Read the full judgment text of CACV 113 & 122/2019 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 18 March 2020 before Hon Kwan VP, Cheung JA and Barma JA.
Contract Construction — Arbitration Award — Measurement Rules Interpretation — Diaphragm Wall Excavation — Rock Classification — Measurable Core Definition — Bedrock Definition — Founding Levels — Commercial Common Sense. The dispute arose from the interpretation of Measurement Rules (MRs) M12A to M12G in a Sub-contract concerning excavation payment for diaphragm wall panels in a Hong Kong railway project. Key issues included whether the ‘founding levels’ in Diagram C1 and M12D should be read as ‘bedrock levels’, whether the definition of ‘measurable core’ with the RQD ≥30 requirement in M12C applies to M12D for measurement of the excavation and TITR, and whether ‘bedrock’ includes category 1(d) rock. The Court of Appeal rejected Bauer’s appeal that ‘founding levels’ be read as ‘bedrock levels’ and confirmed that the two terms have distinct meanings. The Court allowed the JV’s appeal, holding that the measureable core definition with its RQD requirement applies to M12D, ensuring a consistent and workable measurement scheme. Finally, the court upheld the judge’s finding that category 1(d) rock does not meet the ‘bedrock’ definition under M12D and thus cannot be keyed into as such under the contract. The outcome confirmed the CVJ’s interpretation of the Measurement Rules, refined the definitions for measurement and payment, and awarded costs to the JV.
Legal issues: Whether to rewrite ‘founding levels’ as ‘bedrock levels’ in Diagram C1 and M12D · Whether the definition of ‘measurable core’ in M12C applies to M12D · Whether ‘Bedrock’ in M12D includes category 1(d) rock
Outcome: JV’s appeal (CACV 113/2019) allowed; Bauer’s appeal (CACV 122/2019) dismissed.
Cited by 3 cases · Cites 4 cases