“If— (a) capital expenditure is incurred on the construction of a building, and (b) the relevant interest in the building has not been sold or, if it has been sold, it has been sold only after the first use of the building, the capital expenditure is qualifying expenditure.” the capital expenditure is qualifying expenditure.”
“(1) This section applies if— (a) expenditure is incurred by a developer on the construction of a building, and (b) the relevant interest in the building is sold by the developer in the course of the development trade before the building is first used. (2) If— (a) the sale of the relevant interest by the developer was the only sale of that interest before the building is used, and (b) a capital sum is paid by the purchaser for the relevant interest, the capital sum is qualifying expenditure. … (4) The qualifying expenditure is to be treated as incurred by the purchaser when the capital sum referred to in subsection (2)(b) or (3)(b) became payable.”
“the interest in the building to which the person who incurred the expenditure on the construction of the building was entitled when the expenditure was incurred.”
“(1) For the purposes of sections 299 to 304, the time limit for expenditure on the construction of a building on a site in an enterprise zone is— (a) 10 years after the site was first included in the zone, or (b) if the expenditure is incurred under a contract entered into within those 10 years, 20 years after the site was first included in the zone.”
“If – (a) expenditure is incurred on the construction of an EZ building, and (b) all the expenditure is incurred within the time limit any qualifying expenditure given by sections 295 and 296 in relation to that expenditure is qualifying enterprise zone expenditure.”
“(1) If the sum paid for the sale of the relevant interest in a building is attributable— (a) partly to assets representing expenditure for which an allowance can be made under this Part, and (b) partly to assets representing other expenditure, only so much of the sum as on a just and reasonable apportionment is attributable to the assets referred to in paragraph (a) is to be taken into account for the purposes of this Part.”
“the design, construction and commissioning the Employer wishes to obtain for the Works Option stated in the Notice to Proceed which for the avoidance of doubt shall either be Works Option 1 Works Option 2 Works Option 3 Works Option 4 Works Option 5 or Works Option 6 and referred to in the Employer's Requirements and the Contractor's Proposals for that Works Option and including any work needed to ensure that the Tests on Completion and the Performance Tests are passed and any changes made to these works in accordance with this Contract.”
“Upon and subject to Article 1A and the Conditions the Contractor will, for the consideration mentioned in Article 2, be responsible for the design of the Works which has already been carried out as at the date of this Contract and whether such design is contained in the Employer’s Requirements or the Contractor’s Proposals and by whomsoever it is carried out and the Contractor will complete the design and carry out and complete the construction of the Works.”
“23A.1 The Employer shall serve upon the Contractor a written notice (“Notice to Proceed”) stating when the Contractor shall proceed with the Works. The Date of Possession for the purposes of this Contract shall be the date 20 Working Days after the date of the Notice to Proceed. 23A.2 The Notice to Proceed shall state which Works Option the Contractor shall carry out and complete.”
“the document referred to in Appendix 14 Appendix 15 Appendix 16 Appendix 17 Appendix 18 Appendix 19 (as the case may be) setting out the requirements of the Employer in relation to the relevant Works Option.”
“a change in the Employer's Requirements which makes necessary the alteration or modification of the design, quality or quantity of the Works, otherwise than such as may be reasonably necessary for the purposes of rectification pursuant to clause 8.4, including 12.1.1.1 the addition, omission or substitution of any work 12.1.1.2 the alteration of the kind or standard of any of the materials or goods to be used in the Works, 12.1.1.3 the removal from the site of any work executed or materials or goods brought thereon by the Contractor for the purposes of the Works other than work materials or goods which are not in accordance with this Contract”
“The Contract Sum shall not be adjusted or altered in any way whatsoever otherwise than in accordance with the express provisions of the Conditions.”
“(1) For the purposes of sections 299 to 304, the time limit for expenditure on the construction of a building on a site in an enterprise zone is— (a) 10 years after the site was first included in the zone, or (b) if the expenditure is incurred under a contract entered into within those 10 years, 20 years after the site was first included in the zone.”
