星空传媒

Repair contracts cover all systems
Integrated systems are considered part of building structure

A contract was entered into for the servicing and maintenance of gas central heating systems, fires and cookers. The employer failed to pay various invoices and the supplier tried to give notice of adjudication. The Court found that the contract was for the 鈥渞epair, maintenance etc of buildings or structures forming part of the land鈥� and so fell under the Act. The systems were integrated into the structure of the building and so formed part of the land. The Court confirmed that contracts for the maintenance of heating/air-conditioning systems, lighting, power supply, drainage, sanitation and water supply would also be covered.¹

All scaffolding is part of contract
Scaffolding for boiler is part of the construction contract

The Court had to decide whether a contract for the erection of scaffolding to install a boiler was a construction contract for the purposes of the Act. Scaffolding work is covered by the Act if it is preparatory to operations which have been 鈥減reviously described鈥� in section 105(1) of the Act. The Court felt that the assembly of the boiler was a construction operation under the subsection because it would form part of the land once assembled. However, an exclusion applied because it was for use on a site whose primary activity was power generation. It was argued that this meant that the erection of scaffolding was also outside the scope of the Act. The Court disagreed. The assembly of the boiler was described in section 105(1) even though it was excluded by a subsequent sub-section.²

Barn owner must pay for conversion
Barn contract was for all buildings

A contract was entered into for the conversion of two barns and a garage block. The owner was intending to reside in one barn and sell the other. The owner failed to pay for the works done and the contractor referred the dispute to adjudication. It was argued that the works fell within the residential occupation exclusion. The Court did not agree. The second barn was not intended to be the owner鈥檚 residence. The contract was entered into for the conversion of all of the buildings and not merely the one to be occupied.³

Out

Shop-fitting warning
Shop-fitting is not considered a 鈥渃onstruction operation鈥�

The Court held recently that shop-fitting contracts are not 鈥渃onstruction operations鈥� and so disputes cannot be submitted to adjudication under the Act. This is because the fittings do not form part of the land. The Court applied the well-established law of fixtures to determine this point. Whether an item is a fixture will depend on the degree and purpose of annexation. Most of the items fitted were not secured to the building. Whilst some items were fixed to the floor or walls this did not necessarily mean they were fixtures because the fixing was simply to keep units more stable. They could have been free standing.⁴

Court appearance is not work
Appearing as witness was not 鈥渄oing鈥� surveying

The Court was asked to decide whether a contract for an architect/engineer to give factual evidence and assistance at an arbitration was a construction contract for the purposes of the Act. The answer was no. Giving factual evidence of what had been found during the course of a survey was not actually surveying the property so it could not be said to be the 鈥渄oing鈥� of architectural, design or surveying work. Also, the assistance given was not the same as providing advice on building or engineering for the purposes of the Act. In addition, even though the arbitration concerned construction operations, the dispute was concerned with the non-payment of fees of the witness and this was not a dispute in relation to construction operations.⁵

Power rule applies
Exclusion applied despite fence

A subbie agreed to provide insulation and cladding to pipework and boilers within boiler houses being built by the contractor. It was argued that this was not a construction operation because it was excluded by the provision relating to the assembly or installation of plant or machinery on a site where the primary activity is power generation. The Court was satisfied that the exclusion applied. Although a fence separated 鈥渢he construction site鈥� and 鈥渢he power station site鈥�, in reality there was one site that had been separated for health and safety reasons.⁶