Chappell v Swindells - [2018] NZHC 2982

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-357

[2018] NZHC 2982

IN THE MATTER The Judicial Review Procedure Act 2016

IN THE MATTER

of the Construction Contracts Act 2002

BETWEEN

MATTHEW CHAPPELL & CHERIE CHAPPELL

Applicants

AND

AND

EDWARD SWINDELLS - ADJUDICATOR

First Respondent

ANNEX CONSTRUCTION LIMITED

Second Respondent

Hearing: 4 July 2018

Appearances:

Further submissions and evidence completed:

K Badcock for the Applicants

No appearance by or on behalf of either the First or Second Respondents

20 July 2018

Judgment:

19 November 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 19 November 2018 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:

Solicitor:
Kevin A Badcock, Rotorua

CHAPPELL v SWINDELLS & ANOR [2018] NZHC 2982 [19 November 2018]

[1] The applicants, Matthew Chappell and Cherie Chappell, seek judicial review of an adjudicator’s determination made pursuant to the Construction Contracts Act 2002 (“the Act”) by the first respondent, Edward Swindells (“the adjudicator’s determination”). The second respondent, Annex Construction Ltd (“Annex”), was the other party to the adjudicator’s determination.

Background

[2] The adjudicator’s determination occurred after a dispute arose between the applicants and Annex. In April 2016 Annex had been engaged by the applicants to renovate the applicants’ home in Northcote, Auckland, with the works intended to be completed by September 2016. Since that time works had been ongoing with Annex rendering invoices for work done with these being paid by the applicants. By November 2016 the relationship between the applicants and Annex had soured somewhat as by that time the amounts invoiced by Annex had exceeded the original estimate, while considerable work still appeared to be required to finish the renovations. The applicants had also raised a number of specific issues with regard to the works that had been carried out, and in particular the quality of reroofing undertaken. A compromise appears to have been agreed in mid-November 2016 which let the works continue but after the issue of further invoices by Annex in November and December 2016 which were not paid, Annex gave notice of suspension and removed all materials from the site. The applicants responded by refusing Annex any further access to the site without the applicants’ express permission.

[3] Negotiations to settle the dispute were unsuccessful and on 6 September 2017 Annex gave notice of adjudication pursuant to s 36 of the Act, claiming a total of
$72,624.89 made up as follows:

(a)Invoice 92a on 14 November 2016 for $20,464.21 of which $6,704.49 was claimed to be owing;

(b)Invoice 101 on 1 December 2016 of which $28,445.22 was claimed to be owing;

(c)Invoice 111 on 14 December 2016 of which $24,867.70 was claimed to be owing;

(d)Invoice 153 on 27 February 2017 of which $8,970 was claimed to be owing; and

(e)Invoice 241 on 19 May 2017 of which $366.76 was claimed to be owing.

[4] After the parties were unable to agree on an adjudicator Mr…

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 Chappell v Swindells

Details

AGLC: Chappell v Swindells [2018] NZHC 2982
Case: [2018] NZHC 2982
Decision Date: 19 November 2018

CaseChat Overview and Summary

Matthew Chappell and Cherie Chappell sought judicial review of an adjudicator’s determination made by Edward Swindells. The adjudicator’s determination was made after a dispute arose between the Chappells and Annex Construction Ltd in relation to a contract to renovate the Chappells’ home. The determination awarded Annex $50,737.10. The Chappells sought to challenge the determination on a number of grounds including that the adjudicator had acted in a procedurally improper way and in breach of natural justice, and that he had failed to take into account relevant information in his determination. The adjudicator did not take any steps in the proceedings. Annex had entered into liquidation after the proceedings were commenced, but leave had been given for the Chappells to continue the proceedings against the company.

The Court held that the applicants faced a high legal hurdle and must demonstrate that the adjudicator had made a significant and substantial error of law or that there had been a fundamental and substantial breach of natural justice such as warrants the Court exercising its discretion to grant judicial review relief. The Court found that there was a significant flaw in the process adopted by Mr Swindells and more specifically a substantial breach of natural justice in that he had failed to provide the Chappells with any reasonable chance to comment on the spreadsheet provided by Annex. The Court also found that Mr Swindells had failed to give adequate reasons for his determination and had failed to address a number of specific issues fairly raised in the adjudication. Accordingly the adjudicator’s determination was quashed.

The applicants sought costs on an indemnity basis. However, the Court held that the appropriate order was that costs should lie where they fell.

Orders