Cases - Tara Civil Engineering Ltd v Moorfield Developments Ltd

Record details

Name

Tara Civil Engineering Ltd v Moorfield Developments Ltd

Date

(1989)

Citation

46 BLR 72

Keywords

Construction claims

Summary

The claimants were contractors for roadworks, employed under the ICE Conditions 5th edition. The engineer served a notice on the claimant condemning certain works, and thereafter issued a certificate pursuant to clause 63(c) of the contract conditions (the equivalent of clause 65(1)(h) in the ICE 7th edition). This permitted a termination notice to be served following the contractor's failure to remove or pull down and replace goods or materials, having already received a notice condemning the same. After this notice was served, the defendant employer then notified the claimant of its intention to expel it from the site. The claimant obtained an ex parte injunction preventing its removal from the site. There followed an application to discharge the injunction. The claimant argued that clause 63 of ICE 5th edition had to be read in conjunction with clause 39, which provided the engineer with powers to order in writing the removal from site of non-compliant materials.

The court held that clause 63 can and should be construed without any suggestion that it was limited by clause 39 or that it should be preceded by a notice which is in some way identifiably referable to clause 39. The engineer and the employers have various options open to them under the contract, and those options should not be restricted.