KUMAGAI GUMI CO. LTD. AND ANOTHER v. CONSTRUCTION INDUSTRY TRAINING AUTHORITY

KUMAGAI GUMI CO. LTD. AND ANOTHER v. CONSTRUCTION INDUSTRY TRAINING AUTHORITY

The appeal was dismissed because the plaintiffs failed to produce evidence reasonably reflecting the true or actual value of the non-leviable works; the plaintiffs' pro rata value-based apportionment methods were unreliable for non‑value‑related items (eg supervision, preliminaries) and the defendant was entitled to reject those calculations and confirm its levy assessment.

Citation
KUMAGAI GUMI CO. LTD. AND ANOTHER v. CONSTRUCTION INDUSTRY TRAINING AUTHORITY
Parties
1st Plaintiff: Kumagai Gumi Company Limited; 2nd Plaintiff: Necso Entrecanales Cubiertas, S.A.; Defendant: Construction Industry Training Authority
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 August 2002
Case Number
DCMP421/2001
Procedural Posture
Appeal Under Section 30 of the Industrial Training (construction Industry) Ordinance (cap.317) / Decision on Appeal (judgment Delivered 8 August 2002)
Outcome
Appeal dismissed; levy assessment dated 11 January 2001 confirmed.
Legal Topics
Levy Assessment, Exemption of Non Leviable Works, Burden of Proof, Valuation of Construction Works, Procedure on Appeal/rehearing
Source Language
EN
Construction Law Administrative Law Statutory Interpretation Tax/levy Law Contract Law Levy Assessment Exemption of Non Leviable Works Burden of Proof +2 more

Case Brief

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Parties

Kumagai Gumi Company Limited

1st Plaintiff

Necso Entrecanales Cubiertas, S.A.

2nd Plaintiff

Construction Industry Training Authority

Defendant

Procedural Posture

Appeal Under Section 30 of the Industrial Training (construction Industry) Ordinance (cap.317) / Decision on Appeal (judgment Delivered 8 August 2002)

Legal Issues

  1. 1 Whether the District Court hearing the appeal constitutes a rehearing
  2. 2 Whether preliminaries, profit and attendance fees, overheads and additional overheads attributable to non-leviable building services works are exempt from the levy
  3. 3 Proper method of valuing and apportioning costs between leviable and non-leviable works

Ratio Decidendi

The appeal was dismissed because the plaintiffs failed to produce evidence reasonably reflecting the true or actual value of the non-leviable works; the plaintiffs' pro rata value-based apportionment methods were unreliable for non‑value‑related items (eg supervision, preliminaries) and the defendant was entitled to reject those calculations and confirm its levy assessment.

Court Disposition

Appeal dismissed; levy assessment dated 11 January 2001 confirmed.

Orders

  • Levy assessment of 11 January 2001 confirmed.
  • Costs nisi to the defendant together with a Certificate for Counsel, to be taxed if not agreed; such costs order to become absolute 14 days after delivery of the decision.