Henry Boot v Alstom|santral inşaatında yeni birim fiyat
İnşaat Sözleşmelerinin Gelişiminde Etkisi Olan Yüksek Mahkeme Kararları
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Henry Boot v Alstom | Ortak Hukukta, Termik Santral İnşaatında Yeni Birim Fiyat
Özellikle miktarlarda büyük artış veya azalış nedeniyle yapılan fiyat artışı durumlarında, kontrat birim fiyatlarının yeni fiyat yapımında kullanılması işveren ve yüklenici arasında süregiden bir tartışma konusu. Eğer kontrat birim fiyatı çok düşük ve yüksek ise bu özellikle önemli bir problem. Alstom Galler bölgesinde enerji santralı inşaatında inşaat yüklenicisi Henry Boot ile anlaşmıştır. Kontrat görüşmeleri sırasında, daha sonra aşırı yüksek bulunan, geçici palplanş fiyatı üstünde anlaşılmış ve kontrat bu birim fiyatla imzalanmıştır. İşin başlamasından sonra, yeni palplanş ihtiyacı doğunca yüklenici ilave işlerin yapımı için kontrat birim fiyatlarında ısrar etti. İşveren ise bu fiyatın hatalı olduğu gerekçesiyle gözardı edilmesi ve pazar koşullarına uygun yeni birim fiyat yapılmasında istedi. İddia edildi ki eğer çalışma koşulları değişik olduğu takdirde ya da miktarlarda büyük değişiklikler mevcut ise kontrat birim fiyatlarında değişiklik yapılabilir. Hakim kontrat fiyatlarının yüksek veya düşük olmasının tartışılamaz olduğunu, bunun miktar artışı , hesap hatası veya bir tarafın fiyatlardan memnun olmaması gibi nedenlerle değişikliğe uğratılamayacağına karar verdi.Bu ilginc karar aşağıda orijinal İngilizce olarak verilmektedir.
England and Wales Court of Appeal (Civil Division)
Decisions
Neutral Citation Number: [2005] EWCA Civ
814
Case No:
A3/2004/1236
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL
DIVISION) ON APPEAL FROM His Honour Judge Humphrey Lloyd QC Sitting
as judge arbitrator
Royal Courts of Justice Strand,
London, WC2A 2LL
16th June
2005
B e f o r e :
THE VICE-CHANCELLOR LORD JUSTICE DYSON and LORD JUSTICE
THOMAS ____________________
Between:
Henry Boot Construction Ltd
Appellant/ Claimant
- and -
Alstom Combined Cycles
Ltd
Respondent/
Defendant
____________________
(Transcript of the Handed Down Judgment of Smith
Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421
4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)
____________________
Mr Stephen Furst QC and Mr Tim Lord (instructed by Messrs Davies
Arnold Cooper) for the Appellant Mr Roger Ter Haar QC and Mr Alastair Walton
(instructed by Messrs Lovells) for the Respondent
____________________
(ii) If it only arose upon the issue of a certificate, did it
arise once and for all as soon as Boot was entitled to have the sum
certified in an interim certificate, or did Boot have a continuing right to
have the sum certified in subsequent certificates, and in particular in the
final certificate, so that (where the sum was not certified) each failure to
certify in accordance with the contract gave rise to a new cause of
action?
(iii) To what extent are Boots claims for interest pursuant to
clause 60(7) of the conditions of contract statute-barred?
(iv) Was the Engineer obliged only to certify sums in respect of
claims which he considered not to be statute-barred?
"It is probably safer to base the decision on the alternative
ground that the contractors right to payment in respect of work,
materials etc properly done or supplied arises when a certificate is
issued or due to be issued. That result is conveniently encapsulated in
the proposition that a certificate is a condition precedent to payment,
but that is inaccurate or perhaps an overstatement. However it is a
proposition that is endorsed by many cases, even if in a number of them,
the point was not analysed as it has been by the submissions in this
arbitration."
"Once all the ingredients which would justify an application
or a statement from the contractor are present, the cause of action
accrues, perfected, if need be, at the time when the certificate is due.
Once the Engineer has failed to issue a certificate for what is due, then
time runs against the contractor in respect of the undervaluation or
omission—why otherwise is interest payable under clause 60(7)? This is in
my judgment fully borne out by the provisions of clause 52(4) and 60 and
the authorities to which I have referred."