“The essence of the new approach was to give the statutory provision a purposive construction in order to determine the nature of the transaction to which it was intended to apply and then to decide whether the actual transaction (which might involve considering the overall effect of a number of elements intended to operate together) answered to the statutory description. Of course this does not mean that the courts have to put their reasoning into the straitjacket of first construing the statute in the abstract and then looking at the facts. It might be more convenient to analyse the facts and then ask whether they satisfy the requirements of the statute. But however one approaches the matter, the question is always whether the relevant provision of the statute, upon its true construction, applies to the facts as found.”
“In our judgment, there is a limit on the nature and scope of the changes that can be made pursuant to clause 12.1, namely that those changes cannot effect a change in the definition of the Works.”
“My Lords, it appears to me, that under those circumstances, the Appellant must necessarily be in this dilemma, either the additional and varied work which was thus occasioned is the kind of additional and varied work contemplated by the contract, or it is not. If it is the kind of additional or varied work contemplated by the contract, he must be paid for it, and will be paid for it, according to the prices regulated by the contract. If, on the other hand, it was additional or varied work, so peculiar, so unexpected, and so different from what any person reckoned or calculated upon, that it is not within the contract at all; then, it appears to me, one of two courses might have been open to him; he might have said: I entirely refuse to go on with the contract— Non haec in foedera veni : I never intended to construct this work upon this new and unexpected footing. Or he might have said, I will go on with this, but this is not the kind of extra work contemplated by the contract, and if I do it, I must be paid a quantum meruit for it.”
“The work executed so far exceeded the stipulated work, that is to say, the work comprised in the original estimate of 4l. million that it seems to me, to use Mr. Rewcastle’s language, fantastic and absurd to suppose that such a large increase as in fact occurred was within the contemplation of the parties when the deed of variation was executed. We are, I think, amply justified (a) in reaching the conclusion that the basis of the varied contract was that the quantum of work which the Commissioners were entitled to require was work measured approximately by the said sum of 5l. million; and (b) in implying a term that the Commissioners should not be entitled under the contract to require work materially in excess of that sum.”
“Literally, therefore, the “work” in the contract as varied includes an unlimited quantity of “extras.”
“Could the employer have ordered the work required by it against the wishes of the contractor as a variation under clause 51?”
“The original dredging contract provided that the spoil from excavating the channel should be deposited in “areas within Lough Larne to be allocated … upon approval by the local authorities”
“… the purpose of a variations clause is to enable the employer to alter the scope of the works to meet its requirements. As a project proceeds it may become clear that some change of mind is needed to attain the result now desired. That might be a simple realisation that something is no longer needed (especially if it was always an option, typically signalled by the use of a provisional sum or some other indication of lack of commitment or by the absence of the necessary definition) or it might be for some other reasons such as lack of money, or a change in the requirements of the actual or prospective occupier or user. The test must therefore be whether the variations clause is or is not wide enough to permit the change that was made. If, with the advantage of hindsight, it turns out that the variation was not ordered for a purpose for which the power to vary was intended then there will be a breach of contract.”
“What one needs to do is to look at the variation clause in question and determine, depending on what the variation clause covers, whether the extra or varied work falls within it or not.”
“Whether additional or omitted work which has been ordered is of the character contemplated by the contract, and so within the conditions of the contract relating to the power to order variations, or whether on the other hand it is outside the contract, will depend in each case on the nature of the work and the terms of the contract.”
“… it is a matter of fact and degree as to whether the instruction for a variation goes beyond a change envisaged by the contract and instructs something over and above that which was expected and contracted for. … As with all matters of fact and degree it is easier to demonstrate at the extremes that it is at the margin. So, for example, a contract to build a beach house will have implicit within the variations clause the right to change the colour of the external paintwork. It will not extend to the right to order that the contractor build a lighthouse alongside.”
“The reasoning that has been adopted is that a “variation” means a change to the works that the contract describes, and not the building of something quite different, and that any change is therefore constrained by the scope of the project envisaged by the contract.”
