Guardian Fire Engineers & Consultants Ltd v. Law Chi Shun t/a Technicom Engineering Co
Read the full judgment text of HCCT000095A/2001 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 30 January 2004 before Hon Burrell J.
Construction and arbitration proceedings — quantum determination after findings of liability — dispute over Variation Orders (VO3A, VO6, VO34, VO44) — court adopts own arithmetic applying liability findings, including allowance for disputed unit rates and duplication of claims — median figures used for unresolved minor disputes — original claim reduced to $2,949,641.00 from $3,466,966.00 — parties had longstanding inability to agree on quantum despite experienced contractors, quantity surveyors, and lawyers — court emphasizes balancing evidence where issues are borderline, adopting a robust approach to provide final decision — outcome adjusts quantum and makes no order as to costs arising from this application.
Outcome: The court adopted its own arithmetic to quantify quantum on disputed Variation Orders, awarding Technicom $2,949,641.00 for TOP 1 works, adjusting previous claims accordingly and making no order as to costs for the quantum application.
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HCCT000095A/2001 HCCT95/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS ----------------------------
---------------------------- AND CONSTRUCTION AND ARBITRATION PROCEEDINGS ----------------------------
(By Counterclaim) ---------------------------- (Consolidated pursuant to the order of Hon Burrell J Coram: Hon Burrell J in Chambers Date of Hearing: 20 January 2004 Date of Decision: 30 January 2004 -------------------------------------------------------- DECISION ON QUANTUM -------------------------------------------------------- 1.On 1 December 2003, I handed down a judgment in the above action following an eight-day trial. As part of the judgment, I asked the parties to agree quantum following my findings on liability. It was anticipated that quantum would be a matter of simple arithmetic as a result. 2.Unfortunately, although most items have now been settled, four items remain in dispute. On one in particular the parties remain approximately $1,000,000.00 apart. 3.It is worth, at the outset, reminding the parties of my approach to this case which I was careful to explain in the judgment. The following comment was made, which underlay my approach :
4.The calculation which I did not carry out was in relation to the Variation Orders for the TOP 1 works (of which there were many). At the conclusion of the trial, counsel had very helpfully set out all the figures in dispute on each variation, and the nature of the dispute in each case. 5.My key finding, which I anticipated would enable the parties to calculate the quantum on each disputed issue, was :
6.In order to resolve the quantum issue still in dispute I should not re-open the case. Having heard, briefly, the present contention of each side, my approach in relation to VO3A is to return to the figures I was presented in the closing submissions and to inform the parties the figure I would have put in my judgment had I undertaken the task of arithmetic myself, based on my findings on liability. 7.In short, I would have awarded Technicom $1,902,000.00 which is the figure Guardian conceded. 8.As for VO6, VO34 and VO44, I understand that disputes remain, which were not resolved by evidence, concerning the quantity and rate for mandays (VO6) and the degree of overlapping with other VO's (VO34 with VO7 and VO44 with VO19). In order to resolve the matter, as the sums in dispute are not large (under $80,000.00 altogether) I will take a median figure in each case, namely :
9.I have a reasonably good recollection of my approach to quantum at the time. I recall applying my findings on liability to the figures presented to me in an approximate way and as a result I said as follows :
10.In today's summons, Technicom claims $3,466,966.00 for the TOP 1 works. The result of my decisions today, which purport to give effect to what I would have done at the time, that claim is $517,325.00 too much. The figure for TOP 1 is now $2,949,641.00. A figure which is indeed "in the region of $3,000,000.00". 11.Guardian had claimed that Technicom's calculations were $1,057,425.00 too high. In fact they were $517,325.00 too high. 12.I make an order in terms of the summons amended as follows :
Representation: Mr Eric Curlewis of Messrs Krishnan & Tsang, for the Plaintiff in Original Action and the Defendant in Counterclaim Mr Gary Soo, instructed by Messrs S.H. Leung & Co., for the Defendant in Original Action and the Plaintiff in Counterclaim |