CHEVALIER (ALUMINIUM ENGINEERING) HONG KONG LTD v. SUN PROPERTIES CO LTD

CHEVALIER (ALUMINIUM ENGINEERING) HONG KONG LTD v. SUN PROPERTIES CO LTD

The Direct Payment Agreement, if any, was supplemental to and subject to the Main Contract and Sub-Contract; the Sub-Contract special provisions (notably clause 10.05 SP excluding any monetary claim for omissions and the amended clause 28 excluding additional payment for extensions of time) precluded the Contractor's claims for omitted works, abortive design costs and prolongation costs; there was no proved Agreed Final Account; consequently the Plaintiff's claims were dismissed and the Defendant's counterclaim for overpayment was allowed.

Citation
[2020] HKCFI 1313
Parties
Plaintiff / Contractor: Chevalier (Aluminium Engineering) Hong Kong Limited; Defendant / Owner: Sun Properties Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2020
Case Number
HCCT63/2017
Procedural Posture
Construction and Arbitration Proceedings / Judgment (court of First Instance)
Outcome
Plaintiff's claims dismissed; Defendant's counterclaim for overpayment allowed.
Legal Topics
Direct Payment Agreement, Sub Contract Terms, Variations, Final Account, Omitted Works, Prolongation Costs, Non Prevention Principle, Contract Interpretation, Overpayment/counterclaim
Source Language
EN
Construction Law Contract Law Commercial Litigation Building and Engineering Contracts Direct Payment Agreement Sub Contract Terms Variations Final Account +5 more

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Parties

Chevalier (Aluminium Engineering) Hong Kong Limited

Plaintiff / Contractor

Sun Properties Company Limited

Defendant / Owner

Procedural Posture

Construction and Arbitration Proceedings / Judgment (court of First Instance)

Legal Issues

  1. 1 Existence and terms of the alleged Direct Payment Agreement
  2. 2 Whether Contractor entitled to payments under Direct Payment Agreement or Sub-Contract
  3. 3 Application and effect of clause 10.05 of the Special Provisions and clause 13.4 of the General Conditions to omitted works

Ratio Decidendi

The Direct Payment Agreement, if any, was supplemental to and subject to the Main Contract and Sub-Contract; the Sub-Contract special provisions (notably clause 10.05 SP excluding any monetary claim for omissions and the amended clause 28 excluding additional payment for extensions of time) precluded the Contractor's claims for omitted works, abortive design costs and prolongation costs; there was no proved Agreed Final Account; consequently the Plaintiff's claims were dismissed and the Defendant's counterclaim for overpayment was allowed.

Court Disposition

Plaintiff's claims dismissed; Defendant's counterclaim for overpayment allowed.

Orders

  • Plaintiff's claims dismissed in full.
  • Counterclaim allowed: Defendant awarded recovery of overpayment in the sum of $1,509,313.17.