Time for Completion and Concurrent

Delay
NGAI Kwan Wa 20038435S
WONG Cheong Fat 22056830S
WONG Shi Hon 22043963S
YIU Ho Pan 22046105S
Definition
Definition of Time for Completion and
Concurrent Delay
 According to the Standard Form of Building Contract Private Edition – With
Quantities 2005 Edition Cl. 23 – Possession, commencement and
completion, sub-clause 23.2, the definition of completion can be defined
as follow:
 The Contractor shall commence the Works on the Commencement Date stated in
the Appendix or when instructed to do so by the Architect, proceed regularly and
diligently with the Works and complete the Works, and, where sectional
completion is provided for in the Contract, any Section on or before the
Completion Date of the Works or that Section stated in the Appendix.
 Concurrent Delay
 The term "concurrent delay" is generally used in circumstances where a period
of delay to the completion of a project is caused by two or more factors, one of
which is the contractor's responsibility and one of which is the employer's
responsibility. In practice, the phrase is more often used to describe the
situation where the competing events occur at different times but their
delaying effects on the work are felt at the same time.

WONG Shi Hon 22043963S

Legal Case
Study
Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 Background
 Plaintiff – W.Hing Construction Company Limited (As Main Contractor of the Project)
Defendant – Boost Investments Limited (As Developer of the Project)
 Date of Judgment – 17 February 2009
 Scope of Works – Renovation of five floors of a shopping center called Concord Square at 88
Chuen Lung Street, Tsuen Wan, New Territories.
 Leung King Partners Ltd. (“LKPL) as Architect under the contract.
 The contract sum was a fixed price lump sum of $42.9 million, subject only to adjustment
for variations or provisional sums ordered.
 A 90-day contract which commenced on 24 March 2003. The date of completion was thus 21
June 2003. However the Architect did not certify the works as practically complete until 13
September 2003, a delay of 84 days.
 LD : $50,000 per day.

WONG Shi Hon 22043963S

Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]

 Dispute
 The Main Contractor’s entitlement to extensions of time for delays but
Developer's (“defendant's”) associated entitlement to levy liquidated damages
for the Main Contractor's own culpable delay.
 The Developer relies on a notice provision in the extension of time (“EOT”)
clause which is framed as a condition precedent, with which the Developer
alleges the plaintiff has not complied, thus barring any EOT claim.
 Contra the plaintiff, who relies in particular on the absence of any certificate
from the Architect as provided for in the liquidated and ascertained damages
(“LADs”) clause (or the entitlement to one) certifying the Architect's opinion
that the works ought reasonably to have been completed by the Date of
Completion.

WONG Shi Hon 22043963S

Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 Event 1 : Change to “lightweight” block walls
 According to the specified list of materials and the tender drawings, the plaintiff‘s tender
included items on all floors for “supply and install 100 mm thick Block wall” and the plaintiff
was re-issued with the same tender drawing now marked “For Construction”.
 In view of the tight 90-day programme, the plaintiff immediately began to build the block
walls and by 11 April 2003 had completed 98% on the 2nd floor and 20% on the 1st floor.
 The project manager of the main contractor first received the Architect's plan approved by
the BD on 11 April 2003. On examination it was immediately obvious that the block work
specification had been changed to “new lightweight block wall”. The project manager then
ceased installation work immediately for these block walls.
 At the site meeting on 28 April 2003, the RSE reported that the BD had agreed that the
existing erected block walls could remain and the remainder would be built using the
lightweight blocks.
 After reviewing all the evidence by the Judge, a change to lightweight blocks was proposed in
January 2003 and approved on 18 March 2003 but no one informed the plaintiff. The
contractor entitling the plaintiff to an EOT for the delay caused.
 Both sides' witnesses, importantly, conceded that delay to the block work walls was critical
delay to the plaintiff's programme, hence the main contractor is entitled to an EOT for Event
1 from 12 April to 5 May 2003 inclusive i.e. 24 days.

WONG Shi Hon 22043963S

 Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 Event 2 : Demolition of parapet walls and replacement with railings and handrails
 Some time in June 2003, the defendant advised the plaintiff that it was considering demolishing the
parapet walls in various areas of the site and replacing them with railings and handrails, for purely
aesthetic reasons.
 The contractor claim that he received this indication as early as 11 June 2003 and immediately suspended
any work (such as plastering and painting) on the original parapet walls, so as to avoid abortive costs for
the defendant, but there are no minutes or letters to support this date. On 3 July 2003, the contractor
submitted a quotation and time estimate for these changes to the developer. The quotation was accepted
on 10 July 2003 which is the same day that amendments to the approved plan were completed for
submission to and approval by the BD.
 The only other point raised by the defendant was that by that date the works were already in delay, simply
because of slow progress by the plaintiff as exemplified by the weekly progress reports which showed that
a fair amount of unaffected work under the contract was still in progress and which does not appear to
have been substantially completed until around mid-August 2003. But the judge considered that ) the fact
that the contractor is already in delay himself is not, in itself, a sound reason not to grant an EOT
 After reviewing all the evidence by the Judge, the changes of demolition of parapet walls and replacement
with railing and handrail caused delay to works from 1 July 2003 until 13 September 2003 i.e. 74 days (of
which 14 days were concurrent with Event 1).
 The net result is that the entire 84-day period from the original date for completion (21 June 2003) until
PCC completion (13 September 2003) was entitled to the contractor

