Mathias Cheung

Mathias has acted in disputes over design and workmanship defects, delays, variations, loss and expense, and termination in respect of a range of projects from residential and commercial construction to complex infrastructure and PFI projects. Recent work includes:

• Involvement in a high-profile public inquiry abroad with numerous involved parties, regarding alleged structural engineering and workmanship issues in a major public infrastructure project.
• Successfully obtaining default judgment for the claimants in McDonald v D&F Contracts [2018] EWHC 1600 (TCC); [2018] 1 WLR 5695, resolving a conflict in authorities regarding applications under CPR Part 12 where an acknowledgment of service or defence is filed late but before the date of the application.
• Acting as junior counsel in an ongoing dispute arising from a project involving a regional city tram system’s extension works.
• Acting as junior counsel for a main contractor in a multipartite dispute concerning delay and defects in the design, construction and commissioning of the Rolls Building, involving complex factual and expert evidence on delay analysis and quantum.
• Acting as sole counsel in a multi-track claim involving retention and a counterclaim for various workmanship defects in a care home, including an application for interim payment.
• Acting as sole counsel in a multi-track claim under NHBC Buildmark covers involving defective design and workmanship in a residential development.
• Advising a pharmaceutical company on the termination and/or repudiation of a JCT Intermediate Building contract regarding laboratory and fit-out works in the Porton Down Science Park.
• Advising a facilities management contractor on claims and deductions arising from issues of health and safety and defects in a PFI hospital project in Middlesborough.
• Advising a facilities management contractor on a complex delay and disruption claim arising from asbestos contamination in a PFI school project in London.
• Advising a facilities management contractor on the interpretation of the payment mechanism and service failure deductions in a PFI hospital project in Portsmouth.
• Advising a facilities management contractor on the interpretation of a PFI contract concerning the reimbursement mechanism for the use of biofuels in a number of schools in Salford.
• Advising on the finality of milestone certificates in a PFI contract concerning the rehabilitation and maintenance of roads in Birmingham.
• Advising on an employer’s claim based on implied/oral contracts and collateral warranties concerning incomplete and defective works in the construction of an annex and patio in a family home.
• Advising on limitation periods in a dispute concerning various latent defects in a domestic landscaping project.
• Advising on and preparing for an application for an interim injunction against an employer calling on an on-demand performance bond under the FIDIC Yellow Book Conditions.
• Preparing grounds of appeal and a skeleton argument in a claim involving the construction of key performance indicators in a PFI contract for refurbishment works in social housing.

Mathias has acted in commercial and construction arbitrations both in the UK and abroad. Recent work includes:

• Acting as junior counsel for a main contractor in an arbitration in Hong Kong (HKIAC rules) in a dispute concerning piling foundations in a residential development in Hong Kong.
• Acting as junior counsel for a local contractor in an arbitration in Hong Kong (HKIAC rules) in a dispute concerning the construction of a residential complex in Macau.
• Acting as sole counsel for an employer in a CIMAR arbitration in respect of widespread defects in the design and construction of student accommodation under a JCT Design and Build Contract.
• Advising an employer on an urgent CIMAR arbitration for declarations in respect of pay less notices, final accounts and wrongful termination/repudiation under a JCT Minor Works Contract.
• Advising on the incorporation into a sub-contract of an arbitration clause contained in a main construction contract based on the JCT standard form.

Mathias has undertaken work on a range of energy projects in line with Chambers’ specialisms. Recent work includes:

• Advising a large oil refining company in the Middle East on potential contractual claims against a contractor consortium in respect of delays and defects in the construction and commissioning of a plant, involving the interpretation of liquidated damages for delay and performance guarantees, omission of works, injunctions against termination, and carve-outs for gross negligence and willful misconduct.
• Advising a Liberian company on conflicts of law issues and service out of jurisdiction in relation to a claim brought against foreign entitles regarding the early termination of a contract for the construction of various mining camps.
• Acting as sole counsel for a contractor in its application to strike out a claim by a utilities undertaker in respect of alleged damage to underground apparatus and associated diversionary works in a construction site.
• Acting for a leading manufacturer of cement in a claim concerning overpayments for excavation and restoration works at a quarry under a re-measurement contract.
• Acting in a claim concerning payments for sewerage services allegedly provided by a statutory undertaker under the Water Industry Act 1991.
• Advising on delays and extensions of time in a project involving the construction of a combined heat and energy plant pursuant to the FIDIC Yellow Book Conditions.
• Advising on the various causes of action in a dispute concerning subsidence in a property constructed over an abandoned mine shaft.
• Advising on delays and extensions of time in an international project for the construction of a power plant.
• Advising on and drafting a defence in a claim concerning the international sale and purchase of crude oil.

