Ace Structural Ltd v Green

[2019] NZHC 1558

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2555

[2019] NZHC 1558

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

IN THE MATTER

of the Construction Contracts Act 2002

BETWEEN

ACE STRUCTURAL LIMITED

Applicant

AND

JOHN GREEN

First Respondent

FIRMA CONSTRUCTION LIMITED

Second Respondent

Hearing:

20 June 2019

Counsel:

B Martelli for the Applicant

No appearance by or on behalf of the First Respondent K A Badcock, K Badcock and L Badcock for the Second Respondent

Judgment:

4 July 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 4 July 2019 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Heaney & Partners

K A Badcock, Rotorua

ACE STRUCTURAL LTD v GREEN [2019] NZHC 1558 [4 July 2019]

Introduction

[1]                  Ace Structural Ltd (Ace) applies for judicial review of the decision of the first respondent, John Green, sitting as an adjudicator in the Building Disputes Tribunal (the BDT), not to award costs to Ace following Mr Green’s determination of disputes between Ace and the second respondent, Firma Construction Ltd (Firma), in favour of Ace.

[2]                  Firma opposes the application, which it says, in short, is an appeal dressed up as an application for judicial review.

[3]                  Mr Green was not represented at the hearing and he abides the decision of the Court.

Background

[4]                  Firma was the  head contractor for the construction of commercial  units at  18 Corinthian  Drive,  Albany,  Auckland.   It  engaged  Ace,  by  subcontract  dated 2 November 2016, to supply and install fabricated steel for the project at Corinthian Drive.

[5]Between April and September 2017, disputes arose between Ace and Firma.

[6]                  On 28 September 2017, Firma cancelled the subcontract on the basis (it said) that Ace had repudiated the subcontract by serving a notice of intention to stop work. Ace’s position was that it served the notice as a last resort to be paid for steel supplied and installed. It said the notice was not a repudiation of the subcontract. In fact, before Firma cancelled the subcontract, Ace made it clear to Firma that it would continue to supply and install steel for Firma.

[7]                  On 16 May 2018, Firma served a notice of adjudication on Ace under the Construction Contracts Act 2002 (the CCA), initiating proceedings in the BDT. Firma claimed $107,598 from Ace for costs of rectifying alleged defective steel installation and to complete work after the subcontract was cancelled. Ace denied the allegations.

[8]                  On 4 July 2018, Ace served its own notice of adjudication on Firma in the BDT. Ace claimed $147,824 for alleged unpaid contract work, variations and interest. Firma denied all allegations.

[9]                  Ace and Firma agreed to Mr Green as adjudicator on both claims and that their claims be consolidated under s 40 of the CCA.

[10]The issues for determination by Mr Green were:

(a)Whether Firma lawfully cancelled the subcontract and, if…