MUIR CONSTRUCTION LTD v KAPITAL RESIDENTIAL LIMITED [2017] ScotCS CSOH_132 (18 October 2017)

MUIR CONSTRUCTION LTD v KAPITAL RESIDENTIAL LIMITED [2017] ScotCS CSOH_132 (18 October 2017)

The defender did not fulfil the contractual conditions for withholding payment of the retention sum, as the PLN lacked a valid basis for the zero sum, costs were not incurred by the relevant date, and most claims were waived or lacked specification.

Citation
[2017] ScotCS CSOH_132
Parties
Pursuer: Muir Construction Limited; Defender: Kapital Residential Limited
Jurisdiction
Scotland
Judgment Date
18 October 2017
Procedural Posture
Commercial Construction Contract Dispute / Debate and Summary Decree Motion
Outcome
PLN held invalid; defender bound to lose on retention sum; specification orders to follow; matter put out by order for further submissions.
Legal Topics
Retention Under Construction Contracts, Validity of Pay Less Notice, Waiver of Claims, Specification of Pleadings
Contract Law Construction Law Retention Under Construction Contracts Validity of Pay Less Notice Waiver of Claims Specification of Pleadings

Case Brief

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Parties

Muir Construction Limited

Pursuer

Kapital Residential Limited

Defender

Procedural Posture

Commercial Construction Contract Dispute / Debate and Summary Decree Motion

Legal Issues

  1. 1 Whether the defender validly withheld payment of the retention sum by issuing a valid Pay Less Notice (PLN)
  2. 2 Whether the conditions precedent in Clause 6.2 of the Settlement Contract were fulfilled
  3. 3 Whether claims by the defender were waived under the Settlement Contract

Ratio Decidendi

The defender did not fulfil the contractual conditions for withholding payment of the retention sum, as the PLN lacked a valid basis for the zero sum, costs were not incurred by the relevant date, and most claims were waived or lacked specification.

Court Disposition

PLN held invalid; defender bound to lose on retention sum; specification orders to follow; matter put out by order for further submissions.

Orders

  • Matter put out by order for parties to address effect of conclusions and expenses.
  • Order for further specification of counterclaim items where claims survive.