836 Phil. 442
PERALTA, J.:
WHEREFORE, premises considered, the Court of Appeals Decision dated January 27, 2011 in CA-G.R. SP Nos. 109286 and 109298, is AFFIRMED with the following MODIFICATIONS:Malayan raises the following grounds in support of its motion:
1) The total amount of P57,474,561.39 should be deducted and excluded from the gross Actual Remaining Construction Cost (ARCC) of P562,866,135.02 to arrive at the net ARCC of P505,391,573.63; 2) Malayan is entitled to 30% ownership over the reserved units (P52,966,724.63/P175,856,325.05), together with the corresponding interest in the income realized thereon in the same proportion; while St. Francis is entitled to 70% (P122,889,598.42/P175,856,325.05) ownership of the said units, as well as to its corresponding share in the said income. The distribution of the parties' proportionate share in the units shall be made by drawing of lots; 3) Malayan is directed to deliver possession and transfer title over the reserved units in the proportion above stated, to pay St. Francis its proportionate share of the income from the reserved units reckoned from the date of the completion of the project on June 7, 2006 up to the finality of this decision, and to render full accounting of all the upkeep expenses, rentals and such other income derived from the reserved units so awarded to St. Francis; 4) Arbitration costs are maintained pursuant to the pro rata sharing that the parties had initially shared in accordance with the amounts claimed and counterclaimed by them, namely, St. Francis: P936,775.29; and Malayan: P127,742.09; 5) Malayan and all others claiming rights under it, are enjoined from exercising acts of ownership over the reserved units relative to the proportionate share awarded to St. Francis; 6) The Register of Deeds of Pasig City is directed to immediately reinstate the name of St. Francis Square Realty Corporation (formerly ASB Realty Corporation) as the registered owner in the corresponding Condominium Certificates of Title covering the reserved units awarded to St. Francis; and 7) All other awards granted by CIAC in its Award dated 27 May 2009 which are not affected by the above modifications are affirmed. No costs.
SO ORDERED.
On the other hand, St. Francis' motion for partial reconsideration takes exception only to the Court's ruling that the input value added tax (VAT) in the amount of P45,419,770.44 should be considered as part of the ARCC. St. Francis states that the issue of input VAT is not limited to or purely about technical classifications of taxes or accounting rules, and that input VAT can neither be considered an expense under tax laws nor be deemed part of the ARCC under the plain and ordinary meaning of cost. Citing VAT Ruling No. 053-94,[2] St. Francis posits that the VAT paid by a VAT-registered person on his purchases is an asset account in the Balance Sheet and cannot be treated as an expense unless he is exempt from VAT, in which case the VAT paid would form part of the cost to acquire what was purchased. According to St. Francis, this is the reason why under Malayan's own documentary evidence consisting of cash vouchers, input VAT was treated separately from the actual construction cost, and was treated in its audited financial statements under the heading "Other Assets" as opposed to expense.A.
Assuming arguendo that interest expense and other cost items were properly excluded from the Actual Remaining Construction Cost ("ARCC"), the Decision nonetheless has mathematical and clerical errors which, if corrected, will entitle Malayan to at least 59.9% of the Reserved Units, and not just 30% thereof as was computed in the Decision.
A.1. Malayan's interest expense of Php39,348,659.88 was excluded TWICE from the ARCC. A.2. The sum of the items under "Total Exclusions" is Php15,158,864.73 not Php16,768,864/73, resulting m an over-deduction of Php610,000.00. A.3. At least 3 items under "Total Exclusions" are fully supported by official receipts, checks and check vouchers and/or other documents. These 3 items were not "unsubstantiated" and should therefore not have been put under "Total Exclusions."B.There was no issue in the proceedings a quo as to whether Malayan had incurred its ARCC amounting to Php647,319,513.96. This was admitted by the parties and accepted by the arbitral tribunal. At any rate, this amount was proven by substantial evidence.C.
The entire monetary award of Php21,948,852.39 which Malayan paid to TVI (in TVI vs. Malayan docketed as CIAC Case No. 27-2007) should be included in the ARCC, because the components of this award are purely "traditional" or "direct" construction costs.D.
The peculiar signification which the parties gave to the tem "Actual Remaining Construction Cost" in the 30 April 2002 Memorandum of Agreement (the "MOA"), prevails over the "primary and general acceptation" of the term "construction cost" in the construction industry.E.
The terms of the MOA and the contemporaneous acts of the parties indicate that costs incurred to finance the completion of the Project, such as interest expense, must be included in the ARCC.F.
Malayan implemented the "change orders not due to reconfiguration" with an aggregated value of Php971,796.29 in order to address security, safety and marketability concerns. Therefore, these costs should have be included in the ARCC.G.
Considering that the increase in the costs for "interior design works" is presumed fair and regular, and St. Francis failed to prove otherwise, the entire increase should have been included in the ARCC.H.
The "Contingency Costs" of Php631,154.39 should have been included in the ARCC, because these were necessary to ensure the continued construction of the Project.I.
There are several costs incurred or paid after June 2006 which were still necessary for the completion of the Project. They should therefore have been included in the ARCC.J.
Considering that there is no legal basis to exclude any of he costs in Malayan's ARCC in the amount of Php647,319,513.96, St. Francis is not entitled to share in the Reserved Units.K.
St. Francis is not entitled to any share in the income from the Reserved Units. Under the MOA, its right to the Reserved Units, if any, and, therefore, to the income therefrom, arises only after the determination of the ARCC.L.
St. Francis's Complaint was without basis. It should therefore be held liable for attorney's fees and arbitration costs.[1]
Unlike the issue of interest, here, there is no question that input VAT is a direct construction cost and therefore, should be included in the ARCC. The only question that remains is What is the arrangement between Respondent [Malayan] on the one hand and its contractors/suppliers on the other?Stressing that the factual findings of the CIAC are generally conclusive and binding upon it, the CA found that a meticulous examination of the voluminous records and check vouchers would clearly show that in the payment of contracts and construction materials, Malayan had deducted input VAT of 1/11% and 2% withholding tax from the contract price or construction costs. The CA held that payment of input VAT was automatically deducted from the total obligations paid to contractors and suppliers, and that the documentary evidence submitted by Malayan and St. Francis had led the CIAC to that they were sufficient to show proof of remittance to the government of the input VAT. Without resolving the question of law as to whether input VAT is a direct construction cost, the CA concluded that the summary and cash vouchers presented by Malayan totaling P47,593,994.29 are sufficient proof of the filing and payment of input VAT.
