197 If the architect has issued a certificate of practical completion with 150 defective items listed and the contractor is not remedying them within a reasonable time, what can be done about it?
The leading case on the requirements for practical completion1 states that practical completion cannot be certified if there are known defects in the Works. Therefore, a certificate issued with 150 defective items listed is, on its face, void or, perhaps more accurately, voidable if either party applies to an adjudicator. An adjudicator ought to find that the certificate was not properly issued, and the contractor would be obliged to rectify the defects before a certificate could be properly issued.
If neither party seeks adjudication on the matter – and in practice the contractor is unlikely to do so because the certificate carries various advantages – the defects will become part of the defects to be dealt with during the rectification period.
If the contractor does not rectify within a reasonable time, the architect may issue an instruction requiring the defects to be made good, followed by a compliance notice under SBC clause 3.11 or IC clause 3.9. If the contractor does not comply within seven days, the employer may engage others, and all the additional costs incurred by the employer will be deducted from the contract sum. Alternatively, if the employer is content to wait until after the end of the rectification period, the defects can be added to the schedule of defects and dealt with in the usual way.