G K Shaw Limited v Green

[2023] NZHC 605

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-404-2385

[2023] NZHC 605

BETWEEN

G K SHAW LIMITED

Applicant

AND

JOHN GREEN

First Respondent

AND

CENTREPORT LIMITED

Second Respondent

Hearing:

3 October 2022; further submissions received 18 and

25 October 2022

Counsel:

K A Badcock, K S L Badcock and L A L Badcock for Applicant No appearance for First Respondent

B M Cash for Second Respondent

Judgment:

24 March 2023

JUDGMENT OF ISAC J

[Application for judicial review]

Introduction and the issues

[1]    The Construction Contracts Act 2002 (CCA) established a summary adjudication process for the determination of disputes arising in construction contracts.1 Its purpose was to enable the swift and inexpensive resolution of disputes, ensure regular and timely payments between parties to construction contracts and minimise delays in construction.2 An adjudication determination is binding on and enforceable by the parties, at least on an interim basis, until it is overtaken by a

1      Haskell Construction Ltd v Ashcroft [2020] NZHC 772, [2020] 3 NZLR 113 at [4].

2      Construction Contracts Act 2002, s 3; and Patel v Pearson Group Ltd HC Wellington CIV-2008- 485-2571, 24 April 2009 at [39] and [45].

G K SHAW LTD v JOHN GREEN & ANOR [2023] NZHC 605 [24 March 2023]

judgment of the court, an arbitration decision or a settlement agreement.3 For this reason the CCA has been described as a “pay now, argue later” regime.4

[2]    This case raises a question about the jurisdiction of adjudicators under the Act. At its heart is s 48, which requires an adjudicator to determine two types of claim. First, under s 48(1)(a), an adjudicator must determine whether a party is liable “to make a payment under” a construction contract. Second, under s 48(1)(b), an adjudicator must determine any questions in dispute “about the rights and obligations of the parties under that contract”.

[3]    G K Shaw Limited is a civil contracting company. In April 2019, it entered into a construction contract with CentrePort Limited for the replacement of wharf fenders at the Seaview Wharf in Petone, Wellington.

[4]    On 2 October 2019, an incident occurred during the construction of the wharf. The applicant’s trawler crane was used beyond its operational limits and this caused the crane to topple over into the sea. At the time, the crane was being operated by an unsupervised trainee who was lucky to escape without serious injury.

[5]    The accident ultimately led CentrePort to cancel the contract. G K Shaw considered there was no lawful basis for CentrePort to do so, and that CentrePort’s purported cancellation was itself an unlawful repudiation. It then commenced an adjudication process under s 48(1)(a) of the CCA—claiming CentrePort was liable to make a payment “under the contract”—and seeking significant damages for breach. In a subsequent determination, the adjudicator, Mr Robert Fisher KC, concluded that he did not have jurisdiction under s 48(1)(a) to grant the relief sought.5 But having made that finding, he went on to consider the merits of G K Shaw’s claim and dismissed it in its entirety.

[6]    Dissatisfied with Mr Fisher’s determination, G K Shaw commenced a second adjudication process. This time, rather than advancing a claim for damages for breach

3      Sections 58, 71D and 73.

4      Laywood v Holmes Construction Wellington Ltd [2009] NZCA 35, [2009] 2 NZLR 243 at [52].

5      G K Shaw Ltd v CentrePort Ltd BDT 20-071240, 28 August 2020 [Fisher determination] at [43] and [44].

of contract, it purported to bring essentially the same claim but this time under         s 48(1)(b)—seeking a determination of the parties’ “rights and obligations… under the contract”—particularly its entitlement to recover losses “under the contract”.

