Nucon Construction Thaba Nchu (Edms) v Scholtz NO (A2/2010) [2010] ZAFSHC 141 (8 November 2010)

Nucon Construction Thaba Nchu (Edms) v Scholtz NO (A2/2010) [2010] ZAFSHC 141 (8 November 2010)

The court found that the engineer's interim certificate, issued in accordance with the contract and supported by the Bill of Quantities, created a binding obligation on the respondent to pay the certified amount to the appellant. The absence of a written variation order did not invalidate the claim, as the Bill of Quantities and the engineer's certificate constituted sufficient written instruction for the additional work. The disputes raised by the respondent did not amount to genuine disputes of fact capable of defeating the appellant's claim. There was no evidence of fraud, collusion, or the engineer acting outside his mandate. Accordingly, the respondent was obliged to honour the...

Citation
[2010] ZAFSHC 141
Parties
Appellant: Nucon Construction Thaba Nchu (Edms); Respondent: Andrew George Scholtz N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 November 2010
Case Number
A2/2010
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Payment Under Subcontract
Outcome
Appeal upheld with costs. The order of the court a quo is set aside and replaced with an order in favour of the appellant as per prayers 1, 2, and 3 of the Notice of Motion.
Judges
Hancke, R, Mocumie, R, Matlapeng, WND R
Legal Topics
Subcontractor Payment, Engineer Certificate, Interim Payment, Contractual Dispute, Bill of Quantities
Commercial and Corporate Civil Procedure Subcontractor Payment Engineer Certificate Interim Payment Contractual Dispute Bill of Quantities

Case Brief

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Parties

Nucon Construction Thaba Nchu (Edms)

Appellant

Andrew George Scholtz N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Payment Under Subcontract

Legal Issues

  1. 1 Whether the engineer's certificate issued under the contract created a binding obligation for payment by the respondent to the appellant.
  2. 2 Whether the absence of a written variation order invalidated the claim for additional work certified by the engineer.
  3. 3 Whether the disputes raised by the respondent constituted genuine disputes of fact justifying dismissal of the application.

Ratio Decidendi

The court found that the engineer's interim certificate, issued in accordance with the contract and supported by the Bill of Quantities, created a binding obligation on the respondent to pay the certified amount to the appellant. The absence of a written variation order did not invalidate the claim, as the Bill of Quantities and the engineer's certificate constituted sufficient written instruction for the additional work. The disputes raised by the respondent did not amount to genuine disputes of fact capable of defeating the appellant's claim. There was no evidence of fraud, collusion, or the engineer acting outside his mandate. Accordingly, the respondent was obliged to honour the...

Court Disposition

Appeal upheld with costs. The order of the court a quo is set aside and replaced with an order in favour of the appellant as per prayers 1, 2, and 3 of the Notice of Motion.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is set aside.