Read the full judgment text of HCCT124/1999 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 6 March 2000 before Hon Burrell J.
Construction Law — Arbitration — Jurisdiction — Nominated Sub-Contractor — Whether mandatory use of 'name borrowing' procedure to sue employer under clauses 8(b), 8(c), and 11(d) — Interpretation of subcontract provisions — Jurisdiction to hear claims for loss and expense — Arbitration Ordinance (Cap. 341). Paul Y.-ITC Construction Limited, as main contractor, appealed against an interim award order by the arbitrator Michael Charlton, Esq., who ruled the nominated sub-contractor Sundart Engineering Ltd was entitled to elect to sue either the main contractor or the employer and that the name borrowing procedure was optional. The main contractual issue was whether Sundart, under clauses governing extension of time (8(b)) and loss/expenses (8(c)) had to borrow the main contractor's name mandatorily before suing the employer or whether they could claim directly against the main contractor. The court upheld the arbitrator's decision that the name borrowing procedure was optional rather than mandatory, and that Sundart could properly proceed against the main contractor without being compelled to use name borrowing for claims under clause 8(c). The court reasoned that the contractual terms did not impose any obligation restricting Sundart’s choice, and forcing mandatory name borrowing risks denying a sub-contractor the right to sue the liable party. The court also dismissed the contention that the procedural differences would cause inconsistent findings, noting procedural flexibility and possible consolidation of arbitrations. Consequently, the court dismissed the appeal and ordered costs against the applicant.
Legal issues: Jurisdiction to hear claims under clause 8(c) of the Sub-Contract · Interpretation of name borrowing procedure under clauses 8(b), 8(c), and 11(d)
Outcome: The court dismissed the applicant's motion to set aside the interim award on jurisdiction and upheld the arbitrator’s ruling.