On a quick reading of the judgment, one might be forgiven for thinking that there is only one way to appoint an adjudicator: by agreement between the parties. That is not correct however.
The Appointment Process
The appointment process is set out in section 33 of the Act. Under that provision, an adjudicator may be appointed in one of three ways:
1 by agreement between the parties (s33(1)(a)); 2 by a nominating body chosen by agreement between the parties (s33(1)(c)); or 3 by an authorised nominating authority chosen by the claimant (no agreement is required by the parties) (s33(1)(d)).
The distinction between a nominating body and an authorised nominating authority should be noted. A nominating body is a person (whether incorporated or not) which nominates adjudicators for the purposes of the Act; an authorised nominating authority (ANA) is a person authorised under section 65 of the Act to nominate an adjudicator, for instance the Building Disputes Tribunal.
Accordingly, Party A may file an application with an ANA, such as the Building Disputes Tribunal, seeking the appointment of an adjudicator under the Act, and may do so without reference to Party B.
The appointment process was also considered in the judgment of Venning J in Stellar Projects Limited v Nick Gjaja Plumbing Limited (CIV 2005-404-006987), which makes it clear that an intended claimant may approach an ANA to seek the appointment of an adjudicator without first taking steps to seek the agreement of the intended respondent.
Comment
The ability to seek the appointment of an adjudicator without first seeking the agreement of the other party is an important feature of the Act, as it enables the dispute process to be undertaken efficiently and without delay. This aligns with the purpose of the Act which is to inter alia provide for the speedy resolution of disputes arising under a construction contract.
As a side note, it should also be noted that, where a claimant is seeking approval for the issue of a charging order, the appointment of the adjudicator must be made by an ANA (section 38A).
Author - Catherine Green
Catherine is an Arbitrator, Adjudicator and Mediator based in Auckland, New Zealand.
She is a Panelist with the Building Disputes Tribunal and has previously worked for leading law firms in New Zealand, the UK and the Cayman Islands.