Claimant's [St. Francis] draft decision admits that VAT "appear to have been deducted from the billings of the concerned supplier or subcontractor totaling P45,419,770.44 as reflected in the pertinent cash vouchers in Exhibit R-48-series." Claimant questions whether said amounts deducted for VAT was actually remitted by Respondent. Thus, Claimant inferentially admits that Respondent is entitled to add the input VAT as part of the ARCC.
While "submission of the quarterly and annual VAT return" would have provided incontrovertible proof of Respondent's remittance to the BIR, as Claimant asserts, there is no prohibition against considering the pertinent cash vouchers. Examination of the documentary evidence submitted by Respondent (Exhibit R-44 and Exhibit R-48), series) as well as those submitted by Claimant itself (Exhibits C-7 up to C-40) has persuaded the Tribunal of their sufficiency to show such remittance. As earlier pointed out, the two Reports (Surequest and DSL) supports this conclusion. Moreover, the contract entered into by the Claimant which were assumed by Respondent under the MOA, included VAT as part of costs.
It is accordingly the holding of this Arbitral Tribunal to ALLOW the input Value Added Taxes ("VAT") paid to the government for goods and services utilized for the Project to remain in the ARCC.[7]
The Court finds no compelling reason to disturb the consistent findings of the CA and the CIAC that Input VAT should be allowed to remain in the ARCC. As aptly pointed out by the CA and the CIAC, ARCC refers to the actual expenditures made by Malayan to complete the project. The Court thus agrees with Malayan that in determining whether input VAT should be included as ARCC, the issue is not the technical classification of taxes under accounting rules, but whether such tax was incurred and paid as part of the construction cost. Given that input VAT is, strictly speaking, a financial cost and not a direct construction cost, it cannot be denied that Malayan had to pay input VAT as part of the contract price of goods and properties purchased, and services procured in order to complete the project. Moreover, that the burden of such tax was shifted to Malayan by its suppliers and contractors is evident from the photocopies of cash vouchers and official receipts on record, which separately indicated the VAT component in accordance with Section 113(B) of the Tax Code.It is not amiss to state that whether input VAT is a direct construction cost and should be included as component of the ARCC is a question of law, and not a question of fact. For a question to be one of law, the question must not involve an examination of the probative value of the evidence presented by any of the litigants, and the resolution of the issue must solely depend on what the law provides on the given set of circumstances.[9] Where an interpretation of the true agreement between the parties is involved in the appeal, the appeal is in effect an inquiry of the "law" between the parties and their successors in interest, its interpretation necessarily involves a question of law, properly raised in the certiorari proceedings.[10] Perforce, the principle that findings of construction arbitrators on matters belonging to their field of expertise, especially when affirmed by the appellate court, are generally entitled to great respect if not finality, pertain only to factual issues, and not to questions of law, of which the Court is the final arbiter.
Anent the claim that it would be unjust and inequitable if Malayan would be allowed to include its input VAT in the ARCC, as well as to offset such tax against it output tax, the Court finds that such coincidence does not result in unjust enrichment at the expense of St. Francis. Unjust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully. In offsetting its input VAT against output VAT, Malayan is merely availing of the benefits of the tax credit provisions of the law, and it cannot be said to have benefitted at the expense or to the damage of St. Francis. After all, Malayan is justified in including in the ARCC the input VAT it had paid as part of the contract price of the goods, properties and services it had procured to complete the project.
At any rate, St. Francis would also be entitled to avail of the same tax credit provisions upon the eventual sale of its proportionate share of the reserved units allocated and transferred to it by Malayan. It bears emphasis that the allocation of and transfer of such units to St. Francis is subject to output VAT which Malayan could offset against its input VAT. In turn, St. Francis would incur input VAT which it may later offset against its output VAT upon the sale of the said units. This is in accordance with the tax credit method of computing the VAT of a taxpayer whereby the input tax shifted by the seller to the buyer is credited against the buyer's output taxes when it in turn sells the taxable goods, properties or services.[8]
The doctrine has assumed such value in our judicial system that the Court has ruled that [a]bandonment thereof must be based only on strong and compelling reasons, otherwise, the becoming virtue of predictability which is expected from this Court would be immeasurably affected and the public's confidence in the stability of the solemn pronouncements diminished. Verily, only upon showing that circumstances attendant in a particular case override the great benefits derived by our judicial system from the doctrine of stare decisis, can the courts be justified in setting aside the same.[27]Suffice it to state that the stare decisis is inapplicable to this case because there is no final decision yet, precisely because of the pending motions for reconsideration filed by both Malayan and St. Francis that are being resolved in this Resolution.
B. There was no issue a quo as to whether Malayan had incurred its ARCC amounting to P647,319,513.96, as this was admitted by the parties and accepted by the arbitral tribunal.
