Hong Kong Case Law: Decisions & Judgments

Topic

Back-to-back subcontracting

Legal area

Court

21 Jun 2013

KIM HUNG CONSTRUCTION & ENGINEERING CO. LTD v. STANDARD REFRIGERATION & ENGINEERING CO. LTD

Citation

KIM HUNG CONSTRUCTION & ENGINEERING CO. LTD v. STANDARD REFRIGERATION & ENGINEERING CO. LTD
Court

Court of First Instance
Case number

HCCT37/2012

The judge held the Arbitrator erred in construing SP 6.02 and SCC 11(4); SP 6.02's tentative possession dates allocate the risk of timing to the Main Contractor and SCC 11(4) only gives entitlement after Architect notification and certification; accordingly leave to appeal was granted and the Interim Award on the Delay Claim was set aside; on the Payment Issue the judge found the contractual scheme (SFDSC 15 and related provisions) meant payment for the delay claim had not yet fallen due and the parties agreed a pay-when-paid arrangement for such claims.
19 Jun 2013

YING FU BUILDING MATERIALS LTD v. UBM SPECIAL GLASS LTD

Citation

YING FU BUILDING MATERIALS LTD v. UBM SPECIAL GLASS LTD
Court

District Court
Case number

DCCJ1942/2011

Court found the agreed quantity to be 711.13m, preferred plaintiff's evidence that the contract required supply and installation of 1-hour Promat board as single layer, held defendant failed to prove entitlement or quantum of any deduction and failed to establish an implied term enabling retention until a developer 'make good certificate', and accordingly awarded plaintiff the contractual balance of HK$221,958.11 with interest and costs.
18 Aug 2011

BRINGTON ENGINEERING LTD v. CHEERISE ASIA LTD

Citation

BRINGTON ENGINEERING LTD v. CHEERISE ASIA LTD
Court

Court of First Instance
Case number

HCCT2/2010

Court held that on proper construction the Sub-Contract and incorporated Technical Specifications imposed design responsibility on the defendant (sub-contractor); 'back-to-back' did not make the Sub-Contractor's entitlements dependent on the consultant's decision or import pay-when-paid; defendant's extension of time claims failed; defendant liable to plaintiff for liquidated damages of HK$532,000; other disputed claims and contra-charges failed.
21 Nov 2008

KING FUNG CONSTRUCTION WORK CO LTD v. YIP KWAI CHOR AND ANOTHER

Citation

KING FUNG CONSTRUCTION WORK CO LTD v. YIP KWAI CHOR AND ANOTHER
Court

Court of Appeal
Case number

CACV54/2008

The Court of Appeal refused to disturb the recorder's credibility-based factual findings because they were not plainly wrong: the recorder correctly found a 50:50 profit understanding, that the five payments were not recoverable loans, that back-to-back subcontracts and certain debts by Sing Yip existed, that Lau misapplied funds and diverted the West Kowloon project for secret profit, and that removal of Yip was unfairly prejudicial; accordingly the recorder's orders (valuation and repayment directions and judgment against Sing Yip) stand and the appeals are dismissed.
21 Nov 2008

YIP KWAI CHOR v. KING FUNG CONSTRUCTION WORK CO LTD AND ANOTHER

Citation

YIP KWAI CHOR v. KING FUNG CONSTRUCTION WORK CO LTD AND ANOTHER
Court

Court of Appeal
Case number

CACV381/2007

The Court of Appeal upheld the trial judge's findings of fact: the oral 50:50 profit-sharing agreement was proved; the five payments totaling HK$2,500,000 were not recoverable loans but payments made with the consent of the directors; Sing Yip was liable for HK$3,247,828 to the company; a number of company cheque payments were misapplied by Lau; Lau diverted the West Kowloon subcontract for secret profit; removal of Yip was unfairly prejudicial. The appeals were dismissed and the trial orders (including buy-out directions and payment orders) were affirmed.
21 May 2008

CHOW KEE JAMES t/a TAPBO CIVIL ENGINEERING CO v. TRANSWAY CONSTRUCTION & ENGIEERING LTD t/a WO KEE CONSTRUCTION & ENGINEERING CO

Citation

CHOW KEE JAMES t/a TAPBO CIVIL ENGINEERING CO v. TRANSWAY CONSTRUCTION & ENGIEERING LTD t/a WO KEE CONSTRUCTION & ENGINEERING CO
Court

Court of Appeal
Case number

CACV36/2007

Appeal allowed in part: the judge was correct to permit the fuel contra charge and to calculate liquidated damages by reference to the sub-contract delay (award $546,584) but the plaintiff failed to mitigate by not claiming on the insurance so penalty charges recoverable from the defendant are limited to insurance excess totalling $90,000; ICE services and site agent contra charges were not recoverable; additional insurance premium of $190,639.08 was not recoverable in addition to liquidated damages; the costs order below was set aside and replaced with an award that the defendant be entitled…
12 Dec 2006

YIP KWAI CHOR v. KING FUNG CONTRUCTION WORK CO LTD AND ANOTHER

Citation

YIP KWAI CHOR v. KING FUNG CONTRUCTION WORK CO LTD AND ANOTHER
Court

Court of First Instance
Case number

HCMP375/2005

The court found that on the balance of probabilities Lau had misapplied Company funds in several specific series of cheque withdrawals, had wrongfully diverted the West Kowloon subcontract to Brother Eng. in which he had an interest, that the back-to-back site-transfer arrangement resulted in an established claim by the Company against Sing Yip for $3,247,828 but that the Company\'s claimed excess expenditure on the two sites became nil after disallowance of unreliable items; the five payments of $2.5m to Yip were not proven to be recoverable loans; the appointment of Wong and the purported r…
6 Mar 2000

SUN KAI ENGINEERING CO. LTD. v. TILEMAN ASIA (HK) LTD.

Citation

SUN KAI ENGINEERING CO. LTD. v. TILEMAN ASIA (HK) LTD.
Court

Court of First Instance
Case number

HCCT56/1997

Court held plaintiff entitled to the unpaid contract balance and retention monies with release timing as per the Letter of Acceptance (2.5% on practical completion dated 13 March 1996 certifying completion 31 Jan 1996; remaining 2.5% after the 12-month maintenance period ending 31 Jan 1997), entitled to damages for 20 days' delay caused by defendant's prevention/hindrance and awarded $710,000, and entitled to quantum meruit payment of $39,000 for the demonstration; defendant's back-to-back and other procedural defences failed to defeat these rights.