Read the full judgment text of cacv 128/2004 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 25 February 2005 before Hon Rogers VP, Le Pichon and Yuen JJA.
Contract Law — Construction Contracts — Dispute Resolution Clause — Arbitration — Mediation — Agreement to Agree — Certainty — Repudiation — Estoppel. Plaintiff, main contractor, and defendant disputed delays and damages under multiple KCRC construction contracts. They entered a March 2003 agreement agreeing to permanently forbear arbitration and litigation, resolving disputes via managing directors and third-party mediation. The Court of Appeal held that the March agreement was unenforceable for uncertainty: the provision for dispute resolution by managing directors was an unenforceable agreement to agree, and the unspecified mediation process lacked sufficient certainty. The permanent bar on arbitration and court action was ambiguous and thus could not be enforced. As the agreement was unenforceable, allegations of repudiation could not stand without oral evidence. Estoppel by convention did not arise as any detriment to defendant was temporary. The appeal was dismissed except for deletion of declarations relating to repudiation and termination of the March agreement; declarations preserving access to courts and arbitration were upheld. Costs were awarded to the plaintiff. Applications to the Court of Final Appeal for leave and stay were refused as per CACV128/2004 dated 20 February 2006.
Legal issues: Enforceability of the March agreement · Effect of Repudiation Allegation · Estoppel by Convention
Outcome: Appeal dismissed except that declarations (3) and (4) in the order below were deleted; order nisi for costs in favour of the plaintiff.
Cited by 1 case