Read the full judgment text of CACV 90/2015 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 7 January 2016 before Hon Cheung JA, Hon Kwan JA, Hon McWalters JA.
Civil Procedure — Arbitration — Appeal on point of law from arbitral award — Delay claims in construction contracts — Contractual interpretation of tentative possession dates — Whether tentative dates binding or provisional — Pleadings and admissions in arbitration — 'Pay-when-paid' clause construction — Arbitration Ordinance (Cap 341) section 23(2) — Costs. Standard Refrigeration subcontracted by Kim Hung Construction for HVAC works in public hospitals. Standard claimed loss due to Employer's delay in site possession. Arbitrator upheld delay claim; Deputy High Court Judge set aside award, holding tentative dates in contract were provisional, not binding contractual dates. Court of Appeal upheld setting aside. Court held that SP 6.02 dates were expressly tentative and not contractual; arbitrator erred in treating them as binding. Admissions by Kim Hung related only to factual delay, not contractual liability. Absence of architect's written possession notifications was not pleaded or proven, so tentative dates remain provisional. Court found no clear 'pay-when-paid' provision making Kim Hung's payment to Standard conditional on its receipt from employer; judge had erred but overall outcome unaffected. Appeal dismissed; costs ordered against Standard on usual party-party basis with certification for two counsel.
Legal issues: Contractual dates for possession · Admissibility and effect of admissions by Kim Hung · Whether the issue should be remitted to the arbitrator · Effect of absence of written architect notifications · Interpretation of ‘pay-when-paid’ clause applicability
Outcome: Appeal dismissed; judgment below upheld
Cites 2 cases