KONG KEE BROTHERS CONSTRUCTION CO LTD v. ATTORNEY GENERAL

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 2712 OF 1985

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BETWEEN

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RULING

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1. I now have to rule upon an application by the applicants to amend their notice of motion, to add a fresh ground to their attack upon this award. The application is drafted in the alternative. They still maintain their primary points which are already in the notice of motion, that it is incomplete and uncertain and in excess of jurisdiction. They wish to advance now a further argument in support of their application which is really based upon the Crown's construction of the award and not their own. The argument is to the effect that the arbitrator was guilty of technical misconduct and/or there was what has been described in the authorities in this elusive phrase 'procedal mishap'. Assuming for the purposes of this argument (because that is what the applicant does) that the Crown's submission on the arbitrator's conclusion on para.36(2) is right, then if he decided the matter in that way, he was wrong to do it without referring the matter back to the parties. This they wish to assert was either procedural misconduct or technical misconduct.

2. Now the application has come very late. It has come to my embarrassment largely as a result of some observation of mine first thing this morning, so to an extent I have brought it on my own head. It can't have come later than that. It is as the Crown says a complete change of front, because it involves advancing the case upon their construction of the award, not the applicants'. But the point is exclusively a point of law. It would add at most two days to the hearing of this motion. The only prejudice as I see it the Crown will suffer beyond costs, with which I can deal hereafter if I allow it, is if I should find against them, if it is right. That I don't think has ever been asserted to be a good reason for not allowing an amendment. So with some hesitation I think this is an amendment which I should allow so that this matter can be investigated. But in allowing the amendment, I am not in any way to be taken to be giving a green light to the validity of the allegations now being sought to be advanced in this fresh paragraph. That is a matter upon which I have really hardly started to hear argument, although the fact that this was a document's only type of arbitration is plainly in that context, a highly material factor. For those reasons, I will allow this amendment to be made.