The developers of the Mailbox have been told to pay £1.2 million to settle a legal wrangle with the engineering firm that laid the groundwork for their new Cube development.
Build Ability – a subsidiary and main contractor arm of the well-known Birmingham Development Company – was told to pay the money to O’Donnell Developments by an adjudicator following a dispute over payment for the work.
O’Donnell had been taken on to do the groundwork and concrete framework at the Cube site on Commercial Street, next to the Mailbox in the city centre.
The £100m Ken Shuttleworth-designed Cube – which has become a prominent part of the Birmingham skyline as it has taken shape over the last year – is one of the most complex developments Birmingham has ever seen.
Stetchford-based O’Donnell worked on the early stages of the development, carrying out the ground works, drainage and concrete frame works.
The firm took Build Ability to adjudicators after a disagreement on payment for the project. But the case ended up in court when Build Ability disputed the decision from the adjudicator that ordered them to pay £1,229,393.40 to O’Donnell.
O’Donnell went to the high court to try to enforce the adjudication. Before the case arrived in court, Build Ability had dropped its objection to the large majority of this money. But they still contested the rest, and wanted O’Donnell to prove they were still financially solvent before releasing the money.
In the case before the high court, judge Justice Ramsey found in favour of O’Donnell, and criticised some of the defences raised by Build Ability.
He said: “Where a party decides to raise defences to an application to enforce an adjudication decision and then abandons many of those grounds, that is conduct which is unreasonable.”
Patrick O’Donnell, the commercial director of O’Donnell Developments, said: “We are delighted that the Technology and Construction Court has enforced an adjudication decision in our favour against Build Ability. We are hopeful now that the matter can be resolved on an amicable basis.”
Build Ability directors Alan Chatham and Mark Billingham could not be contacted for comment. The pair have been behind perhaps the biggest property developments in the city in recent years in the Mailbox and the Cube. More recently, they bought the 500,000 sq ft former Post & Mail building on Weaman Street.
When completed the Cube will be a mix of apartments, retail and office space and the scheme has already signed up the Highways Agency as its main commercial tenant. The developers are set to submit a planning application for the Post & Mail site – which has been vacant since Birmingham Post publisher BPM Media moved to Fort Dunlop – in the coming weeks with a view to creating a new landmark mixed-use scheme in the city centre.
The building of the Cube has previously led to legal issues on more than one occasion in its history.
Earlier this year, the developers were left facing a potential payout after they lost an appeal over a ‘right to light’ dispute with a former neighbour.
Birmingham Development Company went to the Lords to appeal after it was told the Cube blocked out the light to a nearby factory. The family run G&S Brough factory in Commercial Street had working at the site since 1951.
Judge Purle QC upheld Brough’s “right to light”, and dismissed the counter-action by BDC and Salvage Wharf. BDC immediately appealed to the House of Lords but were rebuffed.
The decision against BDC came just a few months after the Lords refused to hear another case launched by the firm, when it was looking for compensation from another local landowner it said had delayed the project.
Last summer, the appellate committee refused to allow BDC to go to the House of Lords after it tried to sue Michael Jacob Tyler who owned a factory on the site the Cube is now on. BDC claimed Mr Tyler had delayed the building of the Cube, costing them more than £45,000 a week.