Edenbooth Ltd V Cre8 Developments Ltd

The employer company was not a residential occupier with the result that the contract was not exempt from the application of the Construction Act 1996 by the operation of section 106(1)(a)
 
Edenbooth Ltd V Cre8 Developments Ltd

Technology and Construction Court
Coulson J
13 March 2008
 
The directors of the employer development company were a father and son who occupied two adjoining properties. The employer company entered into a contract with the contractor. The contractor referred various disputes to adjudication. The adjudicator awarded the contractor a specified sum. The contractor brought court enforcement proceedings. The employer contended that the employer company was (or should be deemed to be) a residential occupier with the result that the contract was exempt from the application of the Construction Act 1996 by the operation of section 106(1)(a). Coulson J rejected the employer's contention on the basis that (i) the residential occupier exemption from the application of the Construction Act 1996 could not apply to a company and (ii) the employer was engaged in the business of property development which negated the suggestion that the work was being carried out by or on behalf of a residential occupier. The reasons why the exemption could not apply to a company were because (i) it was difficult to imagine how a company could ever be a residential occupier and (ii) whilst a company might occupy premises for commercial purposes, the use of the word "residential" conveyed a requirement that a real person must be living or residing in the house or flat in question. The employer was engaged in the business of property development and the pursuit of such a business negated the suggestion that the work was being carried out by or on behalf of a residential occupier.
 
The employer also contended that the adjudicator had acted unfairly and in breach of the rules of natural justice in that (i) the employer had been forced to put in submissions in a very short space of time when it had not had time to take advice from all those from whom he would have wanted to seek assistance and (ii) there had been communication problems with the adjudicator which resulted in the employer not always receiving relevant documentation. Coulson J rejected this contention on the basis that (i) whilst there had been communication problems, at least some of them were self-inflicted by the employer (ii) the adjudicator granted the employer further time to put in its submissions dealing with the points in issue and it did so having had the benefit of advice from solicitors and (iii) whilst the employer was obliged to produce information within a short space of time, this was simply an inevitable consequence of the adjudication process.
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