ATTORNEY GENERAL v. WANG CHONG CONSTRUCTION CO. LTD.

ATTORNEY GENERAL v. WANG CHONG CONSTRUCTION CO. LTD.

The court held there was no valid Architect's decision under clause 117 because (1) Mr P.L. Kwan was not established to be the Architect under the Contract, (2) the maintenance certificate operated as conclusive approval and admission of due performance in the contractual scheme, and (3) the dispute concerned quality of materials/workmanship and thus fell within clause 115 excepted matters excluded from clause 117 arbitration; accordingly the Government's applications for declaration, appointment of an arbitrator and stay were dismissed and Wang Chong obtained declarations consistent with those conclusions.

Citation
ATTORNEY GENERAL v. WANG CHONG CONSTRUCTION CO. LTD.
Parties
Applicant (hcmp 70 of 1990); Respondent (hcmp 542 of 1990): Attorney General of Hong Kong; Respondent (hcmp 70 of 1990); Applicant (hcmp 542 of 1990): Wang Chong Construction Co. Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 October 1990
Case Number
HCMP70/1990
Procedural Posture
Contract Dispute Concerning Construction Defects and Arbitration / Judgment on Originating Summonses and Applications for Stay (high Court, Chambers)
Outcome
Government's summonses dismissed; Wang Chong's originating summons granted in part by declarations; no arbitrator appointed; stay refused.
Legal Topics
Maintenance Certificate, Architect's Decision, Excepted Matters Under Contract, Functus Officio, Estoppel and Election, Service of Notices, Limitation Waiver, Stay of Arbitration
Source Language
EN
Contract Law Arbitration Law Construction Law Limitation Law Statutory Interpretation Maintenance Certificate Architect's Decision Excepted Matters Under Contract +5 more

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Parties

Attorney General of Hong Kong

Applicant (hcmp 70 of 1990); Respondent (hcmp 542 of 1990)

Wang Chong Construction Co. Ltd

Respondent (hcmp 70 of 1990); Applicant (hcmp 542 of 1990)

Procedural Posture

Contract Dispute Concerning Construction Defects and Arbitration / Judgment on Originating Summonses and Applications for Stay (high Court, Chambers)

Legal Issues

  1. 1 Whether there was a valid Architect's decision under clause 117
  2. 2 Whether the Architect was functus officio and/or whether Mr P.L. Kwan was the Architect under the Contract
  3. 3 Whether the maintenance certificate operated as conclusive evidence of due performance

Ratio Decidendi

The court held there was no valid Architect's decision under clause 117 because (1) Mr P.L. Kwan was not established to be the Architect under the Contract, (2) the maintenance certificate operated as conclusive approval and admission of due performance in the contractual scheme, and (3) the dispute concerned quality of materials/workmanship and thus fell within clause 115 excepted matters excluded from clause 117 arbitration; accordingly the Government's applications for declaration, appointment of an arbitrator and stay were dismissed and Wang Chong obtained declarations consistent with those conclusions.

Court Disposition

Government's summonses dismissed; Wang Chong's originating summons granted in part by declarations; no arbitrator appointed; stay refused.

Orders

  • Dismissed Applicant's (Attorney General) originating summons dated 5 January 1990 (declaration re Limitation Waiver and appointment of arbitrator).
  • Dismissed Applicant's (Attorney General) summons dated 15 September 1990 seeking stay under section 6 of the Arbitration Ordinance.