CAN A CONTRACTOR BE FORCED TO CARRY OUT EXTRAS AFTER PRACTICAL COMPLETION?
Many instances occur where Contractors are instructed to carry out extra work after Practical Completion has been achieved and in many cases the Contractor is willing to oblige.
But what if the Contractor is unwilling to carry out such instructions - can he be forced to do so?
Hudsons "Building and Engineering Contracts" tenth edition at page 326 states.
"......it is submitted that under most sophisticated contracts variations cannot be ordered after Practical Completion in the absence of express provision, unless of course the Contractor is willing to carry them out."
This view is based on the case of S.J. & MM. Price Ltd versus Milner (1968), where a specification omitted mention of many necessary items - tiles, kitchen fitments, wardrobes, garden walls, cupboards etc.
It was held by Blain J., that there was in implied term for sufficient instructions to be given to the Contractor. The Employer had failed to give instruction until after Practical Completion and the Contractor was entitled to rescind the contract.
What if the Contractor is willing to carry out the extra work, but not at the prices in the original contract?
‘Keating on Building Contracts' 5th Edition at page 92, deals with the situation where a variation of this type is issued and the work is carried out where it states:
"Extra work may be of the kind contemplated by clauses of the contract which provide for the ordering of extras or it may be so peculiar and so different that it is outside the contract. It may be work outside the contract if it is carried out after completion of the original contract work. Extra work outside the contract is not governed by the terms of the contract, and need not therefore be ordered in writing. The Employer is liable to pay a reasonable price for such work carried out at his request, but may exceptionally not be so liable if the original contract is not expressly or by implication replaced by a new contract and if there is no other basis for liability as, e.g. an implied promise to pay. "In order to make a person liable on a quantum meruit there has to be a necessary implication that the person liable is agreeing to pay." It is unlikely to be sufficient for a Contractor to claim after the works are completed that extra work is outside the terms of the contract."
Summary
A Contractor is not obliged to carry out variations/extras where the instruction is issued after Practical Completion unless there is a clause in the contract which gives the Employer or his agent power to issue an instruction of this nature.
For instance clause 17.2 of the JBCC Principal Building Agreement provides that the Contractor is not obliged to carry out any additional work after the date of practical completion other than making good damage which may have been caused to the works and attending to defects.
Where the Contractor is willing to carry out extra work, but only at a reasonable price, then he should make it clear that this is the only basis on which he is prepared to proceed and obtain the Employer's agreement before he proceeds.
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