enforceable. In any event, it seems to me clearly arguable that the Defendant in this matter has no intentionof arbitrating.

3. But in my view, the four year delay is simply too long, and I say that in the light of the fact that I do not think anything reallyis going to come out of this case at the end of the day, looking at the documents that I have seen. All that is going to happenis that an enormous amount of costs will be spent. If I were to give leave today, the first thing that would happen is that therewould be applications for security for costs on appeal, security for costs on the action, and so on and so forth. As far as I amconcerned, it is really doing the Plaintiff a kindness to refuse this application.

4. If the Plaintiff is dissatisfied with my judgment, it can go to the Court of Appeal, a two man Court of Appeal. It is open to itto do so. But in my view, the four- year delay is why I am not giving leave.

(Anthony Rogers)
Vice-President

Mr Tony Ko, instructed by Messrs Andy Fung & Associates, for the Plaintiff/Applicant

Mr But Sun-wai, of Messrs W. K. To & Co, for the Defendant/Respondent