I am currently working on a scheme that has reached completion (ie. no access to rectify defects). The contractor has issued a payless notice deducting sums for rectifying defects that we were not aware / notified of and that they have rectified off their own back. I can’t see in the contract how this is dealt with, however I am aware of the case law surrounding the matter.
Is the contractor entitled to recover the costs for this?
Jack, first of all welcome to the group.
I assume this is before the defects date. Although according to clause 42.2 the Contractor should have notified the Defect(s) to you, one could argue that practically nothing would change because they would still be able to do the same thing, i.e. not give you access and assess/deduct the cost of rectification - see clause 45.2.
However, clause 45.2 refers to “notified Defect” and assessment of “the cost to the Subcontractor of correcting the Defect”. In theory, you could challenge this action but, in my view, that would make commercial sense only if you believe they have over-charged you. Otherwise, even if they reversed the deduction, they could then follow the proper steps (see above) and repeat it.