Michael John Construction Ltd v St Peter's Rugby Football Club
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE DAVID WILCOX,His Honour Judge David Wilcox |
| Judgment Date | 30 July 2007 |
| Neutral Citation | [2007] EWHC 1857 (TCC) |
| Date | 30 July 2007 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: 6BS90579 |
[2007] EWHC 1857 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
His Honour Judge David Wilcox
Case No: 6BS90579
Mr Ralph Wynne-Griffiths (instructed by Davies Prichard and Weatherill) for the Claimant
Mr Patrick Clarke (instructed by Morgan Cole) for the Defendant
Hearing dates: 4 July 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application under Section 67 of the Arbitration Act of 1996 to appeal against an arbitration award made by D J Cartwright on 19 October 2006 against a preliminary award as to his jurisdiction in an arbitration between St Peter's Rugby Football Club represented by Robert Matthews on behalf of himself and all other members of St Peter's Rugby Football Club membership as at 15 October 2003. The contract that is relevant to this application is the J C T Intermediate Form of Building Contract agreement (incorporating amendments 1–5) dated 15 October 2003 whereby under Articles 9A and B disputes or differences between the parties shall be referred to arbitration.
The Arbitrator determined that the Employer under the Contract was R Matthews on behalf of himself and all members of the Club as at 15 October 2003. The claimant, Michael John Construction Ltd (“MJC”) the Contractor under the Contract contends that the adjudicator was wrong in law and that the Employer in the Contract, and thus the proper party to the agreement to arbitrate were Richard Henry Golledge, Desmond Fielding Childs and Mario Carpanini.
His Honour Judge Havelock-Allen QC on 25 April 2002 ruled the claimant had not waived its right to pursue an application to appeal under Section 67 and gave leave for further evidence to be adduced at this hearing. The history of this matter reveals that there is a genuine dispute under the construction contract that should have been determined years ago expeditiously and economically and that well-meaning people, some out of their depths, have produced a sad and expensive muddle.
The Background
In 2002 St Peter's Rugby Football Club occupied a clubhouse and sports field in Newport Road in Cardiff. As an unincorporated club it could only hold land by lease or by freehold interest through trustees. The club constitution contained the following relevant provisions:
“3. Headquarters
The Registered headquarters of the club shall be the clubhouse, 118 Newport Road Cardiff and in the event of any change in the registered headquarters the new address shall be notified to the Clerk of the Justices within fourteen days.
5. The management of the club shall be vested in the Management Committee which shall consist of the officers of the club and the appointed club coach (if any).
(Paragraph 6 – the officers are set out)
10. General Meetings
General Meetings should be held at least once a year at such time and place as may be determined by the Management Committee, provided not more than 15 months shall elapse between each General Meeting. An Extraordinary Meeting may be convened by the Management Committee at least on fourteen days notice or by written application by not less than 20 members or one fifth of the total numbers of the members, whichever shall be the less, addressed to the Hon Secretary. In the latter case, the meeting shall be convened by the Hon Secretary within fourteen days after the receipt by him of such an application.
12. AGM
The business of the AGM shall be …
(h) proposed changes to the constitution, due notice of which has been given.
15. Notice of Meeting
At least fourteen days prior notice of a General or Extraordinary General Meeting shall be given by the Hon Sec in writing. Such notice must be displayed prominently on the club notice board.
22. Appointments
The Management Committee shall have the power to appoint for any period of time an auditor, club solicitors and any other appointments whether paid or unpaid that shall be deemed necessary to the efficient administration of the Club.
23. Trustees
The Management Committee may appoint no more than four and no less than two trustees from within its ranks or from among life members. Such trustees, when duly authorised by resolution of the Management Committee, shall have the power to sign and execute on behalf of the club all deeds and documents without incurring any personal liability in respect hereof.