"60. (1) The Contractor shall submit to the Engineer at
monthly intervals a statement (in such form if any as may be prescribed in
the Specification) showing
(a) the estimated contract value of the Permanent Works
executed up to the end of that month
(b) a list of any goods or materials delivered to the Site
for but not yet incorporated in the Permanent Works and their
value
(c) a list of any of those goods or materials identified in
the Appendix to the Form of Tender which have not yet been delivered to
the Site but of which the property has vested in the Employer pursuant
to Clause 54 and their value and
(d) the estimated amounts to which the Contractor considers
himself entitled in connection with all other matters for which
provision is made under the Contract including any Temporary Works or
Contractors Equipment for which separate amounts are included in the
Bill of Quantities
unless in the opinion of the Contractor such values and
amounts together will not justify the issue of an interim
certificate.
Amounts payable in respect of Nominated Sub-contracts are to
be listed separately.
Monthly payments
(2) Within 28 days of the date of delivery to the Engineer
or Engineers Representative in accordance with sub-clause (1) of this
Clause of the Contractors monthly statement the Engineer shall certify
and the Employer shall pay to the Contractor (after deducting any
previous payments on account)
(a) the amount which in the opinion of the Engineer on the
basis of the monthly statement is due to the Contractor on account of
sub-clauses (1) (a) and (1) (d) of this Clause less a retention as
provided in sub-clause (5) of this Clause
and
(b) such amounts (if any) as the Engineer may consider
proper (but in no case exceeding the percentage of the value stated in
the Appendix to the Form of Tender) in respect of sub-clauses (1) (b)
and (1) (c) of this Clause.
The amounts certified in respect of Nominated Sub-contracts
shall be shown separately in the
certificate.
Minimum amount of certificate
(3) Until the whole of the Works has been certified as
substantially complete in accordance with Clause 48 the Engineer shall
not be bound to issue an interim certificate for a sum less than that
stated in the Appendix to the Form of Tender but thereafter he shall be
bound to do so and the certification and payment of amounts due to the
Contractor shall be in accordance with the time limits contained in this
Clause [the sum stated in the Appendix was
£100,000]..
Final account
(4) Not later than 3 months after the date of the Defects
Correction Certificate the Contractor shall submit to the Engineer a
statement of final account and supporting documentation showing in
detail the value in accordance with the Contract of the Works executed
together with all further sums which the Contractor considers to be due
to him under the Contract up to the date of the Defects Correction
Certificate.
Within 3 months after receipt of this final account and of
all information reasonably required for its verification the Engineer
shall issue a certificate stating the amount which in his opinion is
finally due under the Contract from the Employer to the Contractor or
from the Contractor to the Employer as the case may be up to the date of
the Defects Correction Certificate and after giving credit to the
Employer for all amounts previously paid by the Employer and for all
sums to which the Employer is entitled under the
Contract.
Such amount shall subject to Clause 47 be paid to or by the
Contractor as the case may require within 60 days of the date of the
certificate.
Interest on overdue payments
(7) In the event of
(a) failure by the Engineer to certify or the Employer to
make payment in accordance with sub-clauses (2) (4) or (6) of this
Clause or
(b) any finding of an arbitrator to such
effect
the Employer shall pay to the Contractor interest compounded
monthly for each day on which any payment is overdue or which should
have been certified and paid at a rate equivalent to 2% per annum above
the base lending rate of the bank specified in the Appendix to the Form
of Tender. If in an arbitration pursuant to Clause 66 the arbitrator
holds that any sum or additional sum should have been certified by a
particular date in accordance with the aforementioned sub-clauses but
was not so certified this shall be regarded for the purposes of this
sub-clause as a failure to certify such sum or additional sum. Such sum
or additional sum shall be regarded as overdue for payment 60 days after
the date by which the arbitrator holds that the Engineer should have
certified the sum or if no such date is identified by the arbitrator
shall be regarded as overdue for payment from the date of the
Certificate of Substantial Completion for the whole of the
Works.
Correction and withholding of
certificates
(8) The Engineer shall have power to omit from any
certificate the value of any work done goods or materials supplied or
services rendered with which he may for the time being be dissatisfied
and for that purpose or for any other reason which to him may seem
proper may by any certificate delete correct or modify any sum
previously certified by him. Provided
that
(a) the Engineer shall not in any interim certificate delete
or reduce any sum previously certified in respect of work done goods or
materials supplied or services rendered by a Nominated Sub-contractor if
the Contractor shall have already paid or be bound to pay that sum to
the Nominated Sub-contractor and
(b) if the Engineer in the final certificate shall delete or
reduce any sum previously certified in respect of work done goods or
materials supplied or services rendered by a Nominated Sub-contractor
which sum shall have been already paid by the Contractor to the
Nominated Sub-contractor the Employer shall reimburse to the Contractor
the amount of any sum overpaid by the Contractor to the Sub-contractor
in accordance with the certificates issued under sub-clause (2) of this
Clause which the Contractor shall be unable to recover from the
Nominated Sub-contractor together with interest thereon at the rate
stated in sub-clause (7) of this Clause from 60 days after the date of
the final certificate issued under sub-clause (4) of this Clause until
the date of such reimbursement.
