Manor Asset Ltd v Demolition Services Ltd (TCC - 10.2.2016)
MANOR ASSET LTD v DEMOLITION SERVICES LTD
Technology and Construction Court
10th February 2016
The payment provisions of the demolition contract were amended to provide for payment on the achievement of certain milestones. The first milestone was demolition passing the black line drawn on a photograph. The contractor issued an invoice for achieving the first milestone. The employer in its pay less notice in respect of that invoice agreed that it had achieved that milestone. The contractor referred to adjudication the dispute as to the non-payment of its invoice. The employer asserted that the contractor had not in fact achieved the first milestone based on an analysis of photographs taken on the day before it issued its pay less notice despite concluding from the initial examination of the photographs that it had. However, the adjudicator decided that the contractor had achieved first the milestone and awarded the sum claimed in the invoice, although he did not refer to the photographic analysis in giving his reasons.
Edwards-Stuart J, in holding that that the adjudicator was not in breach of the rules of natural justice stated that the employer accepted that the material before the adjudicator comprised (i) The contractor's assertion that the milestone had been achieved (ii) The statement in the employer's pay less agreeing that it had been achieved and (iii) The employer's evidence that its subsequent analysis of the photographs showed that it had not been achieved. If the first two elements had stood alone (i) There would have been no dispute about whether the milestone had been achieved (ii) One would have expected the adjudicator to have said so and (iii) The adjudicator would not have made a finding about it and would, like any other tribunal, simply have recorded the fact that it was common ground that the first milestone had been achieved.
However, It was inconceivable that the adjudicator did not take into account the employer's photographic evidence about the state of the work as at the date the contractor issued its invoice because (i) He found that the first milestone had been achieved but would not have done so if he had simply overlooked that evidence since he would not thought that there was anything to decide and (ii) One does not decide a point and then give a reason for that decision unless there is a point in issue that needs to be decided.