ATTORNEY GENERAL v. WANG CHONG CONSTRUCTION CO. LTD.

ATTORNEY GENERAL v. WANG CHONG CONSTRUCTION CO. LTD.

No valid Architect's decision existed for the purposes of clause 117 because (1) the person who purported to decide (Mr Kwan) was not established to be the Architect named in the contract, (2) the maintenance certificate operated as conclusive approval of works and admission of due performance in the contractual scheme, and (3) the dispute concerned excepted matters under clause 115 (quality of materials and workmanship) excluded from clause 117 arbitration; accordingly the Attorney General's applications for declaration and appointment of an arbitrator and for a stay were dismissed and the relevant declarations sought by Wang Chong were made in accordance with these conclusions.

Citation
ATTORNEY GENERAL v. WANG CHONG CONSTRUCTION CO. LTD.
Parties
Applicant (hcmp 70) / Respondent (hcmp 542): Attorney General of Hong Kong; Respondent (hcmp 70) / Applicant (hcmp 542): Wang Chong Construction Co. Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 October 1990
Case Number
HCMP542/1990
Procedural Posture
Civil — Contractual Dispute Concerning Construction, Arbitration and Declaratory Relief / Judgment on Cross‑originating Summonses
Outcome
Applicant (Attorney General) summonses dismissed; Wang Chong's originating summons granted in part by declarations consistent with judgment; no arbitrator appointed; stay refused.
Legal Topics
Architect's Decision, Maintenance Certificate, Excepted Matters (cl.115), Functus Officio, Service of Notices, Estoppel/election, Stay Under Arbitration Ordinance S.6, Limitation Waiver Agreement
Source Language
EN
Contract Law Arbitration Law Construction Law Limitation Law Public/administrative Law Architect's Decision Maintenance Certificate Excepted Matters (cl.115) +5 more

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Parties

Attorney General of Hong Kong

Applicant (hcmp 70) / Respondent (hcmp 542)

Wang Chong Construction Co. Ltd

Respondent (hcmp 70) / Applicant (hcmp 542)

Procedural Posture

Civil — Contractual Dispute Concerning Construction, Arbitration and Declaratory Relief / Judgment on Cross‑originating Summonses

Legal Issues

  1. 1 Whether the Chief Architect's February 25, 1989 letter amounted to a valid Architect's decision under clause 117
  2. 2 Whether the Architect was functus officio by reason of the maintenance certificate/final payment
  3. 3 Whether the person who signed was the Architect named in the contract

Ratio Decidendi

No valid Architect's decision existed for the purposes of clause 117 because (1) the person who purported to decide (Mr Kwan) was not established to be the Architect named in the contract, (2) the maintenance certificate operated as conclusive approval of works and admission of due performance in the contractual scheme, and (3) the dispute concerned excepted matters under clause 115 (quality of materials and workmanship) excluded from clause 117 arbitration; accordingly the Attorney General's applications for declaration and appointment of an arbitrator and for a stay were dismissed and the relevant declarations sought by Wang Chong were made in accordance with these conclusions.

Court Disposition

Applicant (Attorney General) summonses dismissed; Wang Chong's originating summons granted in part by declarations consistent with judgment; no arbitrator appointed; stay refused.

Orders

  • Dismissed Attorney General's originating summons dated 5 January 1990 (declaration re Limitation Waiver Agreement and appointment of arbitrator).
  • Dismissed Attorney General's summons dated 15 September 1990 seeking a stay under Arbitration Ordinance s.6.