Smith v Martin

JurisdictionEngland & Wales
CourtCourt of Appeal

Building Contract - R. I. B. A. Form - Construction of.

The form of building contract issued by the Royal Institute of British Architects provides, by Condition 31 in the Schedule thereto, that should the building owner not pay the builder any sum certified by the architect within the time limited by the contract, the builder is to be at liberty to determine the contract and recover from the building owner payment for all work executed. And Condition 32 provides that in case any difference shall arise between the building owner and the builder as to the construction of the contract or as to any matter arising thereunder, such difference is to be referred to arbitration, but that “such reference …. shall not be opened until after the completion of the works.”

During the progress of certain works which were being carried out under a building contract in the above form the building owner neglected to pay to the builder a sum certified by the architect within the stipulated time, and thereupon the builder determined the contract under Condition 31. The builder commenced arbitration proceedings while the contract works were still uncompleted, and the arbitrator made an award in his favour for the money due to him under the contract:—

Held, that the words “until after the completion of the works” in Condition 32 meant until after completion of the whole of the works contracted for, and not merely until after completion of so much of the works as the builder was under the circumstances bound to perform; that consequently the arbitration was premature and the arbitrator had no jurisdiction to make the award; or that at all events the validity of the award was sufficiently doubtful to render it improper to enforce it summarily.

APPEAL from Lush J. at chambers.

By a building contract dated January 24, 1924, and made between W. A. Martin and D. Ospalak, the employers, and A. P. Smith, the contractor, it was agreed that the contractor should erect for the employers thirty-six houses at Alperton for the sum of 690l. per house. The conditions of the contract were those in the form in general use issued by the Royal Institute of British Architects.F1 The contractor commenced the work, and in the months of April and May the architect complained that certain work done by the contractor was defective, and gave him notice requiring him to rectify it. On May 10 the architect gave the contractor a certificate for 600l., at the same time stating that the certificate was conditional for its efficacy upon previous rectification of the defective work. The contractor neglected to rectify the defective work, and the employers thereupon refused to pay the amount of the certificate. The contractor then gave the employers notice under Condition 31 requiring them to pay the money, and, on the employers failing to comply with that notice, refused to do any more work and determined the contract. The contractor on August 1 procured an arbitrator to be appointed in the manner provided by Condition 32, and the arbitration was commenced on October 27. On December 12 the arbitrator made his award in favour of the contractor for 1156l. 11s. 6d. The employers refused to pay the amount of the award on the ground that the arbitrator had no jurisdiction, the arbitration proceedings having been commenced before the completion of the works contrary to the provisions of Condition 32, the contractor, on the other hand contending that “the works” were completed so far as under the circumstances he was under any obligation to complete them. On the application of the...

To continue reading

Request your trial
12 cases
2 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2008, December 2008
    • 1 December 2008
    ...of the UNCITRAL Model Law. 79 International Arbitration Act (Cap 143A, 2002 Rev Ed), s 6(2). 80 [1996] 2 SLR 409. 81 See Smith v Martin[1925] 1 KB 745. 82 This is better known as the “Futility Argument”, see M Shirley, “Breach of an ADR Clause — A Wrong Without Remedy?” [1991] Australasian ......
    • Singapore
    • Singapore Academy of Law Journal No. 2004, December 2004
    • 1 December 2004
    ...of the meaning of “good faith” in this context in Aiton Australia Pty Ltd v Transfield Pty Ltd, supra n 13. 23 See Smith v Martin[1925] 1 KB 745. 24 Ibid. 25 See also Flight Training International v International Fire Training Equipment Limited, supra n 12. 26 Supra n 17....

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT