parties or by clear implication from what
they said or did.
The relevant clause 50 was as follows:
The Government or the SO on its behalf
shall be entitled to deduct any money owing
from the Contractor to the Government
under this Contract from any sum which
may become due or is payable to the
Contractor under this Contract or any other
contracts to which the Government and
the Contractor are parties thereto. The
SO in issuing any certificate under Clause
47, shall have regard to any such sum so
chargeable against the Contractor, provided
always that this provision shall not affect
any other remedy to which the Government
may be entitled for the recovery of such
sums. [The terms “the Government” and
“SO” referred to the employer and architect
respectively.]
It was held that clause 50 expressly gave the
employer a right of set-off. The court noted that
the words “shall be entitled to deduct any money
owing from the Contractor to the Government” in
the clause supported such a conclusion. It further
noted that the right of set-off was not confined
to the particular contract but included “any
other contracts” to which the employer and the
contractor were parties. This necessarily meant
that the Phase 1 contract was also included.
On this point, the result should clearly be in
the employer’s favour. However, the contractor
threw some impediments in the way of such result,
one of which was that no liquidated sum had
been quantified by the employer. The contractor
contended that the requirement of “any amount
owin ~(