CARRIER HONG KONG LTD v. DICKSON CONSTRUCTION CO LTD

CARRIER HONG KONG LTD v. DICKSON CONSTRUCTION CO LTD

On the facts this court preferred the evidence that Carrier agreed the $33,000,000 price by telephone in early May 2002; the parties intended to be bound and incorporated the standard form blue sub‑contract containing clause 18.2 (written arbitration agreement); outstanding items (e.g. BQ/variation valuation) were non‑essential and did not prevent formation; "subject to contract" was conditional on ASD's award and did not prevent a binding agreement; commencement and six months' performance corroborated contract — therefore the arbitrator had jurisdiction and the partial award was correct.

Citation
CARRIER HONG KONG LTD v. DICKSON CONSTRUCTION CO LTD
Parties
Applicant (respondent in Arbitration): Carrier Hong Kong Limited; Respondent (claimant in Arbitration): Dickson Construction Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 October 2005
Case Number
HCCT11/2005
Procedural Posture
Application Under Arbitration Ordinance (rhc Order 73 Rule 3(2)) — Construction and Arbitration Proceedings / Re‑hearing (de Novo) on Jurisdiction Under Order 73 Rule 3(2)
Outcome
Application dismissed; arbitrator's partial final award on jurisdiction upheld
Legal Topics
Arbitration Agreement, Jurisdiction, Contract Formation, Subject to Contract, Variation Valuation, Standard Form Sub‑contract
Source Language
EN
Arbitration Construction Contracts Civil Procedure Arbitration Agreement Jurisdiction Contract Formation Subject to Contract Variation Valuation +1 more

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Parties

Carrier Hong Kong Limited

Applicant (respondent in Arbitration)

Dickson Construction Company Limited

Respondent (claimant in Arbitration)

Procedural Posture

Application Under Arbitration Ordinance (rhc Order 73 Rule 3(2)) — Construction and Arbitration Proceedings / Re‑hearing (de Novo) on Jurisdiction Under Order 73 Rule 3(2)

Legal Issues

  1. 1 Whether a binding contract existed between Carrier and Dickson incorporating a written arbitration agreement
  2. 2 Whether letters headed "subject to contract" precluded formation of a binding contract
  3. 3 Whether outstanding terms (e.g. bills of quantities/valuation of variations) prevented contract formation

Ratio Decidendi

On the facts this court preferred the evidence that Carrier agreed the $33,000,000 price by telephone in early May 2002; the parties intended to be bound and incorporated the standard form blue sub‑contract containing clause 18.2 (written arbitration agreement); outstanding items (e.g. BQ/variation valuation) were non‑essential and did not prevent formation; "subject to contract" was conditional on ASD's award and did not prevent a binding agreement; commencement and six months' performance corroborated contract — therefore the arbitrator had jurisdiction and the partial award was correct.

Court Disposition

Application dismissed; arbitrator's partial final award on jurisdiction upheld

Orders

  • Application under Order 73 rule 3(2) dismissed
  • Costs nisi awarded to Dickson Construction Company Limited