Sam Woo Bore Pile Foundation Ltd v. China Overseas Foundation Engineering Ltd
Read the full judgment text of FAMV 21/2007 on BabelCite. This Court of Final Appeal judgment was delivered on 8 June 2007 before Bokhary PJ, Chan PJ, Ribeiro PJ.
Civil procedure – leave to appeal to Court of Final Appeal – finality test – striking-out application – section 22(1)(a) of the Court's statute – applications test – whether appeal as of right – whether point of law of great general or public importance – whether reasonable prospects of success – construction of civil engineering re-measurement sub-contract – Hong Kong Government Standard Method of Measurement (SMM) – §9.09 and §9.14 of Particular Preamble – Bill of Quantities (BQ) – extra-over items for toeing-in cast-in-situ concrete piles into bedrock – Lantau Expressway project – 64 pile shafts – minimum 1.50m depth – single BQ item with $36,000 rate versus graduated 0.50m depth bands – rectification not argued – implied term not argued – contractual interpretation only – case-specific problem rather than general importance – leave refused with costs. The applicant contracted with the respondent to drive 64 pile shafts and install cast-in-situ concrete piles in the seabed as part of the Lantau Expressway project, with each shaft to be toed-in into bedrock to at least a 1.50m minimum depth. The re-measurement contract referred to the Hong Kong Government Standard Method of Measurement (SMM), whose §§9.09 and 9.14 would have itemised extra-over toeing-in in graduated 0.50m depth bands. Only a single BQ item was actually drawn up, fixing a flat $36,000 rate for extra-over beyond the 1.50m minimum. The applicant's claim for additional payment by extrapolation of a $12,000 rate per 0.50m step was struck out at first instance (HCCT 76/1996) and on appeal (CACV 113/2006). On application for leave to appeal to the Court of Final Appeal, the Court held that the striking-out decision did not meet the finality test for an appeal as of right under section 22(1)(a) of its statute, and that the dispute raised a one-off case-specific problem rather than any point of law of great general or public importance. The applicant pointed to no viable legal mechanism, having not sought rectification or an implied term, to achieve the graduated result it desired by interpretation alone. Leave was refused with costs to the respondent.
Legal issues: Leave to appeal from striking-out of claim under re-measurement sub-contract
Outcome: Application for leave to appeal dismissed with costs.
Cited by 10 cases · Cites 6 cases
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FAMV No. 21 of 2007 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 21 OF 2007 (Civil) (ON APPLICATION FOR LEAVE TO APPEAL FROM _______________________ Between:
_______________________ Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ Date of Hearing and Determination: 31 May 2007 Date of Handing Down Reasons: 8 June 2007 _______________________ D E T E R M I N A T I O N _______________________ Mr Justice Ribeiro PJ: 1.On 31 May 2007, we dismissed the application for leave to appeal with costs. We now hand down our reasons. 2.Leave was sought to appeal to the Court from the decisions of Reyes J[1] and the Court of Appeal[2] striking out the applicant’s claim for payment under a civil engineering sub-contract. 3.Mr Russell Coleman SC, appearing with Ms Queenie Ng for the applicant, submits in the first place that an appeal is as of right since, in striking out the claim, the courts below necessarily finally decided the issue of construction said to arise. That submission must be rejected. 4.To come within section 22(1)(a) of the Court’s statute, the appeal must be from a final judgment of the Court of Appeal. The test for finality is the “applications test”, namely, that determination of the application leading to the judgment to be appealed from must finally dispose of the action or finally determine the relevant issue, whichever party succeeds on the application. A striking-out application fails that test. Its dismissal leaves everything in contention. That approach was consistently adopted for leave to appeal to the Privy Council. [3] It has remained the approach to leave to appeal to this Court.[4] It is unusual for a final appellate court to entertain appeals as of right and, as has previously been pointed out,[5] the Court is not in favour of enlarging that jurisdiction. 5.Alternatively, the applicant submits that points of law of great general or public importance arise in the appeal, being points relating to the true construction of the Hong Kong Government Standard Method of Measurement (“SMM”) for Civil Engineering Works which are in widespread use in Hong Kong.[6] 6.The applicant contracted with the respondent to drive a total of 64 pile shafts and to install cast-in-situ concrete piles in the seabed as part of the Lantau Expressway project. Each pile shaft had to be properly secured or “toed-in” into the bedrock at a certain depth depending upon site investigations and the Engineer’s requirements. 