The importance of getting your notices right

Where notice requirements are clear and unambiguous, those required to give notices should expect them to be strictly enforced.

In the recent Court of Appeal decision Maeda Kensetsu Kogyo Kabushiki Kaisha v. Bauer Hong Kong Ltd. [2020] 5 HKLRD 328, a claim that was otherwise valid was disallowed by the court because the subcontractor's notice (which was submitted in time) failed to state the precise contractual provision being relied upon.

The contract in question specifically required the notice to state, "the contractual basis together with full and detailed particulars and evaluation of the claim." Compliance with the notice requirements was expressly stated to be a condition precedent to entitlement.

The subcontractor sought to recover its loss and expense claim. Under the contract, loss and expense could be recovered in a number of circumstances. Clause 21.1.6 provided that a claim could be founded upon a subcontract variation, whilst Clause 21.1.1 permitted a "like rights" claim to be advanced.

The subcontractor's notice made reference to Clause 21.1.6 but did not make reference to Clause 21.1.1. It was only after the notice period had expired that the subcontractor first made reference to a "like rights" claim arising from the same set of facts.

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