Judge allows Albyn Housing Society’s bid to correct contract in damages action
A housing association pursuing a claim for damages against a sub-contractor has successfully applied to rectify a contract following a dispute about the identification of the company which granted it a warranty.
Albyn Housing Society Limited entered into a contract with Rok Building Ltd in 2009 for the construction of 23 houses and flats in Beauly. Rok then engaged Active Sustainable Energy Solutions Limited (ASESL) as sub-contractor for the installation of heat pumps and associated works.
In 2013, Albyn raised an action for damages against ASESL claiming that the heating and domestic hot water systems designed and installed by the sub-contractor did not conform to the required specification, and that remedial works had to be undertaken by other contractors,
But the service of the summons was met by a letter which stated that ASESL was and always had been a dormant company that never traded, and that the insurers of its parent company, Active Air Conditioning Limited, which traded as Active Sustainable Energy Systems, had the benefit of cover for the legal costs and expenses whereas ASESL did not.
It was asserted that the action had been incorrectly raised and required to be amended “to allow us to pass this matter to the insurers and their solicitors to become involved”.
A judge in the Court of Session has now allowed Albyn correct the document.
Lord Tyre said the Active Air Conditioning Limited’s contention proceeded upon a “misunderstanding” of Albyn’s case.
He explained: “As was submitted on behalf of the pursuer, its case is not that the parties to the prior agreement and the written agreement were different, but rather that they were the same, namely the pursuer and the defender, and that the error in the document requiring rectification is the insertion in the designation of the Sub-Contractor of the name ‘Active Sustainable Energy Solutions Limited’ and ASESL’s company number, instead of the defender’s name and company number.”