“77. First, clause 12.1 makes a clear distinction between the Works and the Employer's Requirements and contemplates changes being made in the Employer’s Requirements, not the Works. It is true that it contemplates such changes might affect the Works, however, only to the extent that they necessitate alteration or modification of the “design, quality or quantity” of the Works. In other words, it does not contemplate a change in the Employer’s Requirements necessitating a change in the definition of the Works themselves. The wide words relied on by the LLPs (“addition, omission or substitution of any work”) specifically apply to the changes in the Employer’s Requirements, not to the “Works”. 78. Second, the respective definitions of the “Works” and the “Employer’s Requirements” demonstrate that the latter exist as part of, and are subordinate to, the former. Specifically, the Employer’s Requirements are defined as the requirements of the Employer “in relation to the relevant Works Option”, and in the definition of Works Option 1, they are the requirements issued by the Employer for the construction of an “industrial unit to accommodate the manufacture of an eight inch board on Site C”. 79. Third, there is support for this conclusion in the fact that the “Works”, as a defined term, are the design, construction and commissioning the Employer wishes to obtain for the “Works Option” stated in the “Notice to Proceed”
“A rescission and replacement of the contract will also be implied where the parties have effected such an alteration of its terms as to substitute a new contract in its place. The question whether a rescission has been effected is frequently one of considerable difficulty, for it is necessary to distinguish a rescission of the contract from a variation which merely qualifies the existing rights and obligations. If a rescission is effected the contract is extinguished; if only a variation, it continues to exist in an altered form. The decision on this point will depend on the intention of the parties to be gathered from an examination of the terms of the subsequent agreement and from all the surrounding circumstances. Rescission will be presumed when the parties enter into a new agreement which is entirely inconsistent with the old, or, if not entirely inconsistent with it, inconsistent with it to an extent that goes to the very root of it. The change must be fundamental and: “… the question is whether the common intention of the parties was to ‘abrogate’, ‘rescind,’ ‘supersede’ or ‘extinguish’ the old contract by a ‘substitution’ of a ‘completely new’ or ‘self-subsisting’ agreement.”
“Whether a subsequent agreement is a rescission or a variation depends on the extent to which it departs from the original contract. It is a rescission if it alters the original contract in some essential way, but if it does not go to the very root of the contract it is only a variation. ”
“Whether the parties intended to rescind or vary is to be determined in the light of all the circumstances of the case; but the parties will be presumed to have intended to rescind the old contract and to have substituted a new one wherever the new agreement is inconsistent with the original contract to an extent which goes to the very root of it.”
“What is, of course, essential is that there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which still leave it subsisting.”
“The difference between variation and rescission is a real one, and is tested, to my thinking, by this: In the first case there are no such executory clauses in the second arrangement as would enable you to sue upon that alone if the first did not exist; in the second you could sue on the second arrangement alone, and the first contract is got rid of either by express words to that effect, or because, the second dealing with the same subject-matter as the first but in a different way, it is impossible that the two should be both performed. When I say you could sue on the second alone, that does not exclude cases where the first is used for mere reference, in the same way as you may fix a price by a price list, but where the contractual force is to be found in the second by itself.”
“Moreover, rescission of a contract, whether written or parol, need not be express. It may be implied, and it will be implied legitimately, where the parties have entered into a new contract entirely or to an extent going to the very root of the first inconsistent with it.”
“It is quite impossible, in my opinion, to reconcile the agreement of April 22, 1915, with that of September 24 previous. With the exception already pointed out as to price, they are in conflict in all those material and fundamental provisions which go to the root of each of them. It is, I think, impossible to arrive at any rational conclusion as to the meaning, aim, and effect of this new arrangement other than this, that it was the clear intention of both the appellant and the respondents to put aside, in their future dealings, the original agreement, and to treat it thenceforth as abandoned or non-existent.”
“My Lords, in my opinion, the determining factor, on which the appeal depends, is the intention of the parties at the time when the parol arrangement was made in April, 1915. This question is one of fact, and depends on the conclusions to be drawn from the acts and conduct of the parties.”