Mathias has advised on and acted in various cases of professional negligence. Recent work includes:

• Acting as sole counsel for residential owners in a dispute over an architect/contract administrator’s negligence in supervising the works and certifying payments.
• Acting as sole counsel for a residential owner in a dispute over defects in the design of a residential property resulting in overheating and other health risks, including advice on mediation, stay of proceedings to enforce ADR clauses, and Part 36 offers.
• Advising on design coordination issues and professional negligence of a lead consultant in respect of a major PFI hospital project.
• Advising on professional negligence issues arising from a dispute concerning subsidence of land.
• Drafting a defence to a claim against a surveyor in respect of the valuation of a property.
• Drafting a skeleton argument for an appeal concerning the proper construction of an exclusion and limitation of liability clause in a contract for the provision of consulting engineering services.

Mathias has experience of cases in the I.T. and telecommunications sector. Recent work includes:

• Acting as sole counsel in a number of claims brought by a statutory undertaker for telecommunication networks in respect of damage to its apparatus by groundworks and consequential diversionary works, involving issues of vicarious liability and non-delegable duties in tort.
• Advising on and preparing submissions for an expedited trial concerning key performance indicators and the termination of an outsourcing contract for the provision of health, transport, communications and public safety services.
• Advising on and preparing opening submissions for a Part 8 trial concerning obligations in respect of the database and calculations used in connection with the rehabilitation and maintenance of roads under a PFI contract.

Mathias has extensive experience of all aspects of statutory and contractual adjudication. He has recently been instructed in a number of cases, including:

• Acting as junior counsel for the successful claimant in Vinci Construction UK Ltd v Beumer Group UK Ltd [2018] EWHC 1874 (TCC); [2018] BLR 575, where the losing party sought to resist enforcement of an adjudication decision relating to upgrading works at the Gatwick Airport on the basis of breach of natural justice.
• Acting as sole counsel for the successful claimant in DSVG v Conneely(HT2018-000113, 13 June 2018), where the losing party sought to resist enforcement of an adjudication decision on the basis of Grove Developments Ltd v S&T (UK) Ltd [2018] EWHC 123 (TCC) and an alleged failure to exhaust the adjudicator’s jurisdiction in respect of an interim payment dispute.
• Successfully acting for a main contractor in an adjudication under a JCT contract involving an employer’s claim for liquidated damages where sectional completion has not been properly defined.
• Successfully acting for a main contractor in an adjudication under a NEC contract regarding a railway development project, involving extensions of time arising from compensation events.
• Successfully acting for a main contractor in an adjudication under a NEC subcontract regarding delays and liquidated damages in respect of upgrading works at the Gatwick Airport.
• Successfully acting for the litigation funder in an adjudication of final account claims under a NEC contract assigned from a liquidated subcontractor in respect of landscaping works in an Olympic stadium in London, and advising on mutual set-off under the Insolvency Rules.
• Successfully acting for building contractors (referring parties) in a number of recent adjudications involving the validity of payment applications/invoices and pay less notices.
• Successfully acting for a reputable building contractor (referring party) in a substantial adjudication arising from design issues and professional negligence in a PFI hospital project.
• Successfully acting as sole counsel for a contractor in TCC proceedings for the enforcement of multiple adjudication decisions in respect of a number of contracts between the same parties.
• Successfully acting for a contractor (responding party) in an adjudication concerning various allegations of repudiation under a FMB Plain English Domestic Building Contract.
• Successfully acting for a construction management company (referring party) in an adjudication concerning wrongful termination, allegations of material breach and deductions from interim payments/final account under a letter of intent, including a jurisdictional challenge on contract/no contract grounds.
• Acting for a contractor (referring party) in an adjudication arising from a pre-construction services agreement and involving a jurisdictional challenge on the existence of a construction contract.
• Acting for a contractor (referring party) in an adjudication concerning interim payments and alleged flooring defects under a JCT Minor Works Contract.