[7]    In a second adjudication determination, the first respondent, Mr John Green, found that he lacked jurisdiction to determine the claim on the basis that Mr Fisher’s determination on the merits rendered the claim res judicata.6

[8]    G K Shaw now seeks judicial review of Mr Green’s determination. In order to do so, it accepts that Mr Fisher was correct to find in the first adjudication that he lacked jurisdiction. G K Shaw argues that, as a result, the balance of Mr Fisher’s findings on the merits were ultra vires and a nullity. Accordingly, Mr Green’s conclusion that G K Shaw’s second claim was res judicata was itself legally flawed and ought to be set aside. G K Shaw seeks an order quashing Mr Green’s determination and referring the matter back for reconsideration.

[9]    Importantly, however, the applicant now accepts that the issues in dispute in the second adjudication are “essentially identical” to those in the first,7 and, therefore, that it will be a complete answer to its claim if Mr Fisher’s findings on the merits are held to be valid and final. So, while it is Mr Green’s determination that is subject to review, the real focus of this case is the status of Mr Fisher’s substantive findings in the first determination.

[10]In light of this, the issues for determination are narrow. They are:

(a)Properly understood, did Mr Fisher’s decision amount to a finding that he lacked any jurisdiction to determine the applicant’s claim, or was it simply a finding that he did not have the jurisdiction to grant the form of relief sought?

(b)If it is the latter, and Mr Fisher considered he was able to determine the claim, was he correct to do so?

6      G K Shaw Ltd v CentrePort Ltd BDT 21-081373, 12 November 2021 [Green determination].

7      Joint memorandum of counsel dated 24 August 2022 advising that no challenge is made to the finding at [75] of the Green determination.

Section 48 of the Construction Contracts Act

[11]Section 48 of the CCA provides:

48       Adjudicator’s determination: substance

(1)If an amount of money under the relevant construction contract is claimed in an adjudication, the adjudicator must determine—

(a)whether or not any of the parties to the adjudication are liable, or will be liable if certain conditions are met, to make a payment under that contract; and

(b)any questions in dispute about the rights and obligations of the parties under that contract.

(2)If no amount of money under the relevant construction contract is claimed in an adjudication, the adjudicator must determine any questions in dispute about the rights and obligations of the parties under that contract.

(3)If an adjudicator determines under subsection (1)(a) that a party to the adjudication is liable, or will be liable if certain conditions are met, to make a payment, the adjudicator—

(a)must also determine—

(i)the amount payable or conditionally payable; and

(ii)the date on which that amount became or becomes payable; and

(b)may determine that the liability of a party to the adjudication to make a payment depends on certain conditions being met.

(4)Despite subsections (1) and (2), an adjudicator is not required to determine a dispute that has been withdrawn in accordance with section 39.

(5)If a dispute is settled by agreement between the parties before the adjudicator’s determination is given, the adjudicator—

(a)must terminate the adjudication proceedings; and

(b)if requested by the parties, may record the settlement in the form of a determination on agreed terms.

[12]   Subsections (1) and (2) establish two pathways for adjudication of disputes arising under construction contracts. The first applies where a sum of money is claimed (as in the present case); the second where a determination about rights and obligations is sought. Notably, under both pathways the adjudicator “must determine

any questions in dispute about the rights and obligations of the parties under the contract”. I return to consider s 48 in more detail shortly.

GK Shaw’s case for judicial review

[13]   In the first adjudication, the premise of G K Shaw’s claim was that it had accepted CentrePort’s repudiation and cancelled the contract under s 36 of the Contract and Commercial Law Act 2017.8 The effect of ss 42(1) and 42(3) of that Act was to release the parties from further performance of the contract whilst preserving G K Shaw’s right to recover damages for repudiation (among other things). It sought damages of approximately $1 million.

[14]   Mr Fisher found that G K Shaw’s claim was outside the jurisdiction conferred by s 48(1)(a) as it was not for damages due “under the contract”. G K Shaw was not seeking performance of any term of the contract (either express or implied), but instead seeking common law damages for losses suffered as a result of CentrePort’s unlawful repudiation.9 He concluded:

[44]My conclusion is that there is no jurisdiction to determine this adjudication claim. Even if GKS could show that damages were due, they would not  be  due  “under  the  contract”  for  the  purpose  of  s 48(1)(a). Nor has GKS sought a declaration as to its rights under the contract for the purpose of s 48(1)(b).

