Fahstone Ltd v Biesse Group UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWHC 3650 (TCC) |
| Docket Number | Case No: HT-2105-000368 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 18 December 2015 |
[2015] EWHC 3650 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edwards-Stuart
Case No: HT-2105-000368
Mr William Webb (instructed by Wright Hassall) for the Claimant
Mr Robert Evans (instructed by Shakespeare Martineau) for the Defendants
Hearing date: 8 th December 2015
This is an application by the Claimant to enforce a decision of an adjudicator made on 21 September 2015. The dispute concerns the supply and installation of a computer numerically controlled ("CNC") woodworking machine known as a Uniwin. The machine is used to manufacture windows and similar items.
The Claimant ("Fahstone") purchased the Uniwin from the Defendant ("Biesse") by a contract dated 19 March 2012. The Uniwin was a replacement for a smaller machine, the "Rover C", which had previously been supplied by Biesse through a finance agreement with ING. Fahstone asserted that the Rover C was not satisfactory, and so Biesse agreed to supply the Uniwin in its place in part exchange. In addition, Biesse agreed to pay Fahstone £50,000 in settlement of Fahstone's claims in respect of the Rover C.
The Uniwin was installed between about 27 August and 7 September 2012. Under the terms of the contract, it was required, within 10 weeks of installation, to produce certain test frames that could be compared with an identical set of test frames manufactured on the same machine in Italy prior to delivery. Within a further 12 weeks the Uniwin was to be capable of manufacturing more complicated frames to Fahstone's satisfaction.
Unfortunately the Uniwin did not meet Fahstone's expectations. Not only were there delays in commissioning the machine, but also Fahstone alleged that there were numerous defects both with the machine and in its software.
The adjudicator decided that Fahstone was entitled to £125,000 in respect of the defects in the software, together with £14,000 by way of damages for delay. Biesse has paid the £14,000 but has refused to pay the balance. It submitted to the adjudicator, and it submits now, that the adjudicator had no jurisdiction for two reasons. First, this was not a "construction contract" within the meaning of the Housing Grants Construction and Regeneration Act 1996 (as amended) ("the Act"). Second, Fahstone was not a party to the contract for the purchase of the Uniwin. The adjudicator reached a non-binding decision in Fahstone's favour on both issues and so continued with the Referral.
Fahstone was represented by Mr William Webb, instructed by Wright Hassall LLP, and Biesse was represented by Mr Robert Evans, instructed by Shakespeare Martineau. I am grateful to them both for their helpful and succinct submissions.
The Uniwin and its installation — my conclusions following the view
In this section of the judgment I set out the conclusions that I reached following the view on 7 November 2015 and the hearing which was held on the following day. The view was held in the presence of representatives from each party, together with their solicitors and counsel. There had been conflicting evidence in the witness statements about the method of fixing: the evidence from Fahstone being that the main structure of the Uniwin was bolted to the floor by approximately 54 bolts which had been resin grouted into the floor, whereas the evidence from Biesse was to the effect that the machine could be removed by removing nuts from the fixing bolts and that there was, therefore, no need to cut the bolts. Given this state of affairs, I was naturally concerned to see how the Uniwin had been fixed to the floor and the procedure to be adopted if it had to be removed. It must been evident to all present from the interest that I showed in the fixings and the questions that I asked the procedure for removing the machine, that these were matters that I regarded as relevant to the application.
The Uniwin is installed in a workshop which was purpose built for the Rover C. As I have said, it is a larger machine. It is about 6 m wide and 13.5 m long. There has been a sterile debate about the extent to which it occupies the floor area of the workshop: Estimates have varied between about 30% and over 50%. The debate is, in my view, sterile because when considering the space occupied by the machine one has to consider not only its actual footprint, but also the area around it that cannot be used for anything else (for example, the gap between the machine and the two closest walls) or which is required in order to gain access to and to use the machine. On this basis an estimate of over 50% looks much more realistic, although I very much doubt whether the precise figure matters.
Above the centrepiece of the machine which, for lack of a better term I will call the electrospindle station, there is a steel framework which supports a number of flexible hoses forming the machine's dust extraction system. These hoses are linked to two large extract ducts which are in turn connected by two further large diameter flexible hoses to the main extract duct. This duct is fixed to the building and passes to its outside through the gable end wall at high level. In order to disconnect the machine from the fixed ducting the two large diameter flexible hoses have to be removed. This is not difficult (apart from the need to have a suitable ladder or scaffold) because it simply involves unscrewing the jubilee clips that keep the two flexible hoses in place.
Once the two large diameter flexible hoses have been removed, the electric power cable to the machine has to be unplugged and the compressed air system disconnected. Once these operations have been carried out the machine becomes freestanding apart from the fixings holding it to the floor.
These fixings, as I then understood them to be, consisted of 54 threaded rods (they are like bolts which have no heads), each of which is 300 mm long and, I would estimate, about 12 mm in diameter. These rods are resin grouted into holes drilled in the reinforced concrete floor so that about 150 mm or so of each rod projects above the surface of the floor.
The base of the machine has a number of adjustable feet which rest on the surface of the floor. At the base of each leg above the adjustable foot is a horizontal steel flange with one or two holes in it. These holes are aligned with the threaded rods so that the rod passes through the hole in the flange and is then secured with two nuts (the second of which is a locking nut). I understand that the threaded rods are there to stabilise the machine – in particular, to prevent it from vibrating and potentially moving across the floor and becoming out of level.
This, at least, is what I saw on the view: there are probably other places where the configuration is slightly different, but I understood that the essential feature of the threaded rod passing through a hole in the steelwork of the machine is common throughout.
Where the legs are exposed and access is easy, it would be the work of a moment to unscrew the two nuts so that the machine could be lifted off the threaded rods. Contrary to what has been suggested in some documents, and what the adjudicator found, I saw no bolt heads that have to be cut in order to free the machine. The understanding that I reached on the view was that it is not necessary to cut the threaded rods in order to release the machine. Indeed, I was told that in some places there would not be sufficient access to get a cutter close enough to the bolt in any event. However, as I shall explain in the next section of this judgment there is no consensus about the precise procedure that has to be adopted in order to remove the Uniwin.
The machine comes in about five sections, the heaviest being the long section which incorporates the electrospindle station. The understanding that I reached on the view that this section would be removed by carrying out the following essential steps:
(1) Disconnect the flexible hoses above the electrospindle station.
(2) Unbolt the steel frame above the electrospindle station in order to disconnect it from the body of the electrospindle station.
(3) With the aid of a fork lift, truck lift up the steel frame and remove it.
(4) Place at least four toe jacks under the frame of the long section, which is then jacked up a few inches so that the holes in the flange plates or steelwork are clear of the top of the threaded rods.
(5) Whilst the frame is jacked up "skates" or "dollies" are inserted below the base of the frame which is then lowered onto the skates. (I have not seen these skates but I imagine that they have rotating castors so that they can be moved in any direction).
(6) The part of the machine that is now supported on the skates is manoeuvred out of the workshop and onto the hard standing outside. This is done by 8–10 men.
(7) Once this part of the machine is clear of the building it is lifted by a crane onto a tilt trailer or low loader.
A similar process is then repeated for each of the other component parts of the Uniwin (although I suspect that in terms of sequence, the main component including the electrospindle station is probably the last to be moved).
I have described this process in some detail because, if correct, it shows that the machine can, and probably would, be moved without damaging or cutting the threaded rods. Of course, once the machine has been moved the rods would have to be cut flush with the surface of the floor before the space could be used...
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