In the world of the Construction Act, timing can be everything. A late notice – or no notice at all – can have serious consequences. But what about contract payment application dates? What if some applications are a few days late, but the contract administrator does not object? Are they valid? And what if an application is early?
In Leeds City Council v Waco UK Ltd ( EWHC 1400) the court reviewed the contract payment history and found that although there was no express agreement to vary valuation or application dates, there was a course of conduct by which the contract administrator (which had actual and ostensible authority to agree different post-practical completion interim application dates) agreed to accept monthly applications made up to three to four business days after the contract valuation date. The employer would not have been allowed to reject an application made three to four business days late, as that would be inconsistent with this established course of conduct.
However, the contract administrator had not – apart from certification of one premature post-practical completion application – done anything to indicate that it would accept a post-practical completion application that was made early (six days before the contractual date for the application). That application was therefore invalid, as was the adjudicator's decision to the contrary.
For further information on this topic please contact Chris Fellowes at Mayer Brown International LLP by telephone (+44 20 3130 3000) or email (firstname.lastname@example.org). The Mayer Brown International LLP website can be accessed at www.mayerbrown.com.
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