GELDOF METAALCONSTRUCTIE NV V SIMON CARVES LTD

[2010] EWCA Civ 667, Court of Appeal, Civil Division, Lord Justice Maurice Kay, Vice President of the Court of Appeal Civil Division, Lord Justice Rix, Lord Justice Patten, 11 June 2010

Contract - Equitable set-off - Two contracts agreed between parties - Performance under Contract I made conditional upon payment under Contract II - Accepted as repudiation under Contract II - Claim for payment under Contract I - Cross-claim for set-off against damages for repudiation under Contract II

The parties had entered into a supply contract and an installation contract. These were independent, separately tendered and concluded at different times. They related to the same main site and to the same project. The defendant had not been paid under the supply contract and made performance under the installation contract conditional upon such payment. The claimant accepted this as repudiation of the installation contract. The defendant sought damages consisting of the price for equipment delivered under the supply contract. The claimant sought to set off damages to which it said it was entitled for the repudiation of the installation contract. At first instance, HHJ Raynor QC declined to grant the set-off. The claimant appealed.