Read the full judgment text of CACV 301/2019 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 16 October 2020 before Hon Kwan VP, Yuen JA, Barma JA.
Construction law — Arbitration — Sub-contract claim for additional payments — Clause 21 notice provisions — Condition precedent to claims — Strict compliance — Contractual basis of claim — Amendment/substitution of contractual basis after notice period — Proper construction of notice clause — Same facts can support different contractual bases — Finding of arbitrator on notice compliance reversed by judge — Appeal against judge dismissed. Bauer Hong Kong Limited (subcontractor) claimed additional payments under subcontract clauses 21.1.1 and 21.1.6 for changed ground conditions and variations. Notices were given citing clause 21.1.6 only; later claims on clause 21.1.1. The arbitrator allowed change in contractual basis after notice period, citing commercial practicality. M Chan J overturned that holding, ruling strict compliance with clause 21.2.1 required and the contractual basis stated in notice must not be changed after 28 days. Court of Appeal agreed, emphasizing finality and purpose of notice. Bauer failed to serve correct contractual basis notice within prescribed time hence no entitlement under clause 21. The appeal against M Chan J’s judgment was dismissed with costs to the JV.
Legal issues: Proper construction of clause 21.2.1 of the Sub-Contract · Whether the arbitrator's finding on the 42-day timeframe being unrealistic was binding
Outcome: Appeal against the judge’s decision dismissed; Bauer failed to comply with clause 21.2.1 notice requirement for ‘like rights’ claim
Cites 4 cases