Shaw v Massey Foundation & Pilings Ltd

The homeowners were not the residential occupiers of the building in their property on which the work was carried out within the meaning of section 106 of the Construction Act
Technology and Construction Court
Coulson J
12 March 2009
The homeowners engaged the contractor to carry out building works at their property which was a very large country house. The works were carried out to a building which was separate and some distance away from the main house, was not lived in by either of the homeowners and neither of the homeowners intended to live in. The contract incorporated an old edition of the JCT Minor Works Form and did not therefore include any express provision for adjudication. Disputes arose which the contractor referred to adjudication. The homeowners' contended in the proceedings brought by the contractor to enforce the decision in its favour that the adjudicator that he lacked jurisdiction because they were residential occupiers was rejected by him.
Coulson J rejected the homeowners' contention. Whilst the work was not carried out for development or commercial purposes, it was accepted that an intention might have been formed by one of the homeowners to live in the building, possibly with a relative at a date sometime after the contract. It was, however, correctly accepted by the homeowners as the only proper construction of section 106 that it was only the parties' intentions at the time of the formation of the contract which were relevant to that section. What mattered was not how the Land Registry registered the homeowners' title (which included all the buildings on the property) but whether or not the homeowners were residential occupiers of the building on which the work was carried out within the definition in section 106. By reference to the individual components of section 106 of the Construction Act, the building on which the work was carried out was not the residence of either of the homeowners, occupied by either of the homeowners, intended to be occupied by either of the homeowners at the time when the contract was made or the dwelling or the dwelling house of either of the homeowners. Whilst these matters were sufficient to reject the homeowners' contention, their submissions that the definition of "dwelling" in section 101 was the appropriate one and that the building on which work was carried out came within that definition on the ground that it was an "outhouse" or an "appurtenance" should also be rejected.