Construction Cost as per receipts (Exhibit "R-48-series"[37]) (with 1/11% Input VAT and 2% withholding tax) - P554,583,160.20Total Inclusion: P8,282,974 .82P17,807,364.98[38] Award to Total Ventures, Inc. ( Prolongation costs and extended Overhead) -+ 8,282,974.82 P17,807,364.98Total ARCC: P554,583,160.20+8,282,974.82 = P562,866,135.02 P554,583,160.20+P17,807,364.98 = P572,390,525.18(Construction Costs as per receipts + Inclusion) Total Deductions: P41,705,696.66P P47,776,807.22 Interest expense paid by Malayan to RCBC-P39,348,659.88Change orders not due to Reconfiguration - 971,796.29Contingencies - 631,154.39Interior Design Works - 754,086.10Input VAT +45,419,770.44P41,705,696.66 P47,776,807.22Total Exclusions: P15,768,864.73P12,761,816.84 (Unsubstantiated Costs)
Item 1.0[39] - P 9,297,947.22Items 5.3 and 5.4[40] - 530,563.65Items 5.3 and 5.4 - 725,877.62Item 5.7.1[41] - 50,710.61Item 6.2.25[42] - 194,171.00Item 6.11[43] - 3,499.64Item 6.11 - 1,360.00Item 6.12.3[44] -2,397,047.89[45]Item F3[46] - 368,397.52Item F3 - 448,534.59Item F3 - 634,232.26Professional Fees C& D[47] - 427,500.00Professional Fees N[48] - +79,022.73P15,768,864.73 P12,761,816.84(Total Deductions) P47,776,807.22(Total Exclusions) +12,761,816.84 P 60,538,624.06Total ARCC - Total Deductions & Exclusions = Net ARCC: P562,866,135.02 - P15,768,864.73 =P505,391,573.63P572,390,525.18 - P60,538,624.06 = P511,851,901.12
Contrary to the claim that St. Francis admitted that Malayan had incurred the ARCC of P647,319,513.96, the allegations in St. Francis complaint and the Amended Terms of Reference would show that the substantiation of the cost items included in the ARCC and the exact amount thereof are the core issues of the construction arbitration before the CIAC.C. The entire monetary award of P21,948,852.39 which Malayan paid to TVI (in TVI vs. Malayan docketed as CIAC Case No. 27-2007) should be included in the ARCC, as they are purely direct construction costs.
For one, the contention that St. Francis' complaint contained no allegation that Malayan had not actually incurred the costs in its ARCC, nor was there any claim that specific costs items in the ARCC lacked evidentiary basis, is belied by the following allegations in same complaint:2.9 Sometime in August of 2006, [Malayan] presented a cost to complete construction of the Project in the amount of SIX HUNDRED FOURTEEN MILLION FIVE HUNDRED NINETY THREE THOUSAND FIVE HUNDRED SIXTY FIVE PESOS and 96/100 (P614,593,565.96). Said cost to complete however was a mere tabulation with a listing of items and appurtenant costs. There was no independent proof or basis as well as evidence that claimant incurred these costs, much less, if these costs conform with the actual construction cost as the same is understood under the MOA. x x xFor another, one of the admitted facts in the Amended Terms of Reference states that "[d]espite the completion of the Project and the turnover of the units to [St. Francis], [Malayan], and other buyers of units, the issue of actual cost of construction has not been resolved to the mutual satisfaction of the parties." Not to mention, one of the issues raised before the CIAC is "[w]hat is the actual remaining construction cost to complete the Project spent by [Malayan] as of today in excess of [St. Francis'] estimate RCC?" Clearly, there is no merit in the claim that St. Francis admitted that Malayan had incurred the ARCC of P647,319,513.96 as of October 2008. It can be gathered from the complaint that, as early as August 2006 when the ARCC was just P614,593,565.96, St. Francis already disputed such amount for lack of independent proof or evidence that Malayan incurred these costs
Anent Malayan's claim that St. Francis argued belatedly in its Draft Decision and its petition before the CA that new cost items should also be deducted from the ARCC because they were allegedly unsubstantiated or not fully supported by official receipts, suffice it to state that whether such cost items should be excluded from the ARCC is impliedly included in the issue of "[w]hat is the actual remaining construction cost to complete the Project spent by [Malayan] as of today in excess of [St. Francis'] estimate RCC?"
Moreover, in an action arising out of cost overruns on a construction project, the builder who has exclusive control of the project and is in a better position to know what other factors, if any, caused the increases, has the burden of segregating the overruns attributable to its own conduct from overruns due to other causes. As the co-owner and developer who assumed the general supervision, management and control over the project, and the one in possession of all the checks, vouchers, official receipts and other relevant documents, Malayan bears the burden of proving that it incurred ARCC in excess of the RCC and the total aggregate value of the reserved units, in which case St. Francis would no longer be entitled to a proportionate share in the reserved units pursuant to the MOA.
In view of the foregoing discussion, the Court finds no merit in Malayan's contentions (1) that it did not have the burden of proving that it incurred the costs in its ARCC because this was never in issue; and (2) that there can be no dispute that it had incurred the ARCC of P647,319,513.96 based on the unrebutted testimony of its witnesses and the voluminous documents it introduced at trial.[49]
The recomputed total award of P 22,991,798.51 should be further reduced by the total amount of counterclaim awarded to MICO [Malayan] in the original sum of P6,344,712.61,[59] in order to arrive at the amount of award in TVI v. MICO (CIAC Case No. 27-2007) that the Court deems as the proper amount that should be allowed in the ARCC, i.e., P16,647,085.90.[60] Based on the dispositive portion of TVI v. MICO, accrued interest of P1,160,279.08[61] should likewise be included in the ARCC. It should be stressed that the foregoing re-computation does not seek to alter the final award rendered by the CIAC between TVI and MICO (Malayan), but is only for the purpose of determining the proper amount that should be included in the ARCC. In sum, the Court resolves to allow the amount of P17,807,364.98 to be included in the ARCC, in lieu of P8,282,974.82 prolongation costs and extended overhead.
Work accomplishment under the main contract - P 1,378,521.12Complete and accepted works on approved COs - 6,283,250.90Extended overhead expenses for the period - January 2005 to August 2005 - 3,156,923.22[55]- September 1, 2005 to August 31, 2005 - 714,716.23[56] [3,871,639.45][57]Labor Escalation under the Main Contract - 1,542,380.59And under the Change Orders - 403,843.12Refund of advances for power consumption - 1,605,137.04Refund of advances for water consumption - 282,139.36OSM and STC Attendance Fee - 3,279,314.17Unpaid billings on subcontractor's scope of work - 849,358.57Work accomplishment for CPII.2 for Metal works - 240,537.07Unbilled ONSC Attendance Fee - 3,255,677.12Total Awarded Amount - P 22,991,798.51[58]
After a careful review of the MOA as to the scope and meaning of the term "ARCC," the Court sustains the CIAC that such term should be understood as the actual expenditures necessary to complete the project, which is the traditional "construction" sense rather than the "investment" sense. The Court thus reverses the CA's ruling that the parties' intention was to also include in the computation of the ARCC whatever expenditures relative to the actual completion of the project, as such expenses are considered as their investment subject to the proportionate sharing after determining the actual construction cost.E. The terms of the MOA and the contemporaneous acts of the parties indicate that costs incurred to finance the completion of the Project, such as interest expense, must be included in the ARCC.
