Streetwise Answers

Hi Streetwise
We are working for a Contractor who has deducted monies for cleaning up amounting to over £8k no clean up notices were issued nor any proof of the works having been carried out are they allowed to do this?
We have had the monies taken from our valuations before they are paid.
What advice can you give us?
Clive May
C May Brickwork Ltd

Hi Clive

Unfortunately because the Contractor has control over the money it is all too easy for him to do what he has done!

We now need to challenge the grounds on which he has made that set off.

First and foremost if the Construction Act applies then he should have issued a "withholding notice". In order to establish that I need to know a bit more about your contract.If heshould have issued a "withholding notice" but hasn't then terchnically he has no right to withhold payment.

In your question you make 2 very good points.

First, if the contract provides for the issue of clean up notices and he hasn't issued any thenthat is helpful in that it points to a lack of diligence, poor administration and a potential lack of accurate records on his part.

Secondly, you refer to the lack of proof of any of these clean up works having been carried out. His set off is effectively his claim against you and the fundamental principle of law is "he who alleges must prove". In other words the burden of proof is with him and it is for him to prove that;

as a fact you were in breach of contract by leaving the mess that he has allegedly cleaned up,
he has actually incurred the costs he says he has incurred and
any costs he has actually incurred,are reasonable costs reasonably incurred

So, armed with this information, I would suggest you ask him as assertively as possible to either come up with the proof or to immediately pay you the money he has deducted.Do not waste time with the job surveyor, get straight on to the commercial manager or director responsible.

If they procrastinate then you need to take action sooner rather than later, but you will need further advice before you do, so be sure to let me know how you get on and we can discuss your next course of action.

Best regards

Streetwise

Posted by: barryashmore - Return

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