Fenice Investments Inc v Jerram Falkus Construction Ltd [2009] EWHC 3272 (TCC) (07 December 2009)

Fenice Investments Inc v Jerram Falkus Construction Ltd [2009] EWHC 3272 (TCC) (07 December 2009)

Section 15 of the Employer's Requirements was in fundamental and irreconcilable conflict with clauses 4.9 and 4.10 of the JCT contract. The express hierarchy clause (clause 1.3) required that the JCT terms prevail. The payment and withholding notices served by Fenice were out of time under the JCT terms, and Fenice was liable to pay the sum awarded by the adjudicator, less sums already paid, together with interest.

Citation
[2009] EWHC 3272 (TCC)
Parties
Claimant: Fenice Investments Inc; Defendant: Jerram Falkus Construction Limited; Claimant: Jerram Falkus Construction Limited; Defendant: Fenice Investments Inc
Jurisdiction
England and Wales
Judgment Date
07 December 2009
Procedural Posture
Consolidated CPR Part 8 and Part 7 Claims / Judgment After Hearing of Consolidated Proceedings
Outcome
Judgment for Jerram Falkus Construction Limited
Legal Topics
Interpretation of Construction Contracts, Hierarchy of Contract Documents, Adjudication Enforcement, Payment and Withholding Notices, Compliance With Housing Grants (construction & Regeneration) Act 1996
Construction Law Contract Law Interpretation of Construction Contracts Hierarchy of Contract Documents Adjudication Enforcement Payment and Withholding Notices Compliance With Housing Grants (construction & Regeneration) Act 1996

Case Brief

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Parties

Fenice Investments Inc

Claimant

Jerram Falkus Construction Limited

Defendant

Jerram Falkus Construction Limited

Claimant

Fenice Investments Inc

Defendant

Procedural Posture

Consolidated CPR Part 8 and Part 7 Claims / Judgment After Hearing of Consolidated Proceedings

Legal Issues

  1. 1 Proper construction of interim payment provisions in the contract
  2. 2 Whether contract provisions comply with the Housing Grants (Construction & Regeneration) Act 1996
  3. 3 Appropriate course for a party challenging an adjudicator's decision on a point of law

Ratio Decidendi

Section 15 of the Employer's Requirements was in fundamental and irreconcilable conflict with clauses 4.9 and 4.10 of the JCT contract. The express hierarchy clause (clause 1.3) required that the JCT terms prevail. The payment and withholding notices served by Fenice were out of time under the JCT terms, and Fenice was liable to pay the sum awarded by the adjudicator, less sums already paid, together with interest.

Court Disposition

Judgment for Jerram Falkus Construction Limited

Orders

  • Fenice Investments Inc to pay Jerram Falkus Construction Limited £165,132.13 within seven days.
  • Fenice to pay interest within seven days, calculated at the rate awarded by the adjudicator.