Domsalla v Dyason

The adjudicator had jurisdiction despite one of the parties being a residential occupier and despite supplemental condition D5.3 of the JCT Minor Works Contract providing for the adjudicator to reach his decision "acting as an adjudicator for the purposes of section 108"
 
DOMSALLA v DYASON

Technology and Construction Court
His Honour Judge Anthony Thornton QC
4 May 2007
 
The contractor brought court enforcement proceedings to enforce the adjudicator's decision in the contractual adjudication that the insured homeowner was to pay the contractor a specified sum. The insured homeowner, who was the defendant in the contractual adjudication brought by the contractor, contended that the adjudicator did not have jurisdiction by reason of supplemental condition D5.3 of the JCT Minor Works Contract providing for the adjudicator to reach his decision under supplemental condition D4.1 "acting as an adjudicator for the purposes of section 108" when he could not have so acted by reason of no dispute involving a residential occupier being possible under section 108(1) of the Construction Act. Whilst section 108(1) provided that a party to a construction contract had the right to refer a dispute to adjudication, the Act did not apply to a construction contract with a residential occupier where that contract related principally to operations on a dwelling which one of the parties to the contract occupied or intended to occupy as his residence.
 
Judge Thornton rejected this contention on the basis that supplemental condition D4.1 did not define the type of dispute that could be referred to adjudication and instead defined the adjudicator's powers and that in any event the parties entered into an ad hoc adjudication agreement. In particular (1) the primary contractual provisions containing the contractual right to adjudication were article 6 and clause 8 which provided for adjudication in accordance with the procedures in supplemental condition D (2) the supplemental conditions were consequent procedural provisions for the procedure in respect of any adjudication invoked by a party which had already exercised its primary right to apply for an adjudicator's appointment (3) supplemental condition D4.1 did not define the type of dispute that could be referred to adjudication under article 6 and clause 8 and instead defined the powers of the adjudicator once he had been validly appointed (4) the adjudicator's powers defined by supplemental condition D4.1 included all the powers and duties of an adjudicator appointed under section 108, including the obligation to reach his decision within 28 days of referral, by incorporation (albeit by using a clumsy verbal formula).
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