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Two days. That is how long passed between a freeholder telling the First-tier Tribunal that terminating its remediation agreement was "not the panacea" and the same freeholder serving a termination notice on the developer doing the works. In Durkan Estates Limited v Wallace Estates Limited [2026] EWHC 2003 (TCC), handed down on 30 July 2026, Mr Justice Constable refused to end that dispute at the summary judgment stage, setting out lessons for any building defect claim, remediation agreement, expert evidence programme or termination decision in south London [1]. For freeholders, RTM companies and leaseholders across Wimbledon and Merton, the judgment is a reminder that building safety deadlines do not rewrite the ordinary law of contract.
Key Takeaways
- The Technology and Construction Court dismissed Wallace's application for reverse summary judgment in full, so Durkan's claim that the termination was unlawful goes to trial [1].
- A Remediation Order under the Building Safety Act 2022 raises the stakes for timely performance, but it does not turn a non-essential completion date into a condition of the contract [1].
- Submissions made to a tribunal can amount to affirmation of a contract, which can undermine a termination served days later [1].
- Expert evidence on programme, delay and defect scope was central, and the sequel judgment in August 2026 ordered one set of expert evidence under CPR Part 35 for both the TCC and the FTT [2].
The building and the dispute
Centrillion Point in Croydon is a former office building that Durkan converted into flats in the late 2000s. Wallace Estates Limited bought the freehold in 2014 [1].
On 4 January 2024 the First-tier Tribunal made a Remediation Order against Wallace under section 123 of the Building Safety Act 2022. The order required Wallace to remedy specified building safety defects by 31 May 2025 [1][3].
On 1 July 2024 Durkan and Wallace signed a remediation agreement. Durkan agreed to carry out the remedial works at its own cost, with a completion date of 19 September 2025, or another agreed date [1][4].
The works fell behind. On 24 June 2025 the FTT refused Wallace's application to extend the Remediation Order deadline. At that hearing Wallace argued that terminating the remediation agreement was "not the panacea" and proposed allowing Durkan to continue [1][4].
Two days later Wallace served notice purporting to terminate. It relied on a contractual "Substantive Breach" definition and on common law repudiatory or anticipatory breach, and engaged a replacement contractor [1][4].
Timeline of the Centrillion Point dispute
In September 2025 Wallace applied to the FTT for a Remediation Contribution Order under section 124 against Durkan and its parent, Durkan Holdings, claiming about £13.6 million [1][3]. Durkan sued in the TCC for declarations that the termination was unlawful. Wallace counterclaimed and applied under CPR Part 24 for reverse summary judgment [1].
Why the building defect claim, remediation agreement and expert evidence all went to trial
Summary judgment is only available where a claim has no real prospect of success. Constable J held that Durkan's case cleared that bar on every point and dismissed Wallace's application in its entirety [1].
Time was not of the essence
Wallace accepted that time was not of the essence and that it had served no notice making it so. The judge recognised that the Building Safety Act context and the live Remediation Order greatly increased the importance of timely performance, but that context does not change the test for repudiation or convert a non-essential time term into a condition [1][4].
The high bar for repudiatory breach
Applying Ampurius Nu Homes Holdings Ltd v Telford Homes (Creekside) Ltd [2013] EWCA Civ 577, the judge confirmed that the question is whether the innocent party has been deprived of substantially the whole benefit of the contract. That demanding, fact-sensitive assessment is rarely suitable for summary determination [1][4].
Contractual machinery counts
Following BSkyB Ltd v HP Enterprise Services UK Ltd [2010] EWHC 86 (TCC), the remediation agreement's own regime for remediable and irremediable breaches, including notice-and-cure provisions, formed part of "all the circumstances". Conduct the parties had classed as remediable might not easily be treated as repudiatory, even though Wallace had not pleaded contractual termination [1][4].
Time at large and estoppel by convention
Durkan argued that the completion date had been varied, leaving time at large, or that estoppel by convention applied. Both parties were said to have assumed the 19 September 2025 date was unachievable, with completion expected 68 weeks after Building Safety Regulator approval. The judge held these arguments could not be dismissed summarily [1][4].
Affirmation by tribunal submissions
Wallace's written submissions to the FTT said termination was not the answer and that it was reasonable to let Durkan carry on. The termination notice followed two days later. The court found a real prospect that this amounted to affirmation, and held that the non-waiver clause did not clearly bar the argument. Disclosure of Wallace's internal communications in that two-day window was described as crucial [1][4].
