Read the full judgment text of HCMP 001898/1982 on BabelCite. This High Court CFI judgment was delivered on 21 January 1983 before Rhind J.
Arbitration – P.W.D. Civil Engineering Contract, 1977 Edition – Clause providing that disputes generally to be arbitrated only after completion of works, with exception permitting arbitration during currency of works for disputes 'as to the withholding by the Engineer of any certificate' – Dispute on a point of principle between Engineer and Contractors during currency of works as to extension of time for completion of works, the Contractors claiming 92 weeks and the Engineer by written order declaring the Contractors were only entitled to 64 days – Issue whether the Engineer's written order was a species of 'certificate', entitling the Contractors forthwith to call for the appointment of an arbitrator – Held, the Engineer's written order was a 'time certificate' so that the Contractors were entitled to have an arbitration opened during the currency of the works – Whether 'any certificate' in exception is qualified by references to clauses 102 and 104 – Held, words 'any certificate' unqualified and unrestricted – Whether General Condition 77(5) distinguishes Farr and Aoki line of authority – Held, no – Whether money certificates withheld so as to trigger exception – Held, yes, following Aoki and Farr – Dispute on point of principle as to whether new rates payable under Clause 74(4) and (5) for additional works arising from excessive obstructions and rubble mounds encountered during piling – Original contract sum HK$485,400,686.47; Contractors' claim crystallised at HK$154,500,000 by 27 July 1982; Engineers granted 64 days extension only – Court followed Aoki Construction Co. Ltd. v. Attorney General and Farr v. Ministry of Transport, and adopted Hudson's definition of 'certificate' as endorsed in Token Construction Co. Ltd. v. Charlton Estates Ltd. – Arbitration (Amendment) Ordinance 1982 brought into effect 15 October 1982 – Hunter, J. appointed arbitrator under Arbitration Ordinance s.13A(1) and s.12 – Costs follow the event – Counsel certificate for two counsel granted.
Legal issues: Whether a written order extending time under General Condition 65(3) is a 'certificate' within the exception in General Condition 120(2) · Whether 'any certificate' in General Condition 120(2) is qualified by the references to clauses 102 and 104 · Whether money certificates were withheld so as to entitle Contractors to arbitration during the works
Outcome: Declarations granted in terms of paragraphs (a) and (b) of the Summons; the Contractors are entitled to arbitration on the matters raised in paragraphs 1, 2 and 3 of the Notice of Arbitration; Hunter, J. appointed as arbitrator.