Mayhaven Healthcare Ltd v Bothma & Anor (t/a DAB Builders) [2009] EWHC 2634 (TCC) (26 October 2009)

Mayhaven Healthcare Ltd v Bothma & Anor (t/a DAB Builders) [2009] EWHC 2634 (TCC) (26 October 2009)

The Arbitrator did not err in law regarding repudiatory breach, damages for delay, or loss of profits, but erred in law by holding that implied approval by the Contract Administrator relieved the contractor of liability for defective works; under the JCT Intermediate Form, a contractor is not excused from compliance with contract drawings by reason of the Contract Administrator's failure to require remedy of defects.

Citation
[2009] EWHC 2634 (TCC)
Parties
Claimant: Mayhaven Healthcare Limited; Defendant: David Bothma; Defendant: Teresa Bothma (Trading as DAB Builders)
Jurisdiction
England and Wales
Judgment Date
26 October 2009
Procedural Posture
Appeal Under Arbitration Act 1996 S.69(2)(a) / Judgment on Appeal From Arbitral Award
Outcome
Appeal dismissed on questions 1, 2, 3, and 5; allowed on question 4; award remitted to arbitrator on defective works issue.
Legal Topics
Repudiatory Breach, Damages for Delay, Contractual Obligations, Defective Works, Remedies for Breach
Construction Law Arbitration Repudiatory Breach Damages for Delay Contractual Obligations Defective Works Remedies for Breach

Case Brief

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Parties

Mayhaven Healthcare Limited

Claimant

David Bothma

Defendant

Teresa Bothma (Trading as DAB Builders)

Defendant

Procedural Posture

Appeal Under Arbitration Act 1996 S.69(2)(a) / Judgment on Appeal From Arbitral Award

Legal Issues

  1. 1 Whether wrongful suspension amounts to repudiatory breach
  2. 2 Assessment of damages for loss of profits based on occupancy type
  3. 3 Damages for delay to Phase 2

Ratio Decidendi

The Arbitrator did not err in law regarding repudiatory breach, damages for delay, or loss of profits, but erred in law by holding that implied approval by the Contract Administrator relieved the contractor of liability for defective works; under the JCT Intermediate Form, a contractor is not excused from compliance with contract drawings by reason of the Contract Administrator's failure to require remedy of defects.

Court Disposition

Appeal dismissed on questions 1, 2, 3, and 5; allowed on question 4; award remitted to arbitrator on defective works issue.

Orders

  • Remit award to arbitrator on issue of liability for foundations not constructed in accordance with Structural Engineer's drawing J2500.01 and consequential findings.