UNISTRESS BUILDING CONSTRUCTION LTD v. TOP DOLLARS DEVELOPMENT LTD

UNISTRESS BUILDING CONSTRUCTION LTD v. TOP DOLLARS DEVELOPMENT LTD

The Bond is a double (conditional/default) bond requiring the beneficiary to prove first breach by the contractor and secondly damages to sustain a claim; Unistress has locus to apply to restrain Top Dollars because the Bond's operation is not autonomous from the underlying contract and the Contract stipulated the bond form; there are serious issues to be tried on the extent of breach and quantum of damages; the balance of convenience favours continuing the injunction pending trial. Accordingly the interlocutory injunction was continued until trial or further order and costs were ordered in the cause with certificate for two counsel.

Citation
UNISTRESS BUILDING CONSTRUCTION LTD v. TOP DOLLARS DEVELOPMENT LTD
Parties
Plaintiff / Main Contractor: Unistress; Defendant / Employer / Property Developer: Top Dollars
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 December 2017
Case Number
HCCT29/2017
Procedural Posture
Civil Injunction Construction Contract Dispute (performance Bond) / Interlocutory Application for Continuation of Injunction Pending Trial
Outcome
Injunction continued until trial or further order of the court; costs in the cause with certificate for two counsel
Legal Topics
Performance Bond Classification (on‑demand V Conditional), Locus Standi to Restrain Beneficiary, Architect's Certificate and Evidential Weight, Serious Issue to Be Tried, Balance of Convenience, Defects Liability
Source Language
EN
Contract Construction Suretyship/guarantee Injunctions Civil Procedure Performance Bond Classification (on‑demand V Conditional) Locus Standi to Restrain Beneficiary Architect's Certificate and Evidential Weight +3 more

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Parties

Unistress

Plaintiff / Main Contractor

Top Dollars

Defendant / Employer / Property Developer

Procedural Posture

Civil Injunction Construction Contract Dispute (performance Bond) / Interlocutory Application for Continuation of Injunction Pending Trial

Legal Issues

  1. 1 Whether the Bond is a single (on demand) bond or a double (conditional/default) bond
  2. 2 Whether Unistress has locus standi to restrain Top Dollars from demanding or receiving payment under the Bond
  3. 3 Whether there is a serious issue to be tried on breach and damages

Ratio Decidendi

The Bond is a double (conditional/default) bond requiring the beneficiary to prove first breach by the contractor and secondly damages to sustain a claim; Unistress has locus to apply to restrain Top Dollars because the Bond's operation is not autonomous from the underlying contract and the Contract stipulated the bond form; there are serious issues to be tried on the extent of breach and quantum of damages; the balance of convenience favours continuing the injunction pending trial. Accordingly the interlocutory injunction was continued until trial or further order and costs were ordered in the cause with certificate for two counsel.

Court Disposition

Injunction continued until trial or further order of the court; costs in the cause with certificate for two counsel

Orders

  • Continue injunction granted on 25 April 2017 and continued on 27 April 2017 until trial or further order of the court
  • Costs of this application to be in the cause with certificate for two counsel