CHINNEY CONSTRUCTION CO LTD v. PO KWONG MARBLE FACTORY LTD

CHINNEY CONSTRUCTION CO LTD v. PO KWONG MARBLE FACTORY LTD

Po Kwong was estopped from denying that CF 31 could be opened up, reviewed or revised; the arbitrator should have proceeded on the basis he had power to review CF 31 and the matter is therefore remitted to him to determine to what extent CF 31 should be reopened in light of Chinney's pleaded claims.

Citation
CHINNEY CONSTRUCTION CO LTD v. PO KWONG MARBLE FACTORY LTD
Parties
Applicant (respondent in Arbitration): Chinney Construction Company Limited; Respondent (claimant in Arbitration): Po Kwong Marble Factory Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 June 2006
Case Number
HCCT76/2005
Procedural Posture
Arbitration Appeal Under Arbitration Ordinance Cap.341 / Judgment on Appeal Remitting Matter to Arbitrator
Outcome
Appeal allowed; matter remitted to arbitrator to reconsider CF 31; costs order nisi in favour of Chinney
Legal Topics
Final Certificate, Estoppel, Set Off, Abatement, Arbitrator Jurisdiction, Remittal
Source Language
EN
Arbitration Construction Law Contract Law Civil Procedure Final Certificate Estoppel Set Off Abatement +2 more

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Parties

Chinney Construction Company Limited

Applicant (respondent in Arbitration)

Po Kwong Marble Factory Limited

Respondent (claimant in Arbitration)

Procedural Posture

Arbitration Appeal Under Arbitration Ordinance Cap.341 / Judgment on Appeal Remitting Matter to Arbitrator

Legal Issues

  1. 1 Whether CF 31 could be re-opened, reviewed or revised by the arbitrator
  2. 2 Whether Po Kwong was estopped from denying arbitrator's jurisdiction to revisit CF 31
  3. 3 Whether the arbitrator nevertheless dealt with the substance of Chinney's abatement and set-off claims

Ratio Decidendi

Po Kwong was estopped from denying that CF 31 could be opened up, reviewed or revised; the arbitrator should have proceeded on the basis he had power to review CF 31 and the matter is therefore remitted to him to determine to what extent CF 31 should be reopened in light of Chinney's pleaded claims.

Court Disposition

Appeal allowed; matter remitted to arbitrator to reconsider CF 31; costs order nisi in favour of Chinney

Orders

  • Remit matter to the Arbitrator to consider to what extent (if at all) he should open up, review or revise CF 31 in light of Chinney's Amended Defence and Counterclaim paragraphs 9,10,11,12 and 12A
  • Order Nisi that Po Kwong pay Chinney's costs of the appeal, to be taxed if not agreed