[45]In case a different view of jurisdiction is taken on a review of this determination, I will go on to outline the conclusions I would have come to had there been the jurisdiction to do so.

(counsel for the applicant’s emphasis)

[15]   The applicant says the summary of the decision in the first paragraph illustrates the complete denial of jurisdiction:

[1]For the reasons set out in this determination, and rejecting all arguments to the contrary, I determine:

(a)There is no jurisdiction to adjudicate this claim under the Construction Contract Act (s 48)

…

8      Fisher determination, above n 5, at [39].

9 At [43].

[16]   G K Shaw’s argument is that it is clear from these passages that Mr Fisher declined jurisdiction to determine the claim “in toto” (meaning wholly, completely or without exception).10 As a result, he had no jurisdiction to decide any part of the claim and everything he said or purported to decide thereafter was ultra vires and “of no consequence”.

[17]   Mr Badcock submitted that a review of the international authorities confirms G K Shaw’s view. He drew the Court’s attention to an extract from Coulson on Construction Adjudication which states that where an adjudicator considers that a challenge to their jurisdiction is well-founded, they “must decline to adjudicate on the dispute”.11 He also relied on two other construction adjudication texts which suggest that a determination made outside the bounds of an adjudicator’s jurisdiction is “invalidated”, “worthless” and “a nullity”, and that there is no risk of double jeopardy if the issues in such a determination are referred to adjudication again.12 Drawing these strands together, the consequence of Mr Fisher’s finding that he had no jurisdiction to determine the matter was that his views on the merits (or rather the outline of conclusions he says he would have made) were a nullity. Any observations he made were not determinations of the issues in dispute (let alone final determinations in the res judicata sense), and there is nothing to prevent the as yet unresolved issues being referred to adjudication a second time.

[18]   In any case, G K Shaw says that because it only sought a determination of CentrePort’s liability under s 48(1)(a), and expressly excluded reliance on s 48(1)(b), Mr Fisher lacked jurisdiction to determine any issues in dispute concerning the parties’ rights and obligations under the contract. In other words, Mr Fisher’s jurisdiction was circumscribed by the terms of the application G K Shaw had used for the adjudication. He was not permitted to determine the issues even if he intended to (which G K Shaw says he did not). The parties only wanted an answer on the question of CentrePort’s

10     Peter Spiller New Zealand Law Dictionary: Hinde & Hinde’s Law Dictionary (9th ed, LexisNexis, Wellington, 2019) at 145.

11     Peter Coulson Coulson on Construction Adjudication (4th ed, Oxford University Press, Oxford, 2018) at [7.10].

12 James Pickavance A Practical Guide to Construction Adjudication (Wiley Blackwell, Chichester, 2016) at [16.02]; and Dominique Rawley QC and others Construction Adjudication and Payments Handbook (Oxford University Press, Oxford, 2013) at [6.65].

liability, and any findings Mr Fisher might have purported to make on the merits exceeded that scope.

Approach to review

[19]   There is no dispute as to the legal principles relating to judicial review of adjudication determinations. G K Shaw acknowledges that the Court will not intervene lightly, but submits that this is one of the rare cases in which relief ought to be granted.

[20]In Rees v Firth, the Court of Appeal said:13

The courts must be vigilant to ensure that judicial review of adjudicators’ determinations does not cut across the scheme of the CCA and undermine its objectives. But this does not mean that judicial review should be limited to instances of “jurisdictional error”. In principle, any ground of judicial review may be raised, but an applicant must demonstrate that the court should intervene in the particular circumstances, and that will not be easy given the purpose and scheme of the CCA. Indeed, we consider that it will be very difficult to satisfy a court that intervention is necessary. … In the great majority of cases where an adjudicator’s determination is to be challenged, the appropriate course will be for the parties to submit the merits of the dispute to binding resolution through arbitration or litigation (or, of course, to go to mediation).

