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

HCCT 46/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

ACTION NO 46 OF 2011

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BETWEEN

ZEBRA INDUSTRIES (OROGENESIS NOVA) LTD – (ZION) Plaintiff

and

WAH TONG PAPER PRODUCTS GROUP LTD Defendant
____________________

Before: Hon Au J in Chambers

Date of Hearing: 22 February 2013
Date of Decision: 7 March 2013

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D E C I S I O N

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1. On 6 February 2013, this court dismissed with costs the plaintiff’s summons dated 20 December 2012 (“the setting aside summons”)seeking to set aside a consent order made on 11 December 2012. The consent order provided that the plaintiff do have leave to discontinueits application dated 2 November 2012 to appeal sections of an amended arbitral award published on 7 September 2012.

2. I dismissed the setting aside summons on the basis that, as a matter of law[1], the plaintiff has to issue a fresh action to set aside a consent order. My reasons have been set out in the judgment of the samedate.

3. This is the plaintiff’s application for leave to appeal to the Court of Appeal against the above order (“the Order”) in dismissingthe setting aside summons.

4. The defendant opposes the leave application on two grounds:

(1) The Order is a final order, and as such, the plaintiff does not need leave to appeal to the Court of Appeal against it[2]. The present application is thus misconceived.

(2) Alternatively, if leave is needed, there is no reasonable prospect that the plaintiff would succeed in the intended appeal. It should therefore be dismissed.

5. Whether the Order is a final or interlocutory one is to be considered under the application test as explained in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222 at 26-32 per Chan PJ. Simply said, the test is whether the disposal of the subject application either way would finally dispose of the whole action or a crucial or substantive issue thereof.

6. Applying this test, I am of the view that the Order is not final in nature, as if it is (contrary to the Order) not dismissed butallowed (ie, the consent order be set aside), the action herein would continue with an application to set aside part of the amendedarbitral award and not disposed of whether wholly or substantively. The order is therefore an interlocutory one, and leave to appealis required.

7. The plaintiff sets out some 15 proposed grounds of appeal in this application. It is not necessary for me to set them out in full. In gist, they relate to (a) observations that, in making the Order, this court was not acting as “normally” as it should have, and (b) as matter of common sense, good administration and for saving costs and time, the plaintiff shouldbe allowed to pursue the setting aside summons under this action instead of commencing a new action.

8. In my view, none of these grounds enjoy a reasonable prospect of success in the intended appeal, as they cannot show that the authoritiesrelied on by this court and referred to in the judgment in dismissing the setting aside summons are wrong.

9. On this basis, I would not grant leave and dismiss this application.

10. Although the plaintiff asks this court to make no order as to costs if it dismisses the application, I see no reason why I shoulddepart from the general principles that costs should follow the event. I therefore further make an order that costs of this applicationbe to the defendant to be taxed if not agreed.

(Thomas Au)
Judge of the Court of First Instance
High Court

Plaintiff, in person, represented by its director, Mr Elijah Saatori

Mr Josiah Chan Chung Ming, instructed by W K To & Co, for the defendant

[1] Relying on Andayani v Chan Oi Ling [2000] 4 HKC 233 and Ng Shui Hing v Lai Hang [1983] 1 HKC 158.

[2] See ss 14(1) and 14AA of the High Court Ordinance (Cap 4).