Payment advice
(10) Where a payment made in accordance with sub-clause (2) of
this Clause differs in any respect from the amount certified by the
Engineer the Employer shall notify the Contractor forthwith with full
details showing how the amount being paid has been
calculated."
"(f) The Contractor shall be entitled to have included in any
interim payment certified by the Engineer pursuant to Clause 60 such
amount in respect of any claim as the Engineer may consider due to the
Contractor provided that the Contractor shall have supplied sufficient
particulars to enable the Engineer to determine the amount due. If such
particulars are insufficient to substantiate the whole of the claim the
Contractor shall be entitled to payment in respect of such part of the
claim as the particulars may substantiate to the satisfaction of the
Engineer."
"It is also important to have regard to the course of earlier
judicial authority and practice on the construction of similar contracts.
The evolution of standard forms is often the result of interaction between
the draftsmen and the courts and the efforts of the draftsman cannot be
properly understood without reference to the meaning which the judges have
given to the language used by his predecessors.
"…until the architect has given a certificate, the builder has
no right to receive any sum of money from his employer by what I may call
a drawing on account. He must get a certificate from the architect….until
the contractor can produce to the building owner a certificate he cannot
receive anything."
"Whatever be the cause of the under-valuation, the proper
remedy available to the contractor is, in our opinion, to request the
architect to make the appropriate adjustment in another certificate, or if
he declines to do so, to take the dispute to arbitration under clause 35.
In default of arbitration or a new certificate the conditions themselves
give the contractor no right to sue for a higher sum. In other words, we
think that under this form of contract the issue of a certificate is
always a condition precedent to the right of the contractor to be
paid."
In Scottish Equitable plc v Miller Construction
Limited 83
Con LR 183, another decision of the Court of Session, Inner House,
differences arose under a JCT form of building contract. Practical completion
took place on 6 August 1990 and all the factual events on which the
contractors claim for loss and expense was based had occurred before that
date. The latest interim certificate was issued on 18 June 1992, and the
arbitration started less than 5 years after that date (5 years is the relevant
limitation period under the law of Scotland). The question was whether the
claim for loss and expense had been enforceable for a continuous period of 5
years before the arbitration proceedings were started. It was held that the
claim for loss and expense was not statute-barred. It seems to have been
common ground that there would be no right to payment without a certificate,
and Lubenham and Costain were cited (p 192). Scottish
Equitable is of more direct relevance to the second issue.
"….If one considers the practicalities of the construction of
a building or other works, it seems to me that parties could reasonably
have intended that they should have what might be called a provisional
validity. Construction contracts may involve substantial work and
expenditure over a lengthy period. It is important to have machinery by
which the rights and duties of the parties at any given moment can be at
least provisionally determined with some precision. This machinery is
provided by architects certificates. If they are not challenged as
inconsistent with the contractual terms which the parties have agreed,
they will determine such matters as when interim payments are due or
completion must take place. This is something which the parties need to
know. No doubt in most cases there will be no
challenge."
"entitled to examine the facts and to form its own opinion
upon them in the light of the evidence. The fact that the architect has
formed an opinion on the matter will be part of the evidence. But, as it
will not be conclusive evidence, the court can disregard his opinion if it
does not agree with it."
"Where an arbitrator having jurisdiction has to decide that
something ought to have been done by the architect or engineer which was
not done, if the terms of reference are wide enough to enable him to deal
with the matter, he may by that decision himself supply the deficiency,
and do that which ought to have been done, and produce the result which
ought to have been produced…"
"I cannot read either Brodie v Cardiff Corpn or
Neale v Richardson except as expressing the view that, in the
opinion of the House of Lords in Brodies case, and in the opinion
of this court in Neale v Richardson, an arbitrator to whom a matter
is remitted in the form in which it was in this case has the power to
dispense with the conditions precedent, and to order that, notwithstanding
the non-performance of those conditions precedent, a liability may be
established on which money may be ordered to be
paid."
"(3) If the Contractor is requested by the Employer or the
Engineer to complete the Works or any Section within a revised time being
less than the time or extended time for completion prescribed by Clauses
43 and 44 as appropriate then the Contractor shall submit written
proposals to the Engineer stating:-
(a) The lump sum based on an estimate of the reasonable
extra costs which the Contractor would require to be added to the
Contract Price in order substantially to complete and test the Works or
any Section by such earlier date as the Employer or the Engineer may
have specified, together with details showing the manner of calculation
of the lump sum and proposals for the terms of payment
thereof.