[21]   In Body Corporate 200012 v Keene QC, Brewer J considered that there would need to be “a genuine excess of jurisdiction by the adjudicator …, a serious breach of natural justice, or some apparent and significant error of law” before he would intervene in the adjudicator’s determination.14

Did Mr Fisher decline jurisdiction “in toto”?

[22]   I am unable to accept the applicant’s contention that Mr Fisher declined jurisdiction “in toto” with the result that he was unable to express binding views on the substantive issues underpinning G K Shaw’s claim for payment.15 That interpretation relies on a selection of sentences in a decision spanning 20 pages, and in my view is contrary to both common sense and the clear intention of the adjudicator.

13     Rees v Firth [2012] 1 NZLR 408 (CA) at [27]. See also Haskell v Ashcroft [2020] 3 NZLR 113 (HC) at [18]–[19].

14     Body Corporate 200012 v Keene QC [2017] NZHC 2953 at [17].

15     Mr Green reached the same conclusion, above n 6, at [79].

[23]   Rather, I have come to the clear conclusion that Mr Fisher’s determination, properly understood, was that he lacked jurisdiction under s 48(1)(a) of the CCA to award the form of relief sought (common law damages for unlawful repudiation), but that in any event the claim must also fail on its merits whether under s 48(1)(a) or (1)(b). In short, he determined:16

(a)First, the claim was not for a payment “under the contract” in terms of s 48(1)(a). Therefore, it fell outside the scope of the CCA and there was no jurisdiction to grant the relief sought.

(b)Second, even if there was jurisdiction (under s 48(1)(a) or (b)), CentrePort did not unlawfully repudiate the contract. It was entitled to cancel the contract—and did so validly—in reliance on G K Shaw’s breach.

[24]   Aside from the passages identified by the applicant in support of its interpretation, there is nothing in Mr Fisher’s decision to suggest he considered his findings to be in any way obiter, conditional or non-binding. To the contrary, his language was clear and unambiguous.17 That he dedicated the entire second half of the decision to the merits of G K Shaw’s claim—some 11 pages of analysis18—is a clear indication that he intended to determine the disputes that the parties had advanced before him.

[25]   Nor do I consider there is anything in the fact that Mr Fisher expressed his substantive findings in the alternative, as judicial decision makers commonly do. Had he reversed the order of his reasoning and dismissed the case on its merits before addressing the question of jurisdiction, there could be little doubt as to the status of his substantive findings. It would be unthinkable in that situation that G K Shaw would be permitted to refer those same issues back to adjudication for a second time.

16 See paragraphs [44], [45], [98] and [99].

17 Allowing an unqualified trainee to operate the crane in the weeks or months before the incident “was a clear breach… of the Contract” (at [60]); the supervisor’s instructions to start the crane engine on the day of the incident “was a breach of Contract for these reasons…” (at [61]); the failure to produce an adequate health and safety plan “breached the Contract” (at [68]); CentrePort’s notice of default and letter of termination were “valid” ([73] and [75]); and “None of [G K Shaw’s] criticisms of [CentrePort] is of legal consequence” (at [97]).

18 Fisher determination, above n 5, at [46]–[97].

[26]   I have therefore concluded that Mr Fisher considered he was able to determine the merits of the case. The question then is whether he was correct to do so.

Did Mr Fisher have jurisdiction to determine the merits of the case?

[27]   The more important question is whether Mr Fisher, given that he had no jurisdiction to award the relief sought under s 48(1)(a), was nevertheless able to make binding determinations on the underlying merits of the claim under s 48(1)(b).

[28]   In my view, the language and structure of the provisions governing an adjudicators’ powers indicate that Parliament was unlikely to have intended a binary approach to jurisdiction, or that an adjudicator is strictly bound by the manner in which a claimant has chosen to frame its claim.

