Dipcon Engineering Services Ltd (Appellant) v Urban Development Corporation of Trinidad and Tobago (Trinidad and Tobago)

Hearing listed

Case summary
Appeal
Change log

Case summary

Case ID

JCPC/2023/0114

Jurisdiction

Trinidad and Tobago

Parties

Appellant(s)

Dipcon Engineering Services Ltd

Respondent(s)

Urban Development Corporation of Trinidad and Tobago

Issue

Was the Court of Appeal wrong to hold that (i) there was no binding agreement to pay an additional sum under the contract for services in the absence of approval by the Respondent’s board, and (ii) in the alternative, there was no consideration for a separate agreement to pay the additional sum?

Facts

The Respondent retained the Appellant to perform engineering services at a housing development it was constructing. The Appellant performed the services between April 2004 and July 2006, and were provided pursuant to a building contract subject to the FIDIC Conditions of Contract for Works of Civil Engineering Construction (1987 Edition) dated 15 April 2004 (the “Contract”). After completing the works, the Respondent proposed to make payment in the sum of TT$18,816,233.94 (inclusive of VAT) in full and final settlement for the Appellant’s services provided pursuant to the Contract. The Appellant accepted this offer for payment. However, in accordance with clause 70.1 of the Contract, the Appellant claimed, in addition to the contract price, the sum of TT$11,255,800 representing the increased cost of equipment usage during 2003 and 2006. The Respondent resisted this claim on the basis that the Appellant had agreed to accept the sum of TT$18,816,233.94 in full and final settlement of all claims under the Contract. The Respondent denied that it acknowledged to the Appellant that an additional sum was due and owing to it. Alternatively, the Respondent argued that such acknowledgment was subject to approval by the Respondent’s board which was never obtained. The High Court concluded that, while the Appellant’s acceptance of the sum of TT$18,816,233.94 was not final, the claim failed because the Appellant knew that approval by the Respondent’s board was required and it had not been obtained. The Court of Appeal dismissed the Appellant’s appeal, holding in the alternative that there was no consideration for a separate agreement to pay the additional sum. The Appellant now appeals to the Board.