5) Stay of Execution - Broseley London Ltd v Prime Asset Management Ltd (Trustee of the Marshel Family Trust) [16] There had been three adjudications between the parties arising out of a contract under which the defendant (PAML) engaged the Claimant (BLL) to carry out the refurbishment of a high value dwelling. The first adjudication was brought by BLL upon its interim application for payment no 19 in respect of which PAML had failed to give a pay less notice or a payment notice in time. The adjudicator Mr Paul Jensen awarded BLL the full amount of its application (‘Decision 1’). In a second adjudication, Mr Jensen issued declarations in respect of payment certificate no 20 (‘Decision 2’). In the third adjudication Mr Jensen declared that BLL had lawfully terminated the contract at the end of September 2019 for non-payment of application no 19 (Decision 3). PAML did not pay the sum due under Decision 1 arguing that when the value of the final account was determined, BLL would be indebted to PAML. When BLL applied for summary judgment, PAML applied for a stay of execution of two months pending the outcome of a ‘true value’ adjudication on not the interim application no 19 but on the final account. That adjudication had been commenced by BLL, but after PML’s application for a stay, BLL withdrew its referral. That knocked the ground from beneath PAML’s feet and meant that it must pay Decision 1 or seek its stay pending the outcome of proceedings to determine the value of the final account.
Natural Justice ISG said the adjudicator had ignored clause 27(4) and turned clause 27(5) “on its head” to arrive at an illogical and inexplicable decision that ISG had saved money in completing themselves. Although the adjudicator had applied clause 27 in a way which neither party might have anticipated, it had been open to ISG to spell out its case on the various figures put forward and to make any reservations it thought fit as to how the figures could be applied. The adjudicator had been entitled to arrive at a valuation which was between that contended for by ISG and that claimed by Platform. Further her explanation was clear and whether she was right or wrong in law was not the question. The challenge to the validity and enforceability of the decision was dismissed.
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