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Hillview engaged Botes to carry out certain works under a contract that contained adjudication provisions compliant with the requirements of the Construction Act. A dispute arose in relation to Hillview’s entitlement to liquidated and ascertained damages as a consequence of delays in completion of certain sections of the works. Hillview obtained an adjudicator’s award in its favour for £292,650.

Botes brought separate proceedings to recover £190,780.46 plus VAT and interest it claimed was due under the final account, it also applied for summary judgment. The Botes’ application was due to be heard later in the month. Botes accepted it had no defence to the claim made by Hillview. However, Botes relied upon its own application for summary judgment in relation the final account to submit that there was a compelling reason that the Hillview application should be adjourned and both applications (Hillview and Botes) be heard together.

Botes said it was entitled to set off the balance due to it against the sum awarded under the adjudication proceedings. Alternatively, if summary judgment was entered for Hillview, execution of that judgment should be stayed until Botes’ own application for summary judgment had been determined.

The judge during the course of the hearing asked specifically if there was any case being advanced there was a risk if the adjudicator’s award was paid in full and immediately, Hillview would not pay the sums due to Botes under the final account claim, if those sums became due and payable. No such argument was advanced.