© The Hong Kong Polytechnic University

THE HONG KONG POLYTECHNIC UNIVERSITY

DEPARTMENT OF BUILDING & REAL ESTATE

Session : Semester 2, 2023/2024

Subject Code : BRE206

Subject Title : The Legal Context for Construction and Real Estate

Date : 27 April 2024

Time : 1230 - 1430 Time Allowed : 2 Hours

Subject Examiner(s) : Dr. W.H. Chee

This question paper has a total of FOUR pages.

Instructions to candidates:

(i) This is an open book examination.

(ii) This paper has THREE questions.

(iii) Attempt ALL questions.

(iv) Questions carry the marks as indicated.

DO NOT TURN OVER THE PAGE UNTIL YOU ARE TOLD TO DO SO

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Question 1 (30%)

(a) Identify the different parts of the Hart’s Rules of law under the legal framework of Hong
Kong SAR being an inalienable part of China under the Basic Law. (10%)

(b) In no less than 500 words discuss the ways the different elements in the HKSAR
governance interact with each other to achieve the purpose of the Basic Law. (10%)

(c) Discuss the extent and shortfalls under the Hart’s concept of law when applied in a
democratic state and in Hong Kong under the socialistic regime of China. (10%)

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Question 2 (40%)

In a construction site, the site foreman of a main contractor (“MC”) asked orally the sub-contractor
(“CSCtr”) on carpentry works to carry out some scaffolding works (“Scaffolding Works”) at a sum
of HK$500,000.00. In the past three (3) years, CSCtr was engaged in several times by MC in 5
projects some of which CSCtr also served to conduct similar scaffolding works.

The Scaffolding Works was in the original scope of the scaffolding works sub-contract (“SWC”)
undertaken by the scaffolding works sub-contractor (“SWCtr”) who suffered non-payment by the
MC and decided to suspend his progress on SWC. MC was in urgent need to complete the
Scaffolding Works so that all trades on the external walls could start their respective works.

CSCtr and SWCtr were good friends before being engaged by MC in the project. At a total sum of
HK$400,000.00 and with an advance payment at HK$200,000.00 from CSCtr, SWCtr completed
the Scaffolding Works without a paper contract and requested CSCtr for the balance payment.

CSCtr requested full payment from MC as the Scaffolding Works was completed but MC refused
to settle.

(a) If you are the SWCtr, formulate your –

i. contractual claim against CSCtr. (5%)

ii. contractual claim against MC. (5%)

(b) If you are the CSCtr, formulate your –

i. defence against the claim against you from SWCtr developed in (a). (5%)
ii. contractual claim against MC. (5%)

(c) If you are the MC, formulate your –

i. defence against the claim against you from SWCtr developed in (a). (5%)
ii. defence against the claim against you from CSCtr developed in (b). (5%)
iii. counterclaim against SWCtr. (5%)
iv. counterclaim against CSCtr. (5%)

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Question 3 (30%)

In a building project, when selecting flooring material for the ground floor entrance lobby
(“Lobby”), the developer (“D”) looked for polished marble slab. The Architect (“A”) after
intensive research presented five different material proposals from granite to marble stones with
respective samples in 600 x 600mm. Owing to the differences in hardness and the content of
quartz in the proposed materials, the glossiness of the finished samples varied. They also looked
differently in terms of colour and grain patterns. A advised D to go for granite owing to its
hardness providing stronger glazed surface that was comparatively more durable and less slippery.
However, the glossiness was not uniform owing to the comparatively less quartz content
comparing to marble, the samples of which showed extremely high and even glossiness close to
mirror and, practically more slippery. There were more colour choices in marble than granite as a
matter of the naturalness of material.

D asked A if there was any surface treatment on marble flooring to compensate its being less
durable and more slippery. A answered “yes” without providing any details. D selected marble
stone which was eventually used in the project. Both D and A forgot the surface treatment and A
certified satisfactory completion of works under the contract.

In the first month after the building was certified completed by A, an opening ceremony was held
with the presence of the press, renowned personalities and celebrities, the Chief Executive Officer
(“CEO”) of a reputable fashion brand, Channel, as the guest of honour. The CEO tripped over the
slippery marble floor in front of cameras and live stream broadcast in the internet, lost her front
tooth and her pricy watch in her wrist at HK$3M value that was found totally damaged. While she
was rushing off the venue without finishing the ceremony, she turned back to the cameras and said
“I will sue anyone responsible to such a humiliating embarrassment and everything I suffered
from this horrible fall”.

Utilizing the well-established tests on negligence in tort and professional liability -

(a) You are the CEO.

i. formulate your claim against D. (5%)

ii. formulate your claim against A. (5%)

(b) You are D.

i. formulate your defence on CEO’s claim against you. (5%)

ii. formulate your claim against A. (5%)

(c) You are A.

i. formulate your defence on CEO’s claim against you. (5%)

ii. formulate your defence on D’s claim against you. (5%)

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