[29]   First, s 48(1) requires that where an amount of money is claimed under a construction contract, the adjudicator must determine (a) any liability to pay money under the contract and (b) any questions in dispute about the rights and obligations of the parties under the contract. As Mr Cash submits, the language and structure of the provision makes clear that consideration of the second limb is a mandatory requirement. So, where the parties place in issue disputes about their contractual rights and obligations, the adjudicator is obliged to determine them. Here, the issue of whether CentrePort was itself in breach and had wrongfully terminated the contract was an issue squarely in dispute before Mr Fisher. Not only did he have jurisdiction to determine that question under s 48, he was required to do so.

[30]   Second, s 48(2) of the Act provides for an adjudicator to make binding determinations on questions of rights and obligations divorced from any question of liability. The ability to resolve such disputes is by itself a central aspect of an adjudicator’s function. Given that the exercise in s 48(1)(b) essentially mirrors the one in s 48(2), I can see no  reason why a rights and obligations determination under      s 48(1)(b)—provided it related to an issue in dispute—would be ultra vires because it is subsequently found that there was no jurisdiction to award the relief sought under s 48(1)(a).

[31]   Third, a single claim under s 48(1) could relate to a range of issues in dispute under a contract, not all of which are directly connected to the relief sought by one of the parties. A party may seek payment under the contract and also seek a quite unrelated determination that there has been a further breach of contract. A party in receipt of a notice of adjudication may broaden the ambit of the proceeding by raising its own disputes. It would not make sense to invalidate findings on issues the adjudicator has been asked to determine on the basis that the claim for payment was defective or meanly drafted.

[32]   I am reinforced in these views by the fact that rights and obligations determinations are now enforceable in the same manner as determinations of liability. As Grice J observed in Haskell Construction Ltd v Ashcroft, although only determinations under s 48(1)(a) were enforceable when the CCA was first enacted, Parliament had a “change of heart” and in December 2015 amended the Act so that rights and obligations determinations under s 48(1)(b) are also enforceable.19 This amendment occurred following a recommendation by the Commerce Select Committee that removing the distinction between payments and other types of determinations “reflects a key purpose of the bill”.20 It confirms that rights and obligations determinations are an important element of the adjudication regime quite apart from determinations relating to payment claims.

[33]   It follows that I do not accept G K Shaw’s argument that it was effectively able to limit Mr Fisher’s jurisdiction solely to a determination of liability under s 48(1)(a) by purporting to exclude a determination about the parties’ rights and obligations under s 48(1)(b). While it is true that an adjudicator may only determine matters within the bounds of the parties’ case,21 equally an adjudicator must determine those matters that are properly put before them. As Mr Cash submitted, given the s 12 bar on contracting out of the CCA, a party certainly cannot unilaterally limit the scope of an adjudicator’s statutory jurisdiction. In any event, as noted, the question of whether CentrePort had breached the contract was the central focus of the parties’ dispute. The

19     Haskell Construction Ltd v Ashcroft [2020] NZHC 772, [2020] 3 NZLR 113 at [36].

20     Construction Contracts Amendment Bill 2015 (97–2) (select committee report) at 4.

21     Construction Contracts Act, s 38.

applicant’s real complaint is not that Mr Fisher answered a question he was not asked to determine, but that he arrived at a conclusion it does not find palatable.

[34]   In addition, s 38 of the CCA provides that an adjudicator’s jurisdiction is (for present purposes) limited to determining the matters referred to in s 48 and “any other matters that are of a consequential or ancillary nature necessary to” complete that exercise. In order to find CentrePort liable for wrongful repudiation, Mr Fisher had to be satisfied that there was in fact a breach of contract. In other words, a factual determination about the validity of CentrePort’s cancellation was a necessary prerequisite to a finding of liability. So, one way of viewing Mr Fisher’s substantive findings is simply that they fell within his jurisdiction under s 38(1)(b) to determine matters that are “of a consequential or ancillary nature” necessary to the exercise of his role in determining liability.

