LAM CONSTRUCTION COMPANY LIMITED v. KOREA SHIPBUILDING AND ENGINEERING CORPORATION

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

CONSTRUCTION LIST

MISCELLANEOUS PROCEEDING NO. M.P. 696 OF 1988

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JUDGMENT

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1. This is an application for leave to appeal under Section 23 of the Ordinance. I have regard to what the Court of Appeal have said in Technics, particularly the Chief Justice who said I should say little. On the other hand, he appeared to comment on the judge below in that case. I think I should say something as this may go to appeal. The most difficult aspect of this application is whether or not this particular contract, which I have before me, is a dispute about a 'one-off' clause or event, or a standard term which is common in the trade. I am prepared to assume for the purposes of my decision that, it is a 'one-off'.

2. The Arbitrator's decision on the Preliminary Issue is found at page 10 of the Bundle. It contains on its face, five serious errors of law. The first is in the second paragraph. The second is in the next paragraph - when he was looking at unfairness to KSEC. The third is in the sentence "without the implied term the Main Contract would be nonsense". The fourth is the sentence starting "we have identified a lacuna .......". The fifth error of law is a complete misunderstanding of the authority of Chandler Brothers v Boswell.

3. This was an interim award on a pure point of law, namely the implication of terms in the sub-contract which, in my judgment, are most important and essential to the proper furtherance of this Arbitration. The interests in the Applicant will be substantially prejudiced. In my judgment this award contains very serious errors of law. That is all I will say. I give leave to appeal.