Read the full judgment text of HCCT2/2010 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 18 August 2011 before Deputy High Court Judge Cheng, SC.
Construction contract — Sub-contract awarded on back-to-back basis — Meaning and effect of “back-to-back” clause in scope and specifications — Defendant subcontractor’s responsibility for design amendments and approvals under Technical Specifications — Preliminaries and dumping levy excluded from Sub-Contract scope — No mechanical incorporation of Main Contract’s extension of time and payment provisions — Extension of time claim failed due to lack of evidence and non-critical delay — Liquidated damages clause enforceable, defendant liable for HK$532,000 — Plaintiff’s claims for plant hire dismissed — Forwarding claims to employer not admission of liability — Defendant ordered to pay costs. The dispute concerned the contractual meaning of back-to-back phrasing and allocation of design responsibility under demolition sub-contract, with findings that the defendant carried design duties and could not pass delays or costs back to plaintiff absent express terms. The court emphasized necessity of clear contractual language for incorporation of Main Contract rights into Sub-Contract and independently assessed claims and quantum. This judgment clarifies the limits and scope of back-to-back obligations in construction sub-contracts, particularly regarding design responsibility, extensions, and liquidated damages.
Legal issues: Meaning and effect of 'back-to-back' contract phrase · Responsibility for design under the Sub-Contract · Extent of the scope of works and exclusion of preliminaries in the Sub-Contract · Whether the back-to-back clause incorporates extension of time and liquidated damages provisions from Main Contract · Whether defendant is entitled to extension of time for delay caused by ground investigation and change of shoring materials · Enforceability and applicability of liquidated damages at the same rate as Main Contract · Claims relating to provision of plant and machinery at agreed rates · Whether passing of defendant claims to employer amounts to admission of liability or quantum · Costs order
Outcome: The defendant’s variation claims and part of its counterclaim fail; the defendant must pay the plaintiff liquidated damages of HK$532,000; claims by plaintiff for contra-charges and plant hire fail; extension of time claims dismissed.
Cited by 1 case