Netomnia Limited v MJ Quinn Integrated Services Limited [2026] EWHC 1824 (TCC)

[2026] EWHC 1824 (TCC)Case No HT-2026-000134
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 24/07/2026
Before
THE HONOURABLE MR JUSTICE EYRE
Between
NETOMNIA LIMITEDClaimantMJ QUINN INTEGRATED SERVICES LIMITEDDefendant
Thomas Crangle (instructed by Mantle Law (UK) LLP) for ClaimantDavid Pliener KC and Adam Beaumont (instructed by Gordons LLP) for DefendantHearing Hearing date: 30 th June 2026
Approved JudgmentThis judgment was handed down remotely at 10.00am on 24 th July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE EYRE
[1]The Claimant is the operator of a fibre-optic network. It has built an ultra-fast full-fibre network and is engaged in expanding that network across the United Kingdom. The Defendant is a contractor engaged in the design, installation, and maintenance of telecommunication and electrical systems. It was engaged, in particular, in the construction and installation of the cabling and related infrastructure for the Claimant’s network.On 7th April 2021 the Claimant and the Defendant entered into the Master Services Agreement (“the MSA”). This was a framework agreement under which the Claimant was able to call off the services of the Defendant to undertake works on the Claimant’s network. These services took the form of the installation of fibres, the creation of chambers underground, and similar works which were frequently conducted on the highway.[2]The MSA provided for a system of interim payments. The Defendant’s submission of an application for payment would trigger requirements for the Claimant to provide a payment notice in response and then to make payment of the notified sum within 14 days of the application for payment unless it had served a pay less notice not less than one day before then.[3]On 5th February 2026 the Defendant sent the Claimant an application for payment (“the AFP”) in the sum of £3,770.84. This was one of 168 applications for payment which were sent on that day in a similar format in sums totalling just over £4.717m. The AFP gave the reference of Work Order W0 0079 (“the Work Order”) but it contained neither a purchase order number nor a relevant polygon identification number (a “Polygon ID”) nor a relevant feature identification number (a “Feature ID”). The Claimant declined to make payment in respect of the AFP and contended that it was invalid.[4]The Defendant referred that dispute to adjudication and by his decision of 30th March 2026 Paul Jensen found that the AFP was valid and that the payment notice which the Claimant had served in response was not valid by reason of being late. Mr Jensen awarded the Defendant £3,794.60 (being the amount of the AFP plus interest).[5]The Claimant has brought these proceedings by way of a Part 8 claim seeking two declarations. The first is that the decision of the adjudicator is unenforceable because of breaches of the rules of natural justice in two respects. Those are that he failed to consider a material part of the Claimant’s defence to the claim advanced in the adjudication and that he decided the dispute on a basis which had not been put before him and of which he gave no forewarning. The Defendant did not consent to the first declaration but chose to make no submissions in relation to it and accepted that the only live issue was the second declaration.[6]The second declaration sought by the Claimant is that:
“MJ Quinn’s Application for Payment issued on 5 February 2026 in the sum of £3,794.60 did not comply with the requirements of clause 6.5 of the MSA and was accordingly not capable of being a payment notice notifying that sum as being due for the purposes of section 110B(4) of the Housing Grants, Construction and Regeneration Act 1996 (as amended).”
[7]The Claimant says that the absence from the AFP of a relevant Polygon ID and of a relevant Feature ID meant that it was not accompanied by information which was reasonably required to verify its accuracy. The AFP, therefore, failed to meet the requirements of clause 6.5.4 of the MSA. In addition, the Claimant says that the corresponding purchase order for the relevant services and/or deliverables was Purchase Order PO-008324 and that the absence of reference to that purchase order meant that the requirements of clause 6.5.5 of the MSA were not satisfied. The Claimant says that either one of those deficiencies would have meant that the AFP did not constitute “notification in accordance with the contract” for the purpose of s110B(4)(b) of the Housing Grants, Construction and Regeneration Act 1996 (“the HGCRA”) with the consequence that it was not a valid payment notice.[8]The Defendant’s position in summary is as follows. First, it does not accept that the provision of either the Polygon ID or the Feature ID was reasonably required here and so does not accept that their absence meant that there was a failure to meet the requirements of clause 6.5.4. The Defendant takes issue with the way in which Purchase Order PO-008324 was provided to it. It also says the purchase order did not relate to the items for which payment was sought in the AFP. It contends that, as a consequence, it was not possible for it to reference a purchase order in relation to the sums claimed in the AFP. Next, the Defendant says that, properly interpreted, clause 6.5.5 should be read as not requiring a purchase order to be referenced in such circumstances. Further, it says that, if that interpretation of clause 6.5.5 is not correct and if the clause is properly to be read as requiring the referencing of a purchase order, then the effect is that the MSA fails to provide an adequate mechanism for determining what payments have become due as required by s110(1)(a) of the HGCRA. The Defendant says that, in turn, has the consequence that the Scheme for Construction Contracts (“the Scheme”) applies with the result that all that was required was the making of a claim by the Defendant. Finally, the Defendant says that the parties’ dealings had given rise to an estoppel by convention. By virtue of that estoppel the Claimant was precluded from contending that the absence of a purchase order number and of the Polygon ID and the Feature ID meant that the AFP did not comply with clause 6.5. The Claimant does not accept that there was any such estoppel and says that even on the footing of the Defendant’s evidence no such estoppel has been shown. Alternatively, Mr Crangle submitted that the provisions of the MSA providing that there could be neither waiver of the requirements of the MSA nor amendment of the MSA other than in writing, together with the “entire agreement” provision in the MSA meant that the Defendant was not entitled to advance the estoppel argument.[9]The matter before me was the Claimant’s Part 8 claim. It was common ground that in relation to the second declaration I am to determine the question of whether the AFP was capable of being a payment notice unconstrained by the decision of the adjudicator.[10]In those circumstances the principal issues to be determined are: i) In relation to clause 6.5.4 whether the Polygon ID and the Feature ID were reasonably required in order to verify the AFP. ii) In relation to clause 6.5.5: a) The effect of the circumstances in which Purchase Order PO-008324 was sent to the Defendant. b) Whether the nature of the sums claimed in the AFP meant that Purchase Order PO-008324 was not a corresponding purchase order which could have been referenced in the AFP. c) Whether as a consequence the Defendant could not reference a purchase order either because there was no corresponding purchase order or because the purchase order had not been provided to the Defendant. d) The proper interpretation of clause 6.5.5 in those circumstances. e) Whether the Scheme applies on the footing that the MSA failed to provide an adequate system for determining what payments had become due and, if the Scheme applies, the effect of its application. iii) In relation to the alleged estoppel it will be necessary to consider whether the Defendant has advanced evidence capable of giving rise to an estoppel preventing the Claimant from saying that the AFP did not comply with the terms of the MSA. If there is such evidence it will be necessary to consider whether the terms of the MSA mean that the Defendant cannot assert an estoppel.