[2005]JRC102
royal court
(Samedi Division)
2nd August, 2005
Before: |
Commissioner F. C. Hamon, Esq., O.B.E., and Jurats Georgelin and Allo |
Between |
REGAL CONSTRUCTION (JERSEY) LIMITED |
PLAINTIFF |
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And |
DOCTOR NAGY MICKHAEL |
Defendant |
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Advocate P.M. Livingstone for the plaintiff.
Advocate O.A. Blakeley for the defendant.
judgment
commissioner:
1. This case involves a fairly complex building dispute. Fortunately, the Court on 17th May 2005 directed (with the consent of Counsel) that we should decide only five issues at this trial.
2. The defendant, Dr. Nagy Faud Mickhael, who qualified at the University of Cairo, practised with another colleague Dr. Anthony Halliwell. Dr. Mickhael purchased the property at Jubilee Wharf in his own name on 10th October 2003 from the States of Jersey. He had practised with Dr. Halliwell at 17 Clarendon Road and then at Axminster House for a short period of time. He purchased the property (two empty stores and the flats above the now refurbished store) for £220,000 and on the day of purchase he borrowed £375,000 from Lloyds TSB. There were other later and substantial borrowings but as these were not referred to by Advocate Livingstone (they are a matter of public record) we do not feel it appropriate to refer to them in this judgment. Because one of the storerooms remains in its pristine state we were able to compare, on our visit to the site, what was there originally with what has been transformed. It is a truly remarkable transformation.
3. Dr. Mickhael had some building experience. He had, while in England, converted an old mock Tudor house by adding three extra bedrooms and two living rooms, all of which work he had overseen with the help of a former professor at the University of Leeds who was apparently an architect. When he carried out the Jubilee Wharf development, he partially relied on a Mrs. Journeaux to help in "technical things". This lady was not called as a witness and her existence only became known during the cross-examination of the defendant by Advocate Livingstone. Apart from that, Dr. Michael told us that his father and his two uncles own the third biggest private contracting company in Egypt. He had helped them while he was a medical student there and gained some experience.
4. He first employed Nigel Biggar and Partners to draw up plans for the property and the plans were approved in July 2003. Unfortunately, once the site had been purchased and planning permission and change of use had been obtained, the architects could not complete the work in the timescale proposed and Dr. Mickhael had to part company with them. One of his patients had once worked for Naish Elliott Waddington and an introduction was arranged with Mr. James Naish and Mr. Dion Elliott. Mr. Regal of the plaintiff company was introduced and on 17th May 2004 Mr. Regal sent by fax (no hard copy was sent) a letter to Mr. Elliott with a copy (by fax) to Dr. Mickhael. He wrote (inter alia) -
"Thank you for meeting with me on Friday together with Dr. Mickhael. I consider this to be a very prestigious project, which certainly needs the guiding hand of an experienced contractor in order to ensure that it is run smoothly and completed to an agreed schedule".
Later, on 25th May, Mr. Regal again faxed Mr. Elliott (with a copy to Dr. Mickhael) and having listed a detailed number of issues that needed to be determined he concludes with these words -
"It may be that we have misunderstood our brief and all that Dr. Mickhael requires is a competent site manager - we can provide this service very competitively. However, we do not consider that this would be in the client's interest as the financial management and off site contracts management would rest with the client with all the potential for dislocation for the project that may entail".
5. The work progressed. We shall examine the progress in greater detail in answering the questions put to us by the earlier Royal Court direction. It must be stated that Dr. Mickhael never corresponded with the plaintiff and denied that many of the letters faxed to him had ever been received. That we find truly surprising.
6. After that initial introduction (and we shall deal in more detail with the points raised in this difficult case) we turn to the first of the questions that we have to answer.
(i) Was the contract between the parties a JCT minor works contract or alternatively governed by the plaintiff's standard terms and conditions, or a combination of both or neither?".
As Mr. Regal, (with some forty years of experience in the building trade) told us, this was a complex building work and it would not have been possible for a site manager to run work of this complexity himself. Not only because the matter was complex, but it would have become both illegal and dangerous without all the requisite and detailed building bye laws requirements in place. Dr. Mickhael told us that he arranged to borrow £375,000 from Lloyds TSB, his bankers. We know no more of that loan than was told to us by Dr. Mickhael for we saw no documents on this point. Dr. Mickhael lived in a rented property and he purchased the proposed surgery, the flats above and the empty store-room on the opposite side in his own name. Let us deal with one factor immediately. The contract could not have been governed by the contractor's standard terms. Though these are on the reverse side of all the plaintiff's letters, that side was never faxed to the defendant, who did not (except on one occasion) receive hard copies of the faxed documents. (Dr. Mickhael, in his evidence before us, denied having ever read many of the crucial documents. This, despite the fact that he told us he received over thirty letters a day and wrote many letters in regard to his medical practice). It is agreed and pleaded by the plaintiff that a JCT minor works contract was never formally completed by the parties, but it is mentioned on several occasions.