“It is necessary further to inquire whether the conditions have been so changed in their essential character that there is a substantial inconsistency, such as to lead to the inference that the parties did intend to rescind the earlier contract of September. It is not possible to lay down any general principle, but where the alteration is such that the conditions of the earlier contract cannot be restored without placing one of the parties under a permanent and substantial disability there is a strong prima facie probability of an intention to rescind.”
“A written contract may be rescinded by parol either expressly or by the parties entering into a parol contract entirely inconsistent with the written one, or, if not entirely inconsistent with it, inconsistent with it to an extent that goes to the very root of it.”
“The question is whether the common intention of the parties on May 12, 1920, was to “abrogate,” “rescind,” “supersede” or “extinguish” the old contracts by a “substitution” of a “completely new” and “self-contained” or “self-subsisting” agreement, “containing as an entirety the old terms, together with and as modified by the new terms incorporated”.”
“Under these circumstances it is plain that the three original contracts were not made an end of on May 12, 1920, but were meant at most to be subjected to a variation or alteration as to the manner and measure of performance of the original terms. The change does not go to the very root of the original contracts nor is it inconsistent with them: it merely varied the written contract by parol, the situation of the parties being otherwise unchanged. I, therefore, think that the agreement de facto of May 12, 1920, has no effect on the original contracts, not having been reduced into writing and signed by the buyers, and not having superseded the original contracts.”
“It was, however, argued before your Lordships that, even so, the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract and an old and unvaried contract regulating the same thing at the same time, the old contract, like other old things, must be disregarded. As a matter of formal logic, this may possibly be so, but such was not the view taken by this House in Morris v Baron, since, if their Lordships had thought that any variation whatever would make a new contract and discharge the old one, they would have said so expressly and would not have dealt with the extent and completeness of the changes, as they did. The variation may be a new contract, so as to make writing, duly signed, indispensable to its admissibility, for this is a matter of form and of the words of the statute, but the discharge of the old contract must depend on intention, tested in the manner settled in Morris v Baron & Co.”
“The disadvantage of this view is that a minor variation may destroy the effect of the whole of the transaction between the parties. The alternative view, adopted by the House of Lords in Morris v Baron and again in British and Benningtons Ltd v NW Cachar Tea Company Ltd (where Lord Sumner referred to the former view as possibly correct “as a matter of formal logic”), is based on the intention of the parties. They cannot have that which presumably they wanted, that is, the old agreement as amended; so the court has to make up its mind which comes nearer to their intention - to leave them with an unamended agreement or without any agreement at all. The House answered this question by rejecting the strict view propounded by Sankey J and distinguishing between rescission and variation. If the new agreement reveals an intention to rescind the old, the old goes, and if it does not, the old remains in force and unamended. …. The choice before the board lies between solving the problem by means of what Lord Sumner called formal logic or solving it by giving effect as far as possible to the intention of the parties as was done in Morris v Baron.”
“The question whether in signing the23 February 1981 agreement Mr Ramute and Mr Samaroo intended to discharge the3 November 1980 agreement is a question of fact to be decided by inference from the surrounding circumstances and the contents of the two agreements.”
“[39] However, it may not be easy to determine whether the parties “intended” that the original contract should continue to exist as a matter of legal analysis but in varied form, or whether as a matter of legal analysis it was intended to be discharged and replaced, since the distinction is one of legal theory which might have little commercial meaning for the parties. [40] In the present case it is plain what the parties intended to be the effect of the settlement agreement in terms of their ongoing financial rights and obligations; but to ascribe to them an intention to achieve that result by variation of the management agreement, as distinct from its replacement by the settlement agreement, or vice versa, is artificial. From a practical viewpoint it is a distinction without a difference.”
“Whether a variation amends the principal agreement or discharges and replaces it depends on the intention of the parties.”
“At the time when the two deeds of variation were executed, the CFA still subsisted (there were outstanding proceedings relating to the costs, for example). Both deeds are expressly agreed to be a variation of the CFA, leaving all of its terms unchanged except for the addition to the coverage of a further stage of the litigation and a change in the amount of the success fee. While the description given to the transactions by the parties would not necessarily be conclusive if the alleged variation substituted a different subject matter, that cannot be said of either of the deeds of variation.”
