All in One Building & Refurbishments Ltd v Makers UK Ltd

There were disputes as to the sub-contractor's financial entitlement resulting from the allegedly wrongful termination of the sub-contract by the contractor at the time of service of the sub-contractor's notice of referral

Technology and Construction Court
His Honour Judge David Wilcox
19 December 2005
The dispute referred to adjudication by the sub-contractor was whether the contractor or the sub-contractor had wrongfully terminated the sub-contract. The adjudicator found in the sub-contractor's favour. The contractor opposed the enforcement of the decision in the court enforcement proceedings. One of the grounds on which the contractor opposed enforcement was that at the time of service of the notice of referral there were no disputes between the parties as to the sub-contractor's financial entitlement resulting from the allegedly wrongful termination by reason of no payments having become due to the sub-contractor under the sub-contract's payment machinery. Judge Wilcox rejected this ground.
The judge stated that it was not the case that the claim could not be considered as a dispute until the 30 days contractually allowed for interim payments to be made had elapsed on the ground that the sub-contractor's original demand for payment was described in terms of an interim application. This was because in the judge's view it was clear from the very outset that (1) the parties accepted that the sub-contract had been wrongfully brought to an end albeit that each party alleged that the other party had wrongfully repudiated the sub-contract and (2) the contractor would not pay what the sub-contractor claimed were the financial consequences of the termination of the sub-contract.
The judge went on to state that it was not the case that the figures claimed by the sub-contractor were akin to a final account and that two months was allowed for payment of such an account with the result that there could have been no dispute. This was because (1) the contractual date for payment was prescribed in the sub-contract depending on whether the payment was an interim or final one (2) a distinction should be drawn between the date for payment and an entitlement to payment and (3) whilst the sub-contract prescribed a time when payment became due and that might be a relevant factor in deciding whether a claim had been denied, it was not determinative as to whether a dispute had arisen.