[11]Although the amount claimed in the AFP is modest both sides were content that the matter should continue as a substantive hearing in the High Court. That was in the belief that the conclusions reached in this matter would be likely to inform the approach to be taken to the other 167 applications for payment which were issued as part of the same series and in the same format. In the course of argument it became apparent that it might not be possible simply to “read across” my conclusions in respect of the AFP to all the other applications. This judgment is addressing the arguments which were advanced to me in relation to the AFP. I have not seen the other applications, let alone heard argument in relation to them, and it follows that I am not in position to indicate the extent to which the approach set out here and the conclusions I reach will be relevant to those applications.[12]At the outset of the hearing of this matter I dismissed the Defendant’s application that directions be given for the matter to be determined only after disclosure and the exchange of evidence with the potential for cross-examination of the witnesses. The Defendant contended that there were disputes of fact, particularly but not solely in relation to its estoppel argument, and that those meant that the claim was not suitable for determination in Part 8 proceedings. As I explained in dismissing that application, I am satisfied that there is no substantial dispute of fact and that the estoppel argument was not of sufficient force to require the exchange of further evidence. To the extent that there are differences on the facts between the parties they are in large part matters of nuance and emphasis or are capable of being resolved by reference to undisputed contemporaneous documents. As I will explain below, the differences going beyond such matters do not affect the issues I have to determine.[13]The nature and structure of the arrangements underlying the MSA are significant.[14]The locations at which the relevant works were carried out sat in the following hierarchy: i) An Exchange was a building housing the telecommunications centre for a city or town. There are over 100 exchanges in the Claimant’s network. ii) A Polygon was a smaller collection of premises within a geographically defined area in the city or town serviced from the relevant exchange. There are 12,396 polygons in the Claimant’s network with many exchanges containing a substantial number of polygons. In his statement for the Claimant its solicitor, Gurbinder Grewal gave the example of the Aintree Exchange which contained 110 polygons. iii) The particular parts of the infrastructure to be provided in a polygon were described as Features. These were particular items of work such as the construction of a chamber or the installation of a particular length of cable. There are more than 5 million features in the Claimant’s network. The example was again given of the Aintree Exchange which contained 33,104 features. iv) The lowest element in the hierarchy were Premises consisting of single properties.[15]Each polygon and each feature within a polygon had respectively a unique Polygon ID and a unique Feature ID.[16]Works were called off from the MSA by the means of work orders using the template appended to the MSA. These were separate agreements made each time the Defendant signed a works order sent by the Claimant specifying the work to be performed. The agreement of a work order would be preceded by discussions between the Claimant and the Defendant. In these the Claimant would provide details of the polygons where the works were to be performed and give an indication of the work to be performed in each. The Defendant would respond by providing proposed start and completion dates for the works. The work order would be issued if those timings were acceptable to the Claimant. Most work orders related to works which would be performed over a more or less substantial period of time. In addition, there were occasional ad hoc work orders relating to a short duration of work in a specific location. After the signing of a work order the Claimant sent the Defendant one or more purchase orders in respect of the works covered by the work order. A work order would only relate to a single exchange but within that exchange could relate to a single polygon (as did Work Order W0 0079 here which related solely to polygon 291115) or to several polygons. However, a purchase order only related to one polygon and to a single work order. It follows that it was always possible to identify from a purchase order the polygon where the relevant works were to be or had been performed. However, a work order would only identify the particular polygon in question if it happened that the work order had only been issued in relation to a single polygon.[17]The Claimant used electronic systems to manage and monitor its operations. Its online portal (“ODIN”) had entries for each exchange, polygon, and feature by reference to maps. The Defendant and other contractors were able to access ODIN and then, by making entries against the relevant feature, to mark work as completed and to upload photographic and other confirmation of the work done. The Claimant used online planning software (“QGIS”) to design the network. This also was accessible by the Claimant’s contractors and contained information identifying the relevant Polygon IDs and Feature IDs. The Defendant was able to generate and download “Status 7” reports from QGIS.[18]The MSA was entered into on 7th April 2021. It was said to be between the Claimant, defined as the “Customer”, and the Defendant, defined as the “Supplier”. For the Defendant Mr Pliener KC said that it was relevant to note the description of his client as:
“MJ QUINN INTEGRATED SERVICES LIMITED, a company incorporated under the laws of England and Wales with a company number 06710178 and having its registered office at Oak House, Overbrook Lane, Knowsley, Liverpool L34 9FB (‘Supplier’).”
[19]The recitals explained that the MSA was to provide “an overall contractual framework for the provision and delivery of Services and/or Deliverables” to the Claimant. Clause 1.1 provided that:
“This Agreement is structured so that the Parties may agree from time to time to the provision and receipt of Services and/or Deliverables by entering into a Work Order. Each Word Order will be governed by and subject to the terms of this Agreement.”
[20]Clause 2 addressed work orders and in part provided that:
“2.1 Each new Work Order that the Parties wish to enter into shall specify, among other things, the Services and/or Deliverables (by reference to Schedule 2 (Services and Deliverables) and Schedule 3 (Charges)) to be provided by Supplier. 2.2 No Work Order will be binding on either Party until the Work Order has been executed by both Parties. Neither Party shall be under an obligation to issue or accept a Work Order. 2.3 Unless otherwise agreed by the parties in writing, each Work Order shall constitute a separate contract between the Parties incorporating the terms of this Agreement. 2.4 The Supplier shall not commence work on the supply of Services and/or Deliverables and the Customer shall not be liable to the Supplier for any such Services and/or Deliverables which shall be carried out at Supplier’s risk until such time as the Parties have signed a Work Order in respect of such Services and/or Deliverables.”
