CPL Contracting Ltd v Cadenza Residential

Summary judgment should not be ordered in the contractor's favour to enforce the adjudicator's decision awarding the contractor unpaid balance of the contractor's interim payment application on the basis that no dispute had arisen in respect of that unpaid balance
 
CPL CONTRACTING LTD v CADENZA RESIDENTIAL LTD

Technology and Construction Court
Her Honour Judge Frances Kirkham
26 August 2004
 
The contract incorporated JCT 98 With Contractor's Design, clause 30.3.5 of which provided that if the employer did not give written notice within five days of receipt of a payment application from the contractor, the employer was bound to pay the contractor the amount stated in the application. The contractor submitted an interim payment application but the employer's agent did not certify that only part of the sum applied for was due until more than five days after receipt of the application. the contractor sent to the employer's agent an invoice for the sum certified and in its covering letter stated that the invoice was in respect of the "agreed" valuation. The employer served a notice of intention to withhold payment in respect of a part of the sum certified in respect of liquidated damages and paid the balance. The contractor's claims consultant wrote to the employer in respect of what were described in the letter as the contractor's entitlements in relation to the project and set out matters said not to have been accepted by the employer's agent or the employer. The contractor served a notice of adjudication claiming the amount applied for less the sum paid by the employer. The adjudicator awarded the amount claimed by the contractor. The contractor brought court enforcement proceedings.
 
Her Honour Judge Kirkham held that the employer had a real prospect of successfully defending the contractor's claim for enforcement of the adjudicator's decision on the ground of no dispute having arisen in respect of that unpaid balance prior to the contractor serving its notice of adjudication notwithstanding the employer's failure to serve a notice of payment under clause 30.3.5 of JCT 98 With Contractor's Design of the sum due within five days of receipt of the application. This was on the basis that at no stage did the contractor indicate that it was pursuing that unpaid balance or put in issue the balance of payment due under the application. Objectively no dispute had arisen prior to the contractor serving its notice of adjudication insofar as the contractor did not indicate that it put in issue the balance of payment due under the application.