Allen Wilson Joinery Limited v Privetgrange Construction Limited
Case reference:
[2008] EWHC 2802 (TCC)
Monday, 17 November 2008
Key terms: Contracts - Contract in writing - Section 107 - Jurisdiction
Allen Wilson applied for summary judgment to enforce an adjudicator's decision, whereby the contractor, Privetgrange, was ordered to pay £12,449.70 plus VAT and interest and the Adjudicator's costs/fees. Allen Wilson had been sub-contracted to manufacture, design and install three flights of staircases for a development known as Silverwood in Surrey. Privetgrange sent plans to the Allen Wilson indicating where the staircase would be build, however these plans did not go into any great detail. On this basis, Allen Wilson e-mailed a budget quotation, which stated that the quotation would be revised upon finalisation of the plans when a site survey had been carried out. The site survey was completed, and the work began on the staircase, however it was deemed to be unacceptable by Privetgrange who then refused to pay Allen Wilson's invoice.
Allen Wilson commenced an adjudication, whereby Privetgrange challenged the jurisdiction of the adjudicator on the grounds that there was no contract in writing for the purposes of s.107 of the Housing Grants Construction and Regeneration Act. In addition, there was a challenge to the adjudicator's jurisdiction to award interest. The adjudicator made an award in Allen Wilson's favour, and after Privetgrange failed to honour the award, Allen Wilson commenced enforcement proceedings.
Privetgrange submitted that various matters, such as the actual design of the staircase, and the time for completion had only been agreed orally. In addition, Allen Wilson's quotation expressly stated that costs were to be finalised and thus were not in writing.
Mr Justice Akenhead had to establish if there was a triable issue as to whether the contract was evidenced in writing. He was of the opinion that while adjudicators (and judges) should be robust in determining whether trivial matters said to have been agreed only orally between the parties can prevent what would otherwise be a written contract, the exercise of determining what is trivial must be an objective one in relation to the particular contract and parties concerned. It is always necessary to determine whether a so-called agreement made orally was in reality expected or intended to be binding between the parties.
In this instance, Mr Justice Akenhead was satisfied that there was indeed a triable issue, and leave was therefore granted. In addition, he found that the adjudicator did not have jurisdiction to award interest. There was no agreed or accepted term of the contract which permitted or required the imposition of interest for late payment and the parties had not accepted or agreed that the adjudicator should have jurisdiction.
Allen Wilson commenced an adjudication, whereby Privetgrange challenged the jurisdiction of the adjudicator on the grounds that there was no contract in writing for the purposes of s.107 of the Housing Grants Construction and Regeneration Act. In addition, there was a challenge to the adjudicator's jurisdiction to award interest. The adjudicator made an award in Allen Wilson's favour, and after Privetgrange failed to honour the award, Allen Wilson commenced enforcement proceedings.
Privetgrange submitted that various matters, such as the actual design of the staircase, and the time for completion had only been agreed orally. In addition, Allen Wilson's quotation expressly stated that costs were to be finalised and thus were not in writing.
Mr Justice Akenhead had to establish if there was a triable issue as to whether the contract was evidenced in writing. He was of the opinion that while adjudicators (and judges) should be robust in determining whether trivial matters said to have been agreed only orally between the parties can prevent what would otherwise be a written contract, the exercise of determining what is trivial must be an objective one in relation to the particular contract and parties concerned. It is always necessary to determine whether a so-called agreement made orally was in reality expected or intended to be binding between the parties.
In this instance, Mr Justice Akenhead was satisfied that there was indeed a triable issue, and leave was therefore granted. In addition, he found that the adjudicator did not have jurisdiction to award interest. There was no agreed or accepted term of the contract which permitted or required the imposition of interest for late payment and the parties had not accepted or agreed that the adjudicator should have jurisdiction.