[21]Clause 3.4 addressed acceptance. It provided that the Defendant was to ensure that the Services and/or Deliverables met the Acceptance Criteria by the relevant Milestone Dates and set out the consequences which followed if that happened and those which followed if the Defendant failed to achieve that.[22]Clause 6 addressed “Charges and Payment”. It provided, at clause 6.1, that the Charges were to remain fixed for the duration of the MSA. Clause 6.5 provided as follows:
“Subject to the Customer’s prior written Acceptance or Sign Off of the relevant Services and/or Deliverables, the Supplier shall submit to the Customer an itemised VAT invoice in respect of the Charges (an ‘Application for Payment’): 6.5.1 detailing the sum the Supplier considers to be due to it on the Due Date; 6.5.2 detailing the basis upon which the sum has been calculated; 6.5.3 providing a breakdown of the activities performed; and 6.5.4 accompanied by such documentation and other information with respect to the invoice as may reasonably be required in order to verify the accuracy of the invoice; and 6.5.5 referencing the corresponding Purchase Order for the applicable Services and/or Deliverables. Payment shall be due on the date of receipt by the Customer of a valid Application for Payment (the ‘Due Date’).” 6.5.1 detailing the sum the Supplier considers to be due to it on the Due Date; 6.5.2 detailing the basis upon which the sum has been calculated; 6.5.3 providing a breakdown of the activities performed; and 6.5.4 accompanied by such documentation and other information with respect to the invoice as may reasonably be required in order to verify the accuracy of the invoice; and 6.5.5 referencing the corresponding Purchase Order for the applicable Services and/or Deliverables. Payment shall be due on the date of receipt by the Customer of a valid Application for Payment (the ‘Due Date’).”
[23]Although clause 6.5 requires submission of an itemised VAT invoice the parties moved to a self-billing arrangement for VAT purposes and the Claimant does not contend that it was necessary for the AFP to be a VAT invoice. I can dispose here of the Defendant’s argument that as a consequence the requirements of clause 6.5 as a whole had fallen away. I do not accept that contention. The fact that the parties had agreed that the applications for payment need no longer be itemised VAT invoices does not mean that the other requirements for the validity of an application for payment as set out in the MSA fell away.[24]The Claimant accepts that in light of the decision of the Court of Appeal in Bennett (Construction) Ltd v CIMC MBS Ltd [2019] EWCA Civ 1515 the requirement for the Claimant’s prior written Acceptance or Sign Off is to be regarded as satisfied when the circumstances are such that the Defendant would be entitled to such acceptance or sign off. Accordingly, the Claimant does not say that the AFP was invalidated by reason of the absence of those elements.[25]Clauses 6.6 – 6.8 provided for the giving of payment notices and pay less notices and for payment in these terms. “6.6 The Customer shall, not later than 5 days after the Due Date, give notice to the Supplier (the ‘Payment Notice’) specifying the sum it considers is due to the Supplier on the Due Date and the basis upon which such sum has been calculated 6.7 The Customer shall pay (or procure payment of) the sum detailed in the Payment Notice (the ‘Notified Sum’) issued in accordance with Clause 6.6, or where the Payment Notice is not served the sum stated in the Application for Payment (the ‘Notified Sum’) within 14 days from the Due Date (the ‘Final Date for Payment’). 6.8 If the Customer intends to pay less than the applicable Notified Sum it shall, not later than 1 day before the Final Date for Payment, give notice to the Supplier (a ‘Pay Less Notice’) of the sum it considers is due to the Supplier on the date such Pay Less Notice is served and the basis upon which the sum has been calculated, in which case the Customer shall pay the sum stated in the Pay Less Notice to the Supplier by the Final Date for Payment. In relation to giving notices under this Clause 6 it is immaterial that the amount then considered to be due may be zero.”[26]Clause 6.9 provided for the charging of interest in the event that the Claimant failed to pay the notified sum or the sum specified in any pay less notice by the final date for payment.[27]Clause 6.13 provided for the indexation of the payment rates thus:
“The rates agreed by the parties in the Rate Card shall be fixed for a period of 12 months from the Effective Date. If the Building Cost Information Service All-in TPI Index (‘BCIS Index’) has decreased in that 12-month period, the Charges shall be reduced by a corresponding amount. If the BCIS Index has increased in that 12-month period, the Charges shall increase, provided that any such increase or decrease in the Charges in any applicable 12 month period shall not exceed 2%.”
[28]Clause 19 addressed the giving of notices and the serving of notices. Clause 19.1 provided that:
“Any notice given or made under or in connection with the matters contemplated by this Agreement or any Work Order will be in writing and shall be sent subject to the following requirements: To the Supplier Notices shall be sent to legal@mjquinn.co.uk with a copy sent to the Supplier’s registered address (or such other address as the Supplier may notify the Customer of from time to time) and marked for the attention of the Supplier’s Chief Technical Officer, or by courier or first class registered post to the Supplier’s registered address (or such other address as the Supplier may notify the Customer from time to time) and marked for the attention of the Supplier’s Chief Technical Officer.”
To the Supplier

Notices shall be sent to legal@mjquinn.co.uk

[29]Clauses 22.1 and 22.3 addressed waiver and amendment in these terms:
“22.1 Waiver: No failure or delay of either Party in exercising its rights hereunder (including the right to require performance of any provision of this Agreement or any Work Order) shall be deemed to be a waiver or release of such rights unless specifically granted in writing signed by the Party waiving its rights. … 22.3 Amendments: No modification, amendment or other charge made by this Agreement, any Work Order or any part thereof unless agreed in writing and executed by authorised representatives of Supplier and the Customer.”
[30]Clause 23.1 was an entire agreement provision in these terms:
“The Agreement, each Work Order and the documents referred to in them constitute the entire agreement and understanding of the Parties and supersede any previous agreement between the Parties related to the subject matter of this Agreement and any such Work Order.”
