Read the full judgment text of HCCT 35/2016 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 18 May 2018 before Hon Anthony Chan J.
Construction contract — Arbitration — Interpretation of contractual Measurement Rules for diaphragm wall excavation payment — Engineering founding criteria and rock categorisation — Whether Measurement Rule M12A and M12D terminology of founding levels and theoretical bedrock lines should be amended — Whether definition of 'measurable core' in M12C applies to M12D — Whether Category 1(d) rock qualifies as bedrock under M12D — The JV and Bauer entered a subcontract for diaphragm wall excavation with payment terms under Measurement Rules derived from CESMM3 and project-specific amendments — The Arbitrator's interpretation included that (1) the founding levels and bedrock lines as per Measurement Rules were correctly expressed, (2) M12C 'measurable core' definition does not apply to bedrock measurement under M12D, and (3) Category 1(d) rock is included as bedrock under M12D — Court analysis rejects proposed textual amendments and definitions advanced by JV, finding Measurement Rules poorly drafted but deliberate in language; M12C limited to classification of Rock Class A and B; and Category 1(d) rock excluded from bedrock, consistent with engineering founding criteria and contractual context — Commercial common sense and practicality favor the Arbitrator's approach — Appeal partially allowed on these points with consequential orders including costs split and directions for order agreement.
Legal issues: Proper interpretation of Measurement Rules M12A and M12D terms · Application of the definition of “measurable core” in M12C to Measurement Rule M12D · Whether Category 1(d) material is included in the definition of bedrock in M12D
Outcome: JV appeal partially allowed; no amendment of Measurement Rules; M12C does not apply to M12D; Category 1(d) rock excluded from bedrock definition in M12D.
Cited by 3 cases