FAI TAK ENGINEERING CO LTD v. SUI CHONG CONSTRUCTION & ENGINEERING CO LTD

FAI TAK ENGINEERING CO LTD v. SUI CHONG CONSTRUCTION & ENGINEERING CO LTD

The court held that the 18 May 2005 letter and parties' conduct incorporated the Standard Form of Domestic Subcontract (including clause 18) into the Sub-Contract, that Sui Chong established a good prima facie case of an arbitration agreement, that a real dispute existed as to liability/quantum, and therefore a mandatory stay to arbitration was ordered; the plaintiff's late application to file further evidence was refused for non‑compliance with timetable orders and limited probative value.

Citation
FAI TAK ENGINEERING CO LTD v. SUI CHONG CONSTRUCTION & ENGINEERING CO LTD
Parties
Plaintiff: FAI TAK ENGINEERING CO., LTD.; Defendant: SUI CHONG CONSTRUCTION & ENGINEERING CO. LTD.
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 June 2009
Case Number
DCCJ305/2009
Procedural Posture
Civil Action (district Court) / Application for Stay to Arbitration (hearing on Summons)
Outcome
Summons granted in part: stay to arbitration ordered; leave to file further evidence refused; costs awarded to Defendant
Legal Topics
Stay to Arbitration, Incorporation by Reference, Arbitration Clause Jurisdiction, Prima Facie Standard, Admission and Estoppel, Civil Justice Reforms, Costs Assessment
Source Language
EN
Arbitration Contract Construction Law Civil Procedure Evidence Stay to Arbitration Incorporation by Reference Arbitration Clause Jurisdiction +4 more

Case Brief

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Parties

FAI TAK ENGINEERING CO., LTD.

Plaintiff

SUI CHONG CONSTRUCTION & ENGINEERING CO. LTD.

Defendant

Procedural Posture

Civil Action (district Court) / Application for Stay to Arbitration (hearing on Summons)

Legal Issues

  1. 1 Whether an arbitration agreement exists between the parties
  2. 2 Whether the arbitration clause was incorporated by reference into the subcontract
  3. 3 Whether there is in reality a dispute or difference between the parties

Ratio Decidendi

The court held that the 18 May 2005 letter and parties' conduct incorporated the Standard Form of Domestic Subcontract (including clause 18) into the Sub-Contract, that Sui Chong established a good prima facie case of an arbitration agreement, that a real dispute existed as to liability/quantum, and therefore a mandatory stay to arbitration was ordered; the plaintiff's late application to file further evidence was refused for non‑compliance with timetable orders and limited probative value.

Court Disposition

Summons granted in part: stay to arbitration ordered; leave to file further evidence refused; costs awarded to Defendant

Orders

  • Proceedings stayed pending arbitration pursuant to clause 18 of the Standard Form Domestic Subcontract
  • Leave to file the 2nd Affirmation of Andy Shiu refused