[31]Schedule 1 set out a number of definitions, the following of which are relevant for current purposes:
“‘Acceptance’ means acceptance or Sign Off by the Customer of the Services or a Deliverable (and/or group of Services and/or Deliverables) in accordance with the Agreement and the terms ‘Accept’ and ‘Accepted’ shall be construed accordingly; ‘Acceptance Criteria’ means in respect of Services or Deliverables, compliance with the criteria or processes set out in the Work Order; ‘Acceptance Test’ means the acceptance tests set out in the Work Order to test if the Services or Deliverables have been provided in accordance with the Acceptance Criteria and the requirements of this Agreement and any Work Order; … ‘Agreed Programme’ means the agreed build project schedule including Milestones and Key Milestones set out in Schedule 2 (Services and Deliverables) and/or a Work Order as may be amended in accordance with the Change Control Procedure; … ‘Charges’ means the amounts payable by the Customer for the Services and/or Deliverables in accordance with Schedule 3 (Rate Card) and as set out in a Work Order or the Rate Card; … ‘Deliverables’ means all materials, reports, software, drawings, documentation and other deliverables to be delivered to the Customer pursuant to the Agreement and/or any Work Order; … ‘Effective Date’ means the date of signature of this Agreement by both Parties; … ‘Purchase Order’ means a written order for Services and/or Deliverables submitted to the Supplier under the Agreement pursuant to and referencing the relevant Work Order, specifying as a minimum the Services and/or Deliverables to be supplied subject to that Purchase Order; ‘Rate Card’ means the price list for the services and/or Deliverables provided by Supplier set out in Schedule 3 (Charges); … ‘Services’ means the services to be provided by Supplier to the Customer pursuant to this Agreement and in accordance with Schedule 2 (Services and Deliverables) and/or in each Work order (and ‘Service’ shall be construed accordingly); ‘Sign Off’ means the written or electronic approval from the Customer that the Services and/or Deliverables meet the requirements of the Work Order; ‘Site’ means the premises or location at which Equipment is to be installed, or to which any Services and/or Deliverables are to be provided pursuant to a Work Order; … ‘Work Order’ means a work order entered into between the Parties under this Agreement during the Term using the pro-forma work order form set out in Schedule 4 (Work Order Template).”
[32]Schedule 2 addressed Services and Deliverables. The first part of this schedule set out general requirements and it then dealt with Rate Card specific matters and included at paragraph 1.25 “network adjustments and permits”.[33]Schedule 3 set out the charges in the form of a Rate Card. This included an item “network adjustments and permits” which was given the rate code of NTA 001 and a specified rate of £116.66.[34]The Work Order was dated 23rd August 2023 and was signed on behalf of the Claimant on that date. It was counter-signed by the Defendant’s managing director on 25th August 2023 (when it appears it was also further signed on behalf of the Claimant). The Work Order provided, at clause 5.1, that the Services and/or Deliverables to be provided were as set out in schedule 2 of the MSA as supplemented by appendix 1 of the Work Order. At clause 7.1 it provided that the charges and payments applicable were to be those set out in schedule 3 of the MSA. The works to be performed were set out in an agreed programme tab. That tab said the works were to be performed at Stoneycroft and gave a single Polygon ID which was 291115.[35]On 30th August 2023 the Claimant’s accounts payable team emailed purchase order PO-008324 to Lauren Maloney of the Defendant using the address “lauren.maloney@mjquinn.co.uk”. The purchase order was dated 29th August 2023. It gave the reference “Stoneycroft 291115 A & F – Work Order 0079”. It described the works to be performed as “Civils Works and Construction Services” and gave a total sum of £32,631.57.[36]In his initial witness statement James Morrissey, the Defendant’s Commercial Director, had said that purchase order numbers were not issued before the relevant works were undertaken but were, instead, generated after the event. Moreover, Mr Morrissey said that the purchase orders were not supplied directly to the Defendant. Mr Morrissey believed that purchase orders were only generated by the Claimant on ODIN when the relevant work had been completed. The relevant purchase order would only be seen by the Defendant when it downloaded a Status 7 report from QGIS after completion of the work.[37]The Claimant then pointed to the creation of the purchase order on 29th August 2023 and its despatch to Lauren Maloney on 30th August 2023. In light of that information Mr Morrissey accepted that his earlier understanding was incorrect. He explained that Miss Maloney was in the Defendant’s accounts team and that neither he nor the team engaged in telecom projects had been aware of purchase order PO-008324. Mr Morrissey said that Miss Maloney’s role was limited to dealing with payments to the Defendant and the processing of remittances. He had spoken to Miss Maloney and she had told him that she had not asked to be sent the purchase orders and that they were nothing to do with the emails about remittances, which was what she was employed to address. Miss Maloney said that the Claimant’s accounts team had told her that it could not send her solely remittance emails but had to send her the purchase orders as well. Miss Maloney had done nothing with the purchase orders. It appears that she had not inputted them on to the Defendant’s systems nor had she reported their arrival to others in the Defendant’s organisation. It is to be noted that the purchase order was not accompanied by any remittance or remittance details when it was sent to Miss Maloney – understandably given that the purchase order was sent very shortly after the relevant works order and before the works in question had been completed.[38]The AFP was sent on 5th February 2026. It gave “Work Order Reference WO 0079” as the “Application Reference” and referred to Stoneycroft as the location. It said that the works completed to date as set out in an attached sheet were to be valued at £42,438.34. To that sum was to be added the sums of £2,487.58 and £1,282.26. The former of those sums was said to be due by way of indexation. The latter was said to be due under code NTA001 at a rate of £116.66 per unit. It will be remembered those were the code and unit rate set out in schedule 3 of the MSA for Network Adjustments and Permits. Credit was given for the Claimant’s payment of £41,155.08 leaving a balance of £3,770.84.[39]On 12th February 2026 the Claimant responded with a payment notice saying that no sums were due and saying that there was no evidence to support the sums claimed. There then followed correspondence. In this, the Defendant asserted that sufficient information had been provided and the Claimant maintained that further information was required and said that the Feature ID was of “particular importance” so that the Claimant could correlate the AFP to the records of the work done.