as to the basis of payment without, unless it went further, deciding the underlying contractual relationship. Due to the number of possible contractual permutations, the court declined to make any further declarations as to the basis on which payment was to be made after the expiration of the last letter of intent. 11. Stay—Company Voluntary Primus was engaged as main contractor on the construction of a London hotel and employed Rossair as the mechanical installation sub-contractor on the project. The sub-contract documents provided for any dispute to be referred to adjudication and for the Scheme to apply, subject to a provision that the adjudicator should be nominated by the Royal Institute of Chartered Surveyors (RICS). A dispute arose between the parties in respect of two interim payment applications. Rossair referred the dispute to adjudication and Mr Peter Aberley was appointed adjudicator by RICS. On 21 June 2017, the adjudicator published his decision, subsequently corrected pursuant to paragraph 22a of the Scheme and re-issued on 26 June 2017. He directed that Primus should pay Rossair the sum of £353,726.02 in respect of the interim applications plus interest in the sum of £7,953.56. Additionally, the adjudicator directed Primus to pay 85% of his fees amounting to £6,768.13 plus VAT. Primus failed to pay any of the sums directed and on 6 July 2017 Rossair commenced proceedings, issuing an application to enforce the adjudication decision by way of summary judgment, under CPR 24. Primus submitted an acknowledgment of service, indicating that it wished to defend the application but failed to submit any evidence save for a letter to the court dated 8 August 2017 stating it would not be represented at the hearing of the application on 10 August 2017 but inviting the court to take into account the contents of the witness statement of Mr Neil Graham Sammes. The statement was not served on Rossair until 9 August 2017, the day before the hearing. In his statement Mr Sammes opposed the application for summary judgment on three grounds. (1) Jurisdiction O’Farrell J. found that the adjudicator was correct to hold that he did have jurisdiction to act. It was common ground that the sub-contract documents had been issued by Primus to Rossair on or around 15 October 2015, that they contained terms and conditions including a provision for adjudication (as described above). There was a dispute between the parties as to whether Rossair had made amendments to the sub-contract documents at a later date. The adjudicator was right to find that any disputed amendments to the sub- contract did not affect his jurisdiction as it was not alleged Arrangement—moratorium See Rossair Ltd v Primus Build Ltd 27
that any of the amendments would affect the adjudication agreement or the adjudication rules to be applied. (2) Stay The second question was whether the proceedings in the claim should be subject to a stay. Mr Sammes stated that Primus proposed to enter into a Company Voluntary Arrangement (CVA) and the relevant documents concerning the proposal had been filed in the Companies Court. The proposal for the CVA was not exhibited to the witness statement and there was no indication within the witness statement of the terms on which the CVA had been proposed. There was also a discrepancy between the letter dated 8 August 2017, which stated that Primus was in a CVA, and the witness statement of Mr Sammes, which merely proposed that it enter into a CVA. The court did not have an informed explanation as to the status of Primus. O’Farrell J. considered the Insolvency Act 1986 and the Insolvency Rules 2016. Section 1A of the Insolvency Act provided that “Where the directors of an eligible company intend to make a proposal for a voluntary arrangement, they may take steps to enforce a moratorium for the company.” Even assuming Primus was an eligible company, there was no evidence or indication that it had taken steps to obtain a moratorium. It followed that it was to be assumed by the court that no steps had been taken. The Insolvency Rules 2016 made provision for a company to provide in its proposal for a CVA the nature and demands of the company’s liabilities. Paragraph 2.15 of chapter 4 of the Insolvency Rules provided for notice of the beginning of any moratorium to be published in the Gazette and delivered to the nominee and to the company. There was no evidence before the court relating to publication of a moratorium. The court was satisfied that Primus Build had not taken any steps to bring into effect a moratorium in respect of the CVA. Therefore, and although the court had power to stay the proceedings, or any judgment in respect of an adjudicator’s award where the Defendant was unable to pay the judgment sum, it was only in very exceptional circumstances that such power would be exercised. There was no evidence before the court to justify the staying of the application or the Part 24 summary judgment itself. (3) Double payment It was suggested that a judgment against Primus would put it in danger of having to pay the interim applications twice, it being alleged the sums had already been paid to Rosssair by the Employer. There was evidence that the contract between the employer and Primus had been terminated, that the employer had supported Rossair by way of cash flow. However, the evidence of Rossair, not contradicted by Primus, showed that the support was by way of loan, which had been repaid. That removed any question of Rossair recovering the outstanding payments twice. The court ordered a summary judgment to be entered for Rossair in the sum claimed plus further interest and Primus was also ordered to pay Rossair their share of
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