A steady stream of cases has come through the courts since the payment provisions in the Construction Act were overhauled. Mark Clinton looks at the most recent.
We have now had four and a half years to get used to the revised payment since they came into effect in October 2011.
Another in the line of cases was decided recently in Manor Asset Ltd v Demolition Services Ltd. This case is of particular interest because it illustrates the care and skill required when amending standard form contracts.
Although we may feel familiar with the JCT standard forms, we should not forget that they are quite complex documents, liberally sprinkled with cross-references in which various provisions are inter-dependent. When amending the payment provisions we need to take into account the inter-dependencies and the requirements of the Act.
Four months after entering into their contract, the parties in Manor Asset decided to convert their contract payment regime from interim progress payments to stage payments. They did so in a one page agreement which replaced the section of the contract headed ‘Interim payments up to practical completion’. Unusually, the amendments provided for payment within 72 hours of invoice. The paragraph covering the payment which was in dispute described the stage to be achieved and the percentage of the price to be paid at that stage and then stated:
‘Payment to be made within 72 hours of receipt of invoice, issued when the milestone is achieved.’
At first glance, that provision looks quite straightforward, but how does it square up with the requirements of the Act? What are the due date and final date for payment of this instalment? The court decided that the due date was the date the milestone was achieved and the final date for payment was 72 hours after the invoice was received. The amendment should have provided that the invoice had to be issued within five days after the due date but that did not matter in the circumstances because the issue was issued on the due date itself.
This all led to another difficulty. The Act gives the payer the right to serve a pay less notice before the final date for payment. The time for serving it is to be stated in the contract or, if no period is given, it must be served no later than 7 days before the final date for payment. In this case the contract stipulated 5 days but it is not clear whether that provision survived the amendment. Whether it was 5 days or 7 days, the pay less notice would be required before the date of the invoice and before the due date. That is not permitted because the Act does not allow a pay less notice to be issued before the payment notice to which it relates (in this case, the invoice).
These difficulties meant that there was a risk that the amendments would have to be declared ineffective because they did not comply with the Act. In the event the court found a pragmatic solution. The judge decided that the parties had impliedly agreed that the period for serving a payless notice had been reduced so that it could be served any time after receipt of the invoice but before the final date for payment.
It is also worth noting that there was some debate as to whether a payment notice can be given before the due date. In this particular case it could not because the contract said it was to be given when the milestone was achieved. Since the due date was the same as the date when the milestone was achieved, the invoice could not be issued sooner. However, the Judge said that he was not convinced that the Act permitted payment notices to be given before the due date. That is a point that may well be revisited in another case.
Although the simplicity of the amended provisions in the Manor Assets case is in some ways admirable, when such provisions are being drafted for use in a complex contract (albeit a minor works form) against the backdrop of complex statutory provisions, there is inevitably a degree of complexity required in the amendments themselves. It is also necessary to look beyond the clause that is directly the target for amendment and to look at other clauses which might be affected by the amendment. There are particular dangers in replacing clauses wholesale. The lesson is, proceed only with great caution and with an abundance of attention to detail
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GOODWILL MESSAGE DELIVERED BY MRS MERCY T. IYORTYER, PRESIDENT NIQS ON THE OCCASION OF THE QSRBN 6th BUILDING AND CONSTRUCTION ECONOMIC ROUND TABLE (BCERT) ON THURSDAY 14TH JULY 2016 AT SHEHU MUSA YAR’ADUA CENTRE, CENTRAL AREA, ABUJA
Theme: Professional Issues and Challenges in Building Collapse in Nigeria.
On behalf of The Nigerian Institute of Quantity Surveyors I want to commend the President of the Board, the Registrar and all other Board Members for organizing this very significant event – BCERT on Professional Issues and Challenges in Building Collapse in Nigeria. I bring you best wishes from The Nigerian Institute of Quantity Surveyors on this occasion.
Since assuming office in November last year, I have had several engagements with both the print and electronic media and if there is one question that kept recurring, it is the question “ How can a Quantity Surveyor help to prevent the menace of Building Collapse?” This event will hopefully provide an opportunity to not only consider the role the Quantity Surveyor can play, but the roles all Construction Industry players can play in preventing Building Collapse.
As human beings; we all have basic needs to ensure our survival and Shelter is one of them. Buildings provide shelter for man. A building is not just where man lives, it is where he works, earns a living, raises a family and makes his impacts or contributions to the society. Any threat to it therefore, poses a great danger to life and to the continuous survival of man. Despite this worry and awareness, the fact still remains that the rate of Building Collapse is on the increase in major cities in Nigeria like Lagos, Abuja, Port-Harcourt and indeed other parts of the world. The effects of Building Collapse are many and often result in untimely loss of lives, loss of property, permanent disability, homelessness and other related stresses.
In Idumota, Lagos where a 4-storey building collapsed, a newlywed couple had just moved in the same day and both of them lost their lives without enjoying their honeymoon or married life together. Many women and children lost their lives. This was a travesty and a generational waste! The cause of collapse was established to be the use of substandard building materials during construction.
Outside Nigeria, in April, 2013, an 8-Storey garment factory in Dhaka, the Capital City of Bangladesh collapsed claiming 1,134 lives and left hundreds seriously injured. The cause of the collapse was mainly as a result of poor construction among other factors.
Construction workers are not spared this disaster. A 3 Storey Building under Construction collapsed in Gwarimpa, Abuja few years ago, and 10 Construction workers were trapped inside and killed. The cause was faulty design and construction. The then President of COREN described the incidence as a National Disgrace. In all Building Collapse cases, the pictures are horrific and pathetic.
Many states in the country have suffered different degrees of building collapse and there are many causes of building collapses which I am sure this round table conference will address. The fact of the matter is that most of the causes revolve around circumventing processes, all in a bid to shun costs. This is a key cause of the problem. The Cost factors are part of the reason for the existence of the Quantity Surveying profession.
The need to engage the services of qualified and registered professionals on construction projects for designs, costing and supervision cannot be over-emphasized. This workshop is a great step towards tackling the challenges of building collapse. We hope that the recommendations that will emanate from this conference will be favourably considered by the relevant bodies and authorities and that all stakeholders will realize the need to strengthen processes and policies that will reduce and eliminate building collapse. We all as professionals need to play our roles to save lives and properties resulting from the tragedies of Building Collapse in Nigeria.
It is my hope and prayer that the purpose for which this conference was organized will be achieved. I pray that God will guide our thoughts and grant us the wisdom to achieve such purpose. I wish you all fruitful deliberations.
Thank you and God bless.
Mrs Mercy T. Iyortyer, FNIQS
The Nigerian Institute of Quantity Surveyors,