Samuel Thomas Construction Limited V Bick and Bick [aka J & B Developments]
The High Court at Exeter
His Honour Judge Overend
28 January 2000
The homeowners wished to buy a barn to convert into a dwelling for them to live in. In the event that they were obliged to buy a number of buildings in one lot, including four barns, a garage block and a courtyard. The homeowners decided to convert two of the barns into dwellings, to sell one of them when converted and to live in the other one. The contract included these two conversions as well as work on the other parts of the lot such as on the drainage and the garage block. Disputes arose which were referred to adjudication. The homeowners contended that the adjudicator did not have jurisdiction. They relied on section 106(1)(a) of the Construction Act 1996, which provides that the Act does not apply to a construction contract with a residential occupier, and section 106(2), which provides that a construction contract with a residential occupier means one which principally related to operations on a dwelling which one of the parties to the contract occupied or intended to occupy as his residence.
Judge Overend held that the homeowners’ contention should be rejected. The correct approach in construing 106(1)(a) and (2) was that (1) a “residential occupier” did not have to be in occupation as was obvious from the words “intends to occupy as his residence” in section 106(2) and (2) the fact that when construction operations started, a property could not properly be described as “a dwelling” was irrelevant provided that the operations as a whole could properly be described as principally operations on a dwelling. Applying this approach, it was not possible to conclude that the contract principally related to operations on the barn to be occupied by the homeowners on the basis that the operations principally related to the works to the two barns, the garage block, the courtyard and the drainage insofar as (1) one of the barns to be converted into dwellings was never intended to be occupied as the homeowners’ residence and (2) the construction of the garage block for all four barns could not properly be described as ancillary to operations on a dwelling.