11. Summary Enforcement—set-off against adjudicator’s decision See MI Electrical Solutions Ltd v Elements (Europe) Ltd (right) Jurisdiction—excess—power to order refund of overpayment Breyer Group plc v Adam Michael Scaffolding Services Ltd The notice of adjudication was wide enough to allow the adjudicator to determine the value of the final account and to order the refund of any overpayment. The reasonableness of the decision was irrelevant upon enforcement unless, perhaps, it could be said to be ‘outrageously irrational’. Jurisdiction—failure to exhaust DSVG Façade Ltd v Conneely Facades Ltd On a proper construction of the referral there was no agreement to refer two disputes to the adjudicator. He could only decide one dispute, namely as to the claimant’s entitlement to the notified sum in the absence of a payer’s notice or pay less notice. Having done so, there was no residual jurisdiction to consider and decide a separate dispute about the true valuation of the works. It followed there was no breach of the rules of natural justice. Jurisdiction—insolvency Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd (In Liquidation) A company in liquidation cannot refer a dispute to adjudication when that dispute includes (whether in whole or in part) determination of any claim for further sums said to be due to the referring party from the responding party. Jurisdiction—waiver Beach Homes Ltd v Stephen Hazel and Helen Hazell Where the responding party played a full part in a joint process of both adjudication and expert determination, in the knowledge that the adjudicator/expert believed he had jurisdiction to conduct both aspects, they waived any jurisdictional argument they might have had. Natural justice See DSVG Façade Ltd v Conneely Facades Ltd (above) Natural justice—disclosure and reasons Vinci Construction UK Ltd v Beumer Group UK Ltd There was no inconsistency between the present and previous awards. The issue decided was new one. Whether the decision was right or wrong was not for the Court to consider on enforcement. No natural justice issue arose. The reasons given were discernible and adequate. On the evidence the adjudicator had not been asked to order disclosure and there was no proper material before him that would have required him to do so.
Payment terms—whether providing an adequate payment mechanism CIMC MBS Ltd (formerly Verbus Systems Ltd) v Bennett (Construction) Ltd S.110(1)(a) was intended to do away with uncertainty. The payment provisions of contract were to be construed in the context of the contract as a whole and the Court could not re-write the contract in order to avoid the effects of non-compliance with the section. The provisions as to the certainty of the milestone payments were insufficient to determine the date when payment became due or to calculate that date. Set-off of claims not in pay less notice—contract terms—compliance with Act MI Electrical Solutions Ltd v Elements (Europe) Ltd The adjudicator had effectively determined the question of set-off of claims not included in the pay less notice, by his finding that the Claimant was entitled to payment and the parties were contractually bound by that decision. The subcontract set-off clauses did not permit set-off against the adjudicator’s decision. The exceptions to the general rule did not apply. In any case the set-off provisions were to be read subject to and consistent with the effect of the Act or they would be struck down. The Court distinguished the case of Parsons Plastics which was rightly to be seen as a rare exception.
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