PAUL Y.-ITC CONSTRUCTION LTD. v. SUNDART ENGINEERING LTD.

PAUL Y.-ITC CONSTRUCTION LTD. v. SUNDART ENGINEERING LTD.

The court upheld the arbitrator's construction that the name borrowing procedure is optional and not mandatory; the arbitrator correctly held he lacked jurisdiction under clause 8(b) until the architects' permission was required, but had jurisdiction under clause 22 to hear claims for loss and/or expense under clause 8(c); the interim award on the preliminary jurisdictional point was therefore correctly decided.

Citation
PAUL Y.-ITC CONSTRUCTION LTD. v. SUNDART ENGINEERING LTD.
Parties
Applicant (respondent in Arbitration): PAUL Y.-ITC CONSTRUCTION LIMITED; Respondent (claimant in Arbitration): SUNDART ENGINEERING LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 March 2000
Case Number
HCCT124/1999
Procedural Posture
Arbitration Construction / Originating Motion Appealing Interim Award on Jurisdiction (interlocutory)
Outcome
Originating motion to set aside interim award dismissed; interim award on jurisdiction upheld
Legal Topics
Jurisdiction, Name Borrowing, Extension of Time, Contract Interpretation, Interim Award, Notice of Arbitration
Source Language
EN
Arbitration Contract Construction Civil Procedure Jurisdiction Name Borrowing Extension of Time Contract Interpretation +2 more

Case Brief

Summary, issues, holding and outcome

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Parties

PAUL Y.-ITC CONSTRUCTION LIMITED

Applicant (respondent in Arbitration)

SUNDART ENGINEERING LIMITED

Respondent (claimant in Arbitration)

Procedural Posture

Arbitration Construction / Originating Motion Appealing Interim Award on Jurisdiction (interlocutory)

Legal Issues

  1. 1 Whether a nominated subcontractor must use the name borrowing procedure to pursue claims under clauses 8(b) and 8(c)
  2. 2 Whether the arbitrator had jurisdiction under clause 22 to hear Sundart's claim for loss and/or expense under clause 8(c)
  3. 3 Proper construction of Sub-Contract clauses 8(b), 8(c), 11(d) and 22

Ratio Decidendi

The court upheld the arbitrator's construction that the name borrowing procedure is optional and not mandatory; the arbitrator correctly held he lacked jurisdiction under clause 8(b) until the architects' permission was required, but had jurisdiction under clause 22 to hear claims for loss and/or expense under clause 8(c); the interim award on the preliminary jurisdictional point was therefore correctly decided.

Court Disposition

Originating motion to set aside interim award dismissed; interim award on jurisdiction upheld

Orders

  • Motion to set aside the interim award of the arbitrator dated 18 November 1999 is declined
  • Costs of and arising from the applicant's Notice of Motion dated 16 December 1999 to be paid to the respondent (costs follow the event)