Jackson & Anor v. Laurieston Homes (Howwood) Ltd & Anor [2005] ScotCS CSOH_7 (14 January 2005)

Jackson & Anor v. Laurieston Homes (Howwood) Ltd & Anor [2005] ScotCS CSOH_7 (14 January 2005)

The obligation to pay the sum certified in the interim certificate was due and payable at the time of arrestment, and the effect of arrestment is to render the sum litigious and to fix the rights as at that time. The subsequent determination of the contract by the employer did not extinguish the arrested obligation, as the only resolutive condition was determination within 28 days of the sum becoming payable, which did not occur. The employer's inability to pay due to the arrestment does not constitute an 'unreasonable' non-payment under clause 27.6.5.1. Therefore, the pursuers are entitled to decree of furthcoming.

Citation
[2005] ScotCS CSOH_7
Parties
Pursuers: Charles David Jackson and Another; First Defenders: Laurieston Homes (Howwood) Limited; Second Defenders: Laurieston Properties Limited (In Liquidation)
Jurisdiction
Scotland
Judgment Date
14 January 2005
Procedural Posture
Action of Furthcoming / Judgment on the Merits
Outcome
Decree of furthcoming granted de plano in favour of the pursuers.
Legal Topics
Arrestment, Furthcoming, Building Contracts, Interim Payments, Contractual Determination, Litigious Rights
Civil Procedure Contract Law Construction Law Arrestment Furthcoming Building Contracts Interim Payments Contractual Determination +1 more

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Parties

Charles David Jackson and Another

Pursuers

Laurieston Homes (Howwood) Limited

First Defenders

Laurieston Properties Limited (In Liquidation)

Second Defenders

Procedural Posture

Action of Furthcoming / Judgment on the Merits

Legal Issues

  1. 1 Whether the arrestment of an interim payment under a building contract survives subsequent determination of the contract by the employer.
  2. 2 Whether clause 27.6.5.1 of the JCT Conditions extinguishes the obligation to pay the sum certified in the interim certificate after contract determination.
  3. 3 Whether the arrested obligation is to be assessed at the time of arrestment or at the time of furthcoming.

Ratio Decidendi

The obligation to pay the sum certified in the interim certificate was due and payable at the time of arrestment, and the effect of arrestment is to render the sum litigious and to fix the rights as at that time. The subsequent determination of the contract by the employer did not extinguish the arrested obligation, as the only resolutive condition was determination within 28 days of the sum becoming payable, which did not occur. The employer's inability to pay due to the arrestment does not constitute an 'unreasonable' non-payment under clause 27.6.5.1. Therefore, the pursuers are entitled to decree of furthcoming.

Court Disposition

Decree of furthcoming granted de plano in favour of the pursuers.

Orders

  • Uphold the pursuers' second plea-in-law.
  • Grant decree de plano for the sum arrested.