Edenbooth Ltd v Cre8 Developments Ltd

JurisdictionEngland & Wales
JudgeMR. JUSTICE COULSON
Judgment Date13 March 2008
Neutral Citation[2008] EWHC 570 (TCC)
CourtQueen's Bench Division (Technology and Construction Court)
Docket NumberCase No: HT-0802
Date13 March 2008

[2008] EWHC 570 (TCC)

IN THE HIGH COURT OF JUSTICE

TECHNOLOGY AND CONSTRUCTION COURT

QUEEN'S BENCH DIVISION

St. Dunstan's House

133137 Fetter Lane

London, EC4A 1HD

Before:

Mr. Justice Coulson

Case No: HT-0802

Between
Edenbooth Limited
Claimant
and
Creb Developments Limite
Defendant

Mr. James Thompson (instructed by Messrs. IBB Solicitors) for the Claimant

Mr. Jason Mencer appeared In Person for the Defendant

MR. JUSTICE COULSON
1

In many ways, this is another in a lengthening list of disputes in which a building employer has failed to make payment to a contractor and, having taken a number of jurisdiction points unsuccessfully before the Adjudicator, then fails to pay the sum awarded by the Adjudicator and subsequently fails to comply with the orders of the court relating to enforcement. I acknowledge that, during the adjudication, most of the work on the defendant's side was carried out by Mr. Jason Mencer, a director of the defendant company, rather than by solicitors. However, during the enforcement proceedings, when no steps have been taken by the defendant to comply with any of the orders of the court, the defendant has been represented by solicitors. No explanation has been given for their non-compliance. Yesterday those solicitors wrote to the claimant's solicitors to say that they were coming off the record and that Mr. Jason Mencer would appear today in person.

2

The defendant is a development company, as its name suggests. It appears that the two relevant directors are Jason Mencer and his father. As individuals, they occupy two adjoining properties at 47 and 49 Allendale Avenue in Finchley (“the properties”). Jason Mencer is the owner of one of them. In July 2007 the defendant company engaged the claimant to carry out groundworks, including foundation works, and drainage works at the properties. The work was carried out. The defendant maintained that it had paid the claimant all that it was entitled to. The claimant, however, contended that it was entitled to further sums and so commenced adjudication proceedings.

3

Following an adjudication in which both parties took an active part (the detail of which I shall return to later) the Adjudicator produced a written decision. The decision was dated 16 th November 2007. He concluded that an additional sum of £14,126.91 was due from the defendant to the claimant. He also found that the defendant was obliged to pay his fees in the sum of £3,588.21 plus VAT. That makes a total of £18,343.06 together with VAT on that fee element.

4

The defendant did not pay the sum awarded by the Adjudicator. Unsurprisingly, therefore, the claimant commenced enforcement proceedings in the Technology and Construction Court. On 15 th February 2008 I provided a timetable by which the parties would exchange any evidence and submissions that they had leading up to a hearing, to take place today, of the application for summary judgment. Unhappily, as indicated above, there has been no response to those directions from the defendant, and certainly no attempt to comply with my orders. Accordingly, today, the claimant seeks the £18,343.06 together with the VAT on the fee element, and interest at £245.23.

5

The proper procedure for the court to adopt in these circumstances, as in all applications to enforce an Adjudicator's decision, is first to look at any points that have been taken as to the Adjudicator's jurisdiction. If the Adjudicator did not have the necessary jurisdiction then the decision is a nullity. If, on the other hand, the Adjudicator did have the necessary jurisdiction, then the court should go on to consider – if it is raised – any suggestion that the Adjudicator acted unfairly. If the court concludes that the Adjudicator did have jurisdiction and had not acted unfairly then the court is obliged to enforce the decision of the Adjudicator: see for example, Bouygues (UK) Ltd. v. Dahl-Jensen (UK) Ltd. [2000] BLR 522 and, more recently, Carillion Construction Limited v. Devonport Royal Dockyard Limited [2005] EWCH (Civ) 1358.

6

In the adjudication, the defendant took two jurisdiction points. The first was to the effect that the work being carried out by the claimant was not a construction operation in accordance with section 105(2)(d) of the Housing Grants (Construction and Regeneration) Act 1998. I have explored that argument this morning with Mr. Mencer. It seems to me that it is impossible to sustain. The claimant here was engaged to carry out groundwork and drainage work at the properties. Those were plainly construction operations under section 105(1)(a) of the Act. The exemption at section at 105(2)(d) relates to offsite manufacture or delivery of building components or plant. That was simply not something which the claimant in this case was engaged to do. The exemption is therefore irrelevant.

7

Mr. Mencer did refer to the fact that the claimant was engaged (or...

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4 cases
  • Arcadis UK Ltd v May and Baker Ltd (t/a Sanofi)
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 27 February 2013
    ...said "principally to relate to operations on a dwelling which one of the parties to the contract intended to occupy". (b) Edenbooth Limited v Cre8 Developments Limited [2008] EWHC 570 (TCC); [2008] CILL 2592. In that case the defendant company's attempt to rely on s.106 failed. I said it w......
  • Home Group Ltd v MPS Housing Ltd
    • United Kingdom
    • King's Bench Division (Technology and Construction Court)
    • 25 July 2023
    ...fairly have enjoyed little success. See for example, in chronological order: (1) Edenbooth Limited v Cre8 Developments Limited [2008] EWHC 570 (TCC), in which Coulson J held: “ 17. The other point taken by Mr. Mencer, that is to say the question of the speed with which he was obliged to pr......
  • Home Group Ltd v MPS Housing Ltd
    • United Kingdom
    • King's Bench Division
    • 25 July 2023
    ...fairly have enjoyed little success. See for example, in chronological order: (1) Edenbooth Limited v Cre8 Developments Limited [2008] EWHC 570 (TCC), in which Coulson J held: “ 17. The other point taken by Mr. Mencer, that is to say the question of the speed with which he was obliged to pr......
  • LIEW PIANG VOON vs WLT PROJECT MANAGEMENT SDN BHD
    • Malaysia
    • High Court (Malaysia)
    • 27 August 2020
    ...than 4 storey high which is wholly intended for his own occupation.” as well as the cases of Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC), Shaw v Massey Foundations & Pilings Ltd [2009] EWHC 493 (TCC), Howsons Ltd v Redfearn and another [2019] EWHC 2540 (TCC) and Westfields C......
3 books & journal articles
  • Statutory adjudication
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 April 2020
    ...timetable does not of itself aford a basis for attacking the adjudicator’s conduct or decision: Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC) at [17], per Coulson J; he Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] BLR 135. Where an adjudicator considers that one party or ......
  • Price and payment
    • United Kingdom
    • Construction Law. Volume II - Third Edition
    • 13 April 2020
    ...Absolute Rentals Ltd v Gencor Enterprises Ltd (2000) 17 Const LJ 322 at 323, per hhJ Wilcox; Edenbooth Ltd v Cre8 Developments Ltd [2008] EWhC 570 (TCC) at [8]–[9], per Coulson J. Notwithstanding the exclusion of the operation of the act to contracts with residential occupiers, it is permis......
  • Table of cases
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...Edelman v Boehm (1964) 26 SASR 66 III.15.22 Eden v West & Co [2002] EWCA Civ 991 II.8.144 Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC) II.6.81, III.24.46, III.24.105 Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882 I.3.42, I.3.43, II.......

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