[40]The Claimant says that the format of the 168 applications for payment made on 5th February 2026 differed from that of the applications which the Defendant had submitted previously. The Claimant says that previously the Defendant had always provided at least a Feature ID or a purchase order number enabling it to identify the particular works to which the application related.[41]As I noted above, Mr Morrissey initially said that purchase orders were only generated when the relevant work was completed and only available to the Defendant on downloading a Status 7 report. He subsequently accepted that was not the position.[42]Mr Morrissey did, nonetheless, comment at some length about the deficiencies in the Claimant’s systems and about the times when the Defendant made applications for payment for “off-system” works (in the sense of works not set out in a purchase order or otherwise not appearing on ODIN). The Claimant took issue with a number of those criticisms and with the interpretation of the applications in relation to off-system works. It is not necessary for me to address those differences in order to resolve the current application. First, at least part of Mr Morrissey’s analysis was coloured by his belief as to the stage at which purchase orders were created and that belief was mistaken. Second, it is common ground both that works would be performed which were not expressly stated in a purchase order (such as the obtaining of permits) and that the amount payable to the Defendant may differ from the amount set out in the relevant purchase order (as a result of the provision in clause 6.13 for an adjustment, either upwards or downwards, of the figures in a purchase order following indexation). Moreover, such factual differences as remain in relation to the history do not bear on the exercise in which I am engaged, namely determining what documentation or information was reasonably required in respect of the AFP for the purposes of clause 6.5.4 and determining whether there was a corresponding purchase order in respect of the AFP for the purposes of clause 6.5.5.[43]Although Mr Morrissey says that there were occasions when payment was made to the Defendant in respect of applications which did not specify a purchase order he does not suggest that payment was made in respect of applications which contained only a work order reference and did not contain any of a purchase order reference, a Polygon ID, or a Feature ID. Indeed, part of his contention was that the deficiencies in ODIN meant that on occasion the Defendant had to correct the Polygon ID or the Feature ID and provide the correct ID in its off-system applications. That is an aspect of the evidence which will be relevant when I consider the Defendant’s estoppel argument.[44]The legal framework was not contentious and can be summarized shortly.[45]Section 109 of the HGCRA provides an entitlement to payment by instalments, stage payments, or other periodic payments.[46]Section 110(1) provides that: “Every construction contract shall—(a) provide an adequate mechanism for determining what payments become due under the contract, and when, and(b) provide for a final date for payment in relation to any sum which becomes due. The parties are free to agree how long the period is between the date on which a sum becomes due and the final date for payment.” (a) provide an adequate mechanism for determining what payments become due under the contract, and when, and (b) provide for a final date for payment in relation to any sum which becomes due.[47]By virtue of s110(3), where the contract does not provide an adequate mechanism the relevant provisions of the Scheme are to apply.[48]Section 110A(1) and (3) provides thus for payment notices given by the payee:
“(1) A construction contract shall, in relation to every payment provided for by the contract— (a) require the payer or a specified person to give notice complying with subsection (2) to the payee not later than five days after the payment due date, or (b) require the payee to give notice complying with subsection (3) to the payer or a specified person not later than five days after the payment due date. … (3) A notice complies with this subsection if it specifies— (a) the sum that the payee considers to be or to have been due at the payment due date in respect of the payment, and (b) the basis on which that sum is calculated.” (a) require the payer or a specified person to give notice complying with subsection (2) to the payee not later than five days after the payment due date, or (b) require the payee to give notice complying with subsection (3) to the payer or a specified person not later than five days after the payment due date. (a) the sum that the payee considers to be or to have been due at the payment due date in respect of the payment, and (b) the basis on which that sum is calculated.”
[49]Section 110B provides for the giving of payment notices by a payee in default of a notice by the payer and includes s110B(4) in these terms: “If—(a) the contract permits or requires the payee, before the date on which the notice referred to in subsection (1)(a) is required by the contract to be given, to notify the payer or a specified person of— (i) the sum that the payee considers will become due on the payment due date in respect of the payment, and (ii) the basis on which that sum is calculated, and,(b) the payee gives such notification in accordance with the contract, that notification is to be regarded as a notice complying with section 110A(3) given pursuant to subsection (2) (and the payee may not give another such notice pursuant to that subsection).” (a) the contract permits or requires the payee, before the date on which the notice referred to in subsection (1)(a) is required by the contract to be given, to notify the payer or a specified person of— (i) the sum that the payee considers will become due on the payment due date in respect of the payment, and (ii) the basis on which that sum is calculated, and, (b) the payee gives such notification in accordance with the contract,[50]By reason of s111 a payer must pay the notified sum on or before the final date for payment.[51]In order “to qualify as a valid notice, any payment notice must comply with the statutory (and, if more restrictive, the contractual) requirements in substance and form”. See per Joanna Smith J in Advance JV v Enisca Ltd [2022] EWHC 1152 (TCC) at [47(vi)] summarizing the effect of Henia Investments Inc v Beck Interiors Ltd [2015] EWHC 2433 (TCC) at [17] per Akenhead J.[52]The Scheme applies where a construction contract does not provide an adequate mechanism for determining both the amounts of the sums due as periodic payments and the dates when they are due. Paragraph 2 of the Scheme provides a mechanism for determining the amount of instalment, stage, or periodic payments. Paragraph 4 provides that:
“Any payment of a kind mentioned in paragraph 2 above shall become due on whichever of the following dates occurs later— (a) the expiry of 7 days following the relevant period mentioned in paragraph 2(1) above, or (b) the making of a claim by the payee.” (a) the expiry of 7 days following the relevant period mentioned in paragraph 2(1) above, or (b) the making of a claim by the payee.”