Unpleaded defences
Wallace raised specific contractual provisions for the first time at the hearing to answer Durkan's prevention and delay evidence. The judge held these should have been pleaded so that Durkan could respond. A general statement that Wallace relied on the whole agreement was not enough [1][4].
The practical heart of the judgment: the statutory remediation regime raises the importance of timely performance, but it does not change the common law test for repudiation [1].
Building defect claim remediation agreement expert evidence: what the experts contributed
First, programme and delay evidence. Durkan's expert estimated how long Durkan would have needed to make its Gateway 2 submission to the Building Safety Regulator. The replacement contractor Wallace engaged took much longer than that estimate. The judge found a real prospect that this comparison is relevant to whether Durkan's delay really deprived Wallace of substantially the whole benefit of the agreement [1][4].
Second, defect scope evidence. Wallace's counterclaim raised defects not covered by the Remediation Order, so the technical scope of what had to be remedied remained in issue [2].
In the sequel judgment, Wallace Estates Limited v Durkan Estates Limited [2026] EWHC 2133 (TCC), handed down on 10 August 2026, Constable J sat jointly with the President of the First-tier Tribunal. They directed that the TCC and FTT proceedings be managed and heard together, with one set of expert evidence in three disciplines: architecture, fire engineering and quantity surveying. CPR Part 35 applies to all of that evidence, experts of like discipline must hold discussions and file joint statements, and the trial is provisionally listed for October 2027 [2][5].
What CPR Part 35 demands of a surveyor expert
- The expert's overriding duty is to the court, not to the party paying the fee (CPR 35.3) [5].
- Experts of like discipline can be ordered to meet and produce a joint statement of agreed and disputed matters (CPR 35.12) [5].
From 30 November 2026 the fifth edition of the RICS professional standard, Surveyors acting as expert witnesses, takes effect. Chartered surveyors instructed in building defect and remediation disputes will need to show their reports meet both that standard and Part 35.
Lessons for Wimbledon, Merton and south-west London building owners
South-west London has many converted office blocks and newer mixed-use schemes where freeholders, RTM companies and leaseholders face defect claims under the Building Safety Act 2022. The Durkan judgment offers practical guidance.
- Do not treat a statutory deadline as a contractual condition. A Remediation Order deadline binds the freeholder, but it does not automatically make the developer's completion date a condition that allows instant termination [1].
- Mind what is said to the tribunal. Statements to the FTT that a contractor should continue may later be read as affirmation [1].
- Use the contract's own machinery. Serve the notices the agreement provides for, including notice-and-cure steps, before relying on common law termination [1][4].
- Plead every defence early. Contractual provisions relied on to excuse delay or justify termination must appear in the pleadings [1].
- Commission expert evidence before acting. An independent surveyor's report on defect scope and a realistic programme can show whether a delay is substantial or merely inconvenient [1][2].
Wimbledon Surveyors provides independent defect investigations and CPR Part 35 compliant expert witness reports for building owners, RTM companies and leaseholders in south-west London.
Frequently asked questions
Does a Remediation Order make the developer's completion date a strict deadline?
No. The court held that the Building Safety Act context increases the importance of timely performance but does not change the common law test for repudiation or make a non-essential time term a condition [1].
Why does expert evidence matter in a building defect claim like this?
Programme evidence showed the replacement contractor took longer than Durkan's expert estimated Durkan would have needed, which bears directly on whether the delay was repudiatory. Defect scope evidence defines what must be remedied under the order and the agreement [1][2].
Conclusion
Durkan v Wallace [2026] EWHC 2003 (TCC) shows that the Building Safety Act 2022 has not displaced ordinary contract law. A building defect claim built on a remediation agreement still turns on whether time was of the essence, whether the breach was repudiatory, what the contract's notice regime required, and what the parties said and did before terminating. Expert evidence on defects and programme is likely to be decisive, and the August 2026 sequel confirms it will be managed under CPR Part 35 across both the TCC and the FTT.
Building owners in Wimbledon and across south London weighing a termination, a contribution order application or a defect claim should instruct an independent surveyor early, document the defects against any Remediation Order, and take legal advice before serving notices. This article is general information, not legal advice.
References
- Tcc. caselaw.nationalarchives.gov.uk.
- Tcc. caselaw.nationalarchives.gov.uk.
- Ukpga. legislation.gov.uk.
- Tcc Refuses Summary Judgment on Claim for Unlawful Termination of Remediation Agreement for Building Safety Defects. mayerbrown.com.
- Part35. justice.gov.uk.