UDL ARGOS ENGINEERING & HEAVY INDUSTRIES CO LTD v. YAU LEE CONSTRUCTION CO LTD

UDL ARGOS ENGINEERING & HEAVY INDUSTRIES CO LTD v. YAU LEE CONSTRUCTION CO LTD

The Court refused leave to appeal because the Arbitrator's contractual construction that the designation 'Provisional' in Bill 9.5 permitted re‑measurement (and thereby adjustment of the lump sum) was defensible and not obviously or seriously wrong; the Arbitrator did not err in exercising discretion to limit...

Source-derived case information.

Citation
UDL ARGOS ENGINEERING & HEAVY INDUSTRIES CO LTD v. YAU LEE CONSTRUCTION CO LTD
Parties
Applicant / Claimant in Arbitration: UDL Argos Engineering & Heavy Industries Co Ltd; Respondent: Yau Lee Construction Co Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 June 2008
Case Number
HCCT25/2008
Procedural Posture
Construction and Arbitration Proceedings; Arbitration Under Arbitration Ordinance (cap. 341) / Judgment Refusing Leave to Appeal (application for Leave to Appeal Against Arbitrator's Awards)
Outcome
Leave to appeal refused; Notices of Motion dismissed
Legal Topics
Contract Interpretation, Provisional Quantities Vs Provisional Sums, Incorporation by Reference, Interest on Awards, Costs and Calderbank/without Prejudice Offers, Waiver by Conduct, Arbitrator Jurisdiction and Discretion
Source Language
en
Arbitration Construction Law Contract Law Civil Procedure Contract Interpretation Provisional Quantities Vs Provisional Sums Incorporation by Reference Interest on Awards +3 more

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Parties

UDL Argos Engineering & Heavy Industries Co Ltd

Applicant / Claimant in Arbitration

Yau Lee Construction Co Ltd

Respondent

Procedural Posture

Construction and Arbitration Proceedings; Arbitration Under Arbitration Ordinance (cap. 341) / Judgment Refusing Leave to Appeal (application for Leave to Appeal Against Arbitrator's Awards)

Legal Issues

  1. 1 Whether the lump sum sub-contract permitted re-measurement of provisional quantities in Bill 9.5 to alter the contract price
  2. 2 Whether Clause 68(3) of the Main Contract and the Main Contract definition of 'Provisional Quantities' were incorporated into the Sub-Contract by Clause 3
  3. 3 Whether the Arbitrator properly exercised discretion in limiting post‑award interest due to alleged unreasonable delay

Ratio Decidendi

The Court refused leave to appeal because the Arbitrator's contractual construction that the designation 'Provisional' in Bill 9.5 permitted re‑measurement (and thereby adjustment of the lump sum) was defensible and not obviously or seriously wrong; the Arbitrator did not err in exercising discretion to limit interest to three years given findings of unreasonable delay; and the Arbitrator was entitled to find that by conduct the parties had waived strict application of ACP Rule 18 and therefore could take the 22 May 2007 Calderbank offer into account when making costs orders.

Court Disposition

Leave to appeal refused; Notices of Motion dismissed

Orders

  • Leave to appeal refused on the grounds raised by UDL
  • UDL's Notices of Motion dismissed