WHARF PROPERTIES LTD AND ANOTHER v. ERIC CUMINE ASSOCIATES, A RCHITECTS, ENGINEERS & SURVEYORS (a firm) AND OTHERS

WHARF PROPERTIES LTD AND ANOTHER v. ERIC CUMINE ASSOCIATES, A RCHITECTS, ENGINEERS & SURVEYORS (a firm) AND OTHERS

The Side Agreements' Certificate of Final Sub-Contract Completion, by its clear and comprehensive wording, was conclusive that the sub-contractor had duly performed all obligations in respect of the Sub-Contract Works and therefore barred the plaintiffs' contractual claims; because the alleged tort duty arose from and was co-extensive with the contractual duties, the certificate equally barred the tort claims; the court may decide such pure points of contractual construction on a strike-out application when all material facts are undisputed.

Citation
WHARF PROPERTIES LTD AND ANOTHER v. ERIC CUMINE ASSOCIATES, A RCHITECTS, ENGINEERS & SURVEYORS (a firm) AND OTHERS
Parties
1st Plaintiff: WAHRF PROPERTIES LIMITED; 2nd Plaintiff: THE HONG KONG AND KOWLOON WHARF; 3rd Plaintiff: GODOWN COMPANY LIMITED; 1st Defendant: ERIC CUMINE ASSOCIATES, ARCHITECTS, ENGINEERS & SURVEYORS (a firm); 2nd Defendant: J. ROGER PRESTON & PARTNERS (a firm); 3rd Defendant: SHING YIP ENGINEERING COMPANY (a firm); 4th Defendant: JOHN LOK & PARTNERS LIMITED; 5th Defendant: INTRUSION-PREPART (FAR EAST) LIMITED; 6th Defendant: THE GENERAL ELECTRIC COMPANY OF HONG KONG LIMITED; 7th Defendant: V.S.L. ENGINEERS (HONG KONG) LIMITED; 8th Defendant: THE JARDINE ENGINEERING CORPORATION LIMITED; 9th Defendant: AMERICAN ENGINEERING CORPORATION (H.K.) LIMITED; 10th Defendant: GILMAN AND COMPANY LIMITED; 11th Defendant: ARNHOLD & COMPANY LIMITED; 12th Defendant: EMPIRE ENGINEERING COMPANY LIMITED; 13th Defendant: RELIANCE ENGINEERING AND TRADING COMPANY LIMITED; 14th Defendant: PLASTEEL HONG KONG LIMITED; 15th Defendant: SHUN HING ELECTRICAL WORKS AND ENGINEERING COMPANY LIMITED; 16th Defendant: MANSION COMPANY (a firm); 17th Defendant: FORTRESS LIMITED; 18th Defendant: JOHNSON CONTROLS (HONG KONG) LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 October 1984
Case Number
HCA13431/1983
Procedural Posture
Civil Contract and Tort (construction Subcontract) / Interlocutory Application to Strike Out Parts of Statement of Claim
Outcome
Application allowed. Statement of Claim struck out as against the 8th defendant; action dismissed as against the 8th defendant with costs.
Legal Topics
Conclusive Certificates, Final Certificate of Completion, Contract Construction, Limitation of Tortious Duty, Striking Out Application, Release of Retention Monies
Source Language
EN
Contract Tort Civil Procedure Construction Law Conclusive Certificates Final Certificate of Completion Contract Construction Limitation of Tortious Duty +2 more

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Parties

WAHRF PROPERTIES LIMITED

1st Plaintiff

THE HONG KONG AND KOWLOON WHARF

2nd Plaintiff

GODOWN COMPANY LIMITED

3rd Plaintiff

ERIC CUMINE ASSOCIATES, ARCHITECTS, ENGINEERS & SURVEYORS (a firm)

1st Defendant

J. ROGER PRESTON & PARTNERS (a firm)

2nd Defendant

SHING YIP ENGINEERING COMPANY (a firm)

3rd Defendant

JOHN LOK & PARTNERS LIMITED

4th Defendant

INTRUSION-PREPART (FAR EAST) LIMITED

5th Defendant

THE GENERAL ELECTRIC COMPANY OF HONG KONG LIMITED

6th Defendant

V.S.L. ENGINEERS (HONG KONG) LIMITED

7th Defendant

THE JARDINE ENGINEERING CORPORATION LIMITED

8th Defendant

AMERICAN ENGINEERING CORPORATION (H.K.) LIMITED

9th Defendant

GILMAN AND COMPANY LIMITED

10th Defendant

ARNHOLD & COMPANY LIMITED

11th Defendant

EMPIRE ENGINEERING COMPANY LIMITED

12th Defendant

RELIANCE ENGINEERING AND TRADING COMPANY LIMITED

13th Defendant

PLASTEEL HONG KONG LIMITED

14th Defendant

SHUN HING ELECTRICAL WORKS AND ENGINEERING COMPANY LIMITED

15th Defendant

MANSION COMPANY (a firm)

16th Defendant

FORTRESS LIMITED

17th Defendant

JOHNSON CONTROLS (HONG KONG) LIMITED

18th Defendant

Procedural Posture

Civil Contract and Tort (construction Subcontract) / Interlocutory Application to Strike Out Parts of Statement of Claim

Legal Issues

  1. 1 Whether a Certificate of Final Sub-Contract Completion in the Side Agreement is conclusive against the employer/plaintiff in respect of contractual claims relating to the Sub-Contract Works
  2. 2 Whether that Certificate is also conclusive in relation to tort claims where the tortious duty arises out of the contractual relationship and same facts
  3. 3 Whether the court may decide the contractual construction on a strike-out application at interlocutory stage

Ratio Decidendi

The Side Agreements' Certificate of Final Sub-Contract Completion, by its clear and comprehensive wording, was conclusive that the sub-contractor had duly performed all obligations in respect of the Sub-Contract Works and therefore barred the plaintiffs' contractual claims; because the alleged tort duty arose from and was co-extensive with the contractual duties, the certificate equally barred the tort claims; the court may decide such pure points of contractual construction on a strike-out application when all material facts are undisputed.

Court Disposition

Application allowed. Statement of Claim struck out as against the 8th defendant; action dismissed as against the 8th defendant with costs.

Orders

  • Strike out the parts of the Statement of Claim concerning the 8th defendant
  • Action dismissed as against the 8th defendant with costs to the 8th defendant