[Appeal allowed – Landowner’s claim for liquidated and ascertained damages (“LAD”) for delay in Practical Completion in a Development Project, certified by Project Architect to be 16 March 2020, summarily determined in Developer’s favour under O.14A, RSC (“determination of question of law or construction”), and, had it been necessary to do so, would have been struck out under O.18, r.18(1)(a) RSC (“no reasonable cause of action”)
Disposal: Judgments below set aside and Landowner’s claim dismissed; Costs – Landowner to pay Developer’s costs of appeal and below on standard basis, to be agreed within 28 days, failing which to be determined by the Registrar.
‘Conclusive Evidence’ clause- Cl. 2.7 of Development Agreement provided that “Any certification for extension of time in respect of the Development Project given by the Project Architect … shall be final, conclusive and binding on the parties hereto.”
If given effect, Project Architect’s certificate (“the Certificate”), dated 15 June 2022, granting an extension of time (“EOT”) to 16 March 2020, meant that there was no delay, so that the Landowner’s claim for LAD must fail.
Developer applied for EOT on 9 March 2022, almost 2 years after Practical Completion, but relatively promptly after Landowner had claimed LAD on 10
February 2022.
No general rule as to the meaning of a conclusive evidence clause, such as Cl. 2.7 – each clause turns on its own true construction – the foundation for reliance on the expertise of an expert to give a final, conclusive and binding determination is purely contractual – accordingly, a Court is dutybound, subject to well-settled exceptions, to give effect to the bargain made by the parties; it is not for the Court to make some different bargain for the parties.
Only or principal ground for Landowner resisting application of Cl. 2.7 was allegation of bad faith – but the only basis for the allegation of bad faith was the mere timing of the Developer’s application for an EOT and of the Project Architect’s certificate granting an EOT; allegation of bad faith akin to allegation of fraud and treated as such; Court held there was not any or any sufficient foundation for an allegation of fraud; accordingly, no (realistically) arguable basis for this allegation of fraud/bad faith.
No allegation of manifest error, nor could there have been; no challenge to the certificate as such.
No reasonably arguable basis for allegation (insofar as pursued) that Project Architect had materially departed from his instructions; no contractual provision
stipulating time period within which an EOT was to be sought or certified.
Accordingly, Cl. 2.7 to be given final, conclusive and binding effect; Developer entitled to summary determination in its favour.]