Nua Facades Ltd v Terry Brady T/A Terry Brady Developments Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Jefford |
| Judgment Date | 08 August 2019 |
| Neutral Citation | [2019] EWHC 2184 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2015-000181 |
| Date | 08 August 2019 |
[2019] EWHC 2184 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Jefford DBE
Case No: HT-2015-000181
James Bowling and Daniel Khoo (instructed by Vyman Solicitors) for the Claimants
Anthony Speaight QC (instructed by Goodman Derrick LLP) for the Defendant
Hearing dates: 14 to 15, 19 to 22, 26 to 29 November 2018; 13 December 2018
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.
Insert Judge title and name here:
Introduction
This action concerns a development (“the project”) at 166–198 Liverpool Road, Islington, London N1 undertaken by the Defendant, Terence Brady (“Mr Brady”). In short summary, the Claimant companies carried out works on the development and, in October and November 2012, the Nua companies, the First and Second Claimants, entered into a series of agreements with Mr Brady which settled any claims for payment they might have (“the Settlement Agreements”). Mr Brady argues, on various bases, that those agreements are not binding on him and that the Claimants are entitled only to the proper or reasonable value of the work done. On that basis, Mr Brady says that nothing is owing from him to the First and Second Claimants and that, on the true valuation of the works done, Mr Brady has, in fact, overpaid them. The Third Claimant, Silk Property Developments Ltd. (“Silk”) also carried out works on the project and had claims for monies agreed to be paid in letters dated 29 November 2012 and 4 January 2013.
Mr Rishipal Singh is the leading light of all the claimant companies. Where it is relevant I shall refer to each of the Nua companies individually but otherwise I shall use Nua as the catch all for both the First and Second Claimants whichever of them may, in fact, have been the relevant contracting party. Similarly, and in particular, where this judgment is concerned with the general allegations of conspiracy, dishonest assistance, duress and undue influence, my references to Nua encompass as appropriate the Third Claimant, Silk.
Evidence at trial
There were before the court statements from, and I heard evidence from:
(i) Mr Rishipal Singh.
(ii) Mr Richard Pierce, formerly of Four Square Management Ltd. who acted as Mr Brady's project managers on the project.
(iii) Mr Darren Elkin, who had been involved in the project as a quantity surveyor for Maybury Construction Ltd. (“Maybury”), one of the contractors on the project, and now a commercial manager for MadiganGill Construction Ltd. (“Madigan Gill”), the second main contractor on the project.
(iv) Mr Terence Brady.
(v) Mr Bruce Smith, of Westminster Consultants, quantity surveyors, who was the monitoring surveyor for Lloyds Bank (“the Bank”), the principal funder on the project.
(vi) Mr Jack Barclay, Mr Brady's accountant.
(vii) Mr Derek Poole, who was that the material time a construction and project management consultant working through his own company.
Expert evidence from:
(i) For the Claimants, Mr Stephen Adkins, who practises as a construction consultant through his Adkins Associates.
(ii) For the Defendant, Mr Brian Moran, who practises as a quantity surveyor and claims consultant through BfM Consulting Ltd.
(iii) For the Claimants, Mr Anthony Stockton, a forensic scientist, specialising in the examination of disputed documents, handwriting and signatures.
There was also voluminous documentary evidence, although Nua continue to complain that Mr Brady has failed to give proper disclosure. There were certainly instances in which Mr Brady claimed that he or his advisers could have produced documents to prove something but had not done so.
Outline facts
I will start with an outline summary of the facts and deal with them in greater detail as they relate to specific issues in due course.
Mr Brady is a highly a successful businessman. His primary business was a printing business, Alito Color Group Ltd., with a printworks on Liverpool Road. He gave an informative and engaging account of how he had established this business starting in the 1970s when he identified a gap in the market for merchandising and promotional material relating to pop music industry.
In about 2007, however, his intention was to close the printworks in Islington, moving to a new site and selling the Islington site for residential development. He had the benefit of planning permission to demolish the existing buildings and erect a mixture of private and affordable apartments and nine houses. In that context, Mr Brady came into contact with Rishi Singh. Mr Singh was himself a property developer or, at the least, seeking to establish himself as such, and he made some proposals to a business associate of Mr Brady's, firstly to buy and develop the site himself and later for involvement in a joint venture with Mr Brady for the development. In the event, Mr Brady was unable to sell the site and decided to develop it himself.
