B. Mullan Sons Contractors Ltd v Ross
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 January 1996 |
| Date | 01 January 1996 |
| Court | Court of Appeal (Northern Ireland) |
- Limited company - Voluntary liquidation of contractor - Payment due to sub-contractor - Employers entitled under contract with contractor to make direct payment to sub-contractor - Whether following commencement of voluntary liquidation of contractor employers remaining entitled to make direct payment to sub-contractor - Whether contractual provision inconsistent with statutory rule providing for application of company's property in voluntary winding up in satisfaction of company's liabilities pari passu - Insolvency (Northern Ireland) Order, 1989 (SI No. 2405), art. 93.
The Londonderry Port and Harbour Commissioners (the employers) entered into a contract with a contractor in the standard JCT form, 1981 edition, as amended, for the construction of a transit shed and related works. The contractor engaged the appellant company (the sub-contractor) to carry out site works as part of the contract works. There was no written sub-contract agreement, but the rates of payment were to be determined by reference to an agreed bill of quantities. The sub-contractor carried out work in respect of which the balance due was eventually agreed. Following the placing of the contractor in receivership the sub-contractor applied to the employers for direct payment of the balance due, but the employers, although willing to do so, felt unable to make payment direct to the sub-contractor until they had full details of the amounts owed to all sub-contractors. A resolution was then passed for the voluntary winding up of the contractor, and the respondents were appointed joint liquidators. The employers did not pay the balance due to the sub-contractor either to the sub-contractor or to the receivers or the liquidators, but invited the sub-contractor to apply to the court for directions whether the employers could properly make a payment direct to the sub-contractor. Kerr J. declared that the employers were not entitled to make payment direct to the sub-contractor, but must pay the amount due to the sub-contractor to the liquidators to form part of the assets of the contractor for distribution among its creditors. The sub-contractor appealed contending that the contractor's right to receive the amount due to the sub-contractor from the employers was defeasible, being subject to the contingency that the employers might elect to exercise their power and make direct payment to the sub-contractor, and that the amount...
To continue reading
Request your trial
-
Hitachi Plant Engineering & Construction Co Ltd and Another v Eltraco International Pte Ltd and Another Appeal
... ... entered into separate sub-contracts with various Nominated Sub-Contractors (‘NSCs’). The appellants in both appeals, namely Hitachi Plant ... 33 In B Mullan & Sons (Contractor) Ltd v Ross & Anor (1996) 54 Con LR 161, the Northern ... ...
- CT Indah Construction Sdn Bhd v BHL Gemilang Sdn Bhd
-
International Air Transport Association v Ansett Australia Holdings Ltd
...577; Re Air Canada [Priority determination of perpetual subordinated debt] (2004) 2 CBR (5th) 4; B Mullan & Sons Contractors Ltd v Ross [1996] NI 618 at 624-625; Hitachi Plant Engineering & Construction Co Ltd v Eltraco International Pte Ltd [2003] 4 SLR 384 at 407; Re Lam Fung [2003] HKCFI......
-
Sydenhams (Timber Engineering) Ltd v CHG Holdings Ltd
... ... , in fact and in law, Sydenhams were subcontractors to the main contractors, Rybarn Limited (“Rybarn”). Thus, say CHG, it is Rybarn and not ... In support of this contention, she relied on Mullen & Sons Contractors v John Ross and Malcolm London [1998] 86 BNR 1 ... There, a ... ...