by Gypcraft. Gypcraft sent its invoice and accepted what was paid.
3. The boldest claim was that VCL’s out of time payment notice had all the necessary ingredients of a pay less notice, was effective to serve as such, and was in time.
The
court
refused
to
make
any
of
the
declarations
sought.
As to point one above, the subcontract and its payment schedules had all the necessary dates to comply with the Act. VCL argued there were no interim valuation dates. That was an impossible reading of the schedule which contained sub-contractor submission valuation dates. It was clear from footnote four that the expression ‘sub- sub-contractor submission valuation date’ did not refer to applications for payments, but to the valuation of those applications. The second way VCL put this case – that interim payment applications were to be submitted on the interim valuation date, and not four days in advance of it so that they would not be submitted in accordance with the subcontract – failed for a number of reasons. First and foremost because footnote four does not say that applications for payment were to be issued on the valuation date but ‘by end of business on the valuation date above’. Reading the provision with clause 4.6.3.1 of the subcontract, as one should, Gypcraft would have to comply with both obligations. In fact, a compliant payment application submitted four days prior to the interim valuation date would also comply with the schedule. As to point two above, the court noted that the Court of Appeal had said that ‘Part 8 proceedings are wholly unsuitable for the trial of an issue of estoppel’. [9] In this case, a necessary element was ‘reliance’ and this would require evidence. It did not follow that because Gypcraft had accepted late payment notices in the past, that they were prevented from relying on the lateness of the payment notice in payment cycle 23. The alleged convention of late acceptance clearly required evidence which was not present. The issue was unsuitable for Part 8 determination. Regards point three above, this was described as ‘an ambitious submission’. The payment notice was titled and described in several places as such and clearly intended to be given and received as what it said it was. Any other reading of the document would be entirely artificial. It would undermine the Act and the subcontract if what the parties clearly intended at the time to be a payment notice could somehow retrospectively be converted into a pay less notice. As Coulson J (as he then was) observed in Grove Developments Limited v S&T (UK) Limited [10], a payment or pay less notice must make plain what it is.
12
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