“The dispute arises from the purchase after renovation. The University of Notre Dame (UND) purchased Conway Hall from TJAC Waterloo LLC ("TJAC") on15 December 2011 . The contract for the purchase of the building required TJAC and ZVI Construction LLC ("ZVI") to refurbish the building prior to its sale to UND for use as student accommodation, and to ensure that the works undertaken complied with all necessary legislation, regulations and codes, and were free from defects. A number of defects were reported by UND to TJAC following the purchase of Conway Hall. Several of these were very serious safety critical defects. A dispute subsequently arose between the parties regarding liability for the defects. The defects are extensive and cover issues of workmanship and compliance with regulations, including fire safety issues, plumbing, electrical and other Works. A Letter of Claim was sent on behalf of UND to TJAC and ZVI on12 May 2014 . Correspondence between the parties has been exchanged in the intervening period and UNO has provided comprehensive detailed listings of the defects, together with its reasons for believing TJAC and ZVI to be responsible for the losses subsequently suffered. Nevertheless it has not been possible to reach agreement in respect of any of the defects. UND is therefore invoking the dispute resolution clause contained at paragraph 17 of the Agreement dated25 October 2010 between the parties (the Agreement). That clause requires such disputes to be resolved by expert determination. Once the expert has been appointed, the parties will have ten working days to submit written representations and the expert's decision shall be final and binding on the parties.”
“UND will say that, in short, TJAC and ZVI were required to refurbish the building so that it would be fit for the purpose of student accommodation, in accordance with good building practice and all appropriate regulations and codes, free from defects and that they failed to do so.”
“UNDs case is simple and unanswerable: ZVI agreed to undertake the Works to Conway Hall, and TJAC agreed to ensure that those Works were properly carried out. TJAC agreed to sell Conway Hall to UND, so that it could be used by UND for student accommodation. The Works under the Agreement were carried out by ZVI and its sub-contractors. TJAC was obliged to hand over a building that was fit for purpose. ……… The defects are entirely the fault of TJAC and ZVI. They are, as identified in the Schedule of Defects, breaches of the Agreement, breaches of the specifications under the Agreement, or breaches of industry regulations and codes (which are also breaches of the Agreement). In many cases, they are all three.”
“Expert Determination is not an Arbitration, nor is it HGCRA “Construction Contract”
“Second, ZVI argues that even if the Determination on Liability is final and binding, the Court should nonetheless decline to confirm it with respect to ZVI, because the Expert lacked jurisdiction over ZVI. To the extent the Expert issued a decision on ZVI’s liability, ZVI argues, it was “beyond the scope of the submission to arbitration” and therefore should not be confirmed. [ECF No. 47 at 12-16]. The Expert had jurisdiction pursuant to the Dispute Clause of the P&S Agreement, which provides in relevant part: Any dispute arising between the parties hereto as to their respective duties and obligations hereunder (other than any with regard to the meaning or construction of this agreement) shall be determined by an independent duly experienced surveyor … on application of either Buyer or Seller … [ECF No. 12-2 § 17. l]. ZVI contends that because only the “Buyer” or the “Seller” can “apply” for an expert determination, the Expert only had jurisdiction over Notre Dame and TJAC. “By its plain language”, ZVI argues, “the P&S Agreement limits the jurisdiction of the Expert to only disputes between TJAC (defined in the P&S Agreement as ‘Seller’) and Notre Dame (defined in the P&S Agreement as the ‘Buyer’), and not ZVI (defined as the ‘Contractor’).” [ECF No. 47 at 13]. ZVI’s argument is contradicted by the text of the P&S Agreement, which states that “any dispute arising between the parties hereto as to their respective duties and obligations … shall be determined by an independent duly experience surveyor.” [ECF No. 12-2 § 17.1 (emphasis added)]. ZVI is undisputedly a party to the P&S Agreement. The title page of the P&S Agreement states that it is between TJAC, ZVI, and Notre Dame, and the first line of the P&S Agreement states that it is made “BETWEEN the Seller, the Contractor and the Buyer.”
