Harlow & Milner Ltd V Teasdale (Part II)

The court's discretion should be exercised by enforcing the summary judgment in the contractor's favour by ordering the sale of the homeowner's investment properties without a stay of that order
 
HARLOW & MILNER LTD V TEASDALE (Part II)

Technology and Construction Court
His Honour Judge Peter Coulson QC
7 July 2006
 
The homeowner bought investment properties that turned out to be affected by asbestos contamination. The homeowner entered into a building contract with the contractor to remove the asbestos in the expectation that the local authority would provide grant monies. Problems arose during the carrying out of the works and the local authority only paid a small proportion of what the homeowner was expecting. The homeowner was unwilling or unable to pay the contractor the value of the works it had carried out. The contractor took its claims to adjudication and an award was made in the contractor's favour. The homeowner was unwilling or unable to pay the sum awarded with the result that the contractor brought court enforcement proceedings. The court ordered summary judgment in the contractor's favour but again the homeowner did not pay. The contractor obtained a final charging order over the properties and applied to the court for an order for sale.
 
Judge Coulson held that the court's discretion should be exercised by ordering the sale of the properties without a stay of that order and without ordering the sale monies to be paid into court to abide the award in the arbitration begun by the homeowner against the contractor. The ongoing arbitration was a wholly insufficient ground on which to oppose the application in the light of caselaw that adjudicators' decisions had to be peremptorily enforced. If a party with a claim that accrued after the adjudicator's decision could not set that claim off against the decision, a party who simply had the hope of an arbitrator's award somewhere down the line could not be entitled to set off that hope against the sum due pursuant to an adjudicator's decision. In addition: (1) this was not the matrimonial home but three investment properties (2) the homeowner was in contumelious default by refusing to pay a judgment sum for reasons which did not in law justify such non-payment (c) the financial reality appeared be that the judgment debt would not be paid without a sale and (d) the judgment debt approached the value of the properties. A stay would frustrate the whole point of the adjudication and enforcement process.
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