Domsalla (t/a Domsalla Building Services) v Dyason

Domsalla (t/a Domsalla Building Services) v Dyason

The adjudication clause was not unfair under the UTCCR and remains binding, but the withholding notice provisions were unfair and not binding on Mr Dyason due to his lack of opportunity to negotiate or operate them, his role as agent for the insurer, and the imbalance created. Therefore, Mr Dyason is entitled to defend the enforcement proceedings and raise set-off and cross-claims.

Parties
Claimant: Steve Domsalla (trading as Domsalla Building Services); Defendant: Kenneth Dyason
Jurisdiction
England and Wales
Judgment Date
04 May 2007
Procedural Posture
Building Contract Enforcement / Summary Judgment Application / Summary Judgment Application
Outcome
Permission to defend granted; summary judgment refused.
Legal Topics
Adjudication Enforcement, Unfair Terms in Consumer Contracts Regulations (utccr), Agency, Set Off and Cross Claims, Building Contracts, Statutory Interpretation
Contract Law Consumer Protection Insurance Law Civil Procedure Adjudication Enforcement Unfair Terms in Consumer Contracts Regulations (utccr) Agency Set Off and Cross Claims +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Steve Domsalla (trading as Domsalla Building Services)

Claimant

Kenneth Dyason

Defendant

Procedural Posture

Building Contract Enforcement / Summary Judgment Application / Summary Judgment Application

Legal Issues

  1. 1 Whether the adjudication clause and withholding notice provisions in the JCT Minor Works contract are binding on a residential occupier under the UTCCR
  2. 2 Whether the adjudicator had jurisdiction to decide the dispute
  3. 3 Whether the adjudicator's decision is enforceable given alleged breaches of natural justice

Ratio Decidendi

The adjudication clause was not unfair under the UTCCR and remains binding, but the withholding notice provisions were unfair and not binding on Mr Dyason due to his lack of opportunity to negotiate or operate them, his role as agent for the insurer, and the imbalance created. Therefore, Mr Dyason is entitled to defend the enforcement proceedings and raise set-off and cross-claims.

Court Disposition

Permission to defend granted; summary judgment refused.

Orders

  • Permission to defend the claim granted to Mr Dyason.
  • Further directions to be considered regarding trial of issues, cross-claims, set-off, and costs.