“Mr Kosmin [counsel for HMRC] submitted that their Lordships [in Morris] had laid down a principle to the effect that where the differences or inconsistencies between the later agreement and the existing agreement were so fundamental as to go to the root of the contract, then this was sufficient to constitute an implied rescission. We do not accept this submission. It seems to us that the case is authority for the proposition that the difference between rescission and variation is dependent on the intention of the parties. In the absence of other evidence, the fact that changes effected by the subsequent agreement go to the root of the existing contract, or that some changes are "inconsistent" with the contract's original terms, might lead to an inference that the parties intended to rescind the contract, but the question remains one of intention. In the absence of other evidence, the fact that changes effected by the subsequent agreement go to the root of the existing contract, or that some changes are “inconsistent” with the contract’s original terms, might lead to an inference that the parties intended to rescind the contract, but the question remains one of intention.”
“Applying a test based on the parties’ intentions, we are in no doubt that they intended the Change Orders only to vary the Golden Contract, not to rescind it. This case is far from the type of case referred to by Toulson LJ in Samuel vWadlow, where the parties do not turn their minds to the somewhat legalistic question of whether or not a variation is intended to rescind the original agreement. Viewed objectively, the parties to the Golden Contract clearly intended that contract to preserve the entitlement for someone to claim EZAs on construction expenditure on the Site. The Change Orders were similarly intended to result in a building being constructed that was somewhat different from those provided for in the Golden Contract, but for EZAs nevertheless still to be available on the costs of construction. Mr Williamson QC was correct to submit that the parties’ common desire to ensure that EZAs would be available to the purchaser of the building ultimately constructed is strong evidence of a common intention that the Change Orders would not result in rescission.”
“…the desire for construction expenditure to qualify for EZAs was a common goal shared by the Developer and the Contractor and is thus directly relevant to the objective ascertainment of their intentions.”
“In our judgment however, none of those differences, whether individually or together, was inconsistent with the parties having a common intention that the Golden Contract should be amended, as opposed to rescinded.”
“My Lords, Mr Street enjoyed freedom to offer Mrs Mountford the right to occupy the rooms comprised in the agreement on such lawful terms as Mr Street pleased. Mrs Mountford enjoyed freedom to negotiate with Mr Street to obtain different terms. Both parties enjoyed freedom to contract or not to contract and both parties exercised that freedom by contracting on the terms set forth in the written agreement and on no other terms. But the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”
“The question is not merely one of construction. In deciding whether a charge is a fixed charge or a floating charge, the court is engaged in a two-stage process. At the first stage it must construe the instrument of charge and seek to gather the intentions of the parties from the language they have used. But the object at this stage of the process is not to discover whether the parties intended to create a fixed or a floating charge. It is to ascertain the nature of the rights and obligations which the parties intended to grant each other in respect of the charged assets. Once these have been ascertained, the court can then embark on the second stage of the process, which is one of categorisation. This is a matter of law. It does not depend on the intention of the parties. If their intention, properly gathered from the language of the instrument, is to grant the company rights in respect of the charged assets which are inconsistent with the nature of a fixed charge, then the charge cannot be a fixed charge however they may have chosen to describe it.”
“Counsel for the Tweedies contends that the judge was wrong. He points out that the surrender and re-grant effected by the second deed of variation was a legal consequence of the parties’ wish to add premises to those demised by the earlier lease. It was not a consequence which the parties could contract out of and its terms could not affect the proper construction of the term “successors in title” appearing in the earlier Option and section 9. Accordingly, so he submitted, the considerations to which the judge referred in the paragraphs from his judgment I have quoted are irrelevant to the questions before us.”
“The question whether there has been a “variation” is dependent on the intention of the parties, objectively determined, from the words of the contract. Regard must be had to the nature and extent of any differences. It does not follow, that because the parties have asserted that their mutual intention was not to vary a contract, that what is otherwise a variation is converted into a non-variation. … Of course, an express statement of intention is an important consideration when interpreting a contract but if the changes are of such a nature and degree as to give rise, on objective comparison, to a variation in law the mutual declarations of the parties as to their intention will not circumvent that legal consequence.”