On 4th June 2004, Mr. Regal wrote, (by fax), this letter to Dr. Mickhael -
"Dear Nagy,
Thank you for meeting with me earlier this week in respect of the administration of your proposed Surgery construction.
As explained to you we do not consider that providing simply a Site Agent working in isolation on this project is a particularly cost effective and thus practical solution for your requirements as the level of off-site administration is likely to prove significant in order to co-ordinate the resources and sub trades. We further consider that in attempting to co-ordinate this project only from site would prove beyond the abilities of a Site Manager. We are, however, happy to provide such services should you feel more comfortable with a greater involvement provided by yourself in respect of the off-site administration.
Effectively input from a Project Co-Coordinator/Buyer should be required and in addition to this a Quantity Surveyor for financial control and a Contracts Manager for resource allocation and co-ordination. In respect of these former 3 individuals time allocation would be relatively short. I would anticipate the following time requirements.
1. Projects Co-Coordinator approximately 4 hours per week
2. Quantity Surveyor approximately 3 hours per week
3. Contracts Manager approximately 5 hours per week
In addition to the above the Site Agent would be required for the duration of the works i.e. 40-45 hours per week, subject to working time.
In addition to the above as discussed you will need to take into account other items such as insurances including Public Liability, Employer's Liability and Buildings Cover together with Welfare, Transport, Plant and Machinery, Power, Telecoms and the like.
We quote the following charge out rates for Contracts Manager, Site Manager, Quantity Surveyor and Projects Co-ordination.
Contracts Manager £35.56 per hour
Site Manager £21.30 per hour, this operative would
be the full time site administrator
Quantity Surveyor £42.39 per hour
Projects Co-Ordinator £26.21 per hour.
We trust this meets with your approval and look forward to receiving your further instructions, which will receive our best and prompt attention.
Yours sincerely,
For Regal Construction (Jersey) Ltd.
Sgd. Stephen
Stephen J Regal
Managing Director"
There are very detailed costings with a total approximate final amount of £196,081 and then at a further meeting on 8th September where among the points discussed (there are seventeen in all) is item number 3 which reads -
"Contract is to be JCT Minor Works" and the contract is to be carried out by Naish Waddington Interiors."
That is borne out by a letter (dated 3rd August 2004) from Mr. Regal to Mr. Elliott of Naish Elliott Waddington Interiors. The letter is important and we set it out in full -
"Dear Dion
St. Mark's Medical Centre
I note that we have yet to receive the Contract in respect of the works being carried out at the above and, although the intent is the (sic) use of the JCT Minor Works Contract, I think that it would be to everyone's advantage if the Contract can be finalised sooner rather than later.
As far as I am aware all the pricing elements have been provided and agreed and indeed we have made the necessary amendments where items were initially over measured (as promised) and thus I think that a Contract Sum can be inserted. Obviously this is likely to be a moving target as in most Contracts, but this would be dealt with by means of variation orders and any cost implications or contractual implications would be assessed therefrom.
I look forward to receiving the Contract as soon as possible.
Yours sincerely,
For Regal Construction (Jersey) Ltd.
Stephen J. Regal
Managing Director."
It shows that the plaintiff was constantly anticipating the receipt of the contract. Mr. David Hamon, the company's Contract Manager and Mike Coward, the Company's Senior Quantity Surveyor had as the first item for a meeting on 24th June (there are 19 items in all) "When are we signing the contract?". That is the only question unanswered.
7. On 15th July Mr. Coward wrote to Mr. Elliott enclosing detailed costings sheets. Mr. Coward said in that letter -
"I trust that the enclosed are sufficient for your needs and that we may now finalise the minor works contract".
A copy of the letter and its enclosures was sent to Dr. Mickhael.
