The Sheriff considered the defences. He concluded that the question of the validity of IPA14 was a short self-contained point that could be summarily decided and having done so held that the defences had no real prospect of success and granted summary decree to Cheyne for payment of the award. Mr Wilson now appealed from that decision contending the sheriff erred in law and was plainly wrong to conclude that the question of the validity of IPA14 was suitable for summary determination; that IPA14 was validly served; and that his defence (to the contrary) had no real prospects of success.
He failed to do so through the following 8 months and thereby exposed himself to the risk that the application would be sent to WCP. The court said: “In the present case, clause 5.4.1 and Article 3 are clear in their terms. Absent a variation of the contract or the nomination of a replacement Architect/Contract Administrator, the party upon whom service of an interim application was required, was WCP. Interim application 14 was served upon WCP.” “…it is sufficient to observe that the decision not to replace WCP timeously was clearly a conscious and deliberate one. As a matter of general principle, a party is not entitled to take advantage of its own wrong in enforcing contractual obligations.” 2. There was no doubt from a reading of the submissions and award that the adjudicator had understood and considered the material lines of defence in reaching her decision. There was no question of a breach of the rules of natural justice or failure to exhaust her jurisdiction. 3. As to reasons the court said this: “On a fair reading of the decision as a whole, the reasonable reader can be left in no doubt that the adjudicator found that in the absence of any notice of WCP’s resignation, payment application 14 fell to be issued to WCP as the Architect/Contract Administrator in terms of the contract.” 3. Fraud. Mr Wilson was aware of the complaints about groundworks before the adjudication and could and should have raised his objection then that the application was tainted by fraud. Having failed to do so then, it was too late now.
Mr Wilson further contended that the Sheriff was wrong in enforcing the award to find that:
1. The adjudicator had exhausted her jurisdiction in dealing with a material line of defence advanced by him, namely that IPA14 was invalid;
2. The adjudicator had provided sufficient reasoning on this material line of defence;
3. The question of contamination was a factual issue and could not amount to fraud and thereby provide a basis for refusing to enforce the award.
The appeal court found that the Sheriff was entitled to find as he did.
On each of the issues they held as follows:
1. The question of the validity of IPA14 was a short self-contained point suitable for determination. IPA14 was validly served on WCP. They were the named Architect/Contract Administrator for the purposes of the contract including the receipt of applications for payment by Cheyne who could not have known of their resignation unless informed of the fact. Mr Wilson was in a position to appoint a replacement and should have done so within 14 days of their resignation.
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