24. Rules
Any rule of the constitution can be made, amended or rescinded at a General Meeting provided notice of the proposed change of same has been received in writing by the Hon Secretary at least seven days before the meeting. In addition, the Management Committee shall be empowered to make, amend or rescind any Rule and such change shall take immediate effect and shall remain in force until submitted to an Extraordinary General Meeting, when it shall be confirmed, amended or rescinded. Such Extraordinary General Meeting shall be convened by the Secretary within seven days of the decision of the Management Committee. The majority required before any Rule can be made, amended or rescinded shall be not less than sixty per cent of those voting, provided that no amendment shall be in contravention of the Licensing Act 1964 and any new Rule shall be notified to the Clerk of the Justices within fourteen days”
The Management Committee of the Club on 12 August 2002 decided the Club would seek to sell the existing clubhouse subject to the agreement of an Extraordinary General Meeting to be called at an appropriate time. The option of a community based sports complex on the Harlequins ground was being progressed and it was noted that the architects had been engaged and a project manager.
“Plans for the complex had been prepared and the council had offered a lease to run co-terminus with the ground lease. The crucial matter was obtaining planning permission.”
The Trustees of the St Peter's Rugby Football Club at this time were R H Golledge, D S Childs and M C Carpanini. Mr Golledge was both Chairman of the Club at this time and Trustee. On 7 October 2002 he wrote to Mr Robert Matthews confirming his appointment as Director of Development of St Peter's RFC. On 14 October 2002 the Management Committee Minutes recorded the attendance of the three trustees, Golledge, Childs and Carpanini, together with Mr Amos, the Club Secretary and two others and that Bobbie Matthews was appointed Director of Development.
On Wednesday, 15 December 2002, a meeting described as a development meeting was held and the attendees again included Mr Golledge, Chairman and Trustee, Mr Childs, Trustee, and Mr Carpanini, Trustee. A Mr Corsi was also present and Mr Matthews, who reported that the lease agreement for the Minster Road ground would be discussed on 23 December 2002 by Cardiff City Council and that the planning application would be heard on 22 January 2003. It was noted:
“Obviously we need both the lease and the planning permission and it is uncertain whether you can be granted one without the other.”
The minutes also record:
“2. 118 Newport Road. The sale to a Housing Association is proceeding for a price of £300,000. However, this is dependent on a cleared site. Various options are being discussed with demolition contractors. This would include the salvage as such items as the fireplaces, stairs, picture window etc. Contracts should be exchanged soon and completion is anticipated late January/early February.
3. Lease of Harlequins ground. It is felt we should secure this lease and not wait for the sports complex position to be resolved. RM CC and DFC would meet with our new solicitor, Nigel Perris.”
On 13 January 2003 at the Management Meeting it was confirmed that the Planning Committee was to hear the application for the sports centre on 22 January 2003 and that the Council Cabinet would consider the lease on 23 January 2003. At paragraph 5.3 the minutes record that an EGM had been called for Friday, 17 January 2003 to obtain members' approval of the sale of the Newport Road Clubhouse for £280,000 and the associated suspension of Rule 3 of the constitution which related to the registered headquarters.
On 17 January 2003 the Extraordinary General Meeting took place. It was minuted by Mr Childs, Trustee and chaired by Mr Golledge, Chairman and Trustee. The Management Committee recommendation was that there should be an immediate sale of the clubhouse to the Housing Association who had made the offer. Paragraph 6.3 of the minute records
“The Management Committee resolution was put to the meeting. This was that the clubhouse be sold immediately for £280,000 with the associated suspension of Rule 3.”
This was passed by 31 votes to 8. Approximately 50 persons attended the meeting out of a membership of 331 as at 15 October 2003, of which the club had the addresses of only 282. There could be no doubt that the meeting was quorate and that the meeting had been given the appropriate notice compliant with Rule 10 and confirmed by the evidence of Mr Childs, the Secretary.
Paragraph 6.4 of the minute records that
“The Director of Development was authorised by the members present to deal with and sign all relevant contracts to do with the sale of the existing clubhouse and acquisition of the sports complex at the Harlequins ground.”
This resolution was not described in the minutes as being a Management Committee resolution. There is no documentary evidence of notice having been given of this resolution....
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