7.It was a re-measurement contract and the parties expressly agreed that the method of re-measurement should be in accordance with the SMM, save expressly stated otherwise. Particular Preambles to the Bills of Quantities set out the SMM method of re-measurement to be used in relation to the toeing-in of cast-in-situ concrete piles. Two such provisions are important. First, §9.09 prescribes that the units of measurement for extra over for toeing-in should be “number”, that is, the number of piles concerned. Secondly, §9.14 (Group IX), dealing with “Itemisation”, prescribes as follows:
8.If the parties had carried out their indicated intention of adopting the SMM approach to re-measurement by adopting those provisions, this dispute would not have arisen. Separate Bills of Quantities (“BQ”) items would have provided for the extra over amount payable for the number of pile shafts which had to be toed-in at a depth deeper than the specified minimum in steps of 0.50m of such additional depth. 9.Bedrock conditions over stretches of seabed may obviously vary. A hypothetical example of what might have been required of the 64 piles in the present case (taking the specified minimum depth into the bedrock as 1.50m), may be as follows:
With BQ items drawn up in accordance with §§9.09 and 9.14, there would be no difficulty. For each itemised depth band, one would multiply the number of piles concerned by the dollar rate and thereby value the additional work done at each depth. 10.However, that is not how the BQ items were drawn up in the present case, which is why the present dispute arises. There was no separate itemisation for each 0.50m step or depth band. And there was no specification of a dollar rate for each such depth band. There was only a single BQ item in the following terms:
11.The “description” column stipulates that the minimum depth of toeing-in required is a depth of 1.50m into the bedrock. “Minimum” has its ordinary meaning so that, for instance, where a sloping bedrock surface is encountered, the pile must be driven into not less than 1.50m of bedrock at the lower end of the downward slope. This would mean that more than 1.50m of bedrock will have to be penetrated at the upper end of the slope. 12.Since the BQ item describes itself as dealing with “extra over” in relation to a stipulated minimum depth and specifies a $36,000 rate for the same without suggesting that this is limited to additional work to any particular depth, the courts below correctly construed this as a provision (perhaps unusual in a re-measurement contract) which fixed the extent of additional payments available for this item of work. 13.Mr Coleman did not seek to argue for rectification of the contract or that there was some basis for implying a term which would somehow convert the BQ items in question into graduated, separately itemised extra over provisions dealing with additional work done in steps of 0.50m of depth. Instead, he boldly submitted that the Court could somehow arrive at that result by a simple process of contractual interpretation by giving prominence to the fact that the contract was a re-measurement contract. The Court should, he argued, treat the $36,000 figure in the BQ item as laying down a rate of payment for each 1.50m of depth into the bedrock, and so by extrapolation, a dollar rate of $12,000 for each step of 0.50m of depth to make it compatible with §9.14 of the Particular Preamble. But that is not what the BQ item says on any reading and such a result would require a wholesale re-writing of the BQ terms agreed. 14.It follows that this is a one-off case. Standard provisions were available to be adopted and were indeed referred to in the Particular Preamble to the parties’ own Bills of Quantities, but were not in fact used. Such provisions are in general circulation and there is no difficulty about their operation. The present case therefore raises a case-specific problem and not any point of law of great general or public importance. Secondly, the applicant was able to point to no viable legal mechanism whereby the Court might arrive at the result it desires. There are therefore no reasonable prospects of success on appeal.
Mr Russell Coleman SC and Ms Queenie WS Ng (instructed by Messrs Hau, Lau, Li & Yeung) for the applicant Mr Chua Guan Hock SC (instructed by Messrs Ho & Ip) for the respondent [1] HCCT 76/1996; 21 February 2006. [2] Rogers VP, Le Pichon JA and Chu J, CACV 113/2006; 24 October 2006. [3] First Pacific Bank Ltd v Robert H P Fung [1990] 1 HKLR 527 at 529. [4] Wai Hung Stationery Co v HKSAR [1998] 2 HKC 229 at 231; B+B Construction Ltd v Sun Alliance and London Insurance Plc [2001] 1 HKLRD 1 at 4; and Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222 at 231, §26. [5] Chao Keh Lung v Dong Xia (2004) 7 HKCFAR 260 at 263. [6] Reference was made to the 1988 and the 1992 editions which, for the purposes of this case, were materially identical. We refer to provisions in the 1992 edition in this Determination. [7] These General Principles are not presently relevant. [8] The other BQ item, relating to 16 pile shafts, was in otherwise identical terms. |
Cases cited in this judgment