Last edited 07 Nov 2020

Octoesse LLP v Trak Special Projects Ltd

The case of Octoesse LLP v Trak Special Projects Ltd. [2016] set an important precedent in ensuring the correct contractual procedures are adhered to when deducting liquidated damages.

Octoesse LLP (the claimant) entered into an amended JCT Intermediate Building Contract with Trak Special Projects Ltd. (the defendant) for the construction of residential units. Practical completion was significantly later than the original completion date, and the defendant submitted a claim for an 18-week extension of time. They were awarded 9.5 weeks by the contract administrator. No further certificate of non completion was issued.

When the defendant issued a final certificate for payment, the claimant issued a pay less notice which deducted liquidated damages. An adjudication was begun by the defendant on the grounds that the pay less notice was invalid.

The case focused on the interpretation of clauses 2.22 and 2.23 which are constructed such that:

'If the Contractor fails to complete the Works or a Section by the relevant Completion Date, the Architect/Contract administrator shall issue a certificate to that effect. If an extension of time is made after the issue of such certificate, the extension shall cancel that certificate and the Architect/Contract Administrator shall where necessary issue a further certificate.'

The defendant argued that it was an express condition of the claimant’s entitlement to deduct liquidated damages that the contract administrator issued a certificate of non completion. Further, the effect of clause 2.22 was that when the extension of time had been given, it had cancelled the certificate of non completion.

Justice Jefford held that the claimant was not entitled to deduct liquidated damages as they had agreed to an extension of time after a certificate of non completion had been issued.

If, on the other hand, the claimant had given notice of their intention to deduct damages, but an extension of time had then been made and a further certificate of non completion issued, then they would not need to give notice of the intention to deduct again.

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