Safeera Akram v Academy Doors and Windows Ltd
[2023] EWHC 1653 (KB)
Estate Management and Business Development Company Ltd v Junior Sammy Contractors Ltd (Trinidad and Tobago)
29 October 2024
[2024] UKPC 33
Privy Council
A company hired a contractor for construction but didn't pay. The company claimed the contractor had given its right to the money to a bank, and also that the contractor hadn't done all the work. The court decided the contractor still had the right to the money and that the company didn't have enough evidence to show the contractor hadn't done all the work. The contractor won the case and got paid.
Key Facts
- •Estate Management and Business Development Company Ltd (Employer) contracted Junior Sammy Contractors Ltd (Contractor) for residential infrastructure works (TT$231,235,125.36).
- •Employer failed to pay TT$77,658,948.91 (IPCs 7-13) and TT$5,145,270.28 (retention).
- •Employer claimed Contractor assigned rights to Ansa Merchant Bank, and raised potential defenses of abatement and fraud.
- •Contractor applied for summary judgment; Employer applied for specific disclosure of supporting documents.
- •High Court granted summary judgment to Contractor; Court of Appeal dismissed Employer's appeal.
- •Privy Council appeal challenged summary judgment, specific disclosure refusal.
Legal Principles
Distinction between absolute assignment and assignment by way of charge.
Section 23(7) of the Supreme Court of Judicature Act (c 4.01)
Construction of an instrument to determine if assignment is absolute or by way of charge.
Bexhill UK Ltd v Razzaq [2012] EWCA Civ 1376; Orion Finance Ltd v Crown Financial Management Ltd (No 1) [1996] 2 BCLC 78; Hughes v Pump House Hotel Co Ltd (No 1) [1902] 2 KB 190
Effect of an absolute assignment; assignor loses right to sue.
Read v Brown (1888) 22 QBD 128
Specific disclosure requires documents to be directly relevant to matters in issue; necessity for fair disposal/cost saving.
Rule 28.5(1), 28.5(5), 28.1(4), 28.6(1) of the Consolidated Civil Proceedings Rules 2016
Disclosure cannot be used to establish a defense; must be more than fanciful or speculative.
Matthews and Malek on Disclosure
Right to abate requires proof of breach and reduced work value.
Mondel v Steel (1841) 8 M&W 858; Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; Mellowes Archital Ltd v Bell Products Ltd (1997) 58 Con LR 22
Definition of fraud (false representation knowingly or recklessly).
Derry v Peek (1889) 14 App Cas 337
Outcomes
Contractor's appeal dismissed.
Assignment to Merchant Bank was by way of charge, not absolute; Contractor retains right to sue.
Employer's application for specific disclosure dismissed.
Employer failed to demonstrate potential defenses of abatement or fraud were more than fanciful or speculative; application was a fishing expedition.
Summary judgment for Contractor affirmed (TT$82,804,219.19).
Contractor's right to sue established; insufficient evidence to support abatement or fraud defenses.
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