Haskell Construction v Ashcroft - [2020] NZHC 772

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-593

[2020] NZHC 772

BETWEEN
HASKELL CONSTRUCTION LIMITED

Plaintiff

AND

ROBERT FRANCIS ASHCROFT

First Defendant

AND

ALPINE PRIME PROPERTIES LTD

Second Defendant

Hearing: 27 February 2020

Counsel:

M Freeman for Plaintiff

F B Collins for Second Defendant (for limited purpose of abiding decision) and Third Defendant

Judgment:

21 April 2020

JUDGMENT OF GRICE J

Contents

Para No.

Introduction  [1]
Grounds for judicial review  [11]
Issues  [17]

Judicial review [18]

Construction Contracts Act 2002 [21]

What do “rights and obligation of the parties” under the construction contract mean?     [31]
The words used  [37]
Implied Warranties and Statutory Remedies Under the Building Act 2004          [41]
Issue estoppel  [72]
Conclusion  [87]
Costs  [89]

HASKELL CONSTRUCTION LIMITED v ASHCROFT [2020] NZHC 772 [21 April 2020]

Introduction

[1] In September 2018 Haskell Construction Limited (Haskell) commenced construction of an architecturally designed home for Alpine Prime Properties Limited (Alpine). They were parties to a signed construction contract for the building that was entered into in August 2018. Not long into the construction complications arose requiring further work involving structural steel framing. This work was the subject of a variation issued which added to the cost of construction. The parties disagreed on payment for the steel members. This led to Alpine purporting to cancel the contract.

[2] In February 2019 Haskell submitted a payment claim for stage two of the construction and in March gave five days’ notice that it would suspend works for non- payment. In April Alpine asserted that the contract was cancelled for breach of contract. Haskell accepted the cancellation on a without prejudice basis.

[3] The substantive dispute between the parties will be dealt with at arbitration in August 2020. The appointed arbitrator is a barrister. In the meantime the dispute has been dealt with at adjudication. Two adjudication determinations have been issued and these proceedings relate to a third adjudication claim brought by Alpine.

[4] The Construction Contracts Act 2002 (CCA) established a summary adjudication process for the determination of disputes. This was designed to provide a fast track determination process which would allow the timely determination of disputes arising in construction contracts so the construction was not delayed pending a lengthy legal process. A determination does not affect the ultimate substantive decision which will be made here at arbitration. Nevertheless, the determinations are enforceable in their terms when made.

[5] In this case two adjudication determinations have been issued. The adjudicator, Mr Hazelton, issued a determination in each the first and second adjudications on 29 May 2019. The net outcome of the adjudications was that Alpine was to pay Haskell the sum of $133,619.16 as an interim award under the contract. This amount was determined in the first adjudication.

[6] In the second adjudication the adjudicator found that Haskell was in breach of the contract. However, the adjudicator declined to change the earlier monetary…

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 Haskell Construction v Ashcroft

Details

AGLC: Haskell Construction v Ashcroft [2020] NZHC 772
Case: [2020] NZHC 772
Decision Date: 21 April 2020

CaseChat Overview and Summary

The plaintiff, Haskell Construction Limited, brought this judicial review application against the first defendant, Mr Robert Ashcroft, in his capacity as an adjudicator. The plaintiff sought a declaration that Mr Ashcroft had no jurisdiction to embark on a third adjudication because the dispute had already been adjudicated and an order that the matters Alpine sought to refer to a third adjudication were the same or substantially the same as the dispute which had already been determined in the first and second adjudication. Haskell also sought a declaration that the damages claimed in the third adjudication were outside the scope and jurisdiction of an adjudication under s 38 and 48(1)(a) and (b) of the Construction Contracts Act 2002. The court dismissed the application. The court found that Mr Ashcroft did not err in law and/or consider irrelevant factors, and/or fail to take into account relevant factors in his decision to proceed with the third adjudication. It was within the jurisdiction of the first defendant as adjudicator to consider the third adjudication claim. The court also found that the adjudicator had jurisdiction to make a determination for payment of amounts by way of compensation for loss or damages under the relevant statutory remedy for breach of the implied terms. The text of the legislation and the relevant purpose supported the ability of an adjudicator to not only make rights and obligations determinations for breaches of the implied warranties but also to determine that a statutory remedy applied.

Orders