In Indigo Projects London Ltd v Razin & Or [2019] EWHC 1205 (TCC) Arthur Graham-Dixon represented the Claimant contractor in relation to its application for summary judgment to enforce an adjudicator’s decision, as well as the Defendant’s application for a stay of execution.
The Claimant had obtained an adjudication award for payment of the sum stated in an interim payment application, where no pay less notice had been served in time. After issuing proceedings to enforce the award, the Claimant entered into a company voluntary arrangement (CVA). The CVA included an express term that only the balance of cross-claims between the Claimant and any of its creditors could be claimed by the Claimant or a creditor under the CVA. This accounting exercise was due to be undertaken by the CVA supervisors.
The Defendants argued that enforcement would interfere with that accounting exercise, in circumstances where it was the Defendants’ position that the sum awarded by the adjudicator did not represent the true value of the work done and that they also had counterclaims for defective work and delay.
This was unlike previously decided cases, in that the CVA followed the adjudication decision and the application to enforce. However, applying Bouygues v Dahl-Jensen [2001] All ER (Comm) 1041 and Westshield v Whitehouse [2014] Bus LR 268, Sir Antony Edwards-Stuart held that enforcement would interfere with the CVA supervisors’ accounting exercise. The adjudication decision was, in effect, nothing more than an order for payment on account and would have no effect on the result of the account taken by the supervisors. Summary judgment was not granted.
Arthur Graham-Dixon was instructed by Candey LLP for the Claimant.
To real the full judgment please click here.
21 May 2019
