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The relevant facts
C. The relevant facts
On 14th September 2022, Gypcraft issued payment application 20 seeking payment of circa £90,000. This sum was arrived at by putting forward a “net valuation” of circa £2m and deducting “previous net payments” of £1.912m. On 6th October 2022, VCL issued a Payment Notice showing a sum due of only about £32,000. This document described the sum of £1.912m as “amount previously due”.
A similar pattern obtained for applications 21 and 22 in October and November 2022. None of the Payment Notices were issued in accordance with the contractual timetable described above.
On 16 January 2023, Gypcraft issued its interim application for payment no. 23. In Application 23, Gypcraft sought payment of the sum of £342,385.52.
On 7 February 2023, VCL purported to issue a payment notice stating that the sum due to Gypcraft was £125,437.77. VCL paid that sum.
The 7 February Document, called in the covering email a “Payment Notice” and stated on its face to be a “Payment Notice”, was not issued on time. It was issued 5 days after the payment notice date. VCL did not serve a separate payless notice.
In October 2024, Gypcraft started an adjudication seeking, as its primary position, the outstanding sum under Application 23 (£216,947.75) as a notified sum.
The Adjudicator found inter alia that:
The 7 February Document was invalid.
Gypcraft was, therefore, entitled to the outstanding sum of £216,947.75 as a notified sum for Application 23.
Gypcraft was entitled to interest up to the date of his Decision of £26,045.76 (£24,339.75 + £1,706.01) and continuing at a daily rate of £41.61.
- 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