A AND OTHERS v. D

A AND OTHERS v. D

The Court dismissed the plaintiffs' application because Schedule 2 did not apply to the arbitration (the Agreement contained no provision opting in and transitional provisions did not operate to import Schedule 2); alternatively, even if Schedule 2 applied, the Arbitrator did not commit a serious irregularity as his Decision and Order 8 were consistent with and a logical consequence of his earlier Ruling; the plaintiffs could not reframe the application under section 81 when that ground was not pleaded, and the Court therefore had no jurisdiction to grant the relief sought. Costs awarded to the defendant on an indemnity basis.

Citation
A AND OTHERS v. D
Parties
1st Plaintiff: A 1st Plaintiff; 2nd Plaintiff: B 2nd Plaintiff; 3rd Plaintiff: C 3rd Plaintiff (trading as a Firm); Defendant: D Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 December 2016
Case Number
HCMP1014/2016
Procedural Posture
Arbitration Challenge (setting Aside Arbitral Decision) / Decision on Originating Summons; Reasons for Decision (dismissal)
Outcome
Originating Summons dismissed; Defendant's summons for declaration of no jurisdiction and dismissal of action granted; costs to Defendant on an indemnity basis.
Legal Topics
Serious Irregularity Under Schedule 2, Application of Arbitration Ordinance (cap 609), Section 4 Schedule 2, Section 81 Set Aside Award, Transitional Provisions (sections 99–100), Model Law Article 34, Striking Out Counterclaim, Indemnity Costs
Source Language
EN
Arbitration Civil Procedure Contract Partnership Law Procedural Jurisdiction Costs Serious Irregularity Under Schedule 2 Application of Arbitration Ordinance (cap 609) +6 more

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Parties

A 1st Plaintiff

1st Plaintiff

B 2nd Plaintiff

2nd Plaintiff

C 3rd Plaintiff (trading as a Firm)

3rd Plaintiff

D Defendant

Defendant

Procedural Posture

Arbitration Challenge (setting Aside Arbitral Decision) / Decision on Originating Summons; Reasons for Decision (dismissal)

Legal Issues

  1. 1 Whether Schedule 2 to the Arbitration Ordinance applied to the arbitration
  2. 2 Whether the court had jurisdiction to set aside the arbitrator's Decision and Order under section 4 of Schedule 2
  3. 3 Whether the arbitrator committed a serious irregularity by revisiting or reinterpreting his earlier Ruling

Ratio Decidendi

The Court dismissed the plaintiffs' application because Schedule 2 did not apply to the arbitration (the Agreement contained no provision opting in and transitional provisions did not operate to import Schedule 2); alternatively, even if Schedule 2 applied, the Arbitrator did not commit a serious irregularity as his Decision and Order 8 were consistent with and a logical consequence of his earlier Ruling; the plaintiffs could not reframe the application under section 81 when that ground was not pleaded, and the Court therefore had no jurisdiction to grant the relief sought. Costs awarded to the defendant on an indemnity basis.

Court Disposition

Originating Summons dismissed; Defendant's summons for declaration of no jurisdiction and dismissal of action granted; costs to Defendant on an indemnity basis.

Orders

  • Originating Summons challenging the Arbitrator's Decision and Order 8 dismissed
  • Order in terms of the Defendant's summons granted declaring the Court has no jurisdiction in respect of the subject matter of these proceedings or the relief sought and dismissing the action