Subcontractor v Contractor 2010
Terms of the contract; Rectification of the contract; Side letter to a deed; Documentary and Oral evidence; Jurisdiction; Set-off; Liquidated damages
The tribunal faced probative evidence from the parties on the above. More fundamentally, the terms of the contract and the jurisdiction of the tribunal were under scrutiny.
The Sub-Contractor, represented by Cap X Solutions Ltd advocate was owed a six figure sum by the Contractor.
The contract was executed under deed retrospectively after the works had been completed, but the deed did not include the contents of a ‘side letter’ that was agreed between the parties prior to the commencement of the works. The ‘side letter’ changed the deed in terms of the time for completion of the works, attendances to be provided by the Contractor and a relaxation of the specification. The Contractor contended that the person who issued the side letter on their behalf had done so without prior authority and had subsequently left the company. The tribunal found that the Contractor did agree the terms set out within the side letter, but decided that it could not rectify the contract as it was a deed by incorporating the side letter in its decision, without due jurisdiction. The tribunal formed the opinion that rectification of a deed could only be undertaken by the Courts.
The counterclaim for liquidated damages and damages for delay by the Contractor was undecided by the Tribunal. It did decide that the documentary evidence showed that the Contractor had agreed to the value of variations, and was bound by such agreement.
The Sub-Contractor obtained a satisfactorily sum in settlement from the contractor and the Notice of adjudication limited the Tribunal to decide matters that restricted the Contractor’s contentions. The tribunal decision found in favour of the Sub-Contractor.