WONG Shi Hon 22043963S

Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 Contractor's first notice of delay
 According to the Standard Form of Building Contract Private Edition – With Quantities 2005 Edition Cl. 25 –
Extension of time, sub-clause 25.1 – As soon as practicable but in any case within 28 days of the commencement of
an event likely to cause delay to the completion of the Works or a Section beyond the Completion Date becoming
apparent, the Contractor shall give notice (referred to in Clause 25 as the 'first notice') to the Architect.
 Argument for Event 1
 The plaintiff relies on two letters written on 23 and 26 April 2003, within the 28-day limit, as complying with the
condition precedent. Those letters refer to the following matters:
 (1) that the revised approved plans received by the plaintiff on 11 April 203 revealed the change to lightweight blocks;
 (2) to avoid abortive works, all related site works are stopped until the matter is sorted out by the
defendant/Architect with the BD;
 (3) that the whole site is waiting for the defendant's instruction whether or not to demolish the walls already
constructed;
 (4) that the issue affects the work programme (i.e. it is a critical); and
 (5) the plaintiff reserves the right to claim for extra cost caused thereby and the subsequent claim for EOT on this
issue.

WONG Shi Hon 22043963S

Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 Argument for Event 2
 In so far as Event 2 (parapet walls) is concerned, the plaintiff does not allege any written notice
was issued.
 The plaintiff pleads that the defendant is estopped from relying on the above condition precedent
so as to deny the plaintiff's entitlement to an EOT, by reason of the representations and/or
promises made by the defendant and relied upon by the plaintiff.
 (1) After contract commencement, the project manager of the developer repeatedly represented to the
Contractor that it was not necessary for the plaintiff to formally seek EOT, as he would instruct the Architect to
certify EOT until actual completion.
 (2) After the original completion date the project manager old the contractor to concentrate on mitigating
the delay caused by Event 2, instead of lodging an EOT claim. He also confirmed would not levy LADs.
 (3) In reliance on these representations, the plaintiff put all its resources to site works and did not make a
formal comprehensive submission during the contract period.
 However, the judge is not convinced they amounted to an unequivocal waiver of the contractual
obligation on the plaintiff to give notices of delay within the 28-day period allowed, nor that the
right to levy LADs was unequivocally abandoned for the entire period of delay.

WONG Shi Hon 22043963S

Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 LAD
 On a proper construction of GCC 22, is the defendant entitled to levy LADs simply if the date of completion
is not achieved or is a Certificate of Non-Completion (“CNC”) a further pre-requisite, requiring an
independent exercise of judgment by the Architect.
 Since for Event 2 the contractor did not submitted the NOD claim in any written notice, hence there is a
potential exposure to LADs until Practical Completion was certified on 13 September 2003 i.e. for 60 days
at $50,000 per day.
 According to the plain wording of GCC 22(1) two conditions need to be satisfied before the Main Contractor
is liable to pay LADs to the Employer viz.
► (1) The Main Contractor fails to complete the Works by the original or extended Date for
Completion, and
► (2) The Architect certifies in writing that in his opinion the same ought reasonably so to have been
completed (emphasis added in italics)
► Since the Architect did not certified in writing that the Main Contractor has not completed the Works within
the contract period (i.e. Issuance of Non-completion certification), the works are considered completed
ontime.
► The final decision made by the judge that neither the Architect nor the court ought to issue a certificate
under GCC 22(1) and for this reason too, the defendant's claim to LADs would fail.

WONG Shi Hon 22043963S

Legal Case Study - W. HING CONSTRUCTION
CO LTD V. BOOST INVESTMENTS LTD [2006]
 Conclusion
 Since the sums certified by the Architect are not disputed by the defendant, the
judge order that judgment be entered for the plaintiff in the sum claimed of
$4,186,253.52.
 The counterclaim for LADs is dismissed.

WONG Shi Hon 22043963S

2. Hypothetical Case Study
 Background:

Contractor A Construction Co Ltd

Client B Development Co Ltd

Contract Renovation of Office Building

Project period 3 Jan 2022 to 2 Jul 2022 (180-day contract)

Contract sum HKD $ 25,000,000

NGAI Kwan Wa 20038435S

2. Hypothetical Case Study
 Background:
 The contract contained a clause imposing liquidated damages (HKD
$200,000 per day) on the Contractor for delay in completing the works by
the scheduled completion date as well as an extension of time clause (EOT
clause) to allow the contractor to request additional time to complete the
works beyond the originally agreed-upon schedule when delay of
construction progress beyond the contractor’s control.
 The Contractor – A Construction Co Ltd (A Construction) did not achieve
Completion until 17 Jul 2022. Therefore, the Client – B Development Co Ltd
(B Development) claimed total HKD$ 3,000,000 liquidated damages for A
Contractor’s delay between the Scheduled Completion Date (3 Jan 2022)
and Completion (2 Jul 2022).