“It may be that failure by a party expressly to reserve its position coupled with other circumstances could amount to a submission to the jurisdiction of an expert. But neither of the authorities upon which the Judge relied for that proposition, Fastrack v. Morrison(2000) 4 BLR 168 and Whiteways Contractors (Sussex) Ltd. v. Impressa Castelli Construction UK Ltd. [2001] 75 Con LR 92, are directly in point. More important is whether on the facts of this case, it can be said that Rhodia had no real prospect of successfully defending Laker Vent's claim that it had submitted to the jurisdiction of the expert. This is essentially a factual question. It turns largely on the documentary evidence before the Judge, the essentials of which I have summarised.”
“(a) An express agreement to give an adjudicator jurisdiction to decide on a binding way whether he has jurisdiction will fall into the normal category of any agreement; it simply has to be shown that there was an express agreement. (b) For there to be an implied agreement giving the adjudicator such jurisdiction, one needs to look at everything material that was done and said to determine whether one can say with conviction that the parties must be taken to have agreed that the adjudicator had such jurisdiction. It will have to be clear that some objection is being taken in relation to the adjudicator's jurisdiction because otherwise one could not imply that the adjudicator was being asked to decide a non-existent jurisdictional issue which neither party had mentioned. (c) One principal way of determining that there was no such implied agreement is if at any material stage shortly before or, mainly, during the adjudication a clear reservation was made by the party objecting to the jurisdiction of the adjudicator. (d) A clear reservation can, and usually will, be made by words expressed by or on behalf of the objecting party. Words such as "I fully reserve my position about your jurisdiction" or "I am only participating in the adjudication under protest" will usually suffice to make an effective reservation; these forms of words whilstdesirable are not absolutely essential. One can however look at every relevant thing said and done during the course of the adjudication to see whether by words and conduct what was clearly intended was a reservation as to the jurisdiction of the adjudicator. It will be a matter of interpretation of what was said and done to determine whether an effective reservation was made. A legitimate question to ask is: was it or should it have been clear to all concerned that a reservation on jurisdiction was being made? (e) A waiver can be said to arise where a party, who knows or should have known of grounds for a jurisdictional objection, participates in the adjudication without any reservation of any sort; its conduct will be such as to demonstrate that its non-objection on jurisdictional grounds and its active participation was intended to be and was relied upon by the other party (and indeed the adjudicator) in proceeding with the adjudication. It would be difficult to say that there was a waiver if the grounds for objection on a jurisdictional basis were not known of or capable of being discovered by that party.”
“(i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. (ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely on it. (iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely forming his own independent view of the matter. (iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties.”
“(d) A key element of an effective estoppel by convention will be unconscionability or unjustness on the part of the person said to be estopped to assert the true legal or factual position. I am not convinced that "detrimental reliance" represents an exhaustive or limiting requirement of estoppel by convention although it will almost invariably be the case that where there is detrimental reliance by the party claiming the benefit of the convention it will be unconscionable and unjust on the other party to seek to go behind the convention. In my view, it is enough that the party claiming benefit of the convention has been materially influenced by the convention; in that context, Goff J at first instance in the Texas Bank case described that this is what is needed and Lord Denning talks in these terms.”
“I approach the matter as follows. The fundamental principle is that stated by Lord Cairns, viz. that the representor will not be allowed to enforce his rights “where it would be inequitable having regard to the dealings which are thus taken place between the parties”
“No modification, alteration or waiver of any of the provisions of this agreement, except as otherwise provided in this agreement, shall be effective unless it is in writing and signed by or on behalf of the party against which the enforcement of such modification, alteration or waiver is sought.”
“6.3 Entire Agreement; Amendment: This Agreement, which includes the Appendices hereto, is the only agreement between the Parties relating to the subject matter hereof. It can only be amended by a written document which (i) specifically refers to the provision of this Agreement to be amended and (ii) is signed by both Parties.”
“I find myself unable to accept Mr Darton's submissions. The relevant principles, the material policy considerations, the earlier authorities and the issue of precedent were considered in depth and with the benefit of very full argument in Globe Motors and for my part I consider it would require a powerful reason for this court now to come to a conclusion or adopt an approach which is different from that of all members of the court in that case. In my judgment and despite the attractive way Mr Darton developed his arguments, none has been shown. To the contrary, I respectfully agree with Beatson LJ that the decision of this court in World Online Telecom was correct and should be followed for the reasons he gave. To my mind the most powerful consideration is that of party autonomy, as Moore-Bick LJ explained it….”
