ISG Retail Limited v FK Construction Limited

ISG Retail Limited v FK Construction Limited

A late payment application (AFP 14) is not 'in accordance with the contract' under s.110B(4) of the Act, even if the contract allows for a postponed due date; ISG is not estopped from relying on lateness. In the Triathlon project, ISG's payment notice did not clearly communicate to FK that they were liable to pay ISG, and thus was not effective to require payment.

Parties
Claimant: ISG Retail Limited; Defendant: FK Construction Limited
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Part 8 Claim / Judgment
Outcome
Declarations granted in favour of ISG in the Barberry proceedings; ISG not entitled to relief in the Triathlon proceedings.
Legal Topics
Payment Notices, Statutory Interpretation, Estoppel, Adjudication, Sub Contractor Rights
Construction Law Contract Law Payment Notices Statutory Interpretation Estoppel Adjudication Sub Contractor Rights

Case Brief

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Parties

ISG Retail Limited

Claimant

FK Construction Limited

Defendant

Procedural Posture

Part 8 Claim / Judgment

Legal Issues

  1. 1 Whether a late application for payment (AFP 14) is 'in accordance with the contract' under s.110B(4) of the Housing Grants Construction and Regeneration Act 1996
  2. 2 Whether ISG is estopped from relying on the lateness of AFP 14
  3. 3 Whether ISG's payment notice in the Triathlon project was effective to require FK to pay ISG

Ratio Decidendi

A late payment application (AFP 14) is not 'in accordance with the contract' under s.110B(4) of the Act, even if the contract allows for a postponed due date; ISG is not estopped from relying on lateness. In the Triathlon project, ISG's payment notice did not clearly communicate to FK that they were liable to pay ISG, and thus was not effective to require payment.

Court Disposition

Declarations granted in favour of ISG in the Barberry proceedings; ISG not entitled to relief in the Triathlon proceedings.

Orders

  • ISG entitled to declarations as set out in para.17 of the particulars of claim (except para.14, which was abandoned).
  • ISG not entitled to relief in the Triathlon Part 8 proceedings.