It bears stressing that the intent of the parties in entering into the MOA is to provide for the terms and conditions of the completion of the Project and the allocation of the ownership of condominium units in the Project among themselves. To recall, Malayan and St. Francis (then ASB) entered into the Joint Project Development Agreement (JPDA) dated November 9, 1995 to construct a thirty-six (36) storey condominium [but originally a fifty (50) storey building] whereby the parties agreed (a) that Malayan would contribute a parcel of land, and ASB would defray the construction cost of the project, and (b) that they would allocate the net saleable area of the project, as return of their capital investment. In a Contract to Sell dated November 20, 1996, Malayan also agreed to sell the said land to ASB (now, St. Francis) for a consideration of P640,847,928.48, but the latter was only able to pay P427,231,952.32. However, ASB was unable to completely perform its obligations under the JPDA and the Contract to Sell because it underwent corporate rehabilitation, and the Securities and Exchange Commission suspended, among other things, the performance of such obligations. Since ASB had pre-sold a number of condominium units, and in order to protect the interests of the buyers, to preserve its interest in the project, its goodwill and business reputation, Malayan proposed to complete subject to the terms and conditions of the MOA.
Under Section 5(a) of the MOA, Malayan undertook to construct, develop and complete the Project based on the general specifications already agreed upon by the parties and set forth in Schedule 6 of the MOA, within two (2) years from (i) the date of effectivity of Malayan's obligations as provided in Section 21 or (ii) the date of approval of all financing/loan facilities from any financial or banking institution to fully finance the obligations of Malayan under the MOA, whichever of said dates shall come later; or within such extended period as may be agreed upon by the parties. Section 21 of the MOA provides that Malayan shall be bound by and perform its obligations, including the completion of the Project, only upon (i) fulfilment by St. Francis of all its obligations under Section 6, items (a), (b), (c) and (d), and (ii) approval by the Insurance Commission of the MOA.
Section 5(a) of the MOA also states that that the project shall be deemed complete, and the obligation of Malayan fulfilled, if the construction and development of the Project is finished as certified by the architect of the project. Upon completion of the project, the general provision which governs the distribution and disposition of units is the first sentence of Section 4(a) of the MOA, to wit: "[a]s a return of its capital investment in the Project, each party shall be entitled to such portion of all the net saleable area of the Building that their respective contributions to the Project bear to the actual construction cost." The second sentence of Section 4(a) provides the specific details on the pro rata sharing of units to which the parties are entitled based on the RCC in relation to total costs incurred as of the date of the execution of the MOA dated April 30, 2002. It also states, however, that entitlement to certain units are subject to adjustments in the event that the ARCC exceeds the RCC, and Malayan pays for such excess.
Clearly, the parties foresaw that Malayan may incur additional cost and expenses in excess of the Remaining Construction Cost (RCC) of P452,424,849.00 which amount St. Francis represented and warranted that Malayan would have to spend to complete the project. Section 9(b) of the MOA thus adds that in such event, Malayan shall be entitled to such net saleable area as indicated in Schedule 4 that corresponds to the increase in remaining construction costs, while St. Francis shall be entitled to such net saleable area, if any, remaining in the said Schedule 4. As admitted by the parties in the Amended Terms of Reference, the net saleable area included in Schedule 4 ("Reserved Units") originally covered fifty three (53) units [which was reduced to thirty nine (39) units after reconfiguration] with thirty eight (38) parking spaces, and the aggregate monetary value of said units is P175,856,323.05.
In determining the entitlement of the parties to the reserved units in Schedule 4, Malayan insists that the ARCC should include all its capital contributions to complete the project, including financial costs which are not directly related to the construction of the building. It argues that the MOA is replete with provisions recognizing the parties' intent to include in the ARCC their respective capital contributions or investment.
Malayan's argument fails to persuade.
The term ARCC should only be construed in light of its plain meaning which is the actual expenditures necessary to complete the project, and it is not equivalent to the term "investment" under the MOA.
As stated in the MOA, the investment of Malayan is composed of (1) the amount necessary to complete the project, and (2) the following amounts: (a) P65,804,381, representing Malayan's payment on behalf of ASB (now, St. Francis) of the principal amount of the loan obtained by ASB from the RCBC to finance the project; and (b) P38,176,725, representing Malayan's payment on behalf of ASB of the outstanding obligations to project contractors as of the signing of the MOA. On the other hand, the investment of St. Francis is broadly defined as the ASB's invested amount equivalent to its entitlement to the net saleable area of the building under Section 4 of the MOA, including ASB's interest as buyer under the Contract to Sell. Hence, the Court holds that the ARCC, which pertains only to the amount necessary to complete the project, can be considered as part of the capital investment, but they are not synonymous.
Likewise negating Malayan's argument that all its contribution to complete the project should be included in the ARCC is the restrictive construction industry definition of "construction cost", to wit: the cost of all construction portions of the project, generally based upon the sum of the construction contract(s) and other direct construction costs; it does not include the compensation paid to the architect and consultants, the cost of the land, right-of-way, or other costs which are defined in the contract documents as being the responsibility of the owner.[62]
The Court upholds the CIAC ruling to disallow the interest expense from loans secured by Malayan to finance the completion of the project, and thus reverses the CA ruling that such expense in the amount of P39,348,659.88 should be included in the computation of the ARCC. As correctly held by the CIAC, only costs directly related to construction costs should be included in the ARCC. Interest expense should not be included in the computation of the ARCC because it is not an actual expenditure necessary to complete the project, but a mere financial cost. As will be discussed later, the term ARCC should be construed in its traditional "construction" sense, rather than in the "investment" sense.F. Malayan implemented the "change orders not due to reconfiguration" with an aggregate value of P971,796.29 in order to address security, safety, and marketability concerns, hence, these costs should have been included in the ARCC.