“My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent.”
“It must be remembered at the outset that the Court, while it seeks to give effect to the intention of the parties, must give effect to that intention as expressed, that is, it must ascertain the meaning of the words actually used. There is often an ambiguity in the use of the word “intention” in cases of this character. The word is constantly used as meaning motive, purpose, desire, as a state of mind, and not as meaning intention as expressed. The words actually used must no doubt be construed with reference to the facts known to the parties and in contemplation of which the parties must be deemed to have used them: such facts may be proved by extrinsic evidence or appear in recitals: again the meaning of the words used must be ascertained by considering the whole context of the document and so as to harmonize as far as possible all the parts: particular words may appear to have been used in a special sense, which may be a technical or trade sense, or in a special meaning adopted by the parties themselves as shown by the whole document. Terms may be implied by custom and on similar grounds. But allowing for these and other rules of the same kind, the principle of the common law has been to adopt an objective standard of construction and to exclude general evidence of actual intention of the parties; the reason for this has been that otherwise all certainty would be taken from the words in which the parties have recorded their agreement or their dispositions of property.”
“I accept that the Rent Acts are irrelevant to the problem of determining the legal effect of the rights granted by the agreement. Like the professed intention of the parties, the Rent Acts cannot alter the effect of the agreement.”
“(1) Subsection (2) applies if the relevant appellate court, in deciding an appeal under section 13, finds that the making of the decision concerned involved the making of an error on a point of law. (2) The relevant appellate court— (a) may (but need not) set aside the decision of the Upper Tribunal, and (b) if it does, must either— (i) remit the case to the Upper Tribunal or, where the decision of the Upper Tribunal was on an appeal or reference from another tribunal or some other person, to the Upper Tribunal or that other tribunal or person, with directions for its reconsideration, or (ii) re-make the decision.”
“save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean ‘may’) be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.”
“at the end of the day, the question whether there has been a rescission or a variation depends upon the intention of the parties as evidenced by the terms of the subsequent agreement and its surrounding circumstances. Thus, if it was their intention to replace the initial contract, the subsequent agreement may amount to a rescission even in the case where the subsequent agreement is not fundamentally inconsistent with the initial agreement”; ii) In Morris v Baron & Co, Lord Finlay LC said at 12: “The evidence in the present case points to the conclusion that the parties intended not merely to vary the original contract but to set it aside and substitute another for it, giving a mere option to take delivery of the parcel undelivered. This is the effect of the language of the memorandum of April 22, 1915, and it was on this assumption that all the subsequent dealings and correspondence of the parties proceeded. It is true that neither party adhered to its terms …. But neither party ever referred to the original contract as governing their rights; on the contrary, they treated it as at an end.”
“What the court has to determine is whether that is evidence of a new contract between shipowner and holder of the bill of lading …. Since there is no evidence of any express agreement, it has to be inferred from the conduct of the parties. If their conduct is equally referable to and explicable by their existing rights and obligations, albeit such rights and obligations are not enforceable against each other, there is no material from which the court can draw the inference.”
“it would, in my view, be contrary to principle to countenance the implication of a contract from conduct if the conduct relied upon is no more consistent with an intention to contract than with an intention not to contract.”
“The difficulty with such a formulation however is that the court is being asked to spell positive offer and acceptance out of conduct alone in a situation where the parties’ obligations were governed by a formal written contract pursuant to which the owners were at all times purporting to act. There was thus no apparent bilateral intention to vary or re-negotiate the express terms of the charter, as opposed to an apparent willingness on the part of the charterer to treat as valid a notice appropriate in form and purportedly served in compliance with the terms of the charter .…”
“By the time of the Change Orders, all parties were clearly aware that the success of the composite transactions of which the Change Orders formed part depended on the expenditure being incurred ‘under’ the original Golden Contract. Therefore, they intended that the works set out in the Change Orders would be performed subject to the terms of the Golden Contract and not a new contract formed following the issue of the Change Orders.”