[53]The Defendant’s case here is, in part, that there are deficiencies in clauses 6.5.4 and 6.5.5 of the MSA which have the consequence that the MSA does not provide an adequate mechanism for determining the sums due and when they are due. It follows, the Defendant says, that the Scheme applies. By virtue of paragraph 4 of the Scheme there is no requirement that a payment notice be in particular form and, the Defendant says, that means that the AFP was effective as such a notice.[54]The Defendant accepts that a provision requiring an application for payment to be accompanied by the information reasonably required to verify its accuracy can be an adequate mechanism for determining what payments are due for the purposes of s110 of the HGCRA. It says that the issue in applying clause 6.5.4 is what information was reasonably required for that purpose. It contends that the issue of what was reasonably required is to be determined objectively and that in the circumstances here the AFP provided all the information that was reasonably required.[55]The following points are made on behalf of the Defendant: i) The Work Order related to a single polygon. ii) The AFP identified the Work Order it also gave the location and then set out the details of how the sum claimed was calculated. iii) The AFP only sought payment under two headings: permits and indexation. In relation to those the Defendant makes these further points. First, the permits did not relate to particular features. That meant that Feature IDs could not be given in respect of them. There was, moreover, no need to provide a Polygon ID where the Work Order only related to one polygon. Second, the amounts claimed for indexation were calculated by way of an uplift to sums which had already been paid by the Claimant. It follows that the Claimant had already accepted that the items of work in question had been completed with the consequence, the Defendant says, that nothing would be gained by providing the Feature IDs in relation to those items of work.[56]If the AFP were standing entirely alone and if there had been only a very limited number of work orders those points might have had some force. It is, however, necessary to have regard to the context in which clause 6.5.4 was operating and the issue of the information which was reasonably required has also to be seen in that context. When regard is had to the context then it is apparent that the AFP did not provide the information which was reasonably required to verify the accuracy of the sums claimed. The following points arise in that regard: i) The MSA related to a nationwide operation. The parties’ dealings and the work done by the Defendant related to multiple exchanges, to multiple polygons, and to numerous features. ii) There were also many work orders. Mr Morrissey says that the Defendant had received in excess of 200 work orders from the Claimant not counting the ad hoc work orders which had been for short-term or more specific pieces of work. iii) Many, it appears most, work orders related to more than one polygon. It follows that in such cases for the Claimant to search against a work order reference provided by the Defendant would not enable the Claimant to identify the polygon to which the sums claimed related and so would not enable the Claimant to know whether the sums for which payment was sought were due. iv) The Defendant was not the only contractor providing services to the Claimant and submitting applications for payment. v) There were numerous applications for payment at least some of which were for low value amounts. Thus, the AFP was one of 168 applications sent on the same day. The total of the sums claimed in those was of the order of £4.717m. The mean average per application was, therefore, of the order of £28,000 but it was not suggested to me the AFP was the only one of the applications in a small amount. vi) The Claimant’s systems were set up in such a way that the Feature IDs were used to identify the relevant polygon and then the Polygon ID was used to identify the relevant purchase order. The purchase order would then be used to authorize payment. vii) It is significant that the Claimant had to respond to the AFP quickly. The due date was the date when the AFP was received by the Claimant. The Claimant had to issue a payment notice within 5 days of the due date. There was, thereafter, only a short time until the final date for payment (which was 14 days after the due date) and for the issuing of any pay less notice (which had to be no later than 1 day before the final date for payment). viii) Although the permits were not linked to particular features they did relate to a particular polygon. It follows that it would have been possible for the Defendant to provide the relevant Polygon ID in respect of the sum claimed for permits. It also follows that, without that information, the Claimant would not be able to check whether the sums claimed for permits were properly due unless it happened to be the case that a work order related only to a single polygon. ix) The Defendant’s approach amounts to saying that the Claimant should have conducted a search against the work order stated in the AFP and/or the location given to see if that enabled it to identify the items to which the application related. The contention appears to be that the Claimant should have done this even though in many, probably most, cases such a search against the work order would not, without more, have led to identification of the items in question. x) Even in relation to indexation it was appropriate for the Claimant to be able to identify the works in question and to check whether the works had been completed. It was not sufficient for the Defendant simply to say:
“we did these works; payment was made; and, therefore, the uplifted sums resulting from indexation are due”
. The Claimant needed to be given the information which would enable it to check the first two of those three propositions. xi) What was reasonably required is to be determined having regard to the general run of applications. The Claimant was right to say that it was entitled to require the information which would normally be necessary to verify the sums claimed. The fact that, on occasion, giving a work order number would identify a single polygon does not mean that provision of a Polygon ID was not reasonably required. It is of note that when providing the AFP the Defendant did not alert the Claimant to the fact that the Work Order happened to relate to a single polygon. xii) The Defendant knew the relevant Polygon ID for the permits and the Feature IDs for the sums to which the indexation uplift was being applied. The Agreed Programme tab in the appendix to the Work Order gave the Polygon ID and the Defendant was able to obtain the Feature IDs from ODIN to the extent that it did not already know them. It follows that the Defendant could have provided this information when submitting the AFP.[57]In those circumstances the Polygon ID and the Feature IDs were information which was reasonably required to verify the AFP and by referring solely to the Work Order the AFP did not satisfy the requirements of clause 6.5.4.[58]The Defendant says that it was not able to reference a corresponding purchase order in the AFP for two reasons: i) First, it is said that the Defendant did not have a purchase order which it could reference as corresponding to the AFP. In particular, the Defendant says that it had not been provided with Purchase Order PO-008324. As I have explained above, initially the Defendant’s position was that the Claimant generated purchase orders after the works had been completed and that one had not been generated in respect of the Work Order. It subsequently accepted that PO-008324 had been generated in August 2023 but said that the Claimant’s sending of that to Miss Maloney did not amount to providing it to the Defendant. ii) Second, the Defendant said that in any event PO-008324 did not correspond to the AFP and vice versa. There were two related aspects of this contention. The first was that PO-008324 related to particular works and that the matters covered by the AFP, namely sums due for permits and the sums due by reason of the indexation provisions, fell outside the scope of those works. The second was that PO-008324 was in the set sum of £32,631.57. In the AFP the Defendant was claiming payment for additional sums which went beyond that amount and so the AFP was not covered by the purchase order. Mr Pliener put the latter point this way: he said that if the Defendant had sought to say that the AFP related to PO-008324 it would have been met with the response from the Claimant that it did not relate to that purchase order because it was for an additional amount not covered by the purchase order.[59]The Defendant says that one of two consequences follows from the fact that it was not able to reference a purchase order. The first is that, applying the approach in Bennett (Construction) Ltd, the MSA is to be interpreted such that the requirement for a purchase order to be referenced only arises where the Defendant has a purchase order which can be referenced as corresponding to the application for payment. Alternatively, if the MSA requires the Defendant to reference a purchase order when it is unable to do so, then the MSA fails to provide an adequate mechanism for determining the sums due. In those latter circumstances, it is said that the Scheme applies and it is sufficient for the Defendant to make an application for payment.