[35]   Finally, I consider that the applicant’s approach would unnecessarily constrain the powers of adjudicators and also undermine the policy, purpose and scheme of the CCA.

[36]   Contests around jurisdiction are common in adjudication claims, and there will often be situations where a respondent opposes the claim both on jurisdictional grounds and on the merits, as was the case here. Andrew Skelton suggests there are two schools of thought as to how an adjudicator should approach a challenge to their jurisdiction: they can deal with it either as a separate preliminary decision, or as part of the substantive determination.22 He observes that there has been some judicial support for the former view, on the basis that the determination of the jurisdictional dispute may bring the proceedings to an end at an early juncture and avoid the parties incurring unnecessary expense.23 On the other hand, he notes that the latter approach may be appropriate at times, “particularly where the jurisdictional issue only relates to

22 Construction adjudication case law: some interesting issues (paper presented to AMINZ,  November 2018 to February 2019) at [33]–[34].

23  At [33], citing Origin Energy Resources (Kupe) Ltd v Tenix Alliance New Zealand Services Ltd   HC Auckland CIV-2010-404-1496, 15 March 2010; Peter Coulson Coulson on Construction Contracts (3rd ed, Oxford University Press, 2015) at [7.14]; and Stephen Furst and Vivian Ramsey Keating on Construction Contracts (9th ed, Sweet & Maxwell, 2015) at [18-022]).

part of a claim and the adjudication proceeding is likely to proceed to a determination on some issues in any event”.24

[37]   If G K Shaw’s argument is accepted, it would essentially amount to a requirement that adjudicators adopt the former approach in order to avoid making findings that are subsequently at risk of challenge for lack of jurisdiction. In my view, this outcome would unduly limit the discretion of adjudicators to conduct the adjudication in the manner they think fit,25 and could hinder the efficient resolution of disputes. As Mr Skelton points out, there may be good reasons why an adjudicator might decide to deal with the matter of jurisdiction within a substantive decision. I consider that matter is best left to the discretion of the adjudicator to deal with in the context of a particular dispute. I add that it is always open for parties to agree to first seek a determination on matters relating to jurisdiction before embarking an adjudication addressing the merits of the dispute.

[38]   In the present case, while G K Shaw now concedes that the damages sought in the first adjudication claim were outside  the scope of  the CCA,  it argued before  Mr Fisher that he did have jurisdiction. The issue was very much a live one and it was conceivable that G K Shaw might challenge an adverse jurisdictional finding.26 In light of that, I do not consider that any criticism can be made of Mr Fisher’s decision to deal with the issue of lack of jurisdiction, and then also go on to dispose of the claim on its merits.

[39]   In summary, I consider that Mr Fisher was entitled to determine the substance of the case, notwithstanding his view on jurisdiction. While he could have decided to deal with the jurisdiction question as a preliminary issue in a separate decision, there was no absolute legal requirement that he should do so and in the context of the issues presented to him for adjudication there can be no criticism of his approach. The result is that Mr Fisher’s substantive findings are binding on the parties, and Mr Green was correct to dismiss the second claim. The application for judicial review must therefore be dismissed.

24 At [34].

25     Construction Contracts Act, s 42(1)(a).

26     Indeed, Mr Fisher appears to have contemplated the possibility of such a challenge (above n 5,  at [45]).

How could Mr Green have jurisdiction if Mr Fisher lacked it?

[40]   Notwithstanding  these  conclusions,   there   is   a   further   difficulty   with G K Shaw’s case. If Mr Fisher lacked jurisdiction to determine the claim in the first adjudication, how could Mr Green have jurisdiction to determine what the applicant accepts is essentially the same claim?