It also bears emphasis that part of Malayan's investment under Section 2 of the MOA is the payment of P65,804,381 as the principal amount of the loan obtained by ASB from the Rizal Commercial Banking Corporation (RCBC) to finance the project. If it were the intention of the parties to include interest expense as part of their investments, or even the ARCC, then the MOA would have expressly indicated such intent in the provisions on investments of Malayan and of ASB. Nowhere in the provisions of the MOA can it be gathered that interest expense is included in the computation of the ARCC.
Apart from the ARCC's definition as actual expenditures necessary to complete the project, the closest provision in the MOA that could shed light on the scope and meaning of ARCC is Section 9 on the Remaining Construction Cost (RCC) whereby St. Francis represented and warranted that Malayan can complete the project at a cost not exceeding P452,424,849.00 as set forth in ASB's Construction Budget Report, which reads:The Court concurs with the CIAC that the ARCC was intended to be spent within and among the four categories above, subject to adjustments by reason of price increases and awarded contracts. In construction parlance, "contingency" is an amount of money, included in the budget for building construction, that is uncommitted for any purpose, intended to cover the cost of unforeseen factors related to the construction which are not specifically addressed in the budget. Being a cost of borrowing money, interest expense from bank loans to finance the project completion can hardly be considered as a cost due to unforeseen factors.
Estimated Cost to Complete I. Balance to Complete Existing Contracts - Php 161,098,039.86II. Unawarded Contracts 224,045,419.16II. Professional Fee 4,138,108.08IV. Contingencies 63,143,281.10 Php 452,424,849.10
That interest expense cannot be considered as part of any of the said categories is further substantiated by the reports of the Davis Langdon Seah Philippines, Inc. (DLS) and Surequest Development Associates (Surequest), which contain traditional construction cost components and items, but not investment costs such as interest expense. As the one who engaged the services of both DLS and Surequest to come up with a valuation of the cost to complete the project and to evaluate what had been accomplished in the project prior the take-over, Malayan cannot deny that interest expense is not included in their computation of the construction costs.
As regards the supposed contemporaneous act of St. Francis of including the amount of P207,500,000.00 as interest expense in its claim for reimbursement for its contributions in the project, in the form of several units per Schedules 1 and 3 of the MOA, the Court cannot determine whether or not such expense should be considered as its contribution for purposes of computing the return of capital investment. Unlike the investment of Malayan which is specifically stated under Section 2 of the MOA, but does not include payment of interest of the bank loan to finance the project, the investment of ASB (now, St. Francis) is merely described as follows:
Section 3. Recognition of ASB's Investment. The parties confirm that as of the date hereof, ASB invested in the Project an amount equivalent to its entitlement to the net saleable area of the Building under Section 4 below, including ASB's interest as buyer under the Contract to Sell.
From such vague definition of ASB's investment, the Court cannot rule if St. Francis should also be disallowed from claiming interest expense as part of its investment, unlike Malayan which is disallowed from including interest expense as part of the ARCC contemplated in the MOA, because such financial cost is not an actual expenditure necessary to complete the project. Having in mind the rule that the interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity, the Court cannot give credence to the August 1, 2000 telefax of Evelyn Nolasco, St. Francis' former Chief Financial Officer (CFO), to Malayan's CFO, Gema Cheng, which shows St. Francis' computation for reimbursement, including the claim of P207,500,000.00 as interest expense.
Further negating Malayan's claim that interest expense should be included in the computation of the ARCC is the restrictive construction industry definition of the term "construction cost" which means the cost of all construction portions of the project, generally based upon the sum of the construction contracts(s) and other direct construction costs; it does not include the compensation paid to the architect and consultants, the cost of the land, right-of-way, or other costs which are defined in the contract documents as being the responsibility of the owner. Aside from the fact that such expense is not a directly related construction cost, Section 2 of the MOA states that Malayan's investment includes, among other matters, the amount it had paid to RCBC, on behalf of ASB, for the principal loan to finance the project, but not the interest thereof. This casts doubt on Malayan's claim that the parties intended interest expense to become part of their capital contribution, let alone the ARCC.[63]
D.2. Change Order not due to ReconfigurationJ. There being no legal basis to exclude any of the costs in Malayan's ARCC in the amount of P647,319,513.96, St. Francis is not entitled to a share in the Reserved units.x x x xD.5. Half of Costs for Interior Design Works
Since the findings of the CIAC and the CA on this issue are consistent, the Court perceives no cogent reason to overturn such findings which are supported by substantial evidence. Besides, the Court takes issue with Malayan's claim that the CA gravely erred in rigidly applying the specifications in Schedule 6 of the MOA, considering that they were "general" in character and "for reference" purposes only. It is noteworthy that Schedule 6 not only provides for the Schedule of Finishes and Materials of ASB Malayan Tower as of 26 October 2000, covering Exterior Works, Interior Works, Elevators, Intercom, Fire Alarm System, Standby Generator Set, Lightning Protection and Pumps, among other things, but also includes the project floor plans from Basement 2 to 6, and levels 4, 5, 7 to 12, 14 to 18, 20, 22 to 31, 33 to 35, penthouse and upper penthouse. When a building contract refers to the plans and specifications and so makes them a part of itself, the contract is to be construed as to its terms and scope together with the plans and specifications. When the plans and specifications are by express terms made part of the contract, the terms of the plans and specifications will control with the same force as if they were physically incorporated in the very contract itself. Malayan cannot, therefore, brush aside Schedule 6 as "general" and "for reference only" matters in the interpretation of the MOA.
As to the costs incurred due to the supposed reasonable deviations from specifications in the exercise of its sound discretion as the developer, Malayan would do well to bear in mind that if the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. Under Section 5 of the MOA, Malayan undertook to construct, develop and complete the project based on the general specifications already agreed upon by the parties and set forth in Schedule 6 thereof. As duly pointed out by the CIAC, since the parties to the MOA had agreed on the specifications that will control the construction and completion of the project, anything that alters or adds to these specifications which adds to the costs, should not be part of the ARCC.x x x xD.6. Contingency Costs
The Court agrees with the CA and the CIAC rulings that the costs for interior design works should be included in the computation of the ARCC, and that what is being contested is whether the net increase of P3,049,909.73 from the original budget of P11,100,415.00. As correctly found by the CA based on the official receipts, the net increase should only be P1,508,172.21. The also Court sustains the CA that such increase should be equally divided between the parties (P754,086.10 each) due to the impossibility of separating the increased cost arising from flooring change and those from causes (change of specifications) other than gym equipment and the underlay of plywood and rubber pads.
