This was an appeal from a previous decision refusing to dismiss Hart’s claim. Hart applied for an interim payment. St Andrew refused to pay but did not issue a withholding notice. Hart began court proceedings and St Andrew began separate court proceedings in relation to Hart’s standard of workmanship.

Hart maintained that the Scheme had no application, because the contract and the payment procedure complied with the Act. As such, Hart claimed payment was due and payable in that no valid notice of withholding has been issued by St Andrew. St Andrew argued that the contract failed to provide for a final date for payment in relation to any sum which became due under the contract, and therefore the Scheme applies.

The Judge considered Hart’s argument to conflict with the law in SL Timber Systems. The true position was that no withholding notice was necessary as the parties were in dispute as to whether the sum claimed is due under the contract, and therefore no notice was required.