1925-08-06 — Page 3

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SUPREME COURT. APPLICATION TO SET ASIDE

THE HONGKONG DAILY PRESS, THURSDAY, AUGUST 6TH, 1925

In the award, you considered the various allegations of the parties. Did you con- wider the allegations of Dong Toy with ARBITRATION AWARD.

regard to the typhoon damage?—You In the Supreme Court, yesterday, dan under section 33. I did. I con before the Chief Justier (Sir Heary sidered it at the arbitration. He had Gotlan) Mr. F. C. Jenkin (instructed by mentioned the matter previously, and Messrs." Deacons) on behalf of a Mr. knew my views. Dong Tey, continued his application, for the setting aside of an award made by the Hon. Mr. H. W. Bird, on September Tad, 1921.

Respondrate, Lan Tuck & Co., were represented by Mr. C. G. Alabastri, K.C. (instructed by Messrs. Wilkinson & Grist).

Did you consider the elause on Juls 7th-I did.

He said under section "35 he was not liable for typhoon damage -1 consider-

he was

1

You did not look at clause 351-1 can't remember whether I did or not.

With regard to the extrus, there was also a dispute about the extras, was there When the case was re-opened the cross-not-No. Dung Toy, in his letter of axamination of Mr. Dong Toy by M. June 7th, mentioned the only matters Alabaster was rekamel Counsel read outstanding,-typhoon damage, overtime, Some of the matters on the bill were letters which had passed between uppli- stones and water metre. cunt and Messrs. Johnson, Stokes and out extras as they were already covered In these letters plaintiff claim-by the contract-Some of the points Muster.

were scored out and some allowed. eil he was, protected from paying the bill for extras by a section in the contract which said that he was not responsible for any delay or damage caused by Messrs, Johnson, accident or weather." Stokes and Master's reply was to the eflect that the damage was caused by a Indslide and he was liable to pay $17,000,

"Mr. Alabaster said the point was whe her applicant was liable to pay the $17,0%) or not, and went on to question plaintiff as to the various amounts in his unter claim for seven months' reut att $450 a month. Witness agreed that the re- Jetener in the echtraes to so was the curmet mount for rent.

|

I put it to you, Mr. Bird, that it would be, in your mind, an unjust thing to penalise a contractor where the damage was very large, and, therefore, you would not penalise him if the damage were

all, because you must keep ton pein- eiple in adjusting these matters Not

FOOCHOW COMES INTO LINE STRONG SUPPORT OF HONGKONG

(+

RESOLUTIONS,

« CHEUNG CHAU RESIDENTS.

ANNUAL MEETING OF THE ASSOCIATION.

The annual meeting of the Cheung Chau The Hon. Mr. P. H. Holyoak received

Assembly Hall on the island on Monday yesterday the following telegram from Residents' Association was held in the Holyoak, Hongkong-Chamber re-morning last, under the chairmanship of Foodbow:-

presenting local British interests com- Mr. J. MacPherson. There was a good

Completely attendance. pliments Hongkong. accord opinions voiced. Strongly sup ports resolutions carried at the meeting on July 27th Stresses strong, prompt action.-SARRETT ROGERS, Chairman, Foochow Chamber of Commerce." Series of telegrams such as these from gatherings representing practically every British resident in the Far East raust help very materially in strengthening the hands of the Home Government.

In the course of his opening remarks, reviewed the principal the Chairman events of the year, pointing out the great Benefits which had been derived from the Assembly Room which was erected just over a year ago. Not only der recreation and social purposes had it proveil benef.. cial, but it provided a meeting-place for There is no doubt now regarding how the holding of Sunday services and had "the men on the spot" think the situa-been aed is a depot during the strike Chau Residents Association was the old- tion should be handled and their views for he distribution of food. The Cheung must be given consideration:

"SHEER BOLSHEVISM."

LABOUR PARTY,

Fi

at all. I drew this large simile to bring More than 1,000 British residents in Shanghai telegraphed to the Lahung the matter home to him

Party in England on July and, as

Was not the drawing of this simile responsible for your decision in the matter Not in the least.

