M Davenport Builders Ltd v Greer & Anor [2019] EWHC 318 (TCC) (20 February 2019)

M Davenport Builders Ltd v Greer & Anor [2019] EWHC 318 (TCC) (20 February 2019)

A party subject to an immediate obligation to pay under an adjudicator's decision (due to failure to serve a payment or pay less notice) must pay that sum before it can rely on a subsequent 'true value' adjudication decision as a defence, set-off, or counterclaim. This applies equally to interim and final payment applications. Policy and authority support that the prompt payment regime cannot be circumvented by commencing or relying on a 'true value' adjudication before payment is made.

Citation
[2019] EWHC 318 (TCC)
Parties
Claimant: M Davenport Builders Limited; First Defendant: Mr Colin Greer; Second Defendant: Mrs Julia Greer
Jurisdiction
England and Wales
Judgment Date
20 February 2019
Procedural Posture
Application to Enforce Adjudication Decision (summary Judgment) / High Court (tcc) Judgment
Outcome
Summary judgment for the Claimant to enforce the adjudicator's decision.
Legal Topics
Adjudication Enforcement, Payment Notices, Pay Less Notices, True Value Adjudication, Summary Judgment
Construction Law Contract Law Adjudication Enforcement Payment Notices Pay Less Notices True Value Adjudication Summary Judgment

Case Brief

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Parties

M Davenport Builders Limited

Claimant

Mr Colin Greer

First Defendant

Mrs Julia Greer

Second Defendant

Procedural Posture

Application to Enforce Adjudication Decision (summary Judgment) / High Court (tcc) Judgment

Legal Issues

  1. 1 Whether a party can rely on a 'true value' adjudication decision as a defence, set-off or counterclaim before paying the sum awarded in a prior adjudication based on failure to serve a payment or pay less notice.
  2. 2 Whether the enforcement of an adjudicator's decision is precluded by a subsequent 'true value' adjudication decision where the original sum has not been paid.

Ratio Decidendi

A party subject to an immediate obligation to pay under an adjudicator's decision (due to failure to serve a payment or pay less notice) must pay that sum before it can rely on a subsequent 'true value' adjudication decision as a defence, set-off, or counterclaim. This applies equally to interim and final payment applications. Policy and authority support that the prompt payment regime cannot be circumvented by commencing or relying on a 'true value' adjudication before payment is made.

Court Disposition

Summary judgment for the Claimant to enforce the adjudicator's decision.

Orders

  • Defendants to pay the Claimant £106,160.84 plus interest as awarded by the adjudicator.
  • Defendants to pay the Claimant's costs of the proceedings, to be assessed if not agreed.