(a) The value of the work carried out by the contractor
(b) The extent and value of any defective work
(c) Whether the suspension of the work by the contractor amounted to a repudiation of the contract by the builder
HHJ Toulmin CMG QC had ordered that a single joint expert be appointed in order to value the work and the defects. Recorder Akenhead QC reviewed the state of the account and the date of the suspension. By reference to the single joint expert's Scott Schedules (which he found very useful) he identified the notional total cost of all work completed by the contractor, before then deducting payments made and then making a deduction for defects as at the date of suspension. He found that the sum of £40,016.52 was due from Mr & Mrs Noble to the contractor at the date of suspension. Mr & Mrs Noble allege that the contractor repudiated the contract by suspending the works. Recorder Akenhead QC held that payment was a most important term of the contract and given the significant outstanding amounts that were due at the date of suspension the claimant was entitled to suspend work. Therefore, suspension of the work by the contractor did not constitute a repudiatory breach by the contractor.
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A question which often arises in connection with contracts between builders and residential house holders in relation to work carried out to a domestic home is whether the contractor has a right to suspend work in the event of non-payment by the householder at the very end of the project. It is not unusual for a householder to request many variations, and also for the work to be completed much later than expected. There is, of course, often a debate as to whether the delay is due to the variations requested by the householder, or the disorganisation of the builder. In the absence of a written contract, and also given that the Housing Grants, Construction and Regeneration Act 1996 does not apply (and therefore adjudication and the payment regime are not applicable), this decision is useful as it supports the contractor's right to suspend work without being in repudiation of contract in the event of substantial non-payment.