adjudicator found that:
1. AFP8 was a valid payment application. 2. There was no payment or pay less notice. 3. The net sum claimed under AFP8 was the Notified Sum. 4. He could not entertain the TVA because the Notified Sum had not been paid. 5. He could order POL to pay the Notified Sum to VMA. The court referred to the well-established principles laid out by Justice Finola O'Farrell, Judge in Bexheat Ltd v Essex Services Group Ltd , [6] noting: ‘unless and until an employer has complied with its immediate payment obligation under s.111, it is not entitled to commence, or rely on, a true value adjudication under s.108.’ The court noted that while a responding party could raise any defence available, including cross-claims by way of set-off, and while an adjudicator could make a declaration as to any sum which was found due to it, a responding party would not be able to make a monetary recovery on its set-off and counterclaim. This restriction was explained by Lord Briggs in Bresco [7]: the ‘set-off may be advanced by way of defence to the exclusion of the claim referred to adjudication, but not as an independent claim for a monetary award in favour of the respondent to the reference.’ Here, VMA relied on the judgment of Andrew Singer KC, in WRW Construction Limited v Datblygau Davies Developments (DDD) Limited [8], where the referring party, DDD, sought determination from an adjudicator of a post-determination final account. In its response, WRW argued the account should be determined as a sum due in their favour. The adjudicator agreed and ordered a sum be paid to WRW. WRW was successful in obtaining summary judgment of the sum due.
The Judge held:
‘18 - I accept that the adjudicator did not have jurisdiction to award a monetary sum to the Claimant as the responding party to the adjudication. However, in my judgment, it is not the relevant issue, nor was it an issue which arose for determination in Harrington or Bresco . The issue before me is whether on the basis of a valid, binding valuation of the post-termination account, a court's enforcement of that valid award can include an order for payment of the sum due as a consequence of the binding valuation, or not. 19 - In my judgment, there is no bar on the basis of the authorities cited to me to the court enforcing a temporarily binding valuation in an adjudication award by making an order for payment of the monies due as a result of that valuation. Indeed, in my judgment it would be contrary to principle and established authority for the court to effectively force a party who has the benefit of an award in its favour as far as a
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