Read the full judgment text of HCCT13/2001 and HCCT14/2001 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 19 September 2001 before Hon Burrell J in Chambers.
Construction arbitration — Payment dispute under Standard Form of First RICS sub-contract 1986 Edition — Interpretation of 'pay when paid' clause (clause 11(b)) — Allocation of liquidated damages and application of payments certification — Delay and responsibility for liquidated damages — Whether general law of appropriation applies — Leave to appeal arbitration award or clarification — Principles under Arbitration Ordinance cap.341 and P.T. Dover guidelines — Necessity of strong prima facie case of error — Timeliness of appeals and finality of arbitration decisions — Court affirms arbitrator's flexible approach rejecting strict application of appropriation law in favour of certified sums and reasoning by certificate dates — Builders Federal's cross application out of time and dismissed — Costs orders given. Parties: SHUN SHING CONSTRUCTION & ENGINEERING CO. LTD and BUILDERS FEDERAL (HK) LTD. The case concerned allocation of payments and liquidated damages in a complex construction contract with overlapping claims and adjustments by certified sums and delay certifications. The court analysed jurisprudence on appeal standards in arbitration, confirmed the arbitrator's discretion and method, and dismissed appeals lacking strong prima facie merits or timely filing. Costs were awarded to prevailing parties in each proceeding.
Legal issues: Interpretation and application of clause 11(b) 'pay when paid' · Timeliness of Builders Federal’s application for leave to appeal
Outcome: Shun Shing's application for leave to appeal the arbitrator's clarification (HCCT13/2001) was dismissed for want of a very strong prima facie case. Builders Federal's application for leave to appeal (HCCT14/2001) was refused as out of time. Costs were ordered accordingly.
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