“This licence sets out all of the terms as agreed between MWB and the licensee. No other representations or terms shall apply or form part of this licence. All variations to this licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.”
“Difficulties of proof may arise whenever it is claimed that a contract has been made orally or by the conduct of the parties, and the facts have to be determined by the trial judge from the evidence given by the parties and their witnesses. In the Energy Venture Partners and Virulite cases referred to at [105] above Gloster LJ and Stuart-Smith J considered the statements of HHJ Mackie QC in Spring Finance Ltd v HS Real Company LLC[2011] EWHC 57 (Comm) at [53] and in the summary judgment decision in this case ([2012] EWHC 3134 (QB) at [33]) that the court would be likely to require "strong evidence" before finding there has been an oral variation of such a clause. In the first of these cases, Gloster LJ's inclination to regard an oral variation as effective notwithstanding such a clause was stated to be "where the evidence on the balance of probabilities established such variation was indeed concluded". Stuart-Smith J was of the same view in the second case: see[2014] EWHC 366 (QB) at [60]. See also McKay v Centurion Credit Resources LLC[2011] EWHC 3198 (QB) at [56]. I respectfully agree with them.”
“Each case will be fact sensitive, depending upon the terms of the original contract and what has happened thereafter. To my mind, the fact that a clause was specifically negotiated or was insisted on by one party or the other (for a particular reason or no reason at all) may be a relevant factor; and the existence of a written clause excluding any unwritten modification will require the court to look closely both at whether the parties subsequently reached an agreement that would, if enforced, vary the effect of the original contract and also at whether in reaching that agreement the parties intended to enter into legal relations so as to vary the terms of their original contractual obligations. But it seems to me that, while all relevant facts should be given their due weight in assessing these questions and the burden of proof rests on the person who alleges that the original contractual obligations have changed, the standard of proof is and remains the balance of probabilities throughout. I would prefer not to adopt the use of "strong evidence" or "a very high evidential burden" since there is a danger that they may be treated as affecting the burden or standard of proof. Similarly, I would prefer not to adopt the phrase "evidential presumption", though the intent behind it is clear. Rather, I adopt the approach that the Court should give all relevant evidence its due weight when asked to find on the balance of probabilities that there has been a subsequent variation which has legal affect even though it does not comply with the formalities stipulated by the original contract. The terms of the original contract will always be material to that exercise; the circumstances in which those terms were negotiated and agreed may also be.”
“In many cases, such as United Bank Limited v Asif ...where the relationship between the parties was a formal banking relationship) the factual matrix of the contract and other circumstances may well preclude the raising of an alleged oral variation to defeat an entire agreement clause. In others, the evidence may establish on the balance of probabilities that the parties by their oral agreement and/or conduct have varied the basis of their contractual dealings, and have effectively overridden a written clause excluding any unwritten modification. Such a situation might well arise in circumstances where, as in the present case, there are effectively only two individuals negotiating a variation to, and subsequently operating under, the terms of an unusual agreement in unusual circumstances. But the question whether the entire agreement clause has been overridden is necessarily fact-sensitive.”
“When we come to issue estoppel I think that, by parity of reasoning, we should have to be satisfied that the issues in question cannot be relitigated in the foreign country. In other words, it would have to be proved in this case that the courts of the German Federal Republic would not allow the re-opening in any new case between the same parties of the issues decided by the Supreme Court in 1960, which are now said to found an estoppel here. There would seem to be no authority of any kind on this matter, but it seems to me to verge on absurdity that we should regard as conclusive something in a German judgment which the German courts themselves would not regard as conclusive. It is quite true that estoppel is a matter for the lex fori but the lex fori ought to be developed in a manner consistent with good sense.”
“I’m not going to enter a final judgement because I want the authority to continue to oversee this attachment, and because it is an attachment, it is not an injunction, and I don’t think I’m divested of jurisdiction.”