8. Mr. Regal readily admitted that it would be preferable for the contract to be signed before work commenced but he went on to say that it must be signed before the final account is issued or agreed. We heard how time constraints often do not allow the contract to be signed at an early stage. Quite clearly, Mr. Regal (with his long experience in the building trade) knew the full implication of the very many clauses in the JCT contract but he was quite clear that a contract signed once the work has commenced could only be signed when the intention of both parties had been established. One thing is certain. Nobody from the plaintiff gave a copy of this document to Dr. Mickhael.
9. This was an unusual contract. Before Regal Construction arrived on site Dr. Mickhael had had the steelwork designed, manufactured and erected by others, so that the first floor construction had already been put in place.
10. As we have seen, on 4th June, Mr. Regal faxed Dr. Mickhael. It is a helpful letter. It sets out the rates for those of the plaintiff's staff who would be associated with the work and how many hours a week they would probably be working. It mentions such matters as the various items of insurance that would need to be covered by Dr. Mickhael in respect of off-site administration. Essentially, the letter confirms a meeting on 8th June at which Dr. Mickhael was present. Mr. Regal recalled explaining - albeit in very broad terms - about the JCT contract and he told us that his company preferred to work under a formal contract because that had been tried and tested for many years. We were shown a document called "builder's quantities" which is a very detailed assessment of how Regal Construction arrived at the assessed price of £196,000. It is a multi-page document given to Dr. Mickhael and to Naish Waddington. That the document was examined by these two parties, Mr. Regal had no doubt. There was some discussion, apparently, about the drylining rates and Mr. Regal brought a screen print from the firm's electronic pricing system to show them and to satisfy them. If this is so, then the document was agreed and Mr. Regal had no doubt that the contract was made on the basis of this document. The figure of £196,081 was, of course, subject to adjustment for provisional sums and not included in the contract were works that Dr. Mickhael himself was to supervise - Planar Glazing and the office lighting, the staircases, the steelwork and the specialist floor lighting.
11. There is, however, a dilemma to be resolved. When shown the JCT Minor Works Contract, Dr. Mickhael said (somewhat emphatically) -
"I have never ever seen this in my whole life. I've never seen anything like it. Never seen anything, never been shown one of it, never".
That runs directly in the face of Mr. Elliott's evidence that he ran through what a JCT Minor Works Contract entailed with Dr. Mickhael and that he was "supportive in us preparing that".
Mr. Elliott had no doubt that there was to be a JCT Minor Works Contract which he described as very straightforward.
12. Dr. Mickhael in fact recalled a meeting with Mr. Elliott at which Mr. James Naish (who was not called as a witness but was clearly available as a witness) apparently said, when Dr. Mickhael refused to sign "Of course Dr. Mickhael is not going to sign because it is extremely expensive". That hearsay remark was never put to Mr. Elliott and it is not evidence of any relevance. Indeed, when we come on to the question of why architect's certificates were issued (and paid) Dr. Mickhael said that Mr. Naish warned Mr. Elliott that if Dr. Mickhael did not agree a contract then it was illegal to issue an architect's certificate.
13. At the meeting on 8th June (which clearly took place) Mr. Regal told us that he explained (in very broad terms) the JCT contract.
14. A disturbing facet for the defendant was the issue of a progress payment certificate on 22nd July 2004. It is marked certificate No. 1 under the heading "agreement dated" it says unequivocally, "TBA" (to be arranged). It is significant that the amount of £13,333.46 was paid. On the authorities (to which we now turn) even that may not be enough to prove the existence of a contract.
15. In the case of Birse Construction Ltd. v St. David Ltd (2000) Recorder Colin Reese QC referred to the "perennial question" and he recalled that counsel for the plaintiff had referred to Keating on Building Contracts (6th edition page 20) where the following statement appears -
"It is sometimes difficult to determine whether a concluded contract has come into existence when there have been lengthy negotiations between the parties but no formal contract has ever been signed. It is suggested that the useful approach is to ask whether the following can be answered in the affirmative -
a) in the relevant period of negotiation did the parties intend to contract?
b) at the time when they are alleged to have contracted, had they agreed with sufficient certainty upon the terms which they then regarded as being required in order that a contract should come into existence?
c) did those terms include all the terms which even though the parties did not realise it, were in fact essential to be agreed if the contract is to be legally enforceable and commercially workable?
d) was there sufficient indication of acceptance by the offeree of the offer as then made to comply with any stipulation in the offer itself as to the manner of acceptance?"
16. As the Court went on to say -
"The parties are to be regarded as masters of their contractual fate. It is their intention which matters and to which the Court must strive to give effect".