However, there being no valid reason to extend such equal sharing of costs with respect to the gym items, the Court reverses the CA and the CIAC in ruling that costs of the gym equipment (P962,250.00) and the underlay of plywood and rubber (P96,967.73) amounting to P1,059,217.73 should be equally shared by the parties. The Court thus holds that the full amount thereof should be included in the computation of the ARCC.x x x xD.7. Costs Incurred/Paid after June 2006
The Court sustains the CAin ruling that the contingency costs in the amount of P631,154.39 should not be included in the computation of the ARCC. As duly noted by the CIAC and the CA, legal fees cannot be considered as part of the ARCC, as they are not directly related to the completion of the project. Despite the allegation that a TRO was issued, no proof of such order was presented by Malayan. Hence, such costs should not be included as part of the ARCC, but should be charged against the party responsible for the incident, or Malayan as the one responsible for the general supervision, management, control over the project.x x x x
The Court finds no compelling reason to disturb the CA and the CIAC rulings that are consistent with Section 5 of the MOA which expressly states that the project "shall be deemed complete, and the obligation of Malayan fulfilled, if the construction and development of Project is finished as certified by the architect of the Project." Indeed, costs and expenses incurred after completion of the project cannot be considered as part of the ARCC.[64]
The Court finds that Malayan's obligation to give the reserved units is unilateral because it was subject to 2 suspensive conditions, i.e., the completion of the project and the determination of the ARCC, the happening of which are entirely dependent upon Malayan, without any equivalent prestation on the part of St. Francis. Even if the obligation is unilateral, Malayan cannot appropriate all the civil fruits received because it could be inferred from the nature and circumstances of the obligation that the intention of the person constituting the same was different. Section 9(b) of the MOA states that in the event that Malayan shall pay additional cost and expenses in excess of the RCC, it shall be entitled to such net saleable areas indicated in Schedule 4 that corresponds to the increase in the remaining construction costs, while St. Francis shall be entitled to such remaining areas, if any.Legal interest at the rate of six percent (6%) per annum from finality of this Decision until fully paid is imposed upon the obligation of Malayan to pay St. Francis its proportionate share of the income from the reserved units reckoned from the date of the completion of the project on June 7, 2006 up to the finality of this decision, pursuant to Bangko Sentral ng Pilipinas Circular No. 799, Series of 2013.[65]
As aptly noted by the CIAC, the determination of the ARCC should have been made upon the date of completion of the project on June 7, 2006, but it was only about 3 years later during the arbitration proceedings that such determination was done. Not until now has the issue of the correct computation of the ARCC been finally resolved. Such long delay in the determination of the ARCC and the proportionate distribution of units in the project could not have been the intention of the parties. The Court therefore sustains the CA and the CIAC rulings that the income realized from the reserved units from the completion date until present, should be considered as having received by Malayan in trust for such party that shall be determined to be the owner thereof. In light of the determination of the excess of the ARCC over the RCC, the income should be proportionately shared as follows: 30% for Malayan and 70% for St. Francis. Subject to proper accounting, upkeep expenses for the reserved units should also be shared by the parties in the same proportion.
1. St. Francis: P202,161,179.09/P228,814,375.17 = 0.88 x P1,064,517.38WHEREFORE, the Court's Decision dated January 11, 2016, which affirmed with modification the Court of Appeals Decision dated January 27, 2011 in CA-G.R. SP Nos. 109286 and 109298, is AFFIRMED with the following MODIFICATIONS:
= P 936,775.29
2. Malayan: P26,653,196.08/P228,814,375.17 = 0.12 x P1,064,517.38
= P 127,742.09Total Arbitration Expenses = P 1,064,517.38
2.2.4 Input Value Added Tax ("VAT") paid to the government for goods and services utilized for the Project;[21] Section 110 (A) of the National Internal Revenue Code.
The Court finds no compelling reason to disturb the consistent findings of the CA and the CIAC that Input VAT should be allowed to remain in the ARCC. As aptly pointed out by the CA and the CIAC, ARCC refers to the actual expenditures made by Malayan to complete the proiect. The Court thus agrees with Malayan that in determining whether input VAT should be included as ARCC, the issue. is not the technical classification of taxes under accounting rules, but whether such tax was incurred and paid as part of the construction cost. Given that input VAT is, strictly speaking, a financial cost and not a direct construction cost, it cannot be denied that Malayan had to pay input VAT as part of the contract price of goods and properties purchased, and services procured in order to complete the project. Moreover, that burden of such tax was shifted to Malayan by its suppliers and contractors is evident from the photocopies of cash vouchers and official receipts on record, which separately indicated the VAT component in accordance with Section 113(B) of the Tax Code.Given that the ARCC was construed as "the actual expenditures made by Malayan to complete the project," the Court did not take into consideration the "technical classification" of an Input VAT "under accounting rules but whether such tax was incurred and paid as part of the construction cost."
Anent the claim that it would be unjust and inequitable if Malayan would be allowed to include its input VAT in the ARCC, as well as to offset such tax against its output tax, the Court finds that such coincidence does not result in unjust enrichment at the expense of St. Francis. Unjust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully. In offsetting its input VAT against output VAT, Malayan is merely availing of the benefits of the tax credit provisions of the law, and it cannot be said to have benefitted at the expense or to the damage of St. Francis. After all, Malayan is justified in including in the ARCC the input VAT it had paid as part of the contract price of goods, properties and services it had procured to complete the project.
