Hart (t/a D W Hart & Son) v Smith & Anor [2009] EWHC 2223 (TCC) (03 September 2009)

Hart (t/a D W Hart & Son) v Smith & Anor [2009] EWHC 2223 (TCC) (03 September 2009)

The adjudicator's declaration that the defendants were entitled to certificates of non-completion did not create an enforceable debt for liquidated damages; therefore, the defendants are not entitled to set off their claim for liquidated damages against the sums awarded to the claimant in the first adjudication. Only sums specifically awarded by the adjudicator can be enforced or set off in adjudication enforcement proceedings.

Citation
[2009] EWHC 2223 (TCC)
Parties
Claimant/part 20 Defendant: Mr S G Hart T/A D W Hart & Son; Defendant/part 20 Claimant: Mr Dennis Smith; Defendant/part 20 Claimant: Mrs Jacqui Smith
Jurisdiction
England and Wales
Judgment Date
03 September 2009
Procedural Posture
Adjudication Enforcement Application / Judgment After Hearing of Cross Applications to Enforce Adjudicator's Decisions
Outcome
Judgment for the claimant
Legal Topics
Adjudication Enforcement, Set Off Rights, Liquidated Damages, Housing Grants Construction and Regeneration Act 1996, JCT Standard Building Contract
Construction Law Contract Law Adjudication Enforcement Set Off Rights Liquidated Damages Housing Grants Construction and Regeneration Act 1996 JCT Standard Building Contract

Case Brief

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Parties

Mr S G Hart T/A D W Hart & Son

Claimant/part 20 Defendant

Mr Dennis Smith

Defendant/part 20 Claimant

Mrs Jacqui Smith

Defendant/part 20 Claimant

Procedural Posture

Adjudication Enforcement Application / Judgment After Hearing of Cross Applications to Enforce Adjudicator's Decisions

Legal Issues

  1. 1 Whether the defendants are entitled to set off liquidated damages against sums awarded to the claimant in adjudication
  2. 2 Whether the adjudicator's declaration of entitlement to certificates of non-completion gives rise to an enforceable debt for liquidated damages
  3. 3 Whether the sums awarded in two separate adjudications can be set off against each other

Ratio Decidendi

The adjudicator's declaration that the defendants were entitled to certificates of non-completion did not create an enforceable debt for liquidated damages; therefore, the defendants are not entitled to set off their claim for liquidated damages against the sums awarded to the claimant in the first adjudication. Only sums specifically awarded by the adjudicator can be enforced or set off in adjudication enforcement proceedings.

Court Disposition

Judgment for the claimant

Orders

  • Defendants' claim to set off liquidated damages of £71,314.29 against the adjudicator's award is dismissed
  • Judgment for the claimant in the sum of £70,895.86, reflecting set-off of only those sums awarded in the second adjudication