Synergy Gas Services Ltd v Northern Gas Heating Ltd, Court of Appeal - Technology and Construction Court, November 15, 2018, [2018] EWHC 3060 (TCC)

Resolution Date:November 15, 2018
Issuing Organization:Technology and Construction Court
Actores:Synergy Gas Services Ltd v Northern Gas Heating Ltd
 
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Case No: HT-2018-000270

Neutral Citation Number: [2018] EWHC 3060 (TCC)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY AND CONSTRUCTION COURT (QBD)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/11/2018

Before :

MR JONATHAN ACTON DAVIS QC

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Between:

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Mr Harry Smith (instructed by Berry Smith LLP) for the Claimant

Mr Rupert J A Beloff (instructed by D&N Solicitors) for the Defendant

Hearing dates: 22nd October and 15th November 2018

Judgment available to the parties on 12th November 2018

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JudgmentTHE DEPUTY JUDGE:

  1. This is an application for Summary Judgment by the Claimant, Synergy Gas Services Limited, (``Synergy'') in respect of an adjudication decision dated 8th August 2018 which was made in its favour against the Defendant, Northern Gas Heating Limited, (``Northern Gas''). The amount of the decision was £74,898.07 inclusive of Value Added Tax. The Adjudicator also ordered Northern Gas to reimburse Synergy for his fees in the sum of £11,142.72.

  2. The Claim Form was issued on 7th September 2018. At the date of its issue Northern Gas had failed to pay any part of the sum which the Adjudicator had found due. However, on 19th October 2018 (the last working day before the hearing in this matter) Northern Gas sent Synergy's solicitors a cheque for £45,697.79. That was received, I was told, on the day of the hearing. The covering letter provided no breakdown of the cheque tendered other than to describe it as ``the admitted amount''. Mr Smith proceeded with the application for Summary Judgment making plain that it was in respect of the balance.

  3. The dispute between the parties was defined in the Notice of Adjudication issued on 26th June 2018 as being:

    ``A dispute has arisen between the parties to the sub-contract concerning the failure of the Responding Party to pay the sum of £84,760.04 to the Referring Party pursuant to the following invoices issued by the Referring Party and less interim payments made by the Responding Party in the sum of £38,068.72.''

  4. Three Witness Statements were put before me, the first prepared by Mr Gavin Hoccom dated 7th September 2018 in support of the application for Summary Judgment. That evidence was met by a Witness Statement from Mr Nadeem Ahmad, Managing Director of Northern, dated 1st October 2018. In response Mr Hoccom prepared a second Witness Statement dated 8th October 2018.

  5. It is unnecessary to set out that evidence because the argument at the hearing did not proceed by reference the matters canvassed by Mr Ahmad in his Witness Statement. Mr Ahmad argued, in summary, that:

    (i) the Decision was made in breach of natural justice in that the Adjudicator decided the dispute (a) on the basis of matters not raised by the parties (paragraph 4) and (b) without taking into account matters raised by Northern (paragraphs 7, 9 and following); and

    (ii) Northern has ``a substantial set-off Counterclaim against the Claimant for defective works'' (as set out in paragraph 5) which Northern ought to be permitted to pursue to trial in the present proceedings (paragraph 6).

  6. However, Mr Beloff in his Skeleton Argument for the Defendant made little reference to the arguments raised by Mr Ahmad. In particular, at paragraph 15 of the Skeleton Argument Mr Beloff said:

    ``Further the Defendant contends that, in the light of those other matters raised within the Witness Statement of Nadeem Ahmad dated 1st October 2018 that Defendant has further arguments upon which it would wish to raise in ordinary court proceedings as to why it should not be liable for the sums which the Adjudicator found due to the...

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