Cases - Kimberley v Dick

Record details

Name

Kimberley v Dick

Date

(1871)

Citation

L.R. 13 Eq. 1

Keywords

Contract administration

Summary

The claimant contractor entered into a contract with the defendant employer to carry out the construction of a mansion house to the satisfaction of the project architect for a fixed sum. The architect was empowered to grant variations and omissions to the works, and that 'all questions touching the matters relating to this contract shall be left to the sole determination or award of the said architect' ('the arbitration clause'). Prior to the execution of the building contract, the employer had agreed with the project architect that the cost of the works was not to exceed £15,000.

Substantial variations were altered and the contractor sought recovery of additional payments in respect of the same from the employer. The contractor was not aware of the existence of the contract between the employer and the architect.

The court held that the arbitration clause did not extend so as to give the architect the power of acting as judge in matters of difference between himself and the contractor: such jurisdiction was limited to differences or disputes between the employer and the contractor. The contractor could not be bound by an undertaking that he would abide by any decision of the architect in circumstances where he was ignorant of the contract between the employer and the architect. It was the employer's responsibility to inform the contractor of the contract subsisting between himself and the architect in order to make the £15,000 cap effective. As in Kemp v Rose, the architect was disqualified to certify matters under the contract as a result of his failure to disclose his contract with the employer.