MINMETALS CONDO (HONG KONG) ENGINEERING CO LTD v. COLMAT CONSTRUCTION AND ENGINEERING CO LTD

MINMETALS CONDO (HONG KONG) ENGINEERING CO LTD v. COLMAT CONSTRUCTION AND ENGINEERING CO LTD

Only the contract drawings and the technical specifications in Annexure 2 as relevant to the subcontractor's works were incorporated into the Contract; the Contract was a remeasurement contract based on flat area so measurement by area and the unit rates in the schedules apply; where the plaintiff failed to prove entitlement or substantiate quantum the claims were disallowed; contra charges required clear evidence and were only allowed in limited, substantiated parts.

Citation
[2021] HKCFI 2184
Parties
Plaintiff (hcct36): Colmat Construction and Engineering Company Limited; Defendant (hcct36): Minmetals Condo (Hong Kong) Engineering Company Limited; Plaintiff (hcct37): Minmetals Condo (Hong Kong) Engineering Company Limited; Defendant (hcct37): Colmat Construction and Engineering Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 July 2021
Case Number
HCCT37/2018
Procedural Posture
Construction and Arbitration Proceedings / Judgment
Outcome
Judgment partly for both parties: major weight-based claims by plaintiff dismissed; multiple variation claims disallowed for lack of substantiation; specific variation and counterclaim items allowed in part as quantified in reasons; parties to submit draft order and costs submissions.
Legal Topics
Incorporation by Reference, Variation Claims, Contract Interpretation, Quantum and Valuation, Remeasurement Contracts, Expert Evidence, Contra Charges, Burden of Proof
Source Language
EN
Construction Law Contract Law Commercial Law Civil Procedure Incorporation by Reference Variation Claims Contract Interpretation Quantum and Valuation +4 more

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Parties

Colmat Construction and Engineering Company Limited

Plaintiff (hcct36)

Minmetals Condo (Hong Kong) Engineering Company Limited

Defendant (hcct36)

Minmetals Condo (Hong Kong) Engineering Company Limited

Plaintiff (hcct37)

Colmat Construction and Engineering Company Limited

Defendant (hcct37)

Procedural Posture

Construction and Arbitration Proceedings / Judgment

Legal Issues

  1. 1 Whether documents contained on the disc/Annexure 2 other than drawings and technical specifications were incorporated into the subcontract
  2. 2 Whether the plaintiffs additional works/variations were within the scope of the Contract or outside it
  3. 3 Appropriate method of valuation for disputed items (flat area remeasurement v weight-based measurement)

Ratio Decidendi

Only the contract drawings and the technical specifications in Annexure 2 as relevant to the subcontractor's works were incorporated into the Contract; the Contract was a remeasurement contract based on flat area so measurement by area and the unit rates in the schedules apply; where the plaintiff failed to prove entitlement or substantiate quantum the claims were disallowed; contra charges required clear evidence and were only allowed in limited, substantiated parts.

Court Disposition

Judgment partly for both parties: major weight-based claims by plaintiff dismissed; multiple variation claims disallowed for lack of substantiation; specific variation and counterclaim items allowed in part as quantified in reasons; parties to submit draft order and costs submissions.

Orders

  • Parties to agree and submit within 21 days a draft judgment order setting out respective entitlements to sums claimed and counterclaimed
  • Parties to file written submissions on costs not exceeding 3 A4 pages, double-spaced, 14 point Times New Roman