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 September 2020 before Hon Kwan VP, Cheung JA, Barma JA.
Arbitration ordinance — contract construction — interpretation of Measurement Rules (M12A to M12G) — mixed questions of fact and law — standard of review — commercial contract construction — business common sense — leave to appeal to Court of Final Appeal denied Bauer Hong Kong Limited appealed against Court of Appeal decisions upholding the lower court’s interpretation of the Measurement Rules governing payment for excavation works under the Hong Kong to Guangzhou Express Rail Link contracts. The Court of Appeal rejected Bauer’s contentions that the questions raised were of great general or public importance, that the standard of review should impose reasonableness and deference to arbitrator expertise, or that the Court of Appeal’s findings contradicted technical and engineering practice. The court confirmed that contractual construction remains a question of law and the factual matrix is part of the overall context but does not convert the question into one of fact or mixed law and fact requiring different standards of review. The court also supported a holistic approach to contract interpretation applying business common sense without a rigid requirement for two competing constructions. Consequently, leave to appeal to the Court of Final Appeal was refused. Costs of $531,102.20 were awarded against Bauer in favour of the JV.
Legal issues: Whether the questions raised are of great general or public importance for leave to appeal · Whether construction of MRs is a mixed question of fact and law needing clarification of standard of review · Whether the CA Judgment contradicts engineering practice or arbitrator’s technical findings · Proper approach to construction of a commercial contract in regards to business common sense and commercial consequences
Outcome: Leave to appeal to the Court of Final Appeal was refused.
Cited by 3 cases · Cites 9 cases