Yeung Fat Construction Company v. Hong Kong and Overseas Development Company Limited

CACV000163/1985

IN THE COURT OF APPEAL

BETWEEN

__________

Coram: Sir Alan Huggins, V.-P., Kempster, J.A. & Penlington, J.

Date of Hearing: 10th January 1986

Date of Judgment: 10th January 1986

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P.:

1. This is an appeal against the refusal by Mayo, J. of an application for leave to appeal against an interim award of an arbitrator. The learned judge took the view that there was no point of law which justified the grant of leave.

2. The Plaintiff comes before us seeking to persuade us that the judge was wrong and that he ought to be allowed to raise matters before the High Court. His complaint is not that there were points which were not drawn to the attention of the arbitrator (as might appear from his Notice of Appeal) but that, those points having been drawn to the attention of the arbitrator, the arbitrator ignored them. His contention is that the arbitrator was faced with certificates granted by the architect and he says that the arbitrator is not permitted to go behind the architect's certificates. That at first sight might seem to be a possible argument on the ground that the certificates were given by a person who was the agent of the employer, but the argument overlooks the very terms of the contract itself. Clause 35(3) expressly provides that, save in respect of two classes of certificate, (classes with which we are not concerned in the present case)

"the arbitrator shall ... have power ..... to open up, review and revise any certificate, opinion, decision, requirement or notice and to determine all matters in dispute which shall be submitted to him in the same manner as if no such certificate, opinion, decision, requirement or notice had been given."

3. It seems to us that the certificates were not, therefore, binding on the arbitrator, that he had power to review or revise them and that that is precisely what he did. We do not have all the evidence which was given and therefore we cannot consider whether there was evidence to support the conclusions of the arbitrator. That was an issue which has not been raised.

4. In these circumstances we cannot allow this appeal and grant leave as sought by the Appellant. The appeal must be dismissed with the usual consequences as to costs.

10th January 1986

Representation:

Norman Yeung on behalf of Appellant appearing in person.

Peter Clayson for Respondent.