Youssef v Maiden - [2019] NZHC 3471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2524

[2019] NZHC 3471

IN THE MATTER OF the Judicial Review Procedure Act 2016

AND

IN THE MATTER OF

the Construction Contracts Act 2002

BETWEEN

AHMED AMIN MAHMOUD YOUSSEF (AS TRUSTEE OF THE JAMESSEF TRUST) AND STEPHYN ST JAMES

Applicants

AND

RICHARD LINTON MAIDEN

First Respondent

BESPOKE DESIGN AND BUILD LIMITED

Second Respondent

Hearing:
1 April 2019

Further submissions received 15 and 17 April 2019

Appearances:

M R Taylor for Applicants

K R Narayanan for Second Respondent

Judgment:

20 December 2019

REASONS FOR JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 December 2019 at 11.00 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

YOUSSEF v MAIDEN [2019] NZHC 3471 [20 December 2019]

Introduction

[1] The applicants, Mr Ahmed Youssef and Mr Stephyn St James, seek judicial review of a determination made by the first respondent, Mr Richard Maiden, on 15 October 2018 (“determination”).

[2] Mr Maiden made the determination as adjudicator under the Construction Contracts Act 2002 (“CCA”), in respect of a dispute between the applicants and the second respondent, Bespoke Design Limited (“Bespoke”).

[3] Mr Maiden abides the decision of the Court. Bespoke denies the applicants’ allegations, and opposes the application for review.

[4] On 31 October 2019, I issued a results judgment granting the application and quashing the determination.1 These are my reasons.

Background

[5] The applicants engaged Bespoke to build a house on their site in Mangawhai. The parties entered into the relevant contract on 17 or 18 August 2017 (“contract”). Work commenced in the second half of 2017 and the house was expected to be completed by mid-2018. Differences between the parties arose early in 2018, with matters coming to a head in a series of letters in April 2018.

[6] By email of 3 April 2018, the applicants advised Bespoke they considered it in breach of contract in several respects and that they would not pay for costs they considered resulted from inefficiencies.

[7] On 6 April 2018, Martelli McKegg, acting for Bespoke, notified the applicants that Bespoke was suspending work on site with immediate effect.

[8] By letter dated 9 April 2018, the applicants, by their counsel Mr Taylor, cancelled (or purported to cancel) the contract, on the basis Bespoke had repudiated

1 Youssef v Maiden [2019] NZHC 2815.

the contract or committed a fundamental breach of it, and said they would engage another builder to finish the work.

[9] On 11 April 2018, Bespoke rejected the applicants’ cancellation, and itself cancelled the contract.

Adjudication

[10] On or around 10 August 2018, Bespoke gave the applicants Notice of Adjudication under the CCA. In its Notice of Claim, setting out what it considered to be the issues, Bespoke sought:

(a)$90,106.42, including GST, it said was owed in respect of unpaid invoices;

(b)interest;

(c)lost profit of $61,267.02. Bespoke claimed this sum as the profit it would…

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 Youssef v Maiden

Details

AGLC: Youssef v Maiden [2019] NZHC 3471
Case: [2019] NZHC 3471
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Youssef v Maiden concerns a judicial review of an adjudicator's determination made under the Construction Contracts Act 2002. The applicants, Mr Ahmed Youssef and Mr Stephyn St James, sought to overturn a determination made by Mr Richard Maiden, who was acting as an adjudicator in a dispute with the second respondent, Bespoke Design Limited. The central issue was whether Mr Maiden had a conflict of interest that precluded him from acting as an adjudicator and whether he made errors in his determination. The court found that Mr Maiden had a conflict of interest, as he was simultaneously acting as an expert witness for a party involved in the litigation, which was a breach of statutory duties. Furthermore, the court found that Mr Maiden's determination was flawed as he failed to properly consider relevant contractual provisions and legal principles regarding the applicants' right to cancel the contract. Consequently, the court quashed the adjudicator's determination in its entirety.

Orders