WO HING ENGINEERING LTD. v. TYCO ENGINEERING & CONSTRUCTION (HONG KONG) LTD.

WO HING ENGINEERING LTD. v. TYCO ENGINEERING & CONSTRUCTION (HONG KONG) LTD.

Applying the Court of Appeal's formula to the actual figures produced a sum of $6,416,466.40 including interest; the court was satisfied the figures were sufficiently reliable to justify an interim payment but, because of the Court of Appeal's order that the balance shall remain in court until the action is fully determined, the judge could not direct payment out of monies in court and therefore ordered the defendant to make the interim payment (approximately the amount in court, c. $4.6 million representing about 72% of the assessed figure) from other sources on or before 26 July 2002 and made a costs order nisi in the plaintiff's favour.

Citation
WO HING ENGINEERING LTD. v. TYCO ENGINEERING & CONSTRUCTION (HONG KONG) LTD.
Parties
Plaintiff: Wo Hing Engineering Ltd; Defendant: Tyco Engineering & Construction (Hong Kong) Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 June 2002
Case Number
HCCT40/1999
Procedural Posture
Construction and Arbitration Proceedings / Interim Payment Application Following Remittal of Quantum by the Court of Appeal
Outcome
Interim payment awarded; defendant ordered to pay interim payment by 26 July 2002; payment not ordered from monies in court pending any direction from the Court of Appeal; costs nisi in favour of plaintiff.
Legal Topics
Interim Payment, Quantum of Damages, Interest, Costs, Use of Monies Paid Into Court, Application to Court of Appeal
Source Language
EN
Contract Construction Law Civil Procedure Appeals and Remittal Interim Payment Quantum of Damages Interest Costs +2 more

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Parties

Wo Hing Engineering Ltd

Plaintiff

Tyco Engineering & Construction (Hong Kong) Ltd

Defendant

Procedural Posture

Construction and Arbitration Proceedings / Interim Payment Application Following Remittal of Quantum by the Court of Appeal

Legal Issues

  1. 1 Whether an interim payment should be made pending final assessment of quantum
  2. 2 How to apply the Court of Appeal formula for damages (3% of contract price plus any shortfall between actual costs and 97% of contract price)
  3. 3 Whether the interim payment can be paid out of monies paid into court given the Court of Appeal order

Ratio Decidendi

Applying the Court of Appeal's formula to the actual figures produced a sum of $6,416,466.40 including interest; the court was satisfied the figures were sufficiently reliable to justify an interim payment but, because of the Court of Appeal's order that the balance shall remain in court until the action is fully determined, the judge could not direct payment out of monies in court and therefore ordered the defendant to make the interim payment (approximately the amount in court, c. $4.6 million representing about 72% of the assessed figure) from other sources on or before 26 July 2002 and made a costs order nisi in the plaintiff's favour.

Court Disposition

Interim payment awarded; defendant ordered to pay interim payment by 26 July 2002; payment not ordered from monies in court pending any direction from the Court of Appeal; costs nisi in favour of plaintiff.

Orders

  • Defendant to pay the interim payment on or before 26 July 2002 (interim sum approximately HKD 4,600,000).
  • Costs order nisi in favour of the plaintiff on this application.