Right to suspend the works - Notice period conflict

Asked 2 years ago

2021-10-08 09:09:16

A client of ours has a subcontract that requires a 57 day notice period before the payee can exercise his right to suspend performance for non-payment.

There is a statutory right under the Construction Act to suspend (s112) provided a written notice is served giving at least 7 days however, where a contract specifies a greater period, which one will take precedence?

Does anyone have any experience of conflicting notice periods for the intention to suspend performance for non-payment? And has this been tested in court or arbitration?

The right to Adjudicate in s108 at subsection (5) states that "If the contract does not comply with the requirements of the subsections (1) to (4), the adjudication provisions of the Scheme for Construction Contracts apply"
There does not appear to be any similar provision in s112 to reinforce a minimum standard i.e. a 7 day period, and not some longer period proposed by the paying party in the contract terms.

Any feedback or case law references would be greatly appreciated, thanks.

Timothy Lloyd
Timothy Lloyd

Asked on Fri, Oct 8, 2021 9:09 AM

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