Construction Adjudication Do's and Don'ts: An Adjudicator's Perspective

It’s hard to believe that over 17 years have passed since the Construction Contracts Act 2002 came into force.

In 2004, I was counsel for a builder in what would have been one of the first construction adjudications in New Zealand. Neither the adjudicator, nor the lawyers, or the parties, had been involved in an adjudication before. Together, we navigated through the process relying on the bare bones set out in Part 3 of the Act. It felt like we were making up the process as we went along, and to a degree, we were.

Fast forward 17 years, and the construction adjudication process has been refined and improved by several amendments to the Act. Leading institutions such as the Building Disputes Tribunal have developed a streamlined and extremely efficient process for adjudication, and provide a myriad of helpful guides and resources (see https://www.buildingdisputestribunal.co.nz/adjudication/guides-and-resources/). However, because the process is still a private and confidential one, there is no universal approach to the practical side of running an adjudication.

In this short article I set out my own views, as an adjudicator, on what it is helpful to do, and not to do, when acting for a claimant or a respondent in an adjudication.

Some of the do’s and don’ts are based on the ‘hard’ law set out in the Act. Others are based on established practice; and some are based on my experience and personal preferences. In the latter case, these are suggestions only. Other adjudicators may prefer a different approach. However, the preferences I outline are those which, in my experience, are generally favoured by adjudicators in New Zealand.

The Notice of Adjudication:

• Ensure that all the details required by section 28(2) of the Act are included in the notice.
• Ensure that the information in Form 2 of the Regulations is attached to the notice.
• Ensure that the remedies sought in the notice are the same as the remedies which will be sought in the Adjudication Claim. For this reason, it is best practice to prepare the Notice of Adjudication after the Adjudication Claim has been drafted.
• Ensure that the notice is properly served on the respondent, and that you can prove service if there is a dispute.

Application for Appointment:

• Be aware of the time limits set out in section 33 of the Act. An application to an Authorised Nominating Authority to appoint an adjudicator must be made within 2 to 5 working days of service of the Notice of Adjudication.
• Don’t waste time to-ing and fro-ing over who is to be appointed –  apply to an Authorised Nominating Authority for an adjudicator to be appointed.
• Indicate the type of expertise sought, or any agreement on the appointment of a particular adjudicator.

The Adjudication Claim:

• The Adjudication Claim must be served within 5 working days of receipt of the Adjudicator’s Notice of Acceptance. This time cannot be extended, and runs out quickly. Therefore, prepare the Adjudication Claim before applying for the appointment of an adjudicator.
• The most helpful format is usually an Adjudication Claim, supported by Witness Statements, and a Bundle of Documents.
• Affidavits are not required.
• Hyperlink references to documents in the Adjudication Claim and Witness Statements to the Bundle of Documents if possible.
• Avoid a formulaic court pleading-style Adjudication Claim.
• Include any submissions on law.
• Provide a chronology.
• Anticipate likely responses to the claim, and deal with them up front.
• Confine Witness Statements to the facts – avoid submissions in the evidence.
• Ensure that copies of documents in the Bundle of Documents are legible.
• Include everything the claimant wants to rely on in the Adjudication Claim.
• Don’t assume that there will be any further opportunity to provide evidence or submissions.
• Don’t assume that there will be a conference or site visit. Conferences and site visits are very rare.
• Use photographs, diagrams, plans; but if you do, ensure that you describe what is shown in them.
• Provide copies of authorities (extracts from texts and cases) referred to (other than cases which are well known and referred to as authority for a general proposition only).

The Adjudication Response:

• Be aware of time limits. The Adjudication Response must be served within 5 working days of receipt of the Adjudication Claim. This time frame is capable of being extended by agreement or by the Adjudicator.
• If more time is needed to serve the response, seek the agreement of the claimant or apply for an extension of time early. Do not wait until the 5th working day. Time cannot be extended after the 5 working day time limit has passed.
• Do not expect a lengthy extension of time. If an extension is granted, it will usually be for no longer than a few working days. Extensions of time longer than 5-10 working days are exceptional.
• The most helpful format is usually an Adjudication Response, supported by Witness Statements, and a Bundle of Documents.
• Hyperlink document references.
• Avoid admission and denial-style pleading.
• Don’t overstate the case in response. For example, it is often better to say that some of the facts set out in the Adjudication Claim are inaccurate (and state the facts the respondent relies on), rather than to say that the Claimant is lying or attempting to mislead the Adjudicator.
• As with Adjudication Claims, include any submissions on law, ensure that copies of documents in the Bundle of Documents are legible, describe what any photographs, diagrams or plans depict, and provide copies of authorities relied upon.
• Don’t assume that there will be any further opportunity to provide evidence or submissions, or that there will be a conference or site visit.
• Don’t attempt to advance a “counterclaim”. If a respondent wishes to advance its own claim against a claimant, it will need to initiate a separate Adjudication Claim.

Adjudication Replies and Rejoinders:

• These are not an opportunity to present new evidence or restate matters covered in the claim or response.
• Replies and Rejoinders must be strictly confined to new matters. Keep them short and concise. Address the key matters only.
• As with Adjudication Claims and Responses, avoid court pleading style admissions and denials.

Mark Colthart, FortyEight Shortland Barristers, 26 August 2020