Did you look at the contract in con- nection with section 331-1 am fully aware of section 35.

"It was unnecessary for you to refer to it at the time -Absolutely,

Were you nut rather hasty, and some what weary of this man's insistence, that you told him it was no use for him to argue the matter-I do not admit I used any undue haste. I told the man nothing else would be done,

Were you invited to visit the site on the night of the arbitration We visit el the site next day.

The Hon. Mr. H. W. Bird was called and was cross-examined by Mr. Jenkin,

Mr. Jenkin: In connection with the reiding of this dispute, did you ever

May take it that it would be a fair kive any hearing to Lam Tuck, the build-sununary of what took place on July 7th, ing contractor-There was no arcessity that having called the parties together to give any hearing because his ens was your said to the building owner “I know

on

est Association of its kind in the Colony and it more or less performed the duties. of a Municipal Council, locking after the roads, the water supply, the Assembly the SHANGHAI BRITISH PROTEST TO Hall and providing "matsbeds

beach for changing. During the strike the Association had not only maintained their own food supply but had organised the maintenance of the ferry service.

The financial position was considered After providing 'for quite satisfactory. ali expenses and also putting 8100 aside In the interests of British trade with for the Hall Maintenance Fund, there

was a credit balance, of just over $70. China and of British workers, both in

The election of officers for the the homeland and in China, we request ensuing year resulted as follows:- you to refrain from further resolutions President, Rev. 3 Kempf; Vice-Presi on recent lines which show a lack of dents, Messrs. A. C. Franklin and L M knowledge of the causes of the riots Whyte Hon. Secretaries and Treasurers, and the anti-foreign sentiment of the Mr. J. L. MacPherson and Mrs." "A. G.

¡Coppin..

follows:-

Chinese.

It

On taking the chair, Mr. Kempf paid a The statement made by Ministers Ja the House of Commons have been, the high tribute to the work done by Mr.L. M. unvarnished truth. Labour conditions Whyte during the strike and also to the here are not the real cause of the pre-good work done by Inspector Lane. sest trouble, much of which is due to was unanimously agreed to send a letter shicer Bolshevism werking upon ignor to the Hon. C.S.P. expressing the Asso. ance, and unassimilated Western eluea-ciation's appreciation of inspector Lane's

services. tion.

AND CANTON,

what your attitude is with regard to VITAL INTERESTS OF HONGKONG simply presenting the bill of extras. It, the hilt of extras, and unless you have was presented and duly checked. There was nothing more in Lam Tuck's case.'

So either formally aor informally did

you either bear any argument in defence of Lam Tuck?-No.

something fresh to any I am going to award against you 1-1 did not say

as many words.

In fact what you said was I know I have already made up my your views.

mind, and if you have nothing fresh to

Do you remember getting a letter tromsty Lum going to award against you Messrs.

蟲 Deacons, Lending Arm of

Molicitors, on September 12th. It was

That was it, more or less:

You had no argument with him with

SIR JAMES JAMIESON'S ACKNOW LEDGES VOTE OF CONFIDENCE.

TO THE EDITOR OF THE "HONGKONG

DAILY PRESS,"

is

Mr. Davis was elected as Convener of together with other doctors on the island, Recreation and Sports, hilat Dr. Wright, were appointed a Medical Committee to have charge of all sanitary and health matter. A Religious Services Committee was also chosen.

The question of the disposal of rubbish was then discussed and it was decided to erect an incinerator, if found to be a fensible project, the Medical Committee Sin-I have received the following to go into the matter and report. It was.

Jamiesnu, from Sir James

mentioned that there was almost, suficient letter written shortly after the award was regard to the penalty clause-As far KC.M.G., which I shall be glad if you rubbish to warrant the provision of a junk will be good enough to publish in your to take it out to sea, but the matter was. made, and from this it was obvious that as I can remember the penalty clause was

The meeting also decided to send a let the building owner, Dong Toy, was going argued.

