SA AND OTHERS v. BH AND ANOTHER

SA AND OTHERS v. BH AND ANOTHER

Order 73 does not exclude the operation of Order 23 RHC in proceedings commenced by a party to set aside an arbitral award; the plaintiffs, as the initiators of the setting aside proceedings, are properly plaintiffs for the purposes of Order 23 and the Court therefore has jurisdiction to order security for costs. Considering plaintiffs' foreign residence, lack of readily realizable assets in Hong Kong, adverse tribunal findings, limited merits and risk of non‑recovery, it is just to order security of HK$2,000,000; proceedings are stayed until payment or acceptable bank guarantee is provided within 21 days; costs of the summons to be paid by plaintiffs to 1st Defendant on indemnity basis.

Citation
[2024] HKCFI 1357
Parties
1st Plaintiff: SA; 2nd Plaintiff: Y; 3rd Plaintiff: J; 1st Defendant: BH; 2nd Defendant: GC
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 May 2024
Case Number
HCCT69/2023
Procedural Posture
Setting Aside Arbitral Award / Application for Security for Costs; Decision on Security and Stay of Proceedings
Outcome
Application for security granted; proceedings stayed until security provided
Legal Topics
Security for Costs, Jurisdiction to Order Security, Order 23 Rules of the High Court, Order 73 Rules, Arbitrability, Setting Aside Arbitral Award, Stay of Proceedings
Source Language
EN
Arbitration Law Civil Procedure Enforcement of Awards Public Policy National Security Law Security for Costs Jurisdiction to Order Security Order 23 Rules of the High Court +4 more

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Parties

SA

1st Plaintiff

Y

2nd Plaintiff

J

3rd Plaintiff

BH

1st Defendant

GC

2nd Defendant

Procedural Posture

Setting Aside Arbitral Award / Application for Security for Costs; Decision on Security and Stay of Proceedings

Legal Issues

  1. 1 Whether the Hong Kong Court has jurisdiction to order security for costs under Order 23 RHC in proceedings to set aside an arbitral award
  2. 2 Whether Order 73 or the Arbitration Ordinance excludes the operation of Order 23
  3. 3 Whether section 86(4) or Schedule 2 of the Arbitration Ordinance applies to justify ordering security

Ratio Decidendi

Order 73 does not exclude the operation of Order 23 RHC in proceedings commenced by a party to set aside an arbitral award; the plaintiffs, as the initiators of the setting aside proceedings, are properly plaintiffs for the purposes of Order 23 and the Court therefore has jurisdiction to order security for costs. Considering plaintiffs' foreign residence, lack of readily realizable assets in Hong Kong, adverse tribunal findings, limited merits and risk of non‑recovery, it is just to order security of HK$2,000,000; proceedings are stayed until payment or acceptable bank guarantee is provided within 21 days; costs of the summons to be paid by plaintiffs to 1st Defendant on indemnity basis.

Court Disposition

Application for security granted; proceedings stayed until security provided

Orders

  • Proceedings stayed until payment into court of HK$2,000,000 or provision of a bank guarantee acceptable to the 1st Defendant within 21 days of this Decision
  • Costs of the summons for security to be paid by the Plaintiffs to the 1st Defendant, with Certificate for Counsel, on an indemnity basis