BuildLaw Issue 31 March 2018 | Page 20

An adjudication is, to an extent, a rough and ready means of getting an interim determination of contractual disputes in a construction contract setting.
Decision
The Court dismissed the application for judicial review and the appeal, holding that BC12’s claims did not in fact go to the jurisdiction of the adjudicator’s decisions, but rather related to contractual interpretation, which plainly fell outside the scope of judicial review.
The Court discussed judicial review as primarily concerned with examining the decision-making process, not the substance of a decision. In Reese v Firth [2011] NZCA 668, the Court of Appeal discussed the approach to judicial review of an adjudicator’s determination under the CCA, stating: “the courts must be vigilant to ensure that judicial review of adjudicator’s determinations does not cut across the scheme of the CCA and undermine its objectives”.
The Court was cautious to intervene. To succeed in an application for judicial review, BC12 would have needed to show: a genuine excess of jurisdiction by the adjudicator; a serious breach of natural justice; or some apparent and significant error of law. BC12 had not succeeded on any of these three points. Accordingly, the Court refused to allow BC12 to undermine the CCA by using the judicial review process as a deliberate strategy to avoid the CCA’s “pay now, argue later” policy.
The CCA provides other methods of dispute resolution for parties to utilise in challenging an adjudicator’s determination, such as referring the merits of the dispute to mediation, arbitration, or litigation. So, while BC12 had attempted to frame its argument in terms of jurisdiction to bring it within the scope of judicial review, the Court found it just did not fit. Instead, the Court invited BC12 to “utilise the other methods of dispute resolution contemplated in the CCA.”
The Court did not consider BC12 had shown any evidence to establish a breach of natural justice.
An adjudication is, to an extent, a rough and ready means of getting an interim determination of contractual disputes in a construction contract setting. The Court found that the adjudicator had the statutory jurisdiction to determine a dispute under the CCA, and that is what the adjudicator did. The Court held that whether the adjudicator was right would be determined at the arbitration.
If either party to an adjudication determination could simply commence another adjudication as many times as it liked in the hope of obtaining a preferred decision, the purpose of the CCA would be thwarted. BC12 could not overcome one of the express purposes of the CCA in providing for the “speedy resolution of disputes”.
The Court’s result confirmed that Naylor Love was able to enforce payment of the adjudication determinations against BC12 while awaiting the arbitration.