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importance of notice


Under many form of contracts, including the JCT suite, there is no right to repayment of an overpayment until the final payment. I have often wondered what would be the situation if an adjudicator refused to go the route Bob did ( and I have on a number of occasions) and awarded a lesser sum than the amount due because of the absence of a pay less notice.

Edwards-Stuart J said that there would then be nothing to stop the contractor referring “a further dispute to adjudication, namely the sum due on the last interim application”. As such, while a payer might be able to issue a negative payment notice in respect of the following interim application, it would not be entitled to repayment of the sum due. If a payee succeeded in obtaining the value set out in its payment notice and this amounted to as significant windfall, in theory it could decide not to submit any further payment notices meaning that the employer would not have the opportunity to submit a pay less notice or recover the sum paid.

In November 2015, the tenant stopped paying rent at the new agreed upon rate and reverted to paying rent at the old rate payable under the First Renewal Lease agreement, on the stated basis that she would do so until the Second Lease Renewal agreement was signed. On March 1, 2016, the landlord’s agent delivered a “Notice to Quit” to the tenant, which provided in part: You are hereby notified that the Lease is therefore terminated immediately and you are formally notified that you are required to vacate and quit the property no later than the 15th day of March, 2016 at 5:00 p.m.  (emphasis added). On February 3, 2016, the landlord notified the tenant of her continued failure to pay rent and that if she did not remedy her defaults by paying the amounts due, then the balance of the lease term would be “fortifed [sic]” and the landlord would re-enter and take possession. It was Max Abrahamson who famously once wrote: “A party to a dispute, particularly if there is arbitration, will learn three lessons (often too late): the importance of records, the importance of records and the importance of records. Secondly, the notice to quit or notice of termination must clearly call for immediate termination of the tenancy; a termination notice which contemplates continued occupation by the tenant will not be effective. ISG Construction Ltd (the contractor) and Seevic College (the employer) had entered into a JCT Design and Build Contract, 2011 Edition, with a monthly payment cycle starting on 11 February 2013. The basic purpose of sending a Legal Notice is to remind the receiver about his acts which knowingly or unknowingly have created a problem for an Advocates client. As HR professionals, we act as a medium between the employees and the organizations where we need to maintain the harmonious relation and need to … About the Practical Law Construction Blog, http://constructionblog.practicallaw.com/the-importance-of-notices-the-importance-of-notices-and-the-importance-of-notices">. 604.688.3830, Surrey Office:200 – 10233 153 Street One... Vancouver Office:700 – 401 West Georgia Street Surely this is incorrect, and in fact the reason it could not be challenged in ISG v Seevic was actually only because the value had been decided in an earlier adjudication? In the instance where a Final Account Adjudication results in an £ 800k “windfall”, then after paying out the £ 800k sum, the aggrieved party could : 1 Toddle off to court to get it’s £ 800k back in a “final determination”, 2 Go to Arbitration, if available, to get the “windfall” back. The avalanche effect: key issues in modular building, Buying a property? COVID-19 has required all of us to navigate new situations, with little guidance from the past. The landlord continued to demand payment at the new rate and eventually sought to terminate the tenancy, but the tenant refused to deliver up possession. The parties did agree on a new rental rate, which the tenant paid from February to October 2015, but could not agree on the additional right to renew proposed by the tenant. Is it not the case that your open ended question can be answered by section 108 of the Construction Act itself ?

However, if Edwards-Stuart J is right and that, in deciding the contractor’s referral, the adjudicator would be deciding “the question of the value of the work carried out for the purposes of the interim application in question”, then surely this would amount to the same dispute as the employer’s referral?

In July 2014, the tenant gave written notice of her intention to renew the lease for an additional five years. The importance of notices, the importance of notices and the importance of notices. 1996, c. 57 (the “Act”).

