ADJUDICATION, SETTLEMENT AND STAY OF EXECUTION

In Bewley Homes plc v CNM Estates (Surbiton) Ltd [2010] EWHC 2619 (TCC), [2011] BLR 67 Mr Justice Akenhead held that the defendant had no arguable defence to a claim for payment brought under a settlement agreement which had been concluded between the parties after an adjudication. Further, he held that the defendant was not entitled to a stay of execution. In considering the entitlement of the defendant to seek a stay, he applied by analogy the principles applicable when a stay is sought in connection with the enforcement of a decision of an adjudicator. But in the case where a stay is sought in relation to the enforcement of a settlement agreement, the parties current financial position should be compared with their financial position at the moment of entry into the settlement agreement, not the time of entry into the underlying construction contract.

The facts

The claimant, Bewley Homes Ltd, was employed by the defendant, CNM (Surbiton) Ltd, as a contractor on a mixed use residential and retail project in Surbiton. Most of the funding for the project was provided by Investec Bank plc who had various charges over the property. A dispute arose between the parties in relation to what was claimed to be the failure to pay sums due under an interim application for payment. That dispute was referred to adjudication. The adjudicator decided that the claimant was entitled to payment of £464,459.75 plus interest. The adjudicator also decided that he did not have jurisdiction to deal with the defendant’s concerns about alleged defects in the works.