NGAI Kwan Wa 20038435S

2. Hypothetical Case Study
 Background:
Two issues were causing delays:
 The First Delay: unexpected structural issues were discovered by the contractor
during demolition of an existing floor structure. The existing record plan stated
that dimensions of ground beams (2 nos.) to be demolished were 600(w) x 800(d)
but the contractor found during demolition that the actual dimensions of those
beams are approximately 1200(w) x 1400(d). Additional time is therefore required
for such demolition and the contractor faced a delay from 1st Apr 22 to 15th Apr
22 due to this unforeseen site conditions;
 The Second Delay: the client requested the floor material of a corridor on G/F to
be upgraded from tile to natural stone while the floor tiles at concerned area was
just completed at the end of Mar 22. The client notified this issue to the
contractor on 2nd Apr 22 and order of new floor stone was immediately placed on
the day after and eventually delivered to site on 9-Apr-22 with additional 3 days
(final completion of such replacement was on 12-Apr-23) for the pavement

NGAI Kwan Wa 20038435S

2A. Hypothetical Case Study
 Contractual Position from Contractor’s Perspective
 The First Event:
 The existing record plan provided incorrect dimensions for
the beams to be demolished: dimensions of the 2
concerned beams are 600(w) x 800(d) but the contractor
found the actual dimensions are 1200(w) x 1400(d).
 Unforeseen site condition due to misinformation of
drawings which beyond A Contractor’s control
 The Architect should be obligated to extend the date for
completion

WONG Cheong Fat 22056830S

2A. Hypothetical Case Study
 Contractual Position from Contractor’s Perspective
 The First Event (cont):
 According to SFBC 2005 clause 25.1, A Contractor should be entitled
for a EOT claim provided that his advance notice is given to the
architect within 28 days of the commencement of an event likely to
cause delay to the completion of the Work
 The first notice to the architect should include estimated duration of
the delay beyond completion, set out the circumstances including
the cause of delay, and specify whether the contractor believes he is
or may become eligible for an EOT
 Then the contractor should issue the second notice to the architect
within 28 days after the first notice with substantiation that the
listed event is the cause of delay, and list out the detailed
information regarding the cause, impact and duration of delay with
sufficient detail to facilitate the architect for decision-making

WONG Cheong Fat 22056830S

2A. Hypothetical Case Study
 Contractual Position from Contractor’s Perspective
 The Second Event:
 Delay caused by upgrade of fit-out material by the client thus
the contractor should not be held responsible for this delay
 Contractor took promptly action to accommodate the change
by ordering new floor stones immediately after he received
the client’s instruction
 Since the delay is caused by the client, the contractor should
be able to relieve from the liability of delay as well as
recovering the direct loss and expenses
 Notice of delay should be issued to the Architect for request
of EOT and waiver of certain rights or claims related to the
delay

WONG Cheong Fat 22056830S

2B. Hypothetical Case Study
 Integrated report for the argument.
 The First Event:
 Referring to the SFBC 2005 clause 25.1,

YIU HO PAN 22046105S

2B. Hypothetical Case Study
 Integrated report for the argument.
 The First Event (cont):
 According to the weekly progress report in No.12 Site Meeting (25 Mar),
relevant NOD and RFI was already submitted to the Architect by the
contractor in the mid of Mar.
 On the other hand, Architect also replied the RFI and issued the AI to the
contractor in the End of Mar.
 In Fact, according to the contract drawing with appendix A (i.e. existing
recording plan), relevant ground beams were certainly indicating in 600W
x 800D dimension, which is not align with actual dimension in site.
 Conclusion: Contractor can become entitled to an extension of time
due to the effects of an event listed in clause 25.1(3)

YIU HO PAN 22046105S

2B. Hypothetical Case Study
 Integrated report for the argument.
 The Second Event:
 Referring to the SFBC 2005 clause 25.1, Contractor can become entitled
to an extension of time due to the effects of an event listed in clause
25.1(3)
 From the Site Photo in progress report related
to No.13 Site meeting, relevant floor tile works
were completed at the end of Mar, also showed
with other supporting documents such as DN,
Material approval record.
 It can be applied for the Clause 13.1 in related
to Design change (Floor Stone instead of tiles),
also involved in concurrent delay which is the
employer's responsibility.

YIU HO PAN 22046105S

2A. Hypothetical Case Study
 Letter to the Architect

NGAI KWAN WA 20038435S