PO FAT CONSTRUCTION COMPANY LTD v. THE INCORPORATED OWNERS OF KIN SANG ESTATE

PO FAT CONSTRUCTION COMPANY LTD v. THE INCORPORATED OWNERS OF KIN SANG ESTATE

The Contractor's originating summons was an abuse of process and filed without the required affidavit and outside proper procedure; the arbitrator's findings on design responsibility and implied duty were within the scope of the pleaded case or non‑material to the outcome; accordingly there was no basis to set aside the Award or the enforcement order and all applications by the Contractor were dismissed with indemnity costs to the Owners.

Citation
PO FAT CONSTRUCTION COMPANY LTD v. THE INCORPORATED OWNERS OF KIN SANG ESTATE
Parties
Claimant/plaintiff: Po Fat Construction Company Limited; Respondent/defendant: The Incorporated Owners of Kin Sang Estate
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 November 2013
Case Number
HCCT15/2013
Procedural Posture
Construction and Arbitration Proceedings; Enforcement of Arbitration Award / Applications for Leave to Appeal, to Amend, to Set Aside Award and to Set Aside Enforcement Order Heard in Chambers; Decision Delivered
Outcome
All of the Contractor's applications dismissed
Legal Topics
Enforcement of Arbitration Award, Setting Aside Arbitral Award for Serious Irregularity/due Process, Leave to Appeal on Question of Law, Time Limits and Abuse of Process, Costs and Taxation of Costs
Source Language
EN
Arbitration Civil Procedure Construction Law Contract Law Enforcement of Arbitration Award Setting Aside Arbitral Award for Serious Irregularity/due Process Leave to Appeal on Question of Law Time Limits and Abuse of Process +1 more

Case Brief

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Parties

Po Fat Construction Company Limited

Claimant/plaintiff

The Incorporated Owners of Kin Sang Estate

Respondent/defendant

Procedural Posture

Construction and Arbitration Proceedings; Enforcement of Arbitration Award / Applications for Leave to Appeal, to Amend, to Set Aside Award and to Set Aside Enforcement Order Heard in Chambers; Decision Delivered

Legal Issues

  1. 1 Whether originating summons for leave to appeal was served in time and accompanied by required affidavit or was an abuse of process
  2. 2 Whether arbitrator decided issues that were unpleaded or outside the scope of submission and whether that breached natural justice
  3. 3 Whether any procedural irregularity or non-disclosure affected the outcome such as to justify setting aside the award or enforcement order

Ratio Decidendi

The Contractor's originating summons was an abuse of process and filed without the required affidavit and outside proper procedure; the arbitrator's findings on design responsibility and implied duty were within the scope of the pleaded case or non‑material to the outcome; accordingly there was no basis to set aside the Award or the enforcement order and all applications by the Contractor were dismissed with indemnity costs to the Owners.

Court Disposition

All of the Contractor's applications dismissed

Orders

  • Summons to amend dismissed
  • Application for leave to appeal dismissed