Maeda Kensetsu Kogyo Kabushiki Kaisha v Bauer Hong Kong Ltd
Court of First Instance
Construction and Arbitration Proceedings No 4 of 2018
Mimmie Chan J in Chambers
3 June 2019

Arbitration — arbitral award — appeal on question of law — application for leave to appeal judgment allowing appeal against interim award on question of law — whether intended appeal out of time — whether s. 14AA applied — whether only conditions in Sch. 2 s. 5(9) to be satisfied for leave to appeal — whether reasonable prospects of success threshold applied — High Court Ordinance (Cap. 4) s. 14AA — Arbitration Ordinance (Cap. 609) Sch.2 s.5(5), (8), (9)

On 9 April 2019, the Judge allowed an appeal by P1–2 against the second interim award of the Arbitrator (the “Award”) in an arbitration on only the first of two questions of law for which, on 30 August 2018, leave was originally granted. On 30 April 2019, D applied for leave to appeal. It was only on 24 May 2019, following written submissions on the consequences of the appeal being allowed, that the Court made an order pursuant to s. 5(5) of Sch. 2 to the Arbitration Ordinance (Cap. 609) (the “Schedule”) remitting the Award to the Tribunal (the “Order for Remission”). Under s. 5(9) of the Schedule, “leave to further appeal must not be granted unless – (a) the question is one of general importance; or (b) the question is one which, for some other special reason, should be considered by the Court of Appeal.”

Held, granting the application, that:

1) The appeal, for which leave was required under s. 5(8) of the Schedule, was an appeal “from an order of the court under sub-s.(5)”. Properly made, the intended appeal, for which leave was sought by D, was against the Order for Remission under s. 5(5) which was only made on 24 May 2019, consequent to the appeal being allowed on 9 April 2019. As the application for leave to appeal was made on 30 April 2019, it was not out of time. (See paras. 8–9.)

2) Section 14AA of the High Court Ordinance (Cap. 4), which governs interlocutory judgements or orders, did not apply to D’s intended appeal. The Order for Remission was a final judgment or order in the proceedings. (See para. 12.)

3) Section 5(9) of the Schedule applied. Given the statutory context, s. 5(8) and (9) of the Schedule were intended to be a filtering process, with s. 5(9) setting out the essential conditions for granting leave for any further appeal. The court should also consider the grounds of the intended appeal. Balancing the interests of finality of an arbitral award and the objectives of the Ordinance, against the parties’ choice to opt for the provisions of the Schedule (and the availability of an appeal to the courts on questions of law) to apply to their dispute, it was appropriate to adopt the “reasonable prospects of success” threshold in granting leave to further appeal under s. 5(8) (SMSE v KL [2009] 4 HKLRD 125, Ho Yuen Ki Winnie v Ho Hung Sun Stanley (HCMP 1009/2009, [2009] HKEC 1364), Maeda Kensetsu Kogyo Kabushiki Kaisha v Bauer Hong Kong Ltd (HCMP 1342/2017, [2017] HKEC 1909) applied). (See paras. 13–14.)

4) In granting leave to appeal on the questions of law on 30 August 2018, the Court was already satisfied that the relevant questions of law were of general importance. Given D’s argument that the Court was wrong in law, and that the “reasonable prospects of success” threshold was not high, leave was granted to D to appeal against the Order for Remission. (See para. 15.)

Application

This was an application by the defendant for leave to appeal against the decision of Mimmie Chan J on 9 April 2019 allowing the first and second plaintiffs’ appeal against an interim award of the Arbitrator in an arbitration (see [2019] HKEC 1247). The facts are set out in the judgment.

Jurisdictions: