(1) There was an agreement to vary or amalgamate the contracts. This rested not on an express agreement but one implied from conduct in the treatment of payment applications, payment notices and the final account. The Judge dismissed the argument on the basis that agreeing to combine payments was not the same as amalgamating the two subcontracts. Clear evidence of amalgamation would be required and there was none. The parties’ conduct was inconsistent with amalgamation. Payment applications and the final account were each structured so as to show the sums due under each of the two subcontracts and their build up albeit added together to reach a final total. (2) Delta’s counsel raised a novel argument: that it was possible for parties to agree to treat two separate contracts as one for the purposes of the Act and therefore adjudication, where, as here, they had combined payments claimed and due in applications and the final account. The judge found the argument was without authority and where the contracts had not been amalgamated at common law they could not become a single “construction contract” under the Act. (3) Finally Delta said that by its conduct, Watkins Jones was ‘estopped’ from denying the subcontracts should be treated as one. The judge found that the elements of estoppel were not present; there was no evidence of reliance by Delta or of detriment to them.
Postscript
Delta asked the court to order Watkins Jones to bring the amount awarded by the adjudicator into court, as a condition having leave to defend. They pointed out that the finding as to jurisdiction did not disturb the adjudicator’s decision on the merits which was binding until overturned. If it turned out he had jurisdiction then the money awarded would be due. The court refused to impose such a condition for two reasons. First the strength of Watkins Jones prospects of showing the decision was without jurisdiction and therefore not binding. Second, Watkins Jones denied the adjudicator had reached the right conclusion on the merits in any event.
The court concluded that Watkins Jones had not only a real, but a strong prospect of success at trial, and refused the application for summary judgment.
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