CS v. HKR

HCCT 72/2024

[2025] HKCFI 611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 72 OF 2024

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D E C I S I O N

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1.  By order of 22 November 2024 (“Decision”), I refused to grant leave to the Plaintiff to appeal against an arbitral award on points of law. By summons issued on 6 December 2024, the Plaintiff sought leave to appeal against the Decision.

2.  The facts are already set out in the Decision the nomenclature of which I adopt herein.

3.  In the Grounds set out in the draft Notice of Appeal, the Plaintiff contends that this Court was plainly or obviously wrong in deciding that the questions for which leave to appeal was sought in the initial application were either not questions on which the tribunal had been asked to decide, or were not obviously wrong or open to serious doubt. It further contends in the alternative that there is some special reason for leave to appeal to be granted under section 6(6) of the Ordinance.

4.  In an application for leave to appeal to the Court of Appeal (“CA”), all that the Plaintiff has to establish is that the grounds of appeal have reasonable prospects of success (Maeda Kensetsu Kogyo Kabushiki Kaisha (Maeda Corp) v Bauer Hong Kong Ltd [2019] HKCFI 1427. The Defendant’s case is that the Plaintiff has not been able to meet this threshold.

5.  For the Defendant, Counsel also submitted that there is no special reason involved in this case for section 6(6) of the Ordinance to apply, since the mere fact that substantial sums may be involved in the Award cannot constitute any special reason or exceptional case to warrant leave to appeal to the CA. The Defendant further contends that there are in fact no questions of law for leave to appeal to be granted.

6.  Having considered the submissions made by the parties, I am persuaded that it is reasonably arguable on appeal to the CA that the tribunal’s decision on Question 1 (as identified in the Decision) is in substance a matter of construction of the Subcontract, its provisions and the drawings, and the parties’ obligations thereunder, and that the intended appeal is not merely against the Arbitrator’s finding of fact as to what the parties had agreed as a result of their meetings and discussions. It is reasonably arguable that when the Arbitrator decided Question 1 as to whether the parties had agreed on the maximum use of sand, but failed to consider the effect of the Subcontract provisions and the drawings, and whether or how these can be affected by the tender meeting discussions, it is reasonably arguable that the Tribunal had erred in law, and that the decision can be said to be obviously wrong.

7.  For the above reasons, I grant leave to appeal on Question 1.

8.  If the tribunal had accepted a valuation of an expert, on the entirety of the evidence adduced before it, I am not satisfied that its decision can be said to be obviously wrong or open to serious doubt simply because it may be inconsistent with its own other findings. As explained at paragraphs 29 to 34 of the Decision, I do not accept that the Arbitrator’s decision on Question 2 constitutes a decision on law or an error in his ascertainment of the law. As the court had explained in The Chrysalis [1983] 1 WLR 1469 at 1475, at the stage when the arbitrator makes his decision in the light of the facts and the law ascertained, an element of judgment is involved “and there is no uniquely ‘right’ answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong”.

9.  The Arbitrator in this case explained why he decided to adopt the assessment of the Defendant’s expert, and bearing in mind the fact that the Arbitrator was an experienced quantity surveyor competent and possessing the expertise to decide the highly technical issues raised in the Arbitration on measurement of works and the calculations of the amounts claimed, the Plaintiff has not, for the purpose of the intended appeal to the CA, established that it is reasonably arguable that the Arbitrator’s decision on Question 2 is obviously wrong on a question of law. I decline leave to appeal.

10.  On the question of double recovery, I accept the submission that it is reasonably arguable that if the Award and the amount allowed thereunder actually results in the Defendant obtaining double recovery, the Tribunal erred in law and the determination is one that is out of conformity with the only correct answer or lies outside the range of correct answers (The Chrysalis [1983] 1 WLR 1469), and can be made the subject of an appeal on a question of law arising from the Award.

11.  Finally, on Question 4, the Plaintiff has totally failed to demonstrate how the Arbitrator’s decision, based on his clear rejection of the Plaintiff’s claims of critical delay on the evidence, for the reasons given in the Award, can be said to be obviously wrong or open to serious doubt. I reject the contention that there are reasonable prospects of success on this ground of appeal and refuse to grant leave.

12.  I grant leave to appeal on Questions 1 and 3 only.  I can see no other special reason to grant leave to appeal on Questions 2 and 4.

13.  The costs order nisi I make is that the Plaintiff should pay half of the costs of the application for leave, and the balance of the costs will be in the cause of the appeal to the CA.