Lam Construction Company Limited v. Korea Shipbuilding and Engineering Corporation
Read the full judgment text of HCMP 696/1988 on BabelCite. This High Court CFI judgment.
1. This is an application for leave to appeal under Section 23 of the Ordinance. I have regard to what the Court of Appeal have said in Technics, particularly the Chief Justice who said I should say little. On the other hand, he appeared to comment on the judge below in that case. I think I should say something as this may go to appeal. The most difficult aspect of this application is whether or not this particular contract, which I have before me, is a dispute about a 'one-off' clause or event,
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HCMP000696/1988 IN THE SUPREME COURT OF HONG KONG HIGH COURT CONSTRUCTION LIST MISCELLANEOUS PROCEEDING NO. M.P. 696 OF 1988 _____________________ IN THE MATTER OF THE ARBITRATION ORDINANCE and IN THE MATTER OF AN ARBITRATION BETWEEN LAM CONSTRUCTION COMPANY LIMITED and KOREA SHIPBUILDING & ENGINEERING CORPORATION ___________________ BETWEEN
_________________ Coram: Hon. Sears J. in Court Date of Hearing: 24th May, 1988 Date of Delivery of Judgment: 24th May, 1988 _________________ JUDGMENT _________________ 1. This is an application for leave to appeal under Section 23 of the Ordinance. I have regard to what the Court of Appeal have said in Technics, particularly the Chief Justice who said I should say little. On the other hand, he appeared to comment on the judge below in that case. I think I should say something as this may go to appeal. The most difficult aspect of this application is whether or not this particular contract, which I have before me, is a dispute about a 'one-off' clause or event, or a standard term which is common in the trade. I am prepared to assume for the purposes of my decision that, it is a 'one-off'. 2. The Arbitrator's decision on the Preliminary Issue is found at page 10 of the Bundle. It contains on its face, five serious errors of law. The first is in the second paragraph. The second is in the next paragraph - when he was looking at unfairness to KSEC. The third is in the sentence "without the implied term the Main Contract would be nonsense". The fourth is the sentence starting "we have identified a lacuna .......". The fifth error of law is a complete misunderstanding of the authority of Chandler Brothers v Boswell. 3. This was an interim award on a pure point of law, namely the implication of terms in the sub-contract which, in my judgment, are most important and essential to the proper furtherance of this Arbitration. The interests in the Applicant will be substantially prejudiced. In my judgment this award contains very serious errors of law. That is all I will say. I give leave to appeal.
Representation: Mr. Neil Kaplan, Q.C. & Mr. Peter Clayton, instructed by M/s Masons & Marriott for the Applicant. Mr. Robert Tang, Q.C. & Mr. John Scott, instructed by M/s Denton, Hall, Burgin & Warrens for the Respondent. |