Mears Ltd v Costplan Services (South East) Ltd & Ors

Mears Ltd v Costplan Services (South East) Ltd & Ors

Clause 6.2.1 of the AFL does not deem every breach of the 3% room size tolerance to be a material or substantial breach entitling Mears to terminate or preventing practical completion. Materiality relates to the variation, not the breach. Practical completion is a matter of fact and degree for the certifier, and the irremediable nature of a defect is irrelevant to the question of practical completion.

Parties
Appellant: Mears Limited; 1st Respondent: Costplan Services (South East) Limited; 2nd Respondent: Plymouth (Notte Street) Limited; 3rd Respondent: J. R. Pickstock Limited
Jurisdiction
England and Wales
Judgment Date
29 March 2019
Procedural Posture
Civil Appeal / Appeal From High Court (technology & Construction Court) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Practical Completion, Material Breach, Contract Interpretation, Remedies for Breach, Certification of Completion
Contract Law Construction Law Practical Completion Material Breach Contract Interpretation Remedies for Breach Certification of Completion

Case Brief

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Parties

Mears Limited

Appellant

Costplan Services (South East) Limited

1st Respondent

Plymouth (Notte Street) Limited

2nd Respondent

J. R. Pickstock Limited

3rd Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (technology & Construction Court) to Court of Appeal

Legal Issues

  1. 1 Whether any failure to meet a 3% room size tolerance under the AFL is automatically a material and substantial breach entitling Mears to terminate or refuse completion certification
  2. 2 Whether practical completion can be certified where there are known material or substantial defects or breaches, particularly if irremediable

Ratio Decidendi

Clause 6.2.1 of the AFL does not deem every breach of the 3% room size tolerance to be a material or substantial breach entitling Mears to terminate or preventing practical completion. Materiality relates to the variation, not the breach. Practical completion is a matter of fact and degree for the certifier, and the irremediable nature of a defect is irrelevant to the question of practical completion.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; refusal to grant Declarations 1-4 upheld; costs and further relief not addressed in this judgment.