Mathias has advised on several commercial disputes related to, or outside the field of, construction. Recent work includes:

• Successfully opposing a late specific disclosure application arising from a party wall dispute regarding a residential property in London.
• Successfully defending one of the largest air carriers in the UK in a EC261 compensation claim for flight delays/cancellation due to extraordinary circumstances (weather conditions incompatible with the safe operation of the flight concerned).
• Advising a number of bank account holders on injunction applications against a bank’s proposed closure of their bank accounts contrary to express assurances and representations.
• Advising a foreign bank on chargeback and restitutionary claims against a UK bank in relation to known fraudulent transactions.
• Advising a reputable pharmaceutical company on the review and amendment of standard form building contracts which were the subject of a novation.
• Acting for and advising a reputable building contractor in resisting an application to the Companies Court by a subcontractor’s liquidators under section 236 of the Insolvency Act for an account of all dealings.
• Acting for and advising an employer on winding-up proceedings in Manchester arising from a contractor’s adjudication where there is a serious and genuine cross-claim due to defects.
• Advising on the restoration of a company voluntarily struck off contrary to the Companies Act 2006, application for a company director disqualification order and personal remedies against a sole director in compulsory winding up proceedings under the Insolvency Act 1986.
• Advising on the construction of an insurance policy in respect of loss and damage arising from subsidence.
• Advising on the duty of good faith and the issue of apparent/ostensible authority in a multi-partite dispute concerning the termination of an outsourcing agreement.
• Advising on the proper construction of an agreement involving the partial assignment of a debt and subrogation in an international sale.

2015 SCL Hudson Prize (1st Prize) for ‘Shylock’s Construction Law: the Brave New Life of Liquidated Damages?’ (available to download online)

2015 Stagiaire (judicial assistant), Cabinet of Judge Christopher Vajda QC, Court of Justice of the European Union, Luxembourg

2015 Research extern, JUSTICE (specialising in complaints and ombudsman system in the UK)

2015 Buchanan Prize, Lincoln’s Inn; top student in July 2015 call

2015 Berwin Leighton Paisner Prize, Worshipful Company of Arbitrators Arbitration Weekend 2015

2014-2015 Bar Professional Training Course (Outstanding), City Law School

2013-2014 BCL, Magdalen College, University of Oxford (Master’s in Law – Competition Law; Jurisprudence and Political Theory; Restitution of Unjust Enrichment; Comparative Public Law); Law Faculty Graduate Assistance Fund Scholarship

2013 Champion of Oxford Hong Kong Mooting Competition

2013 Lord Denning Scholarship, Lincoln’s Inn

2013 Member of KCL team in Philip C Jessup International Law Moot Court Competition

2013 Helen Gibbons Prize in Commercial Law (Best Paper)

2012 King’s Leadership Award

2012 Best Advocate (Commission Representative) Award, European Law Moot Court Competition

2011 Sir Francis Jacobs Prize in EU Law 2011 (Best Paper)

2011 Wragge & Co Prize in Trusts

2011 King’s myScholarship 2011 for excellence and contribution

2010-2013 LLB Hons (First Class Honours), King’s College London

Mathias is the general editor of Chambers’ Brexit Bulletin, which is a periodic bulletin providing regular updates on the Brexit negotiations and other developments relating to the construction and legal services industries post-Brexit.

Mathias is a member of COMBAR, TECBAR and the Society of Construction Law. He is also a member of the Human Rights Lawyers Association and a committee member of the UK Association for European Law.

Publications:

Construction law in 2017: a review of key legal and industry developments’ (Informa, April 2018).

‘Taking the Measured Mile’, Construction Law (2 November 2017).

‘Belt and Road projects – legal issues when East meets West’, Construction Law (September/October 2017).

‘Ethics in the Tender Process: Implied Duty of Good Faith and Remedies for Breach’ (2017) 34(3) ICLR 242.

‘Shylock’s Construction Law: the Brave New Life of Liquidated Damages?’ (2017) 33(3) Const LJ 173.