2 South West Building & Construction SOUTH WEST
June-July 2012
BUILDING & CONSTRUCTION
Tavistock Newspapers Ltd, 14 Brook Street, Tavistock, Devon, PL19 0HE. Tel: 01822 613666 Fax: 01822 618222
INSIDE THIS ISSUE
■ Welding and fabrication - Page 6 ■ Focus on Newton Abbot - Page 10 ■ Mexboro Concrete - Page 12 ■ Slate and stone - Page 14 ■ Hopkins Concrete - Page 16 ■ Environment - Page 22 ■ Brian Teague and Sons - Page 24 ■ Lighthouse Club - Page 28 ■ CIC column - Page 31
CAPTION FOR FRONT PAGE PICTURES: News and information from the businesses and organisations on the front cover is featured in this issue of South West Building & Construction magazine.
Quote of the month
‘
All women should be able to drill, paint, wallpaper, sew and cook. I am a passionate believer in doing things yourself - TV presenter Kirstie Allsopp
STEPHEN HOMER
Principle confirmed
Stephen Homer, a former chairman of the CIC South West (Devon & Cornwall), discusses a court ruling.
THE Technology and Construction Court case of Leander Construction Ltd v Mulalley and Company Ltd [2011] confirmed the general principle and set out the legal basis for the proposition that there is no implied contractual term requiring a sub-contractor to carry out their obligations ‘regularly and diligently’ in the absence of an express term to this effect where there are other express terms exercising control over the sub- contractor’s performance of the works.
How you can contact us
EDITORIAL Editor: Paul White
Main contributor: Andrew Townsend ADVERTISING:
Judith Jewell Tel/Fax 01837 658941 E-mail
judithjewell@btinternet.com
MAILING LIST
If you have a change for our mailing list Tel 01822 615007 Fax 01822 618971
E-mail
swbmail@internet-today.co.uk ’
Mulalley and Company (the ‘contractor’) instructed and engaged Leander Construction Ltd (the ‘sub-contractor’) to carry out works for them in respect of a London-based project. After approximately six months, it was clear that the sub-contract works were not being carried out in line with the sub-contract’s activity schedule, and the contractor and sub-contractor were blaming each other for this. The contractor alleged that this failure to adhere to the activity schedule resulted in their suffering loss due to it delaying the contractor works and as a result withheld £131,078.12 from the sub-contractor’s interim payments, prior to the sub-contract completion date. This was based upon the contractor assuming that the sub- contractor owed them an ‘interim obligation as to progress and performance that would give rise to a claim for damages in advance of
the sub-contract completion date’. The sub-contractor disagreed and commenced court proceedings. In the course of the court proceedings, the contractor conceded that the activity schedule did not contain contractually binding dates. The contractor did, however, argue that the sub- contractor was under a duty to perform their contractual obligations regularly and diligently and argued the best way to ascertain this was by examining the sub-contractor’s compliance with the activity schedule. The court found in favour of the sub-contractor.
The general reasons were: 1. The contractor had not demonstrated that the alleged implied term was necessary to give the sub-contract business efficacy. The contract worked without the implied term being in place. 2. No case law could be found to support the contractor’s argument that an implied term be added that imposed an obligation as to the rate of progress or detail of performance in advance of the agreed contractual completion date. It is, therefore, important for a contractor to expressly state, in any agreement with a sub-contractor, a duty to perform the contractual obligations in a regular and diligent manner, and in line with the activity schedule. If anyone has any queries arising from this article, I can be contacted at
s.homer@ashfords.co.uk.
South West Building & Construction Magazine
The magazine is now available to read on the world wide web
Visit:
www.tavistock-today.co.uk and click on Special Publications
to view the magazine on line. Tel: Judith on 01837 658941 Email:
judithjewell@btinternet.com
DISCLAIMER: The CIC SW will not accept any responsibility for any loss occasional to any person acting or refraining from action as a result of the material included in this publication.
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