Purac Ltd v. Byzak Ltd [2004] ScotCS 247 (12 November 2004)

Purac Ltd v. Byzak Ltd [2004] ScotCS 247 (12 November 2004)

The defenders have pled a relevant defence of retention based on substantial and material alleged breaches by the pursuers. The right of retention is implied into mutual contracts and is not excluded by the Consortium Agreement. The balance of convenience and the need to maintain the integrity of the parties' contractual arrangements require that the right of retention prevails over the obligation to pay. Therefore, the pursuers' motion for interim payment is refused.

Citation
[2004] ScotCS 247
Parties
Pursuer: Purac Limited; Defender: Byzak Limited
Jurisdiction
Scotland
Judgment Date
12 November 2004
Procedural Posture
Commercial Contract Dispute / Interim Order (section 47(2) Court of Session Act 1988)
Outcome
Pursuers' motion for interim payment refused
Legal Topics
Consortium Agreements, Right of Retention, Interim Payment Orders, Material Breach, Set Off and Counterclaim
Contract Law Construction Law Consortium Agreements Right of Retention Interim Payment Orders Material Breach Set Off and Counterclaim

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Parties

Purac Limited

Pursuer

Byzak Limited

Defender

Procedural Posture

Commercial Contract Dispute / Interim Order (section 47(2) Court of Session Act 1988)

Legal Issues

  1. 1 Whether the defenders are entitled to withhold payment to the pursuers under the Consortium Agreement and/or by exercising the common-law right of retention
  2. 2 Whether an interim order for payment under section 47(2) of the Court of Session Act 1988 should be granted

Ratio Decidendi

The defenders have pled a relevant defence of retention based on substantial and material alleged breaches by the pursuers. The right of retention is implied into mutual contracts and is not excluded by the Consortium Agreement. The balance of convenience and the need to maintain the integrity of the parties' contractual arrangements require that the right of retention prevails over the obligation to pay. Therefore, the pursuers' motion for interim payment is refused.

Court Disposition

Pursuers' motion for interim payment refused

Orders

  • Refusal of pursuers' motion for an order for payment under section 47(2) of the Court of Session Act 1988