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Adrian Williamson KC
Adrian Williamson KC:
Introduction
In these Part 8 proceedings, VCL seek declarations in relation to the proper construction of a contract payment mechanism used by the parties under their subcontract dated 12 November 2020 (“the Subcontract”). Gypcraft resist the grant of these declarations.
These issues arise as follows:
Gypcraft succeeded before an Adjudicator in relation to the proper analysis of Payment Cycle 23 between the parties, which took place over January and February 2023;
By a Decision made on 12 November 2024, the Adjudicator decided that VCL should to pay Gypcraft £216,947.75 plus interest on the basis that: (a) Gypcraft had served a valid Interim Payment Application 23; (b) VCL had failed to serve either a Payment Notice or a Pay Less Notice in response as required; and (c) therefore Gypcraft’ s Interim Payment Application 23 was payable in the amount applied for, in accordance with section 110B(4) of the Housing Grants, Construction & Regeneration Act 1996 (“ the Act”);
VCL have paid these sums but contend that the declarations sought, or any of them, will invalidate the Decision, so that this sum will fall to be repaid.
VCL’s case is summarised as follows in Mr Bowling’s skeleton argument:
- Heading
- Adrian Williamson KC
- The Subcontract fails to adequately identify a relevant “Interim Valuation Date” for Payment Cycle #23, meaning that clause 4 must be substantially re-written by Part II of the Scheme. The necessary m
- There was a course of conduct between the parties under which a convention arose that Gypcraft would accept VCL’s Payment Notice #23 out of time. This involves looking how the parties treated the othe
- Lastly, if VCL’s Payment Notice #23 was out of time to serve as a payment notice, it was (indisputably) nevertheless in time to serve as a Pay Less Notice. It contained all the relevant information to
- 110APayment notices: contractual requirements
- This section applies in a case where, in relation to any payment provided for by a construction contract— (a)the contract requires the payer or a specified person to give the payee a notice complying with section 110 A (2) not later than five days af
- Subject to subsection (4), the payee may give to the payer a notice complying with section 110 A (3) at any time after the date on which the notice referred to in subsection (1)(a) was required by the
- Where pursuant to subsection (2) the payee gives a notice complying with section 110 A (3), the final date for payment of the sum specified in the notice shall for all purposes be regarded as postpone
- If— (a)the contract permits or requires the payee, before the date on which the notice referred to in subsection (1)(a) is required by the contract to be given, to notify the payer or a specified person o
- that notification is to be regarded as a notice complying with section 110A (3) given pursuant to subsection (2) (and the payee may not give another such notice pursuant to that subsection)”
- B. Procedural matters
- The relevant facts
- D. The Interim Valuation Date
- E. Estoppel
- F. Payment Notices and Pay Less Notices
- Conclusions