KIN SHING ENGINEERING (HK) CO LTD v. VINSON ENGINEERING LTD

KIN SHING ENGINEERING (HK) CO LTD v. VINSON ENGINEERING LTD

The alleged trade custom that payment for variations is due only after Housing Authority QS certification was not proved to be notorious or certain and was inconsistent with the Works Orders' valuation mechanism (General Conditions 3 and 4); therefore no such term was implied, Vinson could not withhold payment...

Source-derived case information.

Citation
KIN SHING ENGINEERING (HK) CO LTD v. VINSON ENGINEERING LTD
Parties
Plaintiff: Kin Shing Engineering (H.K.) Co., Ltd.; Defendant: Vinson Engineering Ltd.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 April 2005
Case Number
HCCT108/2002
Procedural Posture
Construction and Arbitration Proceedings / Judgment
Outcome
Judgment for the Plaintiff Kin Shing Engineering (H.K.) Co., Ltd.
Legal Topics
Variation Claims, Implied Terms (trade Custom), Quantum Assessment, Certification by Employer's Quantity Surveyor, Defects Liability and Maintenance, Procedural Applications to Amend and Adjourn
Source Language
en
Construction Contract Commercial Arbitration Variation Claims Implied Terms (trade Custom) Quantum Assessment Certification by Employer's Quantity Surveyor +2 more

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Parties

Kin Shing Engineering (H.K.) Co., Ltd.

Plaintiff

Vinson Engineering Ltd.

Defendant

Procedural Posture

Construction and Arbitration Proceedings / Judgment

Legal Issues

  1. 1 Whether a term should be implied that payment for variations is payable only after certification by the Housing Authority's Quantity Surveyor
  2. 2 Whether specific quotations for variations (Quotations 25, 26, 109, 110 etc.) were agreed and therefore payable
  3. 3 Quantification of sums due for agreed variations and disallowance of items not extra or unsupported

Ratio Decidendi

The alleged trade custom that payment for variations is due only after Housing Authority QS certification was not proved to be notorious or certain and was inconsistent with the Works Orders' valuation mechanism (General Conditions 3 and 4); therefore no such term was implied, Vinson could not withhold payment pending QS certification, the court accepted Kin Shing's evidence that Quotations 25 and 26 were agreed and assessed reasonable quantum for other variations, disallowed specified items, refused late amendment and adjournment, and entered judgment for the plaintiff for the computed balance with interest.

Court Disposition

Judgment for the Plaintiff Kin Shing Engineering (H.K.) Co., Ltd.

Orders

  • Judgment for Kin Shing in the sum of 1,635,727.8 HKD
  • Interest at 1% above Hong Kong prime from date of writ until judgment and thereafter at the judgment rate until payment