Anderson v Swindells - [2018] NZHC 1803

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-58

[2018] NZHC 1803

BETWEEN CRAIG ANDERSON AND VICKI VOLKOVA
Applicants

AND

EDWARD SWINDELLS

First Respondent

AND

MCDOWALL RENOVATIONS LIMITED

Second Respondent

Hearing: 30 May 2018

Appearances:

M R Taylor for Applicants

A W Johnson & K R Narayanan for Second Respondent

Judgment:

19 July 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 19 July 2018 at 4:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
M Taylor, Auckland
Martelli McKegg, Auckland

ANDERSON AND ANOR v SWINDELLS & ANOR [2018] NZHC 1803 [19 July 2018]

Introduction

[1] In this proceeding Craig Anderson and Vicki Volkova (the applicants) seek judicial review of an adjudicator’s determination (the determination) made by the first respondent, Mr Edward Swindells, pursuant to the Construction Contracts Act 2002 (the Act).1 The second respondent, McDowall Renovations Limited (McDowall), is a building contractor and was the other party to the adjudication which related to a dispute with the applicants over a contract for building work at their property at 5 Logan Terrace, Parnell. The applicants seek an order quashing the determination.

[2] The applicants’ principal ground for review is that the determination was made without jurisdiction. They say that the first respondent failed to address and determine the matters put in dispute and to be determined by the adjudication, and instead based the determination on an entirely different matter which was not the subject of the contract dispute: the first respondent found that the applicants were liable to pay the full amount claimed by McDowall by reason of having failed to comply with those provisions of the Act which stipulate that where a payment claim is served upon a party to a construction contract, that party is liable to pay the full amount claimed unless they provide a payment schedule within the time provided in the Act.

[3] The applicants also allege that the first respondent’s determination was made on the basis of mistaken facts; errors of law; by failing to take into account relevant considerations; by taking into account irrelevant considerations; by failing to give coherent and adequate reasons in the determination; and by failing to reach conclusions on issues raised by the parties to the adjudication for his determination.

[4] The first respondent (the adjudicator) was served with the proceedings and in accordance with usual practice has taken no steps in the proceedings and is thereby taken to abide the decision of the Court.

1 The adjudicator’s determination is dated 31 January 2018.

Background

The dispute leading to the adjudication

[5] On or around 7 February 2016, the applicants entered into a written construction contract (the contract) with Epsom Renovations Limited (Epsom), trading under the name Smith & Sons, for work to be done at their Logan Terrace property.

[6]The building work is described in the contract as being:

REAR SITE EXCAVATIONS AND LEVELLING WITH THE CONSTRUCTION OF RETAINING WALLS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Swindells

Details

AGLC: Anderson v Swindells [2018] NZHC 1803
Case: [2018] NZHC 1803
Decision Date: 19 July 2018

CaseChat Overview and Summary

Craig Anderson and Vicki Volkova sought judicial review of an adjudicator's determination made by Edward Swindells in a dispute over a building contract for work at their property. The applicants argued that the adjudicator made a significant error of law by determining their liability to pay the full amount claimed by McDowall, rather than deciding the actual issue in dispute which was whether McDowall was entitled to any payments under the contract. The applicants also alleged that the adjudicator failed to take into account relevant considerations; took into account irrelevant considerations; failed to give coherent and adequate reasons in the determination; and failed to reach conclusions on issues raised by the parties for his determination. The Court found that the adjudicator had acted without jurisdiction in determining that the applicants were to pay McDowall the amount of its invoices by reason of their failure to provide a payment schedule, and by failing to determine the real question in dispute, which was whether McDowall was entitled to any payments under the contract. The Court found that the adjudicator had breached natural justice by failing to give the applicants an opportunity to be heard on a central issue for determination by the adjudicator. The Court also found that the adjudicator's reasons for his determination were inadequate and in some instances cryptic. The Court concluded that the grounds of judicial review that it had found established were so significant in terms of their combined effect on the integrity of the process and their improper influence on the outcome that this was a clear instance where it was appropriate for the Court to exercise its discretion to grant relief to the applicants and quash the adjudication determination. The Court made an order quashing the adjudicator's determination and ordered that the applicants were to file and serve a memorandum as to costs within 10 working days following the delivery of this judgment.

Orders