At any rate, St. Francis would also be entitled to avail of the same tax credit provisions upon the eventual sale of its proportionate share of the reserved units allocated and transferred to it by Malayan. It bears emphasi8 that the allocation of and share of such units to St. Francis is subject to output VAT which Malayan could offset against its input VAT. In turn, St. Francis would incur input VAT which it may later offset against its output VAT upon the sale of the said units. This is in accordance with the tax credit method of computing the VAT of a taxpayer whereby the input tax shifted by the seller to the buyer is credited against the buyer's output taxes when it in turn sells as the taxable goods, properties, or services.[1]
Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.[4]Consistent therewith, this Court held that the fundamental doctrine of unjust enrichment is the transfer of value without just cause or consideration.[5] As wisely stated in this Court's January 11, 2016 Decision in this case, "unjust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully."[6] Thus, the first condition for the application of the doctrine is that that a person is benefited without a valid basis or justification.[7]
RESOLUTION OF ISSUE ON VATThe Resolution, however, takes exception to the CIAC's ruling on the inclusion of the Input VAT in the ARCC supposedly because "the CIAC failed to explain why input VAT is a direct construction cost." A closer scrutiny of the foregoing excerpt from the CIAC's Award Order should provide the explanation forgone in the Resolution.
Unlike the issue of interest, here, there is no question that input VAT is a direct construction cost and therefore, should be included in the ARCC. The only question that remains is: What was the arrangement between Respondent on the one hand and its contractors/suppliers on the other?
[St. Francis'] draft decision admits that VAT "appear to have been deducted from the billings of the concerned supplier or subcontractor totalling P45,419,770.44 as reflected in the pertinent cash vouchers in Exhibit "R-48 series." [St. Francis] questions whether said amounts deducted for VAT was actually remitted by [Malayan]. Thus, [St. Francis] inferentially admits that [Malayan] is entitled to add the input VAT as part of the ARCC.
While "submission of the quarterly and annual VAT return" would have provided incontrovertible proof of [Malayan]'s remittance to the BIR, as [St. Francis] asserts, there is no prohibition against considering the pertinent cash vouchers. Examination of the documentary evidence submitted by [Malayan] (Exhibit R-44 and Exhibit R-48, series) as well as those submitted by [St. Francis] itself (Exhibits C-37 up to C-40) has persuaded the Tribunal of their sufficiency to show such remittance. As earlier pointed out, the two reports (Surequest and DSL) support this conclusion. Moreover, the contract entered into by [St. Francis] which were assumed by [Malayan} under the MOA, included the VAT as part of the costs.
It is accordingly the holding of this Arbitral Tribunal to ALLOW the input Value Added Taxes ("VAT") paid to the government for goods and services utilized for the Project to remain in the ARCC.[11]
In the instant case, a meticulous examination of the voluminous records related to it would clearly show that, in the payment of contracts and construction materials, Malayan has deducted Input VAT of 1/11% and 2% withholding tax from the contract price or construction cost and this was clearly specified in the check vouchers issued by it. Clearly, the payment of input VAT was, in effect, shifted to Malayan considering that 1/11% Input VAT was automatically deducted from the total obligations paid to contractors and suppliers concerned. Here, the documentary evidence submitted by Malayan and St. Francis had led the CIAC to conclude that they are sufficient to show proof of remittance to the government of the Input VAT. Thus, We find it unnecessary to disturb the findings of the CIAC as it is generally conclusive and binding with the Court. In sum, the summary of the Cash Vouchers presented by Malayan totalling P47,593,994.29 are sufficient proof of the filing and payment of input VAT by it in the absence of proof to the contrary evidencing grave abuse of discretion on the part of the CIAC.[13]As stated at the outset, in its January 11, 2016 Decision, this Court through the Third Division, affirmed the consistent ruling of both CIAC and CA on the inclusion of the Input VAT on the ARCC.
(1) [T]he award was procured by corruption, fraud or other undue means; (2) there was evident partiality or corruption of the arbitrators or of any of them; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; (4) one or more of the arbitrators were disqualified to act as such under section nine of Republic Act No. 876 and willfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or (5) the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made.[16]None of these exceptions finds application in this case. Least of all, given the aforequoted rationalizations provided by the CIAC in ruling on the inclusion of the Input VAT in the ARCC, this Court cannot plausibly conclude that it has so "imperfectly executed its powers such that a final and definite award was not made on the issue of whether input VAT should be included in the ARCC."[17] St. Francis has not even attempted to show, as it cannot, that the CIAC arbitral tribunal conducted its affairs in a "haphazard, immodest manner that the most basic integrity of the arbitral process was imperiled."[18] Instead, St. Francis offered no new argument or any strong and compelling reason to warrant the reversal of the uniform finding made by the CIAC, the CA, and this Court in its Decision as to the inclusion of the Input VAT. Thus, there need not be a reconsideration of the issue as to the Input VAT.
St. Francis is estopped from claiming that Input VAT is, thus, excluded from the ARCC spent by Malayan on the project. Article 1431 of the New Civil Code (NCC) provides that "through estoppel, an admission or representation is rendered conclusive upon the person making it and cannot be denied or disproved as against the person relying thereon." This substantive law is echoed in Section 2(a) of Rule 131, which states that "[w]henever a party has by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission be permitted to falsify it." The fundamental considerations of equity and fair play underlying the principle of estoppel were explained by case law, thus:
I. COMPUTATION FOR REIMBURSEMENT Sales P638,132,759Disbursement: Pay to Malayan 427,231,953Cost incurred 451,419,858Advances to Contractor 35,298,336Com. & VAT 47,739,805Interest Expense 207,500,000 1,169,189,952 (65,804,831) 1,103,385,571Amount spent by ASB 465,252,812
Estoppel in pais arises when one, by his acts, representations or admissions, or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. The principle of estoppel would step in to prevent one party from going back on his or her own acts and representations to the prejudice of the other party who relied upon them. It is a principle of equity and natural justice, expressly adopted in Article 1431 of the New Civil Code and articulated as one of the conclusive presumptions in Rule 131, Section 2 (a) of our Rules of Court.[21]For the principle of estoppel to apply, the following elements must be established: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the actual facts.[22]
Section 9. Remaining Construction Cost. - (a) [St. Francis] represents and warrants to Malayan that Malayan can complete the Project at a cost not exceeding Four Hundred Fifty-Two Million Four Hundred Twenty-Four Thousand Eight Hundred Forty-Nine Pesos (P452,424,849) as set forth in [St. Francis'] Construction Budget Report attached hereto and made an integral part hereof as Schedule 9 x x xOn this note, the estimated RCC of P452,424,849 in Section 9 of the MOA included the unpaid balance on SEAPAC's contract amounting to P35,606,000.00, which was VAT-inclusive. Malayan's witness, Gema Cheng, explained, thus:
Q.2.2.4.1 How did you know that the unpaid balance of the SEAPAC Contract was VAT inclusive?If the benchmark is Section 9 of the MOA, which contains the amount initially warranted by St. Francis to Malayan as the amount necessary to complete the project, then the ARCC should include the Input VAT as the warranted RCC in Section 9 included the Input VAT.
