Estor is the parent of a group of companies that operate a chain of exclusive hairdressing and beauty salons. In 2008, the group opened its new flagship store and Multifit was retained to undertake the fit out works. The works were to be completed to a high standard and in time for a grand opening to be attended by a number of celebrities. In the event, the works were completed only just in time for the opening and there were a large number of defects. As a consequence, Estor withheld certain fees payable to Multifit pending rectification of the defective works.

Multifit did not rectify the defective works. Instead Multifit commenced adjudication proceedings against Estor for recovery of its unpaid fees and in which Multifit was successful. In his decision, the adjudicator found, inter alia, that there had been a contract between Estor and Multifit.

Estor subsequently applied to the TCC for a declaration that the adjudicator’s decision was not enforceable because the parties to the adjudication were not the same as the parties to the contract and there was not a Contract in writing. Estor argued that the contract was in fact between Multifit and a group subsidiary company that had been specifically established to run the salon. Accordingly, Estor argued that there was no contract between Multifit and the group parent company.

The parties disagreed as to the significance of a credit search application that Estor had completed and provided to Multifit. It was argued that Estor’s details had been provided on that credit search application simply to indicate the financial position of the group generally and not with the intention of forming a contract between Estor and Multifit. In contrast, Multifit argued that Estor’s details on the credit search application coupled with the fact that all payments had been made to Multifit by Estor indicated that the contract was indeed between Multifit and Estor and not between Multifit and the subsidiary company.

The Judge held that if the contract was between Multifit and a company other than Estor then the adjudicator had no jurisdiction to decide issues between Multifit and Estor. If, however, his view that the contract was with Estor was correct then he had jurisdiction.

On the evidence the Judge said that there was a realistic prospect of Estor establishing that it was not the company which entered into the contract with Multifit. On the one hand, the director of Estor had denied that he agreed that Estor was to be the contracting party and this was supported by certain evidence. Against that there was a credit search application which suggested that Estor was intended to be the contracting party or at least possibly some kind of guarantor. If the agreement was with Estor then it was highly probable that it was evidenced in writing by the signed credit search application. Even if the credit search application was not a contract document or one which evidenced the contract, that would not matter because extrinsic oral evidence would be admissible to resolve any ambiguity in the written contractual documentation about whom the contract was with.

The Judge concluded that the matter could only be determined by factual evidence and therefore stayed the adjudicator’s decision pending a speedy trial on the issue of the correct parties to the contract.