Kingfisher Builders v Sear

A fixed-price building contract may be varied by a later agreement, including an agreement made orally or by conduct. The scope of a lump-sum variation is determined by the parties’ objective agreement and may include all work reasonably necessary to carry out the agreed change. A contractor cannot recover additional payment for work arising from an unauthorised change made for the contractor’s own reasons. Where additional work is agreed but no price is fixed, the contractor may recover a reasonable sum, subject to proof of the work actually carried out. An agreed variation may also provide that additional work is undertaken at no extra cost.

Kingfisher Builders claimed further payment from Christopher Sear under a contract for the renovation and extension of Sear’s house. During the works, previously retained walls were found to be constructed from inadequate clay-pot tiles and were demolished and rebuilt. The parties disputed the scope and price of that work, together with numerous alleged variations.

The proceedings began in the County Court and were transferred to the High Court Technology and Construction Court. The trial concerned preliminary liability issues and sums paid, leaving quantum and repudiation for later determination. The central questions were what variations had been agreed, what work fell within the agreed lump sums, and which further items constituted additional work.

1. Agreements concerning the walls. The parties agreed lump sums of £38,400 for the necessary demolition and rebuilding of the three external walls and £1,600 for the spine wall. Those sums included the necessary associated work, including plastering, rendering, joinery and electrical work, subject to any contractual allowance being exceeded. There was no agreement that the work would be carried out at cost plus 10%, or that 10% would be added.
2. Additional work. Work outside the original contract and later wall agreements was recoverable where it had been instructed or agreed, even if no price had been fixed; the recoverable amount would be assessed as a reasonable sum at the quantum stage. This applied to the television studwork, sliding-door preparation and fitting assistance, floor insulation, scalloped window flashing, the concrete ground-floor slab and associated underfloor heating, and specified wardrobe work.
3. Unauthorised work. The change from studwork to blockwork at first-floor level had not been instructed by Mr Sear. The contractor therefore could not recover for the blockwork, enlarged RSJs, or consequential chasing of pipes and cables. There was also no evidence that the RSJs had in fact been enlarged.
4. Agreed variations at no additional cost. The substitution of concrete roof tiles enabled tile hanging to additional elevations. That variation was agreed at no extra cost, so neither party was entitled to an adjustment for it.
5. Contractual inclusions. New radiators were within the original contract where existing radiators could not be reused. The supply of vanity units was the client’s responsibility, but their fitting fell within the contractual allowance for fitting sanitary ware.
6. The court determined the preliminary issues and expressed provisional views on the state of the works. The proceedings were stayed to allow the parties to seek settlement, with a further case management conference to be fixed if necessary.

The proceedings were commenced in the Swindon County Court, transferred to the High Court on 9 July 2010, and then transferred into the Technology and Construction Court. This judgment determined preliminary liability issues; quantum and repudiation were reserved for a later stage.