1 put it to you that there was nothing next issue in order that it may be read left to the Committee as stated above. by the very large number that attended more than a sitting, as you had made the Fublic Meeting at the City Hall, and ter to the Forestry Department thanking I take it, therefore, that you perused up your mind on the matter 1-I had not who I cannot otherwise reach than by it for planting trees along the paths lead- this question with our cars, and applied made up my mind, but I was not pre- the courtesy of your paper-Yours sin-ing to the Assembly Hall some care in answering the letter-pared to sit for hours, if no fresh argn-cerely. don't know that. I took very much care ments were forthcoming,

Lo make some sort of complaint about your award 1-Fresumably.

in answering the questions. "

JUDGMENT RESERVED.

P. H. HULYOAK:

Sir James Jamieson's letter reads:--

My dear HoLYOAK,-Your kind lester July 8th, transmitting copy of a resolution, proposed and carried at a ceting held in the Theatre Royal, ex- my handling of the locul situation, has pressing in flattering terms, confidence in just been received.

J

"Sympathetic reference was unde to the death of a former resident, Mr. H."A. Cartwright, and of his helpful interest in matters concerning the Cheng Chaw Residents' Association.

MUKDEN NOTES. [FROM OUR OWN CCÜKESPONDENT. }

MUXDEN, July 28th. With the return last week of the

You notice that this question is whether

At the afternoon's hearing Mr. Jenkin of Both parties were present at the heuring or whether they were hurt! separately entfinued his cross-examination of Mr. Your answer was "Separately" Would Bird, who agreed that according to clause it not be possible for any person not 18 of the contract no extras should be written order given by the present at the arbitration to gather that made payable to the builders unless there you did not have any hearing of one of was

"I need scarcely say that such expres- the parties? It would be a fair read.architects. Mr. Jenkin contended that according to the contract his client could ing Possibly.

(in your statement it appears that both not be penalized. Mr. Bird said that itsion of confidence is to me. extremely jastics were heard together at the arbit was not in the contract but it was the gratifying and encouraging, and I would

also to accept for yourself as Chairman, quite so dul! as it was during his absence, ration. That is not quite currect. How custom for the owner to pay for damage beg you to convey to all concerned, and Marshal and his stuf, the city is not do you account for that I meant that don

Mr. Jenkins You have allowed your-my grateful acknowledgument, and high Of course, the place is quiet in another Lam Tuck was they were both present.

heen dune me.

any of the anti-foreign sentiment which present, but he never said a word. Why self to be carried away by your personal appreciation of the honour that has thus sense inasmuch as it has not manifested "Perhaps I may be permitted to add has been so painfully in evidence for the I did not say so to Denenas I'don't really views rather than by the contract.

Mr.. Hird: I may be wrong in law,

that under existing arrangements the last two months. There seems to be no sure that my

vital interests of Canton and Hongkong discrimination against British or Japan- The enquiry to which your mind was Mr. Jenkin, but I a being directed was whether the parties award is just..

Replying further, Mr. Bird said that do not suffer to the extent which is gene ese goods, though the Bank of China does How comes it tard separately or not. that in explaining a mistake in a pre-had Mr. Doug Toy given him any specific rally aumed. However, this is a con-not always care, to accept the notes of vinas letter you make another mis-state-arguments concerning the clauses of the troversial point which I do not wish to the Hongkong and Shanghai Bark.

With renewed thanks.-I am, my ment. You ure bere admitting that Lam contract he would certainly have con- Tuck was hard --I did not necessarily sidered them.

Mr. Jenkin: What you were doing dear Holyoak, Yours very sincerely,

(Sgd.) J. W. JAMIESOX." mean that both men, spoke, but that they

was enforcing an order which was cop- were both present.

trary to the regulation in Clause 27.

know.

I suppose that you will enficede than Lam Tuck was heard 1-It might be inter- preted that way, but it might also be in terpreted in the way I am suggesting,

How many awards do you' issue in the Course of a year-Sometimes several years pass without a single award.

Did Lam Tuck ever make any repre- sentations in writing to you concerning this matter-You mean to me personally He wrote to the firm about the typhoon damage.

11

Mr. Bird, An architect has always the right to make any alterations necessary while the work is going on

Mr. Jenkin: According to the contract a suilage drain should have been con- structed but that bas never been done.

raise.

