Gibraltar Residential Properties Ltd v Gibralcon 2004 SA

Case reference: 
[2015] EWHC 3067 (TCC)
Friday, 30 October 2015

Key terms: 
Adjudication – Breach of contract –Enforcement – Overpayments – Set-off

Edwards Stuart J in the TCC granted declaratory relief in undefended proceedings concerning a substantial property dispute. The relief enable the claimant to take the appropriate steps in the defendant's insolvency proceedings in Spain. Thus, the English courts can still order relief even if there are insolvency proceedings in another country provided that they have jurisdiction to determine disputes under the contract.

TCC considered an adjudicator's decision that was given in a consolidated adjudication covering the defendant's claim for variations, site preliminaries, offsite overheads, and profit. Due to calculation errors made by the adjudicator when setting-off some of the sums against each other, he ordered the defendant to pay further £200,000 where it was clear that the defendant had been overpaid by more than £350,000.

When reviewing the adjudicator’s decision, TCC held that the inclusion of "or such other sum... over and above the sum... already included by [Davis Langdon]" meant the adjudicator had jurisdiction to determine the true value of the variations. The adjudicator erred in judgement as he could set-off against the value of the variations already certified and paid. However, the adjudicator was correct that he could not order a negative sum. Therefore, TCC stated that the adjudicator was wrong to decide that money was due to the defendant.

Key contact

Tel: +44 (0)20 7421 1986
Tel: +44 (0)20 7421 1986