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, Barma JA.
Construction law — Contractual interpretation — Arbitration — Measurement rules for excavation works — Diaphragm wall subcontract — Definitions of 'founding levels', 'theoretical founding levels', 'theoretical bedrock lines' and 'measurable core' (MC) — Rock class and bedrock classifications — Application of rock quality designation (RQD) — Application of core recovery percentages — Disputes on whether category 1(d) rock is bedrock — Principles of contractual construction — The court emphasized giving effect to clear contractual language without rewriting, balanced with commercial sense and technical context. Background: JV main contractors and Bauer subcontractor in HK to Guangzhou Express Rail Link project, dispute arose over payment measurements for different rock classes including TITR. Key legal issues included whether terms in measurement rules misuse technical definitions, if RQD≥30 applies to all rock measurement including TITR, and if category 1(d) rock counts as bedrock for keying. Holding: The Court rejected Bauer's ground concerning rewriting references to 'founding levels' and 'bedrock levels', affirming the judge's refusal to rewrite Contract. The Court allowed JV's ground that the MC definition including RQD≥30 applies to M12D and TITR measurements, reversing the judge's rejection of this point. The Court upheld the judge's view that category 1(d) rock is not bedrock under M12D, dismissing Bauer's contrary contention. Outcome: JV's appeal allowed on ground 2, Bauer's appeals rejected on grounds 1 and 3. JV awarded costs of appeal. This judgment clarifies application of technical measurement rules in construction contracts and the interpretative limits in arbitration awards and contract documents.
Legal issues: Interpretation of 'Founding levels determined by Engineer' and 'theoretical founding levels' in measurement rules · Application of the definition of 'measurable core' (MC) in M12C to M12D and TITR measurement · Inclusion of category 1(d) rock within the definition of ‘Bedrock’ in M12D
Outcome: JV's appeal in CACV 113/2019 allowed; Bauer's appeal in CACV 122/2019 dismissed
Cited by 13 cases · Cites 4 cases