17. We have a complete conflict of evidence. Dr. Mickhael says that he never saw the JCT contract. Mr. Elliott says that he went through the contract in terms that the contract would be governed by Jersey law and for those purposes it would be amended accordingly. He went on to say this -
"We discussed defects, liability periods, we discussed certainly the arbitration, which arbitrators to use, we discussed commencement and completion dates, programmes".
18. Mr. Elliott, in answer to questions put to him by Advocate Blakely, remembered taking Dr. Mickhael through specific clauses in the JCT contract such as Articles 7a and 7b (arbitration and legal proceedings) which Mr. Elliott said were actually discussed, although Dr. Mickhael told him that he would leave the intricacies to his professional advisers. That is indeed surprising when Dr. Mickhael denies all knowledge of the contract in any form.
19. Again, in Birse Construction Ltd v St. David Ltd. 2000, there is cited the judgment of Bingham J (as he then was) in the case of Pagram s.p.a. v. Feed Products Ltd (1987) 2 Lloyd's Rep. 610 where he said -
"The court's task is to review what the parties said and did and from that material to infer whether the parties' objective" (our underlining) "intentions as expressed to each other were sufficient to enter into a mutually binding contract".
He went on to say -
"It is furthermore clear that where exchanges between parties have continued over a period the court must consider all these exchanges in context and not seize upon one episode in isolation in order to conclude that a contract has been made".
And finally -
"Where the parties have not reached agreement on terms which they regard as essential to a binding agreement, it naturally follows that there can be no binding agreement until they do agree upon those terms. But just as it is open to the parties by their words and conduct to make clear that they do not intend to be bound until certain terms are agreed even if those terms (objectively viewed) are of relatively minor significance, the converse is also true. The parties may by their words and conduct make it clear that they do intend to be and even though there are other terms yet to be agreed, even terms which may often or unusually be agreed before a binding contract is made".
20. We appreciate that Dr. Mickhael had many problems: he was running a practice; he had numerous sub-contractors that he had employed personally but his denials of having received important documents do not ring true. He never replied to a single letter, some of which the plaintiff had stressed were important. He denied having seen the JCT contract and denied knowing anything of its terms. We find that impossible to believe. Perhaps Mr. Elliott might have worked more assiduously to have the JCT contract signed because he obtained Dr. Mickhael's signature to the firm's Conditions of Engagement on 2nd February 2004. We do however accept Mr. Elliott's version of events.
21. We are to give effect to the objective intention of the parties. We are in no doubt that the parties intended that this complex construction work - made doubly complex by the insistence of Dr. Mickhael that he would sometimes employ his own workmen (such as Brady & Gallagher who carried out some of the mechanical and electrical works) - would be governed by a contract. Dr. Mickhael had signed the Conditions of Engagement for the appointment of a designer with Naish Elliott Waddington Interiors. He certainly signed a "letter of acceptance" from Brady & Gallagher. We learned that while Dr. Mickhael tried unsuccessfully to beat down the price, he still signed the document and paid for the invoices submitted to date of approximately £40,000. We have not the least doubt that, although a contract was not signed both parties intended the contract to be governed by the JCT form. If there are matters contained in the contract which were not explained to Dr. Mickhael by Mr. Elliott (and the important matters were explained) we can see nothing in the JCT contract that vitiates from the questions that we are to answer.
22. As we have said, Mr. Elliott told us (and we accept his evidence) that he went through the contract in terms that the contract would be governed by Jersey law, and that there would be a series of amendments attached to the contract that would bring it into line with Jersey. He and Dr. Mickhael discussed defects, liability periods, and discussed arbitration - and even which arbitrators to use - and the commencement and completion dates and programmes. He told us that the only reason that Dr. Mickhael did not sign at the time was that the prices of the sub-contractors had to be agreed. Both Mr. Regal and Mr. Elliott had experience of a contract (such as the contract in question) being signed very late into the project. We are content to answer the first question by saying that the contract between the parties was a JCT Minor Works Contract.
23. (b) "Whether the contract was a fixed price contract for fifty thousand pounds" is the second question that we have to answer.
