Allen Wilson Shopfitters v Buckingham

The homeowner's dismissal of the contract administrator did not mean that the payment machinery of JCT 98 could not longer be operated and that the payment machinery of the Scheme for Construction Contracts therefore applied in its place
 
ALLEN WILSON SHOPFITTERS v BUCKINGHAM

Technology and Construction Court
His Honour Judge Peter Coulson QC
27 May 2005
 

the contract created by the contractor's acceptance of the homeowner's letter of intent incorporated the terms of JCT 98, including its payment machinery. During the course of the contract, the homeowner dismissed the contract administrator. There was a dispute as to value of work instructed by the contract administrator before its dismissal which was referred to adjudication. The adjudicator made an award in the contractor's favour. One of the grounds on which the Homeowner opposed the enforcement of the decision concerned the dismissal of the contract administrator. The Homeowner contended that the effect of the dismissal was that the payment machinery of JCT 98 (under which the contract administrator was to issue interim certificates) could no longer be operated. This meant that the payment machinery of the Scheme for Construction Contracts therefore applied in its place with the result that the adjudicator had no jurisdiction on the ground that the homeowner was a residential occupier.
 
Judge Coulson rejected the homeowner's contention on the basis that the precise nature of the contractual payment machinery applied by the adjudicator was not an issue which could affect the enforceability of the decision and that in any event no jurisdictional challenge based on the Construction Act was open to the homeowner by reason of the adjudication provisions of JCT 98 governing any disputes as to valuation and payment arising out of the valuations. The adjudicator derived his jurisdiction to consider the contractor's claims for unpaid valuations of work from the contract created by the homeowner's acceptance of the letter of intent with the result that any dispute in relation to that work was referable to adjudication and was within the adjudicator's jurisdiction. The fact that the adjudicator applied the payment machinery of the Scheme for Construction Contracts in reaching his decision was entirely a matter for him and it was not the court's function to review the correctness of the adjudicator having done so. Even if the only appropriate payment mechanism following the contract administrator's dismissal was that provided by the Scheme for Construction Contracts, the homeowner's failure to appoint another contract administrator constituted a breach of contract on his part and he would have been unable to take advantage of his own wrong by seeking to contend that the contractual payment machinery was unworkable with the result that the Scheme did not fill the gap on the ground that he was a residential occupier.
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