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Building Law Monthly
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Articles for May 2011
ADJUDICATOR BREACHED NATURAL JUSTICE IN FAILING TO CONSIDER DEFENCE
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18 May 2011
In PC Harrington Contractors Ltd v Tyroddy Construction Ltd [2011] EWHC 813 (TCC), [2011] All ER (D) 162 (Apr) Mr Justice Akenhead held that the adjudicator had breached the rules of natural justice in construing his jurisdiction so narrowly as to disregard one of the two broad defences invoked by the claimants. The adjudicator was held to have acted ‘wholly honestly’ but the breaches of the rules of natural justice were nevertheless material with the consequence that the decisions of the adjudicator were held not to be enforceable.
INJUNCTION GRANTED TO RESTRAIN DEMAND UNDER PERFORMANCE BOND
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18 May 2011
In Simon Carves Ltd v Ensus UK Ltd [2011] EWHC 657 (TCC), [2011] All ER (D) 260 (Mar) Mr Justice Akenhead held that the claimants were entitled to an injunction to restrain the defendant beneficiaries from making any demand under a performance bond which the claimants had procured from a bank. The basis on which the claimants were held to be an entitled to an injunction was not based on any fraud by the defendants but on the basis that the claimants had established a strong case that the defendants were not entitled under the underlying contract between the claimants and the defendants to make a demand on the ground that the bond was to be treated, in the light of events that had occurred, as null and void and returnable.
DEFECTIVE PREMISES ACT APPLIES ONLY TO PROVISION OF NEW DWELLING
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18 May 2011
In Jenson v Faux [2011] EWCA Civ 423, [2011] All ER (D) 128 (Apr) the Court of Appeal affirmed that the Defective Premises Act 1972 applies only to the provision of a new dwelling and not to the rectification of an existing dwelling. On the facts of the case the refurbishment works were held not to amount to the provision of a new dwelling because the identity of the refurbished dwelling was not ‘wholly different’ from the dwelling as it was prior to the carrying out of the works. This was so notwithstanding the fact that the work affected every floor of the property and cost £400,000. While the Court of Appeal did not rule out completely the possibility that refurbishment works might result in the creation of a dwelling with a ‘wholly different’ identity, it is suggested that this is likely to be a rare conclusion and that refurbishment work is unlikely to fall within the scope of the Act.
ADJUDICATION, WAIVER OF JURISDICTION AND THE NEED FOR ALL TERMS TO BE EVIDENCED IN WRITING
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18 May 2011
In Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHC 780 (TCC), [2011] All ER (D) 351 (Mar) Mr Justice Akenhead held that all of the terms of the contract between the parties to the adjudication had been evidenced in writing and that the various objections raised by the defendant to the jurisdiction of the adjudicator were without foundation. Had it been necessary for him to do so, he would also have held that the defendant had waived the various specific jurisdictional objections it had made, given that it did not maintain them in the present proceedings, and that it had not sought to enter a general reservation. He therefore held that the decision of the adjudicator should be enforced.
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