Reserving The Position

In the recent case of ZVI Construction v The University of Notre Dame (USA) the English High Court, Technology & Construction Court ("TCC"), held that a party cannot simply rely on the terms of its contract with another if, by its words and/or conduct, it is clear that it has agreed to a variation to, or waiver of, those terms. Accordingly, to the extent that words or conduct may be ambiguous or indicate an intention contrary to that expressed in the contract, parties should be careful to expressly reserve their position at the outset.

Facts Consent to jurisdiction Estoppel No oral variations clauses Issue estoppel Conclusion Facts

In summary, the facts of this case are as follows:

TJAC Waterloo LLC ("TJAC") agreed to sell a property known as Conway Hall to The University of Notre Dame (USA) in England ("UND") pursuant to a Development Agreement dated 25 October 2010 ("Development Agreement"). Completion of the sale was conditional upon certain building works being carried out by ZVI Construction ("ZVI"). ZVI was also a party to the Development Agreement. The Development Agreement contained an expert determination clause. The Development Agreement also contained a 'no oral variations' clause which stated that no modification, alteration, or waiver of any provision of the Development Agreement could be made unless it was in writing. UND alleged that the work carried out by ZVI was defective and requested that the dispute be referred to expert determination. Ultimately, the expert determined that TJAC / ZVI was liable for many of the workmanship defects, however the expert's determination as to quantum was postponed by TJAC / ZVI due to illness. To protect its position until the issue of quantum could be determined, UND obtained an order from a US Court that TJAC and ZVI be restrained from dissipating, encumbering, or transferring assets. ZVI sought an injunction restraining UND from taking any steps to enforce the expert's determination, together with declarations that it did not owe UND any substantive obligations under the Development Agreement because the expert determination clause was limited to disputes arising between TJAC and UND. Consent to jurisdiction

The first issue for the TCC to consider was whether the expert had jurisdiction to determine ZVI's obligations to UND under the Development Agreement.

The TCC held that a contracting party could, expressly or impliedly, by words or conduct, confer jurisdiction on an expert. It was a...