In the context of the discussions about a joint venture, Mr Singh introduced Mr Brady to Mr Pierce, a quantity surveyor, who had costed the project for Mr Singh. There was a prior relationship between Mr Singh and Mr Pierce to which I refer below. When Mr Brady decided to develop the site himself, he first used Mr Pierce as his project manager. In June 2009, Mr Pierce and Lee Sims incorporated a new company, Four Square Management Ltd. (“FSM”), to manage the development and FSM were subsequently engaged by Mr Brady to act as project managers.
In May 2010, Mr Brady engaged Maybury as main contractors, although Maybury had already been instructed to commence work in March 2010. As main contractors, Maybury also fulfilled the role of principal contractor for the purposes of the CDM Regulations. A number of sub-contract packages were to be let and the Nua companies tendered for those packages. They were the successful tenderers on the Windows, Dry Lining and Joinery packages but unsuccessful on other packages including mechanical works, kitchens, sanitaryware, underfloor heating, AGM (architectural glazing and metalwork), flooring and tiling. Sub-contracts for the packages on which Nua were successful were in due course entered in between Nua and Maybury.
Maybury left site on 16 December 2011 having stopped work on or about 5 December 2011. The development was at that stage nowhere near complete.
In the period between December 2011 and March 2012, Nua was appointed directly by Mr Brady on the following packages: Principal Contractor, AGM, Bi-Fold Windows, Windows, Flooring, Joinery, Tiling, Decoration and Drylining. The contracts were formed by letters confirming Nua's appointment to carry out the works on terms set out. The letters recorded an intention to formalise the appointments in JCT contracts but that did not happen. Nothing turns on this. Nua carried out works under various of these contracts until June 2012 when, in circumstances I shall come to, they were barred from the site.
On 19 July 2012, a replacement main contractor, Madigan Gill, was engaged by Mr Brady. That engagement was made by FSM on Mr Brady's behalf acting under a letter of authority from Mr Brady of the same date. Madigan Gill's contract was terminated on 2 November 2012.
During the period from December 2011 to September 2012, the relationship between Mr Brady and FSM on the one hand and Nua on the other was marked by a number of events which are significant in this dispute.
Firstly, it is Nua's case that on or about 20 December 2011, after Maybury had left site, an agreement was reached with Mr Brady that Nua would continue with its works under the Windows and Drylining packages on the basis that amounts unpaid by Maybury would be paid directly by Mr Brady. Nua's terms were set out in an e-mail dated 20 December 2011, which was agreed with FSM and, following which, Mr Singh said that Nua would proceed “full steam” with the drylining on the basis that £45,000 owed in the drylining package would be paid over the next few valuations.
Mr Brady then, on Nua's case, went back on that agreement and, in early 2012 FSM informed Mr Singh that Mr Brady would not pay the monies due from Maybury. Mr Brady offered to pay £20,000 only towards the cost of the windows and made that a condition of payment of the sums due from Maybury. In February, when Mr Singh chased payments of £200,000 on Nua's December valuation, Mr Brady said that he would only pay £85,000. Mr Singh recorded this conversation in an e-mail dated 2 February 2012 in which he described Mr Brady's conduct as “blackmail”. On 29 February 2012, Mr Brady signed a letter addressed to Nua and confirming FSM's authority to enter into contracts on his behalf.
In March 2012, there was also a dispute between FSM and Mr Singh as to whether deposits for flooring and tiling works were to be paid by Mr Brady. On 1 May 2012, Nua gave notice suspending works for non-payment. Mr Singh subsequently proposed that there would be a written agreement about monthly valuations but that was not agreed and the disputes about payment continued. It is not necessary for me to make findings of facts on these disputes. They are relevant to the present dispute because, on Nua's case, they are part of the background to serious allegations of improper collusion between Nua and FSM which Mr Brady now makes and they explain the concerns which Mr Singh says he had about Mr Brady being as good as his word.
Secondly, these disputes culminated in Mr Singh taking direct action...
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