Civil Engineering Reference
In-Depth Information
It was said that there should not be defects apparent at this date and that a practical
completion certificate cannot be issued where these exist though it could be issued
where there were latent defects which only become apparent later.
In
H.W. Nevill (Sunblest) Ltd
v.
William Press & Son Ltd
(1981), Judge Newey QC's
view was:
I think that the word 'practically' in Clause 15(1) gave the architect a discretion
to certify that William Press had fulfilled its obligation under Clause 21(1) where
very minor de minimis works had not been carried out, but if there were any patent
defects in what William Press had done the architect could not have given a certifi-
cate of practical completion.
In
Emson Eastern Ltd (in receivership)
v.
EME Developments Ltd
(1991), Judge Newey
QC said that the matrix of facts against which the building contract should be con-
strued is what happened on building sites generally. There was a recognition that a
construction project is not like the manufacture of goods in a factory. Factors such
as size of the project, site conditions, use of many materials and employment of var-
ious types of operative make it impossible to achieve the same degree of perfection
as a manufacturer. He took into account the overall contract scheme. After practical
completion the employer took occupation and the contractor was required not to do
more work but to remedy defects. It was said:
In my opinion there is no room for 'completion' as distinct from 'practical com-
pletion'. Because a building can seldom if ever be built precisely as required by
drawings and specification, the contract realistically refers to 'practical completion',
and not 'completion' but they mean the same.
In
Borders Regional Council
v
. J Smart & Co (Contractors) Ltd
(1983), practical com-
pletion was taken as meaning that the works have been completed for all practical
purposes and the employer could take them over and use them for their intended
purpose.
Mr Justice Bokhary P.J. in the Hong Kong Court of Final Appeal in the case of
Mariner International Hotels Ltd
v.
Atlas Ltd
(2007) provided a definition of what
'practical completion' is understood to mean in building contracts in general. Pre-
ferring the arguments put forward by Counsel for Mariner in which he had referred
to practical completion as a 'well known legal term of art with an established meaning
in building contracts', it was said by Mr Justice Bokhary:
In my view, what clause 2.01(b) means by 'practical completion' is a state of affairs
in which the Hotel has been completed free from any patent defects other than ones
to be ignored as trifling
Trueit isthat thestandardof freedomfromnon-triling
patent defects is an exacting one. But it does not, after all, demand more than the
avoidance of what is apparently defective and, moreover, apparently so to a degree
exceeding what can be ignored as trifling.
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