Construction law: When is the due date for the final payment under a JCT D&B Contract?
Monday 18th October 2021
A recent TCC case has given guidance on provisions of a JCT D&B Contract (2011 Edition). The key points are:
- Due Date for payment – if the Employer does not have scope to serve a Notice of Completion of Making Good (NCMG) (i.e. there are no defects) then it is irrelevant to the due date for final payment.
- When is the Final Statement conclusive? – the Final Statement can be prevented from becoming conclusive either by serving a notice disputing the statement, or by commencing proceedings. It is not necessary to do both.
- Set-Off – If the Employer raises a right to set-off, that is a part of the dispute which the adjudicator must address. Failure to do so is likely to breach the rules of natural justice
This provides useful guidance on when a NCMG is needed and promotes a common sense approach by saying it is not necessary when there are no defects. It also removes the possibility of an Employer serving a NCMG simply to delay the due date for the final payment.
A copy of the judgment can be found here.
For more information, please contact one of our construction specialists.