24. We have two versions of events.
Mr. Regal's version
25. Sometime early in July Mr. Regal met with Dr. Mickhael over a cup of coffee in the afternoon. Dr. Mickhael explained that his bank wanted a split of first and second fix works because of some method that they had worked out for funding the project. Mr. Regal felt that this was unusual particularly as first and second fix works in the building industry differed from the concept of Dr. Mickhael. We had examples where electrical cabling is the first fix while the light switches are the second fix; putting the pipework and the soil pipes in is the first fix and putting in the sanitary ware is the second fix. Mr. Regal worked through the Bill of Quantities (we have his handwritten calculations on some of the eight pages of the Bill of Quantities document sent to Mr. Elliott on 30th June 2004). Certain items (such as décor) were not included and none of the general provisional sums, flooring provisional sums and various allowances were discussed nor included. Mr. Regal understood that Dr. Mickhael was asking him to say what (using Dr. Mickhael's definition) first and second fix prices were. Mr. Regal told us that the bankers had apparently asked for a breakdown of first and second fix costs exclusive of any other costs. That was the information that he provided. He said he was left rather baffled at the end of the meeting. Certainly he did not agree to reduce his costs to £50,000 and that figure was never discussed.
Dr. Mickhael's version
26. Dr. Mickhael met with Mr. Regal at lunch (which he paid for) in a café in the Parade. He agreed that he received the Bill of Quantities but he did not fully understand some of the technical terms. He asked what items were in the first fix and what items were in the second fix. Dr. Mickhael only wanted to know how much the first fix would cost. He never intended to have the plaintiff working as a contractor for the whole job. He was to be in charge of the project. He told Mr. Regal that he would change some walls upstairs to glass walls. The calculated price for the first fix was about £53,000 and Dr. Mickhael asked Mr. Regal to cut the price to £50,000. He agreed. They shook hands and a contract was established. He told us that the "information was liaised back immediately the same day to Mr. Elliott". (Mr. Elliott had no knowledge of this happening and there is not a single piece of writing from Dr. Mickhael to justify his claim).
27. In an affidavit sworn in the action for summary judgment (where the Court set out the five questions that we have to answer) Dr. Mickhael swore an affidavit. It reads in part -
"At a meeting with Mr. Regal over lunch he showed me the costings for the "First Fix". Mr. Regal showed me the aggregate of the costings which amounted to approximately £60,000 for the "First Fix" namely the installation of internal partitions comprising metal stud work and plaster-board lining and the installation of concrete floor slab. It also comprised the co-ordination of the other contractors on site with whom I had already signed contracts for the first fix electrical works, the air conditioning and the plumbing. I had also signed a contract for the installation of the glass windows. The plaintiff was aware at the beginning of July that all I wanted it to complete was the First Fix. When I saw the costings I told Mr. Regal that they required rectification because the partitions in one half of the mezonnine (sic) level were to be made of glass and they were to be installed by another contractor. He therefore said (after carrying out further adjustments and calculations) that he would deduct approximately £7,000.00 from the costings which thereby reduced the price to £53,000.00. I replied that that was too expensive and asked him for reduction to £50,000.00 for the job. His response was that he would do his best to reduce the cost to £50,000.00.
Following that meeting at which we shook hands to agree the terms I was satisfied that I had entered into a contract with the plaintiff for a fixed price of £50,000.00".
28. It continues to surprise us that if Dr. Mickhael's version is correct he made no attempt to write a letter to confirm what he believed had been agreed. He is a professional man. He was prepared to be on site, virtually on a daily basis to ensure that the work was progressing to his requirements but there is not a single word in writing from a man who is, on his own admission, well versed in writing letters. We prefer the plaintiff's version of events. We answer question (b) by saying that this was not a fixed price contract for Fifty Thousand Pounds.
29. (c) Whether the contract was for the first fix works only.
Even if Dr. Michael were right about the meeting with Mr. Regal (which we have found he is not) , the first fix sums in the summary prepared by Mr. Regal on the Bill of Quantities first sheet amounts to £60,934. We do not accept that the contract was "reduced to £50,000" and we do not accept that it was a contract for first fix work only. Again, we would ask why an intelligent professional man did not write to that effect at the commencement of the work.
30. (d) "In the event of the contract being a JCT Minor Works Contract, was the issuing of architect's interim valuation certificates binding upon the parties?
31. The first certificate from Naish Elliott Waddington Interiors is dated 22nd July. It is for £13,333.46. Dr. Mickhael denied ever having seen this document.
32. A covering letter was sent apparently by fax and post. It is addressed to the defendant at Axminster House. Dr. Mickhael denied having seen either version. When he received an invoice from the plaintiff he paid it immediately. The second letter and second certificate were sent on 19th August. The certificate was in the sum of £72,516.31p. Dr. Mickhael denied ever receiving either the letter or the certificate. He told us that the senior partner, Mr. James Naish, said to Mr. Elliott in his presence (this was not put to Mr. Elliott) -
"If Dr. Mickhael does not agree a contract then it is illegal to issue an architect's certificate".
