Cases Part 2 2023 - final

had itself contended that the true contracting party was a different and solvent

company. The parties were, however, bound by an earlier adjudication decision

that the claimant was the true subcontractor. In Westshield , the associated

company that claimed to be the true sub-contractor offered to guarantee the

repayment of the judgment sum in the event that it was later determined that it

was the true contracting party.

WRB Energy Ltd offered to guarantee payment here if the court was otherwise

minded to grant a stay.

While finding it was probable that WRB would be unable to repay the judgment

sum, the court refused to grant a stay. On its own case, HCL chose to place the

subcontract with a newly formed dormant company. The risk it now complained of

was "the result for which it contracted". It would be unfair and contrary to the spirit

of adjudication to allow HCL to escape its liability on the basis of WRB's unchanged

financial position. Also, it was HCL who had resisted the argument that the true

subcontractor was WRB and thus had "made its own bed." Finally, the judgment

had been unavoidably delayed, giving HCL ample opportunity to establish its

alleged entitlement upon its cross claims.

Comment There is little new in this case on the question of stay and given the ‘ pay now argue later ’ mantra, the outcome was inevitable. It does, however, act as a reminder that VAT is not awarded automatically and that a claimant must at least

show it is registered for and liable to charge VAT. The comment that the delay in

giving judgment had allowed HCL time to establish its alleged entitlement is,

however, curious; since if HCL expected to obtain a stay, it would presumably not

have paid the judgment; and its entitlement to start another adjudication before

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