The Employer’s Obligations - Building Contract - page 170

demands which can be readily and without difficulty ascertained.' That principle was echoed
more recently by Lord Denning MR in Henriksens Rederi A/S v. PHZ Rolimpex [1973] 3 All
ER 589 at 593, [1974] QB 233 at 246, when he said, referring to the statutes of set-off and
citing Bullen and Leake's Precedents of Pleadings (3rd edn, 1868) p. 679: 'These apply only
“where the claims on both sides are liquidated debts or money demands which can be
ascertained with certainty at the time of pleading” . . .'.
From these figures it seems to me clear that in each of the cases on which Mr Sheridan seeks
to rely - and I have used those two cases as examples only and the same point can be made
in relation to the others - the sum claimed by way of set-off depends upon Mr Austin's valu-
ation of the work done, his estimation of what had been omitted, his estimation of whether
certain work had been done inadequately and the value he attributed to that inadequate work
(which is the way Mr Sheridan prefers it to be put rather than what I think is the normal way,
which is the cost of making good the defects). All this makes it clear to me that it is impossible
to bring these claims within the way in which it was put by Cockburn CJ in Stooke v. Taylor ,
'money demands which can readily and without difficulty be ascertained'. These claims can
only be ascertained by litigation or arbitration, and to say therefore that they were readily
ascertainable at the relevant date - and it is common ground that the relevant date was the
date upon which notice of the appointment of a receiver was given - seems to me to be quite
impossible and indeed, as I think Mr Sheridan might concede, would suggest that the courts
have been labouring for the last 150 years, if not longer, under a misapprehension as to the
nature of set-off at law.
Acsim (Southern) Ltd v. Dancon Danish Contracting and
Development Co Ltd
COURT OF APPEAL
(1989) 19 Con LR 1
RALPH GIBSON LJ: The same is true, in my judgment, of this case. The 'rights of the parties in
respect of set-off ' were in this case agreed to be those set out in clause 15 and 'no other rights
whatsoever shall be implied as terms of this sub-contract relating to set-off ': see clause 15(4).
I am not sure what the businessmen who use this form understand by the phrase 'rights . . . in
respect of set-off '. It seems to me, however, that 'set-off ', in the context of this contract, means
'set-off ' in our law as defined by the decisions of the court. Mr Reese QC felt unable to argue
otherwise. If parties wish to subject to the requirements of a clause like this clause 15, includ-
ing conditions precedent as to prior notice, all grounds for contesting or reducing the sum
claimed by a sub-contractor in respect of an interim payment, they can, without difficulty,
find words apt for that purpose. The words of clause 15 as they stand do not, in my judgment,
affect the right of a contractor to defend a claim for an interim payment by showing that the
sum claimed includes sums to which the sub-contractor is not entitled under the terms of the
contract or to defend by showing that, by reason of sub-contractor's breaches of contract, the
value of the work is less than the sum claimed under the ordinary right of defence established
in Mondel v. Steel (1841) 8 M&W 858, 151 ER 1288.
It is to be emphasised, so far as this case is concerned, that the defence which Dancon wish
to put forward, and have substantiated, at least to the extent of showing it to be arguable, by
Mr Hamilton's evidence, is concerned not only with showing that by breach of contract the