case in brief: Clark v Central Lakes Homes Limited [2016] NZHC 1694
A recent case before the High Court in which the appellant, Mr Clark, appealed the entry of summary judgment against him for a sum of money an adjudicator appointed by the Building Disputes Tribunal (BDT), determined he owed to the respondent company, Central Lakes Homes Limited (CLH). In its decision, the Court considered enforcement of adjudication determinations pursuant to s59 of the Construction Contracts Act 2002 (the Act), an adjudicator’s jurisdiction under the Act, and the purpose of the Act.
Background and Facts
Mr Clark and CLH entered into a construction contract for construction of a residential dwelling at Mr Clark’s Queenstown property. Following a number of disagreements, the parties’ relationship became irreconcilable, and the construction contract came to an end. The circumstances leading to the termination of the contract were disputed by each party. Mr Clark maintained the contract was mutually terminated, and that CLH agreed to vacate the construction site and allow an alternative contractor to continue the work. CLH argued it was instructed by Mr Clark to cease work, was refused access to the property, and that an alternative contractor was unilaterally engaged.
CLH issued a notice under the contract claiming that, due to the circumstances surrounding termination, CLH was entitled to recover certain costs, expenses and damages. CLH referred the dispute for adjudication to BDT. The adjudicator determined Mr Clark was liable to pay CLH $62,782.77. It is relevant to the present appeal that the adjudicator expressly held that his determination was made pursuant to s48(1)(a) of the Act.
The clauses of the contract upon which CLH relied were:
48 The owner will be in breach of Contract if, without the prior written consent of the Registered Master Builder, the Owner takes possession of the building site and the Works prior to Practical Completion or prior to making payment in full of any amount due and owing to the Registered Master Builder. In such case, the Registered Master Builder may, by notice in writing, notify the Owner that it has two working days to vacate possession of the building site and Works.
49 If the Owner does not vacate the building site and Works within two working days, the Registered Master Builder shall be entitled to terminate the Contract immediately. Upon termination under this clause: