First post and I hope you will be able to help me out.
I have a Contractor who has taken on the following project. I have not been involved from the beginning, but have been approached few weeks ago to provide help:
- The contract was signed and dated in April 2019 in the sum of £xxxx
- Completion date has been set:
- Section A: To be Agreed
- Section B: 12 February 2021
- Dates of Possession of Sections: not filled
- Deferment of possession of Sections (if less than 6 weeks):
- Section A: None
- Section B: To be agreed
- Liquidated damages: £xxxx+VAT per calendar week of part thereof
- Period of suspension: 2 months
On 30th April 2019 the CA has issued an instruction asking the Contractor to proceed with works to Section A, but Section B is to be instructed when revised planning permission is secured. We are now at the end of 2020, Section A is almost completed and no access to Section B has been granted.
The CA believes that they have not instructed the works to Section B, so that part of the contract is in limbo. In my opinion signing of the contract is considered to be the instruction. The Client and CA both have an option to defer possession, issue variation asking for suspension or omit the works associated with that section if the planning status is unknow. But lack of instruction to proceed with works, after signing the contract is not the same as instruction to stop works.
I believe that my Client is entitled to EoT and this should be treated as a Relevant Matter or basis for termination of the contract and subsequent claim. I note that no dates for possession of either of the sections have been filled in the contract, and only completion of section B has been provided. As such I treat contract singing date as date of possession, and completion of section B as contract end date.
I appreciate your thoughts.