WAH SUNG CONSTRUCTION & PILING LTD v. CHEERWIDE LTD

WAH SUNG CONSTRUCTION & PILING LTD v. CHEERWIDE LTD

The Varied Contractor Agreement produced by Wah Sung/Alliance (including the Excepted List and Initial Approved Plans) was the true contract; it was not void for uncertainty. Many Additional Works were outside the VCA and authorised by Alliance and/or ratified or acquiesced in by Cheerwide (actual and ostensible authority), so Wah Sung was entitled to payment for agreed additional works (HK$34,300,469.25) and quantum meruit items (HK$730,533.70) together with levies, administrative fee, HD payments and delay losses. Cheerwide’s counterclaims against Wah Sung, Alliance and Chiu failed; Chiu owed no personal tortious duty. The judge applied objective contractual construction principles, the...

Citation
[2024] HKCFI 45
Parties
Plaintiff (by Original Action); 1st Defendant (by Counterclaim): Wah Sung Construction & Piling Limited; Defendant (by Original Action); Plaintiff (by Counterclaim): Cheerwide Limited; 2nd Defendant (by Counterclaim): Alliance Architects Limited; 3rd Defendant (by Counterclaim): Chiu Sung Kin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 January 2024
Case Number
HCCT57/2020
Procedural Posture
Construction and Arbitration Proceedings / Trial (judgment Delivered 10 January 2024)
Outcome
Judgment entered for Wah Sung; Cheerwide’s counterclaims against Wah Sung, Alliance and Chiu dismissed; final sum awarded to Wah Sung HKD22,974,308.29; Chiu not liable personally.
Legal Topics
Variation Orders, Lump Sum Contract Construction, Time at Large/prevention Principle, Assumption of Responsibility, Final Account and Certification, Liquidated Damages, Retention Money, Costs and Interest
Source Language
EN
Construction Law Contract Law Professional Negligence (architects) Agency/ostensible Authority Remedies (quantum Meruit, Restitution) Variation Orders Lump Sum Contract Construction Time at Large/prevention Principle +5 more

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Parties

Wah Sung Construction & Piling Limited

Plaintiff (by Original Action); 1st Defendant (by Counterclaim)

Cheerwide Limited

Defendant (by Original Action); Plaintiff (by Counterclaim)

Alliance Architects Limited

2nd Defendant (by Counterclaim)

Chiu Sung Kin

3rd Defendant (by Counterclaim)

Procedural Posture

Construction and Arbitration Proceedings / Trial (judgment Delivered 10 January 2024)

Legal Issues

  1. 1 Entitlement to 95% of the Contract Sum
  2. 2 Which version of the Varied Contractor Agreement is the true contract
  3. 3 Whether the contract is void for uncertainty

Ratio Decidendi

The Varied Contractor Agreement produced by Wah Sung/Alliance (including the Excepted List and Initial Approved Plans) was the true contract; it was not void for uncertainty. Many Additional Works were outside the VCA and authorised by Alliance and/or ratified or acquiesced in by Cheerwide (actual and ostensible authority), so Wah Sung was entitled to payment for agreed additional works (HK$34,300,469.25) and quantum meruit items (HK$730,533.70) together with levies, administrative fee, HD payments and delay losses. Cheerwide’s counterclaims against Wah Sung, Alliance and Chiu failed; Chiu owed no personal tortious duty. The judge applied objective contractual construction principles, the...

Court Disposition

Judgment entered for Wah Sung; Cheerwide’s counterclaims against Wah Sung, Alliance and Chiu dismissed; final sum awarded to Wah Sung HKD22,974,308.29; Chiu not liable personally.

Orders

  • Judgment in favour of Wah Sung Construction & Piling Limited against Cheerwide Limited in the sum of HKD22,974,308.29.
  • Interest order nisi: interest on HKD22,974,308.29 at prime plus one from writ date 14 September 2020 to judgment date and at judgment rate thereafter until payment.