Personally, I think the industry needed it !! As the first adjudicator had decided that the sum ISG claimed was the sum due to it, he had decided the value of the works. The jurisprudence clearly provides that notices which contemplate continued occupancy are not effective to end a tenancy. This was a case all about two adjudications between the same parties and with the same adjudicator. In a decision dated 5 September 2014, the adjudicator decided that ISG was entitled to the £1.1 million claimed, plus interest, on the ground that Seevic did not serve a payment or a pay less notice. Seevic did not pay the amount awarded in the first adjudicator’s decision and so ISG issued enforcement proceedings. Employees should give notice to the company so a transition plan can be put into place. In that notice, the landlord informed the tenant that the lease had been renewed on January 15, 2015, notwithstanding its repeated assertions that no renewal was granted and the tenancy had become month-to-month. We might see a rise in professional negligence claims against quantity surveyors who have failed to issue payment or pay less notices meaning that their client has to pay the sum claimed in a default payment notice. The tenant exercised the first renewal option, which renewed the lease for a new term commencing January 16, 2010 and ending January 15, 2015 (the “First Lease Renewal”). In particular, if a client has to pay a sum well in excess of the value of the works executed and that results in the insolvency of the client, I could certainly anticipate insolvency practitioners pursuing quantity surveyors. There will probably be a considerable amount written about the consequences of this case over the next few months, but some that I’ve thought of are: What would have been the case if this had been the final payment, rather than an interim payment? Performance & security by Cloudflare, Please complete the security check to access. A ground for contesting the Decision might be that the adjudicator has answered the wrong question. Whilst it may be tempting for an adjudicator to follow the route you suggest, particularly if there was a substantial over-valuation on a tenuous delay claim, I consider that adjudicators must strictly apply the law concerning payment and pay less notices regardless of the merits – otherwise the process will be too uncertain.

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is it a fixed-term tenancy or month-to-month?) In order to obtain an order for possession under ss.18 – 21 of the Act, a landlord must establish by way of affidavit evidence, amongst other things, the terms of the lease and that the lease has expired or been determined by a notice to quit or otherwise. Best regards The Importance of Providing Proper Notice. While it obviously resulted in it obtaining full payment of the adjudicator’s first decision, the implications for main contractors going forward will be that they have to pay up now, and argue about the proper value of the work executed by sub-contractors in the next interim or final valuation. As a result, the landlord could not establish that the tenancy had been determined, as required under s.19 of the Act, and its application for an order for possession could not proceed. All is food for thought – I suppose we will have to wait and see how this develops, having come across similar circumstances my view before ISG v Seevic was that you probably could refer different questions about “payment” and “valuation” but that in circumstances such as this the “valuation” answer ought then not go to payment. Or is that too simple? Cloudflare Ray ID: 5e08e435291aeb04 You may need to download version 2.0 now from the Chrome Web Store. The second adjudicator was then asked to decide the same dispute, which meant he lacked jurisdiction to do so. It is compulsory to send a Legal Notice upon to the receiver. Required fields are marked *. It also argued that the value of the works included in interim application 13 had been agreed because the employer had not served any notices. Find important notice stock images in HD and millions of other royalty-free stock photos, illustrations and vectors in the Shutterstock collection. He set out a scenario where an employer fails to serve the relevant notices and then refers a dispute about the merits of the sum due to adjudication, and the adjudicator finds that the contractor is due less than the sum applied for. Then, the payer must pay the sum stated as due in the default payment notice and cannot successfully refer to adjudication a dispute as to the value of the work properly executed at that date as that will amount to the same dispute. One thing you might consider is that there is an express provision in the Act (as revised) allowing for a payer’s notice to be challenged in adjudication but it is silent as to the payee notice. It might be that a decision on valuation may be of little use but could be useful in subsequent interim or final payment to help get the money back.

I was surprised that no mention was made of. In Rami and Nina Holdings Ltd. v. Xu, 2017 BCSC 4, the landlord learned the hard way that the form and content of a notice can be critical, particularly when terminating a tenancy. What does Edwards-Stuart J’s judgment mean in practice? The Landlord’s Application to Court for Possession. I expect we might see more development in this area but I can see a potential disconnect between ‘valuation’ and ‘payment’ which may no longer be one and the same thing, although in ISG v Seevic perhaps they were. If the adjudicator found that there was a lack of payment or payless notices, then the adjudicator would have to find that the sum due was the amount stated in the default payment notice (assuming it was valid). Firstly, ensure that you are aware of your legal position (i.e. Don’t forget about the Party Wall Act 1996, If the payer fails to issue a payment notice and/or pay less notice and the payee has issued a valid default payment notice in the form of its application (or otherwise).

This decision in Rami should serve as a warning to landlords to be very careful when issuing notices to tenants, especially when purporting to end a tenancy. This case should, if it was ever required, focus the industry’s mindset on the importance of correctly issued Payment Notices and Pay Less Notices. The payer will have to move on to the next payment due under the construction contract and ensure that the relevant payment and/or payless notices are served at this point, His conclusion was based on the wording of the contract, rather than the wording of the amended Construction Act 1996. Isn’t the analysis in ISG v Seevic though that the amount due is the product of the notice? One thing I have been pondering is that, if the payer fails to issue the requisite notices and thus the payee’s application for payment becomes a valid payee notice in default, could the payer not strike first and refer the value of that default notice to adjudication?

Based on his valuation of ISG’s works, in his second decision (dated 10 October 2014), the adjudicator decided that ISG was owed the sum of £315,000 odd. 604.682.3664   FAX:

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