[60]It is necessary, first, to determine whether PO-008324 was provided to the Defendant.[61]The Defendant accepted that the purchase order was not a notice falling within the scope of clause 19 of the MSA such that the requirements for the service of notices laid down therein governed the provision of the purchase order as a matter of the terms of the MSA. Mr Pliener did, however, submit that the purchase order was to be seen as a document which was akin to a notice with the consequence that account should be taken of the requirements laid down in clause 19 when considering whether the purchase order had been provided to the Defendant.[62]I do not accept that submission. The fact that the MSA laid down particular requirements which had to be met for a notice to be served effectively does not assist with the question of what was required in relation to a document which was not a notice.[63]In addition, Mr Pliener relied on the definition of purchase order in schedule 1 and the description of the Defendant as “the Supplier” in the opening words of the MSA. The definition provided that to be a purchase order the document had to be “submitted to the Supplier” and the description of the Defendant as “the Supplier” gave the address of the Defendant’s registered office and no other address. The submission was that this meant that, in the absence of other provision, such as was made in clause 19 in relation to notices, a document was only submitted to the Defendant if sent to its registered office.[64]I do not accept this argument. It is true that the Defendant’s registered office was stated in the opening description of the Defendant as the Supplier. However, that was part of the description identifying the Defendant. The Defendant’s name was given and it was then said to be a company with a particular company registration number and a particular registered office. Those were aspects of the description of the Defendant. The requirement that a purchase order be “submitted to the Supplier” meant that a purchase order had to be provided to that particular company. That requirement did not, however, mean that the submission had to be to the registered office. If the Defendant’s contention was correct it would mean that not only did the submission have to be to the registered office but also that it would have to be by way of a hard copy. That is because no email address was given and there is no way of serving a document electronically at a physical address. I do not accept that is a legitimate reading of the MSA. The words used have to be read in the context of the MSA as a whole as a commercial document. The reading proposed by the Defendant is not only not a necessary one but also would be artificial and contrary to the clear purport of the MSA.[65]When considering the proper interpretation of clause 6.5.5 and its effect account has to be taken of its purpose and context. That sub-clause was one of five requirements which an application for payment had to meet. The purpose of those requirements was to enable the Claimant readily to check the Defendant’s entitlement to the sums claimed. The context to which I have referred at [56] above is relevant here as well as in relation to clause 6.5.4. It is again relevant to note that each purchase order related to a different polygon with the consequence that referencing of the purchase order would enable the Claimant to identify the polygon where the works had been performed.[66]A number of features of the despatch of the purchase order to Miss Maloney and of its receipt by her are of note: i) It is accepted that it was appropriate for the Claimant to send remittance advices to Miss Maloney. ii) The purchase order was sent separately from any remittance advice. iii) PO-008324 was not the only purchase order sent to Miss Maloney. Instead, the purchase orders, of which it is accepted there were several, were generally (and potentially all) sent to her. Although there were several purchase orders it appears that there were fewer purchase orders than applications for payment because more than one application for payment could be made in respect of the works covered by a purchase order. iv) In Mr Morrissey’s words Miss Maloney “did not do anything with the PO forms received”. It appears that Miss Maloney applied that approach to all the purchase orders. She did not alert her colleagues or superiors to the fact that these documents were being sent to her by the Claimant. It appears that she told the Claimant’s accounts team that she only needed the remittance emails but it is not suggested that she, or anyone else from the Defendant, told the Claimant either that the purchase orders were simply being ignored or provided a different address to which they should be sent. v) The Work Order was signed on behalf of the Defendant on 25th August 2023. Purchase order PO-008324 was dated 29th August 2023 and was sent to Miss Maloney the next day. It follows that the Claimant had prepared and despatched the purchase order within days of the Work Order having been agreed. The AFP did not come until 5th February 2026. That was just over 2 years 5 months after the delivery of the purchase order to the Defendant. During that period Mr Morrissey and the members of his team were under the mistaken belief that a purchase order would only be generated after the works had been performed. However, that mistaken belief was inconsistent with the terms of the MSA. The definition there of “purchase order” clearly contemplates the purchase order being sent before the works are performed. Thus, it requires the purchase order to specify “the Services and/or Deliverables to be supplied subject to that Purchase Order” (emphasis added).[67]It follows that the circumstances in which PO-008324 was sent to the Defendant did not prevent the Defendant referring to it and nor did they mean that it was not a purchase order for the purposes of clause 6.5.5.[68]I turn, therefore, to the Defendant’s contention that PO-008324 did not correspond to the AFP and that there was no corresponding purchase order. The issue is whether it was “the corresponding Purchase Order for the applicable Services and/or Deliverables”. It is to be noted that it is the “corresponding” purchase order which is to be referenced. An important aspect of the context of that requirement is the fact that each purchase order referred to a single polygon. PO-008324 was the purchase order in relation to polygon no 291115. To the extent that the Defendant was entitled to payment for sums set out in the AFP its entitlement arose by reason of services performed or deliverables installed in relation to that polygon. It follows that it was the corresponding purchase order for the AFP. The same conclusion follows when one considers the particular sums claimed and in that regard I reject, for the following reasons, the Defendant’s contention that the nature of the sums claimed meant that PO-008324 was not the corresponding purchase order. The AFP sought payment of two different types of amount each of which was referrable to the purchase order.[69]Thus, the AFP sought payment for sums due as a result of indexation pursuant to clause 6.13 of the MSA. That provision had the effect that there was to be an increase in “the Charges”. Charges were defined in schedule 1 as being the amounts payable for “the Services and/or Deliverables”. The indexation which gave rise to the sums claimed under that heading in the AFP was being applied to particular Services and Deliverables which were those which were covered by PO-008324. That was clearly the corresponding purchase order for the purpose of those sums. The fact that the indexation resulted in the total amount payable being more than the amount set out in that purchase order did not prevent it being the corresponding purchase order. It was inherent in the provision for indexation that the amount due by reason of the works set out in a particular purchase order might end up being greater than the amount stated in the purchase order. The purchase order contained an amount due for the relevant works but the presence of the indexation provision meant that the figure given was to be read as being that figure or such different amount as would result from the application of the provisions of clause 6.13 (it is to be noted that clause 6.13 provided for a reduction in the amounts due as well as an increase). This reasoning also provides the answer to Mr Pliener’s contention that the AFP did not correspond to the purchase order because it was for a different and additional amount.