ܕܕ܂

clauses but had carried them in his that he had not considered the specific mind, but Mr. Dong Toy was not pro ficient in English and could not construe the clauses carefully.

The event of the week was the explo sion which occurred last Wednesday morning is a bomb store immediately outside the Arsenal. All kinds of sens3- tional reports were heard soon after the occurrence, but investigation bas elicited! serious damage was done to the plant. in that no foreigners were killed and that no the Arsenal, where in fact work has pro- true that twa Chinese soldiers on sentry. ceeded uninterruptedly. It appears quite Continuing, Mr. Jeakin said that he duty were killed, and that a number of Mr. Bird: I think you are wrong. In- structions, were given that it should be would be the last to allege that Mr. Bird people living in the neighbourhood suffer- done and permission for the construction had intentionally disregarded the coned injuries more or less serious. All the had been obtained from the Building tract, but he did think he had fallen bombs were not exploded on Wednesday, Authority. I think you will find that short of the standard by ignoring the con- and numbers of them have gone off since. Did the bill of extras contain any re- the work was completed on the 18th July. tract between the parties and substituting So far as I can learn the explosion was resentations on behalf of the contractor I later received a letter from Mr. Doug another different contract. His complaint due to gross carelessness in the stacking with regard to penalties -How do you Toy in which he stated that it was un-against Mr. Bird was not that he refused of the bombs.

satisfactory but he did not say that it to listen to his client but that he refused Meant *

had not been done. I understood that to consider the standard by which his it had been completed but if that is not clicat's rights should have been decided, so it is my intention that a sullage | The question of the sulfage drain had

been omitted from, the arbitration

His Lordship: Instructions had been drain shall be provided.

Mr. Jenkir: That is not arbitration, given to the contractor for it to be done, My Lord, and he did not consider it in his arbitration. Mr. Dong Toy has stated that the drain has not been made and Mr. Bird is not able to say definitely that that is not so. He, however, mado

One of the questions on, which you arbitrated was the question of penalties -Oh, yes. Overtime.

How did you get Lam Thck's views with regard in the penalty clauses ?-Lam Tack had no views. I decided that my welf

This concluded the cross-examination of Mr. Bird, and Mr. Alabaster said that there was no reason whatsoever for upsetting the award.

A striking illustration of Chinese psychology was shown in the action of the

local polics authorities in stopping work at the Japanese Race Course in prepara- tion for the race meeting scheduled for this week-end on the plea that gambling took place at such gatherings, gambling being forbidden under Chinese law. The Committes of the Club Rave, protested to the authorities and have pointed out that race meetings are held in many cities in China, adding that in Newchwang to nich objection has been taken to the hold-

Why thea did you not penalise him

Mr. Jenkin submitted that it was quite woven monthe as he should 'bave been. penalised under the contract i-Because I clear on the evidence of Mr. Bird that AVD him three months for the extras whatever took place between him and Mr. Dong Toy was at the alleged arbitration entailed by typhoon damage.

the matter, is taken to the higher author- Did he make any representations that on July 7th.

It is a very smallities they will seo that the objection is he should be allowed three months for the Mr. Bird met Mr. Dong Toy not as an not arbitrated upon.

a member of af His Lordship:

waived. extra work1-No, not to me personally, arbitrator but as

Six, players from the Mukden Club Do you know that on June 22nd, 1993, of architects. Had his client been given point,

Mr. Jeaking That is true, but I have shortly after the landslide, your firm ro- notice of the arbitration he would have ceived a long letter from Lam Tuck taken with him a member of the legal an regret for pressing upon such a small journeyed to Newchwang on Saturday Tennis Club there two doubles and Hour profession so that the relevant things in point because it is characteristic of the and played the representatives of the The visitors won evory Did that make any representations for the contract could be brought to the whole arbitration.

This concluded the hearing and. His singles matches.

match. Lordship reserved judgment. an extension of the time I have not the notion of Mr. Bird. He had admitted

(Continued on next Column). letter before me,

At a previous interview an offer that it would be done, but it was g of the race meetings. Doubtless when

Ytte

!!

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