MAEDA KENSETSU KOGYO KABUSHIKI KAISHA also known as MAEDA CORPORATION AND ANOTHER v. BAUER HONG KONG LTD

MAEDA KENSETSU KOGYO KABUSHIKI KAISHA also known as MAEDA CORPORATION AND ANOTHER v. BAUER HONG KONG LTD

The Court allowed the appeal on the notice compliance issue because Clause 21 requires strict compliance with Clause 21.2 including identification of the contractual basis of the claim and the Defendant failed to comply; therefore the Arbitrator erred in law in permitting a different legal basis to be pursued. The...

Source-derived case information.

Citation
[2019] HKCFI 916
Parties
1st Plaintiff / 1st Respondent in Arbitration: Maeda Kensetsu Kogyo Kabushiki Kaisha (Maeda Corporation); 2nd Plaintiff / 2nd Respondent in Arbitration: China State Construction Engineering (Hong Kong) Limited; Defendant / Claimant in Arbitration: Bauer Hong Kong Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 April 2019
Case Number
HCCT4/2018
Procedural Posture
Arbitration Appeal (construction and Arbitration Proceedings No 4 of 2018) / Substantive Appeal on Questions of Law (leave Granted on Two Questions of Law)
Outcome
Appeal allowed in part: appeal on notice compliance allowed; appeal on variation valuation dismissed.
Legal Topics
Notice Provisions, Time Bar/condition Precedent, Variation Valuation, Appeal on Question of Law, Strict Compliance, Interpretation of Contract
Source Language
en
Construction Law Arbitration Law Contract Law Civil Procedure Notice Provisions Time Bar/condition Precedent Variation Valuation Appeal on Question of Law +2 more

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Parties

Maeda Kensetsu Kogyo Kabushiki Kaisha (Maeda Corporation)

1st Plaintiff / 1st Respondent in Arbitration

China State Construction Engineering (Hong Kong) Limited

2nd Plaintiff / 2nd Respondent in Arbitration

Bauer Hong Kong Limited

Defendant / Claimant in Arbitration

Procedural Posture

Arbitration Appeal (construction and Arbitration Proceedings No 4 of 2018) / Substantive Appeal on Questions of Law (leave Granted on Two Questions of Law)

Legal Issues

  1. 1 Whether Sub-Contract Clause 21.1 and 21.2 notice requirements were strictly complied with as conditions precedent to recovery under Clause 21
  2. 2 Whether the Clause 21.2 notice must state the same contractual basis as ultimately relied on in arbitration
  3. 3 Whether the Arbitrator misdirected in law in finding Clause 21.2 satisfied

Ratio Decidendi

The Court allowed the appeal on the notice compliance issue because Clause 21 requires strict compliance with Clause 21.2 including identification of the contractual basis of the claim and the Defendant failed to comply; therefore the Arbitrator erred in law in permitting a different legal basis to be pursued. The Court dismissed the appeal on valuation because the Arbitrator's cost‑based 'fair and reasonable' valuation (including cost plus overheads and profit) for the instructed Variation fell within the permissible range of conclusions available to him and did not amount to a legal misdirection.

Court Disposition

Appeal allowed in part: appeal on notice compliance allowed; appeal on variation valuation dismissed.

Orders

  • Appeal allowed on first question of law (notice compliance) and dismissed on second question (variation valuation)
  • Costs nisi: Defendant to pay 50% of the costs of the appeal to the Plaintiffs