[70]The other element in the AFP was the sum claimed in respect of permits. The Defendant says that the requirement to obtain the permits was inherent in the Work Order. That would not necessarily mean that there was not a corresponding purchase order. Moreover, the permits were obtained for the purpose of enabling particular works to be done. The only works performed in relation to the polygon 291115 were those covered by PO-008324 and that purchase order enabled both the Work Order and the relevant polygon to be identified. It follows that it was the corresponding purchase order for the purpose of the permits as well as for the indexation claim.[71]There was, therefore, a purchase order corresponding to the AFP. That was purchase order PO-008324. Not only was there a corresponding purchase order, but it had been provided to the Defendant 2 years 5 months before the AFP was submitted. In those circumstances, it is not necessary to address the argument invoking the effect of Bennett (Construction) Ltd. Even if clause 6.5.5 is to be read as only requiring the provision of a corresponding purchase order where there was one and/or where it had been provided to the Defendant, both those conditions were satisfied here and would generally be satisfied.[72]The consequence is that the Defendant’s contention that clause 6.5.5 means that the MSA failed to provide an adequate mechanism for identifying the sums due and that the Scheme is applicable fails. Clause 6.5.5 remained effective and the AFP failed to satisfy its requirements.[73]In Deerns UK Ltd v VDC LHR11 Ltd [2026] EWHC 1509 (TCC) at [64] and [65] I adopted the analysis by Akenhead and O’Farrell JJ of the requirements for an estoppel by convention in the following terms:
“64. Akenhead J summarized the law on the operation of an estoppel by convention in Mears Ltd v Shoreline Housing Partnership Ltd [2015] EWHC 1396 (TCC), 160 Con LR 157 at [49] in these terms: ‘From the cases, one can conclude that the relevant law on estoppel by convention is: (a) An estoppel by convention can arise when parties to a contract act on an assumed state of facts or law. A concluded agreement is not required but a concluded agreement can be a “convention”. (b) The assumption must be shared by them or at least it must be an assumption made by one party and acquiesced in by the other. The assumption must be communicated between the parties in question. (c) At least the party claiming the benefit of the convention must have relied upon the common assumption, albeit it will almost invariably [be] the case that both parties will have relied upon it. There is nothing prescriptive in the use of “reliance” in this context: acting upon or being influenced by would do equally well. (d) A key element of an effective estoppel by convention will be unconscionability or unjustness on the part of the person said to be estopped to assert the true legal or factual position. I am not convinced that ‘detrimental reliance’ represents an exhaustive or limiting requirement of estoppel by convention although it will almost invariably be the case that where there is detrimental reliance by the party claiming the benefit of the convention it will be unconscionable and unjust on the other party to seek to go behind the convention. In my view, it is enough that the party claiming benefit of the convention has been materially influenced by the convention; in that context, Goff J at the first instance in the Texas Bank case determined that this is what is needed and Lord Denning talks in these terms. (e) Whilst estoppel cannot be used as a sword as opposed to a shield, analysis is required to ascertain whether it is being used as a sword. In this context, the position of the party claiming the benefit of the estoppel as claimant or indeed as defendant is not determinative or does not even raise some sort of presumption one way or the other. While a party cannot in terms found a cause of action on an estoppel, it may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on the estoppel, it would necessarily have failed. (f) The estoppel by convention can come to an end and will not apply to future dealings once the common assumption is revealed to be erroneous.’ 65. The position was set out succinctly by O’Farrell J in C Spencer Ltd v MW High Tech Projects UK Ltd [2019] EWHC 2547 (TCC), [2019] BLR 643 at [67] where she said: ‘Where parties to a transaction proceed on the basis of a shared underlying assumption on which they have conducted their dealings between them, neither will be allowed to depart from that assumption, even if it is shown to be wrong, when it would be unfair or unjust to do so in all the circumstances’.” ‘From the cases, one can conclude that the relevant law on estoppel by convention is: (a) An estoppel by convention can arise when parties to a contract act on an assumed state of facts or law. A concluded agreement is not required but a concluded agreement can be a “convention”. (b) The assumption must be shared by them or at least it must be an assumption made by one party and acquiesced in by the other. The assumption must be communicated between the parties in question. (c) At least the party claiming the benefit of the convention must have relied upon the common assumption, albeit it will almost invariably [be] the case that both parties will have relied upon it. There is nothing prescriptive in the use of “reliance” in this context: acting upon or being influenced by would do equally well. (d) A key element of an effective estoppel by convention will be unconscionability or unjustness on the part of the person said to be estopped to assert the true legal or factual position. I am not convinced that ‘detrimental reliance’ represents an exhaustive or limiting requirement of estoppel by convention although it will almost invariably be the case that where there is detrimental reliance by the party claiming the benefit of the convention it will be unconscionable and unjust on the other party to seek to go behind the convention. In my view, it is enough that the party claiming benefit of the convention has been materially influenced by the convention; in that context, Goff J at the first instance in the Texas Bank case determined that this is what is needed and Lord Denning talks in these terms. (e) Whilst estoppel cannot be used as a sword as opposed to a shield, analysis is required to ascertain whether it is being used as a sword. In this context, the position of the party claiming the benefit of the estoppel as claimant or indeed as defendant is not determinative or does not even raise some sort of presumption one way or the other. While a party cannot in terms found a cause of action on an estoppel, it may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on the estoppel, it would necessarily have failed. (f) The estoppel by convention can come to an end and will not apply to future dealings once the common assumption is revealed to be erroneous.’ ‘Where parties to a transaction proceed on the basis of a shared underlying assumption on which they have conducted their dealings between them, neither will be allowed to depart from that assumption, even if it is shown to be wrong, when it would be unfair or unjust to do so in all the circumstances’.”
[74]Neither party suggested that analysis was wrong. It follows that the Defendant had to show that the parties conducted their dealings on the basis of a shared understanding or assumption communicated (expressly or impliedly) between them from which it would be unfair or unjust for the Claimant to depart.[75]The difficulty for the Defendant is that the AFP only contained the reference of the Work Order. It did not contain any of the purchase order number, the Polygon ID, or any of the relevant Feature IDs. In order for the estoppel argument to be capable of being advanced at all the Defendant would have to show that there was a practice of the Claimant accepting and making payment in respect of applications which gave only a work order number and none of the other elements. The Defendant did not even begin to show that and nor did it suggest that it would have been capable of producing evidence to that effect if I had acceded to the request to order that the matter be put off for further evidence and disclosure. As I explained at [43], at its highest the contention by Mr Morrissey was that there were occasions when a payment application was made and accepted without a purchase order reference being given. He does not say that there was practice of payment on applications which also contained neither a Polygon ID nor a Feature ID. The making of payment in response to applications lacking only a purchase order does not assist in relation to the AFP and even on the basis of Mr Morrissey’s evidence in that regard the Claimant was not estopped from saying that the AFP did not meet the requirements of clause 6.5. In those circumstances the Defendant’s estoppel argument fails and it is unnecessary to consider the Claimant’s contention that the terms of the MSA prevented the Defendant asserting such an estoppel.[76]In those circumstances the AFP did not comply with the requirements of clause 6.5 of the MSA. It was, therefore, not a payment notice for the purposes of s110B(4) of the HGCRA and, subject to submissions as to the form of the declaration, the Claimant is entitled to the relief it seeks.