GOC: By virtue of a Deed of Assignment, [St. Francis] assigned to MALAY AN the SEAPAC Contract for the curtain wall and aluminum doors and windows. Upon completion of the SEAPAC's works, MALAYAN paid SEAPAC. These payments to SEAPAC were all Input VAT inclusive.
Q.2.2.4.2. Apart from the SEAPAC Contract, do you have any other proof to show that the Php942,529,824 Construction Cost Budget in Exhibit I of the SGV Report is VAT inclusive?
GOC: Note that the amounts of the items composing the Construction Cost Budget are the prices of the works contracted with Claimant's contractors. These prices are already VAT inclusive. Thus, the sum of these amounts, which are VAT inclusive, would necessarily result to a total amount which is likewise VAT inclusive.
For instance, in [St. Francis'] contract for sewerage treatment plant works with Polystone Builders, Inc., the price was set at Php2,800,000.00. This price is VAT inclusive and as such, was included in the computation of the Construction Cost Budget in Exhibit I of the SGV Report.[25]
ATTY. D. TAMAYO (COUNSEL RESPONDENT):There is, therefore, no reason to reverse our initial Decision, refusing to exclude from the ARCC the Input VAT paid by Malayan in order to complete the Project.x x x Can you just read on and I ask Mr. Josue if you can see any indication on (sic) the SGV report that the information you gave and [St. Francis] gave to SGV would indicate that the contracts were not VAT-inclusive? Tingnan ninyo nalang po. Contracts in the construction industry are usually VAT-inclusive?MR. A.L JOSUE (CLAIMANT WITNESS):Yes.ATTY. D. TAMAYO (COUNSEL RESPONDENT):Okay.MR. A.L. JOSUE (CLAIMANT WITNESS):And actually, based on your contracts we discussed with TVI, it is VAT inclusive.ATTY. D. TAMAYO (COUNSEL RESPONDENT):Okay. Now, the 452 Million remaining construction costs that you worked . . . okay, all of the contracts there are also VAT inclusive? That would be your position?MR. A.L. JOSUE (CLAIMANT WITNESS):Yes.[28]
Given the Net ARCC of P567,295,496.40, Malayan should have 65%, while St. Francis should have 35% of the remaining units in the project, as computed below:
Construction Cost as per receipts (Exhibit "R-48-series") with 1/11% Input VAT and 2% P554,583,160.20Withholding Tax Total Inclusion: (Award to TVI) P8,282,974.82
+ P17,807,364.98TOTAL ARCC (Construction Costs as per Receipt + Inclusion) P572,390,525.18Total Deductions: P2,357,036.78Interest Expense paid by Malayan to RCBCP39,348,659.88Change Orders not due to Reconfiguration 971,796.29Contingencies 631,154.39Interior Design Works + 754,086.10Input VAT45,419,770.44 P2,357,036.78Total Exclusions: Item 1.0P9,297,947.22 Item 5.3 and 5.4 530,563.65Item 5.3 and 5.4725,877.62 Item 5.7.1 50,710.61 Item 6.2.25 194,171.00 Item.6.11 3,499.64 Item 6.11 1,360.00Item 6.12.32,397,047.89 Item F3 368,397.52 Item F3 448,534.59 Item F3 634,232.26 Professional Fees C&D 427,500.00 Professional Fees N + 79,022.73 P2,737,992.00NET ARCC (Total ARCC P572,390,525.18Less - Total Deductions and Exclusions) - P5,095,028.78 P567,295,496.40
With the foregoing, I vote to PARTIALLY GRANT Malayan's Motion for Partial Reconsideration and DENY St. Francis' Motion for Partial Reconsideration. Accordingly, I vote to AFFIRM the Court of Appeals' Decision in CA-G.R. SP Nos. 109286 and 109298 with the following MODIFICATIONS:
P567,295,496.40 (Net ARCC) - 452,424,849 (RCC per Sec. 9) -------------------------------- P114,870,647.40 (Excess ARCC) ÷ 175,856,325.05 (Total Aggregate Value of Reserved Units) -------------------------------- 0.653207369 or 65% to Malayan P60,985,677.65 ÷ 175,856,325.05 ---------------------------0.346792631 or 35% to St. Francis
1) | The total amount of P5,095,028.78 should be deducted and excluded from the gross Actual Remaining Construction Cost (ARCC) of P572,390,525.18 to arrive at the net ARCC of P567,295,496.40. |
2) | Malayan is entitled to 65% ownership over the reserved units (P114,870,647.40/P175,856,325.05), together with the corresponding interest in the income realized thereon in the same proportion; while St. Francis is entitled to 35% (P60,985,677.65/P175,856,325.05) ownership of the said units, as well as its corresponding share in the said income. The distribution of the parties' proportionate share in the units shall be made by drawing of lots; |
3) | Malayan is directed to deliver possession and transfer title over the reserved units in the proportion stated above, to pay St. Francis its proportionate share of the income;from the r served, units reckoned from the date of the completion of the project on June 7, 2006 up to the finality of this decision, and, to render'full accounting of all the upkeep expenses, rentals and such other income derived from the reserved units so awarded to St. Francis; |
4) | Arbitration costs are maintained pursuant to the pro rata sharing that the parties had initially shared in accordance with the amounts claimed and counterclaimed by them. |
5) | Malayan and all others claiming rights under it, are enjoined from exercising acts of ownership over the reserved units relative to the proportionate share awarded to St. Francis; |
6) | The Register of Deeds of Pasig City is directed to immediately reinstate the name of St. Francis Square Realty Corporation (formerly ASB Realty Corporation) as the registered owner in the corresponding Certificates of Title covering the reserved units awarded to St. Francis; and |
7) | All other awards granted by CIAC in its Award dated May 27, 2009 which are not affected by the above modifications are affirmed. Nos costs. |