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Substance Is Essential In Notifications Of Claims Substance Is Essential In Notifications Of Claims August 26 Cheap Jerseys , 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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