- Project plans
- Project activities
- Legislation and standards
- Industry context
Last edited 21 Feb 2018
Octoesse LLP v Trak Special Projects Ltd
The case of Octoesse LLP v Trak Special Projects Ltd.  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.
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.
 Find out more
 Related articles on Designing Buildings Wiki
Featured articles and news
Your chance to comment on the draft BS 851188 - flood resistance products and flood protection products.
Rebuilding could take 20 to 40 years.
RSHP’s high-rise residential towers win a tall buildings award for excellence.
BSRIA study reveals strong growth in 2018.
Dame Judith Hackitt confirmed as keynote speaker – one year on from the Hackitt Report.
Save £100 on tickets.
Modern slavery in the construction sector.
What to bear in mind when claiming damages in construction.
How do we achieve sustainable clean-water infrastructure for all?
What you should know when appointing an architect.
A brief history plus some new developments.
How computational fluid dynamics (CFD) helps building design.
The Hong Kong Harbour Area Treatment Scheme (HATS).