Mr & Mrs Christopher Shaw v Massey Foundation & Pilings Ltd
Case reference:
[2009] EWHC 493 (TCC)
Thursday, 12 March 2009
Key terms: Adjudication - Permission to Appeal - s.106 HGCRA - Residential Occupier - Stay
Mr and Mrs Shaw bought a number of applications in front of Mr Justice Coulson, relating to an adjudication which had taken place in September 2008. They had engaged Massey to carry out building works at their very large country house in Cheshire, under the JCT Minor Works form. The works were carried out to a building called the East Lodge, which was a separate building some quarter of a mile from the main house. Disputes arose, and the Shaws argued that they were residential occupiers under s.106 of the HGCRA. The adjudicator disagreed, and awarded Massey the sum of £86,000. The Shaws refused to pay the award and following two previous hearings, the Shaws brought the current applications.
Firstly, they sought to amend their notice of appeal to raise an issue that they stated was concerned with natural justice and had not been raised before. Mrs Shaw, who was representing herself, argued that she and her husband were in fact "consumers" when they entered into the construction contract. Mr Justice Coulson considered the facts of this application and did not allow it on the basis that it was inappropriate to allow the matter to be raised on an application for permission to appeal. In addition, on the facts it would have made no difference at all to the substantive result if he had permitted it. "Consumers" are not recognised by the HGCRA, nor were the Unfair Terms in Consumer Contracts Regulations of any relevance.
The second application was to appeal against a previous decision of HHJ MacKay which dismissed a stay of proceedings pursuant to s.9 of the Arbitration Act 1996. The Shaws claimed in the current application that the judge was wrong to refuse their stay, as the contract provided that disputes would be resolved by the valid arbitration clause. Mr Justice Coulson upheld the previous judge's decision, and further stated that a party who is ordered to pay an adjudication award is in breach of contract should they not do so. In addition, to stay proceedings in order commence an arbitration was not in the spirit of the "pay now, argue later" philosophy of adjudication.
Lastly, the Shaws pursued their appeal against a previous decision by Judge Platts that they were not residential occupiers under the meaning of s.106 of the HGCRA. Mr Justice Coulson considered the facts of the case and found that the East Lodge was a separate building, despite the fact that the Land Registry entry referred to the East Lodge and the main house as one building. What mattered, however, was not how the Land Registry had registered the title, but whether the Shaws were the residential occupiers of East Lodge, and it was held that they were not.
Mr Justice Coulson also commented that if someone could no longer afford to live in a terraced house, but spent money on a conversion of the house into three small flats, one of which they intended to live in, with the other two being sold or rented, the s.106 exemption would not apply here either because of the commercial element of the works.
Firstly, they sought to amend their notice of appeal to raise an issue that they stated was concerned with natural justice and had not been raised before. Mrs Shaw, who was representing herself, argued that she and her husband were in fact "consumers" when they entered into the construction contract. Mr Justice Coulson considered the facts of this application and did not allow it on the basis that it was inappropriate to allow the matter to be raised on an application for permission to appeal. In addition, on the facts it would have made no difference at all to the substantive result if he had permitted it. "Consumers" are not recognised by the HGCRA, nor were the Unfair Terms in Consumer Contracts Regulations of any relevance.
The second application was to appeal against a previous decision of HHJ MacKay which dismissed a stay of proceedings pursuant to s.9 of the Arbitration Act 1996. The Shaws claimed in the current application that the judge was wrong to refuse their stay, as the contract provided that disputes would be resolved by the valid arbitration clause. Mr Justice Coulson upheld the previous judge's decision, and further stated that a party who is ordered to pay an adjudication award is in breach of contract should they not do so. In addition, to stay proceedings in order commence an arbitration was not in the spirit of the "pay now, argue later" philosophy of adjudication.
Lastly, the Shaws pursued their appeal against a previous decision by Judge Platts that they were not residential occupiers under the meaning of s.106 of the HGCRA. Mr Justice Coulson considered the facts of the case and found that the East Lodge was a separate building, despite the fact that the Land Registry entry referred to the East Lodge and the main house as one building. What mattered, however, was not how the Land Registry had registered the title, but whether the Shaws were the residential occupiers of East Lodge, and it was held that they were not.
Mr Justice Coulson also commented that if someone could no longer afford to live in a terraced house, but spent money on a conversion of the house into three small flats, one of which they intended to live in, with the other two being sold or rented, the s.106 exemption would not apply here either because of the commercial element of the works.