Thursday, March 1, 2012

CLAUSE 15.0 - PRACTICAL COMPLETION AND DEFECTS LIABILITY

PAM 98 Clause 15.1 has defined 'Practical Completion' as follows: When the Architect is of the opinion that the works are practically completed,meaning that the Contractor has performed and completed all the necessasry Works specified in the Contract and the patent defects existing in such Works are "de minimis", the Architect shall forthwith issue a Certificate of Practical Completion.

The words 'de minimis' are derived from the maxim 'de minimin non curat lex' meaning 'law does not concern itself with trifles.' However, without referring to further case law, the term is difficult to understand. The term 'de minimis' was used in the case of H.W. Neville (Sunblest) ltd v William Press (1981) 20 BLR 78 where the judge said: 'I think the word practically complete..gave the Architect a discretion to certify that the Contractor had fulfilled its obligation...where very minor de minimis work had not been carried out, but if there were any patent defects...the Architect could not have given a certificate of practical completion.'

It must be noted that under PAM 98 definition, Practical Completion can be issued when '...the patent defects existing in such Works are "de minimis...' whereas under the definition in Neville (Sunblest), there should be no patent defects. The PAM 98 definition allowing for patent defects is therefore contrary to the definition in Neville (Sunblest).

For a more detailed understanding of Practical Completion,please also refer to the cases of Westminster County Council v J Jarvis [7 BLR 64], Emson Eastern Ltd v EME Development Ltd [55 BLR 114], and Mariner International Hotel v Atlas [2007] 1 HKLRD 413.

To be continued on Clause 15.1 Practical Completion And Defects Liability.

/sources from Handbook For PAM Contract 2006

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