Reading between the lines it appears Wartsila had some benefit / interest in works being completed by the 28th of Feb maybe with AGL and I assume a carrot was dangle in front of Primero to complete works by the 28th which resulted in an amendment being made to clause 40 requiring Primero to complete works by that date, I further assume this date was linked to a monetary value seeing as it has become such an important date.
Primero (2) completed the works by the 28th and (1) provided final documents for review. Primero then put forward a payment plan using a completion reference date of the 28th of Feb which would mean Wartsila would have to start making payments.
Wartsila argued that (1) Final documents were not able to be opened hence reference date 28th of Feb is not able to be used as a end date, this becomes a problem as part of the act for payment says a reference date is a pre-requirement. The judge ruled due to varies things that the 28th cannot be used as a reference date as Wartsila were not able to open and review documents 100s of pages long and therefore Primero payment claim should be revoked on the basis that the 28th of Feb was not a valid reference date. which I tend to agree with. Again numerous assumptions can be formed as to why Primero put through this date, maybe they had a fall out and wanted payment, maybe they had some liabilities due urgently, maybe they just wanted to make sure the 28th was seen as the handover date to satisfy clause 40.
Wartsila then tried to also claim that (2) Primero did not adhere to the amended clause 40 by handing over works on the 28th, However the judge said the 28th was the completion date in terms of clause 40 requiring hand over on the 28th. Which I also agree.
I think the reason no further funds have been transferred is Wartsila claim they paid the approved payment claim for part payment put through in January and the one for end completion had not been reviewed / approved so therefore why should they pay it.. Which I also agree. Wartsila should be given the time to properly review and carry out testing to ensure all compliance is met which I believe the notice said was not done as of June.
Now that is out the way my assumption is IF Clause 40 is satisfied a payment claim could now be drafted using a valid end reference date and should be fine and dandy.
