Dragon Contractors (Pty) Ltd v Superway Construction (1851/16) [2017] ZAGPPHC 571 (22 August 2017)

Dragon Contractors (Pty) Ltd v Superway Construction (1851/16) [2017] ZAGPPHC 571 (22 August 2017)

The court held that the adjudicator's award did not override the express 'pay when paid' clause in the subcontractor agreement. Since the respondent had not received payment from the employer, payment to the applicant was not yet due, rendering the application for enforcement premature. Furthermore, the issuance of Interim Payment Certificate number 13, which imposed additional penalties, meant that the applicant was now indebted to the respondent, further defeating the claim for enforcement. The joinder of the third party was found to be proper, as the employer ultimately bears liability for payments under the JBCC Contract. The application was dismissed, with costs awarded as specified.

Citation
[2017] ZAGPPHC 571
Parties
Applicant: Dragon Contractors (Pty) Ltd; Respondent: Superway Construction (Pty) Ltd; Respondent: Minister of Public Works
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 August 2017
Case Number
1851/16
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed with costs, excluding costs of the third party. The third party is ordered to pay the applicant's costs relating to opposition of the Rule 13 proceedings.
Judges
Malatji
Legal Topics
Jbcc Contract, Adjudicator Award Enforcement, Pay When Paid Clause, Joinder of Third Party
Civil Procedure Commercial and Corporate Jbcc Contract Adjudicator Award Enforcement Pay When Paid Clause Joinder of Third Party

Case Brief

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Parties

Dragon Contractors (Pty) Ltd

Applicant

Superway Construction (Pty) Ltd

Respondent

Minister of Public Works

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the respondent is indebted to the applicant in terms of the adjudicator's amended payment certificate.
  2. 2 Whether the third party, as employer under the JBCC Contract, should be ordered to pay the respondent to enable payment to the applicant.
  3. 3 Whether the issuance of Interim Payment Certificate number 13 contravenes the adjudicator's award.

Ratio Decidendi

The court held that the adjudicator's award did not override the express 'pay when paid' clause in the subcontractor agreement. Since the respondent had not received payment from the employer, payment to the applicant was not yet due, rendering the application for enforcement premature. Furthermore, the issuance of Interim Payment Certificate number 13, which imposed additional penalties, meant that the applicant was now indebted to the respondent, further defeating the claim for enforcement. The joinder of the third party was found to be proper, as the employer ultimately bears liability for payments under the JBCC Contract. The application was dismissed, with costs awarded as specified.

Court Disposition

Application dismissed with costs, excluding costs of the third party. The third party is ordered to pay the applicant's costs relating to opposition of the Rule 13 proceedings.

Orders

  • The application is dismissed with costs, such costs to exclude the costs of the third party.
  • The third party is ordered to pay the costs of the applicant relating to the opposition of the Rule 13 proceedings.