Doks Well Construction Company Ltd v Chin's Construction Ltd

• Jurisdiction: Jamaica
• Judge: Batts J.
• Judgment Date: 14 July 2021
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2020CD00440

[2021] JMCC Comm 33

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA CLAIM NO. SU2020CD00440

CLAIM NO. SU2020CD00440

Between

Doks Well Construction Company Limited

First Claimant

Chin's Construction Limited

Second Claimant

and

The Caribbean Maritime University

Defendant

Mr. Conrad George and Mr. Andre Sheckleford instructed by Hart Muirhead Fatta for the Claimant.

Ms. Symone Mayhew QC and Ms. Ashley Mair instructed by Mayhew Law for the Defendant.

Application for Summary Judgement and to strike out — Building contract—“No assignment” clause — Whether 2 ^nd Claimant lawfully assigned contract to 1 ^st Claimant-Whether Defendant waived no assignment clause-Whether 1 ^st Claimant entitled to claim in name of 2 ^nd Claimant by subrogation — Whether claim has no real prospect of success.

In Chambers Via ZOOM

Cor: Batts J.

1 In this matter both Claimants and the Defendant applied for summary judgment. Mr. Conrad George, for the Claimants, indicated that he was unwilling to proceed with his application at this time because he was awaiting further evidential material. In the result only the Defendant's application for summary judgment and/or to strike out the claim was heard.

2 After hearing arguments, and considering the written submissions and evidence before me, I refused the application. My reasons for so doing may be shortly stated.

3 Mr. George took hearsay objections with respect to the contents of the affidavit filed by the Defendant. I overruled the objection. The affiant, Mr.Evan Duggan, is the interim president of the Defendant. Although he was not present, and in consequence has no personal knowledge of the events involved, he is entitled to attest to the Defendant's records. This is also because affidavit evidence may contain “Information and belief” so long as the source is stated.

4 The claim concerns a contract for services being certain works of construction. The Defendant retained the 2 ^nd Claimant to do that work by a contract dated 16 ^th November 2016. The Claimants allege that the first Claimant was an assignee of the 2 ^nd Claimant. In consequence it was the 1 ^st Claimant who performed the contract and who is entitled to be paid. Alternatively, and in the event the assignment is for any reason invalid, the 1 ^st Claimant has with the permission of the 2 ^nd Claimant brought this claim on behalf of and/or in the name of the 2 ^nd Claimant.

5 The Defendant contends that the or any alleged assignment of the contract is null and void as it is expressly prohibited by the terms of the contract. They contend further that, if the assignment is bad, the 2 ^nd Claimant cannot lend its name to be used in the action. The Defendant also denies that the 1 ^st Claimant was a subcontractor. Certain alleged variations are challenged and it is asserted that the project manager did not approve them. Interestingly the Defendant ‘admits that it has had the use and benefit of the building since the issue of the certificate of practical completion but denies that it has been unjustly enriched.” [see paragraph 14 of Defence.].

6 Queen's counsel, in her usual thorough but concise style, submitted that the relevant contractual provision absolutely forbade any assignment:

“Clause 7.1. The contractor may sub contact with the approval of the Project Manager but may not assign the contract without the approval of the Procuring Entity in writing. Sub-contracting shall not alter the contractor's obligations

7 The consequence, it was submitted, is that as a matter of law the 1 ^st Claimant could not succeed. There could be no valid assignment of the contract and, as there had been no written consent, neither could there be a valid sub contract. Authorities were citied to demonstrate that the courts took a strict view of these “no assignment” clauses see, Helstan Securities Ltd v Hertfordshire CC [1978] 3 ALL ER 262 and Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd et al [1994] 1 AC 85. Furthermore, even where the benefit of a contract was conferred, the court would refuse to allow the effect of the clause to be subverted by quasi-contractual remedies, see per Justice Reyes,

“12. Where parties have expressly or impliedly allocated risks among themselves through a network of back to back or interlocking agreements, the law of restitution will not without...