understood that a payment application had been served. This evidence had been served in response to FK’s position in the adjudication that site-specific and usual site practice was relevant to the question of whether the recipients could
reasonably have been expected to have read the email. By the time of the court
hearing, counsel for FK had abandoned that argument as irrelevant and contended
the question of receipt was to be decided by the proper construction of the terms
of the Sub-Contract.
In the adjudication FK had disputed Elements ’ entitlement to payment for five reasons, all of which the adjudicator rejected. Two of those reasons were the subject
of the present Part 8 application.
The contentions
FK contended that the application was submitted late and was therefore
contractually invalid. Further, that in order to rely on the absence of a pay less notice
to found its right to payment, Elements had to show that its payment application
was valid since otherwise it would not constitute a payment notice entitling them to
payment.
To found that proposition, FK relied on the correct construction of clause 4.6.3.1 of the
Sub-Contract as meaning that application 16:
(1) needed to be received on or before the end of site working hours on 20 th October 2022; alternatively
(2) needed to be received on or before the end of site working hours on 21 st October 2022
placing emphasis on the word ‘ receive d’ in clause 4.6.3.1, which was to be contrasted with the word ‘give’ in clause 4.7.1 .
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