33. There was apparently consternation when the invoice from the plaintiff was received. There had been an earlier meeting on 27th July 2004 which was held on site. Mr. Elliott wrote to Mr. Regal to say -
"Our mutual client confirmed at the meeting that the funding of the project may not now cover the project's anticipated completion costs. He has made it very clear that any works carried out by Regal Construction and their sub-contractors will be of course covered up to the date of works being suspended".
34. A meeting was proposed and confirmed by Mr. Regal to be held on 9th August at the offices of Naish Elliott Waddington Interiors. At one stage the defendant appeared very confused about the date but he eventually agreed that a meeting was held on 9th August.
35. What happened at that meeting? Dr. Mickhael told us that Mr. James Naish attended the meeting which he and not Mr. Elliott organised.
36. Dr. Mickhael recalled Mr. Regal offering to postpone payment with interest but he refused. He told Mr. Naish that he was very upset; he told Mr. Elliott that his services were no longer required and he told Mr. Regal that the work had to be finished to a point where a financial settlement was possible. He said that he walked out of the meeting, having sacked Naish Waddington Interiors and having agreed that the plaintiff would finish the work "to the end of the first fix". After that meeting letters were sent to the defendant on 8th September, 10th September, 13th September and 15th September. There was no response whatsoever.
37. When Dr. Mickhael says in his sworn affidavit of 26th November 2004 that he first received an account for "the approximate sum" of £86,000 on 27th July, that date cannot be right. As Mr. Coward, a quantity surveyor who had worked for the plaintiff for some 4 years reminded us, the second valuation is dated 19th August, ten days after the meeting at which Dr. Mickhael says that he had dispensed with the services of Naish Elliott Waddington.
38. Mr. Regal, in his evidence-in-chief, recalled that Mr. James Naish was present at the meeting with Mr. Elliott, Mr. Coward and Dr. Mickhael. He said that the statement made by Dr. Mickhael was to the effect that the work was too expensive and he did not have the money to complete. Mr. Regal said that his company would finish the work and suggested a form of deferred payment on a formula to be agreed. Dr. Mickhael became emotional (according to Mr. Regal) and left the meeting.
39. A decision was made not to pull off the site because that might have put the company into a real conflict with the employer under the terms of the JCT Minor Works Contract.
40. A very detailed letter dated 13th August was sent to Dr. Mickhael. That letter which deals with much of the background contains this paragraph -
"We also understand that you have expressed reservations (not to ourselves) concerning our management of the project from our site management right through to our senior management team. We obviously value highly our reputation and any observations by any party, particularly our clients, will always be taken extremely seriously and addressed to attempt to reasonably satisfy any justifiable complaints."
However, to date our team has not received directly any complaint whatsoever and thus we cannot address unspecified comments - should you have any comment whatsoever on our management or our production team please address it to me and I shall ensure that your issues are properly and fully addressed".
41. There was no reply to that letter. Indeed, Mr. Elliott told us that it was only in late September that he heard verbally that Dr. Mickhael wished to dispense with his firm's services.
42. Mr. Elliott apparently had no idea that the meeting of 9th August had terminated his firm's employment.
43. In our view the contract was not for first fix works only. It could not have been. When Dr Mickhael paid £13,333.46p, we know from Mr. Coward's breakdown on 22nd July that that included £1,649.53p of "second fix" works.
44. This was a JCT Minor Works Contract. There was never a question that the contract was for a "first fix" only. Because it was a minor works contract we have no hesitation in declaring that the architect's certificate is binding in the terms of the contract. It is interesting that even in common law such a certificate would be binding unless the defendant seeks to set off against the contractor's claim - or he alleges fraud or misrepresentation none of which was pleaded in the defendant's answer.
45. (e) Whether the contract of whatever type was to be completed within a fixed time scale and if so what timescale.
Dr. Mickhael had to be out of his premises by the end of September; all parties were aware of that fact. In our decision, contract was to be no later than the end of September 2004. In his answer the defendant does not give any indication of what the timescale was.
We appreciate that this is only a preliminary hearing but it is hoped that counsel will see some way of bringing this matter to a settled conclusion.
Authorities
Birse Construction Ltd -v- St. David Ltd. (2000).
Pagram s.p.a. -v- Feed Products Ltd (1987) 2 Lloyd's Rep.610.
Keating on Building Contracts (6th Edition) page 20.