[41]   The answer for the applicant is that the claims are different in a material aspect: one was a claim for common law damages under the CCLA, the other a claim for payment under the contract. While Mr Fisher dealt with the claim under s 48(1)(a) of the CCA, the second determination while advancing essentially the same claims was one brought under s 48(1)(b), relating to a determination of CentrePort’s rights and obligations under the agreement.

[42]I am unable to accept G K Shaw’s argument.

[43]   The difference between the old claim and the new is one of description not substance. As noted, with one exception, and some differences in the quantum sought, the particular heads of loss claimed in both adjudications are essentially identical. Both claim the same special and defect retentions, a variation for the suspension of work following the (allegedly) unlawful repudiation, payment for G K Shaw’s plant retained by CentrePort, and interest. The only material difference was the replacement of a claim for “payment of the balance of the contract price” with a claim for “payment of costs incurred but not yet claimed under the contract”. The applicant has essentially re-packaged the same claims as claims for the payment of sums “due under the contract as the result of the wrongful termination”. I struggle to see how this changes anything. In my view, Mr Fisher’s analysis still applies to the new claims:27

The claim by GKS does not now seek performance of any of the terms of the Contract. It is true that the adjudication claim refers to a number of terms in the Contract said to have entitled GKS to special and defects retentions, a suspension period based on a variation, compensation for plant retained and a portion of the contract price said to be still unpaid. But these were all relied on to show GKS's losses, and hence the quantum of the damages now due to it. They were not advanced to obtain performance of the contractual terms themselves.

27     Fisher determination, above n 5, at [43].

[44]   If Mr Fisher’s analysis of jurisdiction is correct, a matter that G K Shaw explicitly endorsed in order to bring its challenge to Mr Green’s determination, then the second claim is also outside the  jurisdiction conferred by  the CCA. Whether  Mr Fisher’s finding is correct was not an issue I was asked to determine and I say no further about it, other than to observe that his jurisdictional finding appears to be focussed on s 48(1)(a) rather than (1)(b).

[45]   However, even if I had reached a different view about whether the new claims could amount to a claim within s 48(1)(a), I would not have granted relief in this case. That is because I consider Mr Fisher had jurisdiction to deal with the merits of the claim under s 48(1)(b). Given the circumstances, it is clear that the applicant could and should have brought its second claim the first time around. There has been no explanation why that did not happen. In my view, the second adjudication claim squarely engages the rule in Henderson v Henderson. The rule provides that if a party fails to raise an argument that they could and should have raised in an earlier proceeding, they will generally not be allowed to do so in a subsequent proceeding. In other words, litigation  should  not  be  undertaken  by  instalment.28  That  is  what  G K Shaw is trying to do here. Having failed to get the answer it wanted in the first adjudication, it has brought an almost identical claim dressed up in different legal regalia.29 That is an abuse of procedure, especially given the underlying aims of the Act, which is to provide a swift answer for the parties on the controversy between them, generally to preserve an ongoing business relationship. For this reason alone, I would not remit the case for reconsideration even if I was satisfied that Mr Green had erred in law.

Conclusion and result

[46]The application for judicial review is dismissed.

[47]   My present inclination would be to award costs on a 2B basis in favour of CentrePort, although I note that the respondent has indicated it may wish to be heard

28 Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [2].

29 I note that given G K Shaw brought a claim in the first adjudication which it now accepts was outside the scope of the CCA, there is some irony in the suggestion that Mr Fisher was somehow responsible for creating unnecessary costs in breach of his duty under s 41(b) of the CCA.

separately on the matter. In the event that the parties are unable to reach agreement on costs, I direct CentrePort to file a costs memorandum no longer than five pages within 10 working days of the date of this judgment. Any memorandum in reply should be filed within 10 working days thereafter and must also not exceed five pages. I will then endeavour to determine the question of costs on the papers.

Isac J

Solicitors:

Badcock Law, Rotorua for Applicant

Kensington Swan, Wellington for Second Respondent