Caledonian Modular Ltd v Mar City Developments Ltd (TCC - 29.6.2015)

Caledonian Modular Ltd v Mar City Developments Ltd (TCC - 29.6.2015)

The contractor’s email and attached documents did not amount to a fresh claim for an interim payment (no 16) or a payee's notice to the same effect with the result that the adjudicator’s award of the sum claimed should not be enforced.
 
CALEDONIAN MODULAR LTD V MAR CITY DEVELOPMENTS LTD
TECHNOLOGY AND CONSTRUCTION COURT
COULSON J
29TH JUNE 2015

The contractor contended that its email asking the employer to update its current payment notice to take some variations into account together with the attached documents amounted to a fresh claim for an interim payment or a payee's notice to the same effect. The adjudicator accepted the contractor’s contention and awarded the contractor the sum applied for due to the employer not having served a pay less notice in respect of the application.

 

Coulson J rejected the contractor’s contention and declined to enforce the adjudicator’s decision.

 

The contractor’s email and its accompanying documents constituted an update of its final account rather than a further interim payment application or pay less notice because (i) The contractor did not state in its email or accompanying documents clearly or at all that it was making a fresh application for an interim payment or a payee’s notice, even when asked by the employer what the documents were and (ii) The contractor stated in its email that "we have updated our account as attached" and described the documents which were also sent by post as the "posted update of the account".

 

Any suggestion that the three documents emailed by the contractor constituted interim application 16 was wrong on the facts because (i) The documents were still called application 15 when they were sent (ii) This was not a typographical error because no one would have anticipated application 16 for at least another two weeks and (iii) It was never in fact called application 16 until some five weeks after the email was sent and it was met with a valid pay less notice. Such a suggestion was wrong in law because (i) Interim application 15 had been provided only a fortnight before the email was sent and was the subject of a valid pay less notice (ii) No further interim application could validly be made here for at least another two weeks in accordance with the 28-day cycle that the parties had agreed and followed and (iii) If the email and its accompanying documents were otherwise a valid claim for an interim payment, which they were not, such a claim could not have been made 'early' without at the very least that fact being expressly drawn to the employer's attention.

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