Kang & Another v Pattar – Construction Dispute Case

The recent case of Kang and Another v Pattar [2021] EWHC 1101 (Technology and Construction Court) concerned a typical construction dispute between dissatisfied homeowners and an unpaid builder.

Facts of the case

As is often the case, the homeowners argued the building work was defective and the builder argued that it was not defective, merely incomplete and it was incomplete because the homeowners had not paid him.

In this case, the Court held that the builder Mr Pattar was not in breach of contract and that the Claimant homeowners had repudiated the agreement by not paying him and refusing to have him back on site to resume the work.

What can we learn from this case

1. A builder will not necessarily be in breach of contract for complying with oral instructions even though those are inconsistent with subsequent contractual documents.
2. Where there is dispute as to the terms of an oral contract, the principals of good construction practice will be applied.
3. The Court will look at the context of all the parties actions in determining the intention of the parties.

It is important that all building contracts should be recorded in writing and where they are not it is the credibility of the witness evidence that will be conclusive.

Many disputes that arise could be avoided by the use of a supervising surveyor. In lower value domestic builds, it is often considered that the cost of engaging such a surveyor is disproportionate.If a dispute arises, we always recommend instructing a surveyor at that point to assess the position on the ground.

A clear record of what work was commissioned is essential where there is no written contract. Kang and Another v Pattar is a good example of a case where this was so, and the Court took a practical view and decided in the builders favour on the basis of the evidence. The fact that a plan for the route of a drain had not been followed was overridden in this case by the Court deciding that on the evidence, the builder had followed a contrary oral instruction of the homeowner.

Pinney Talfourd and construction dispute cases

It can often be cheaper and quicker to instruct a surveyor as soon as a dispute arises to advise as in nearly all cases a proper history of the construction and an accurate assessment of its current state is needed before a solicitor can advise. Surveyors may be able to act as an informal mediator between the homeowner and the builder.

Pinney Talfourd take detailed statements from its client as to the history of the build and any relevant contract before advising.

Pinney Talfourd has substantial experience dealing with construction disputes and has worked with many surveyors and can recommend appropriate surveyors to clients requiring assistance. We would always encourage mediation to resolve disputes, the issue of Court proceedings should only take place once all avenues of alternative dispute resolution have been exhausted. Construction disputes are expensive to resolve legally because of the great detail that comprises the facts in any construction dispute.

More information

Pinney Talfourd are experts in commercial and residential property litigation and can advise you on changes to the law so you are given up to date advice.

Please do not hesitate to contact Stephen Eccles on 01708 463202 should you wish to discuss anything further.

This article was written by Stephen Eccles, Solicitor in our Residential Property Litigation Team. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of June 2021.