ADJUDICATION, SET-OFF AND STAY OF EXECUTION

JPA Design and Build Ltd v Sentosa (UK) Ltd [2009] EWHC 2312 (TCC)

In JPA Design and Build Ltd v Sentosa (UK) Ltd [2009] EWHC 2312 (TCC), 28 September 2009, Mr Justice Coulson held that the defendant was entitled to set off against a sum which it had been ordered by an adjudicator to pay to the claimant a sum which the claimant had been ordered to pay to the defendant in a second adjudication. Thus the two adjudications were to be set off against one another just as judgments or orders for payment can be set off one against the other. It was also held that, in the light of the claimant’s precarious financial situation, the defendant was entitled to a stay of execution. One factor which was important in reaching this conclusion was that the sum which the claimant was seeking to recover was an advance payment which under the terms of the contract was repayable ‘at the time of the Final Account.’ The Final Account process should have been completed by the time of the hearing before Mr Justice Coulson. Responsibility for the delay in completing that process was attributed to the claimant who was held not to be entitled to take advantage of its own delay in order to recover money which was imminently repayable and which, given its financial standing, it was unlikely to be able to repay.