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26 Cheap Jerseys USA , 2013
| Author: Dirk Markhen | Posted in Legal
The primary role in the execution of the contract as “Engineer” (within the
GCC) or “Principle Agent” (within the JBCC) necessitates regular decisions and
judgements on the actions on location. This function can be often undervalued
and will attract considerable liabilities.
Specialists in the construction and engineering industry are usually employed
as the Engineer or Principle Agent. It is required of the specialist fulfilling
this important function to be au fait not only with the terms of the contract,
but also the execution thereof.
What are the ramifications of inadequate decision making by the Engineer or
Principle Agent under these kinds of construction contracts? One particular
example in which the courts talked about the yardstick with which the Engineer
or Principle Agent is to be assessed is inside the case of Hawkins & Osborn
(South) (Pty) Ltd vs Enviroserve Waste Management. The decision not only sets
the current standard in this regard, but also appears to be a warning to
Engineers and Principle Agents to act in a sensible manner when conducting
themselves as the Employer’s spokesperson on location.
In cases like this, like in many other instances in the building and
engineering sector, the Employer (Enviroserve Waste Management) concluded an
oral agreement with the Engineer. The Engineer was appointed to watch over and
manage particular contract functions.
The Employer then signed a written agreement with a Contractor to perform
digging on a particular site. The written contract between the Employer as well
as the Service provider included the General Conditions of Contract for Works of
Civil Engineering Construction – 6th edition.
The contractor raised a dispute in terms of a “notification” of potential
claims communicated to the Engineer within a letter. The Engineer did however
not consider the letter as sufficient notification. The outcome of the
Engineer’s decision would be a deadlock involving the Employer as well as the
Contractor that had to be sorted out by an Arbitrator. The Arbitrator determined
that the letter was definitely appropriate notice and that the builder was
eligible to lay claim as informed therein.
Because of the Arbitrator’s decision, the Employer had to pay the
Contractor’s claim Cheap Jerseys Wholesale ,
but then claimed damages for breach of agreement from the Engineer in the High
Court. The Employer structured its claim on an allegation that the Engineer
broke the contract by failing to construe the Contractor’s letter as an
acceptable notice of the intent to claim payment for additional work as
contemplated in clause 50(1) of the GCC.
The initial court established that no break of contract had happened as the
Contractor’s letter didn’t constitute proper notice as contemplated in clause
50(1) within the GCC.
Nonetheless, it was held by the Supreme Court of Appeal that:
“…there were absolutely no reason why the notice contemplated in GCC 50(1)
couldn’t be in the form of a letter provided the letter was so framed as to
convey unequivocally towards the addressee that the author was invoking, or
counting upon, the conditions of the contract which provided for the providing
of notice. It could do so expressly or by implication. In the present case, the
contents of the last paragraph of the Contractor’s letter were so closely
associated with the substance of clause 50(1) that it satisfied that standard.
The letter furnished information required by clause 50(1) (a) and (b).”
The Contractor’s letter did comply with the requirements of the contract for
the reason that it included all the info that was necessary to represent a
notice as needed by clause 50(1) of the GCC. The technical strategy adopted by
the Engineer in working with the “notification” by the Contractor was not
considered to be sensible by the Court of Appeal. To the contrary, the Court
discovered that the Engineer’s behavior in this regard hadn’t been acceptable as
measured against the standard of the “reasonable engineer”.
The letter as a result constituted a notice which any reasonable engineer
would’ve construed as such. The Engineer’s inability to do so therefore
constituted a breach of the Engineer’s responsibility of care and Cheap
Jerseys From China , thus the contract with the Employer. The
Engineer was found liable to the Employer in the amount owed and payable to the
Contractor under the award of the Arbitrator in the first mediation between
Employer and the Builder.
Focussing exclusively on particular legal fields, Dirk is able to make early
and accurate assessment of merits and manage legal disputes effectively. His
specialist practice areas include construction law and engineering law,
insurance law, property law, medical law and product liability law.
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