Allen Wilson Joinery Ltd v Privetgrange Construction Ltd
The adjudicator's decision for the contractor to pay the sub-contractor a specified sum should not be enforced by reason of there being a triable issue as to whether there were terms of the contract between those parties which were orally agreed
17 November, 2008
ALLEN WILSON JOINERY LTD V PRIVETGRANGE CONSTRUCTION LTD
Technology and Construction Court
17 November 2008
17 November 2008
The sub-contractor sent a "budget quotation" to the contractor which described the work to be carried out by the sub-contractor and stated that the work would be carried out for the specified price but on the basis that the final costs would be finalised when full details had been agreed and site surveys had been carried out. The sub-contractor began work but the architect formed the view that the work was unacceptable. The contractor refused to pay the sub-contractor's invoice. The sub-contractor began adjudication proceedings. The adjudicator decided that the contractor should pay the sub-contractor a specified sum. The contractor refused to pay that sum. The sub-contractor began court enforcement proceedings. The contractor contended that the adjudicator did not have jurisdiction on the ground that not all the sub-contract terms were in writing in accordance contrary to the requirement in section 107 of the Construction Act that a contract subject to the Act had to be in writing.
Akenhead J held that the adjudicator's decision for the contractor to pay the sub-contractor a specified sum should not be enforced by reason of there being triable factual issues as to whether there were terms of the contract between those parties which were orally agreed. In addition the contractor should have leave to defend on condition that it paid a specified sum into court within 14 days. Whilst there were factual issues which could not be resolved in the enforcement proceedings brought by the sub-contractor, there were some aspects of the factual case advanced by the contractor which appeared somewhat improbable, for example the oral agreements contended for by the contractor as having become terms of the sub-contract as to a specified period for completion of the sub-contractor's works and The nature of the sub-contractor's design obligation in the light of the sub-contractor's quoted obligation to manufacture, deliver and install the sub-contract works. In particular the issue of whether there was an implied contractual term that the sub-contractor would not sub-contract did not impact on whether or not the contract was a written one for the purposes of section 107 (even if such a term existed by operation of law).