Adjudicator jurisdiction across jurisdictions

The construction industry underpins economies worldwide. In New Zealand, the construction sector contributes 6.2 per cent to gross domestic product (GDP) as of March 2020, with GDP increasing significantly by 52 per cent on a quarterly basis.[1] The report ‘Global Construction 2030’ forecasts that construction output will increase by 85 per cent to US$15.5tr by 2030. The leading countries are expected to be China, the US and India. The report predicts an average global construction growth of 3.9 per cent per annum to 2030, outpacing global GDP by over one percentage point.[2]

However, despite best project intentions, with construction projects often come construction project disputes.  These have the potential to derail projects, relationships, client budget and contractor margin. Given the significant potential impact of protracted disputes, the process of adjudication has been established in various jurisdictions for the fast track resolution of disputes arising under a construction contract.[3]

Adjudication is a process in which an independent third party (known as the adjudicator) determines a dispute put forward by opposing parties. In most jurisdictions, adjudication is a process whereby disputes are largely determined on the papers, with no hearings. It is conducted within very tight timeframes for both submissions and determinations, with most disputes being resolved within six weeks.[4]

In New Zealand, adjudication was first introduced by the Construction Contracts Act 2002 (CCA) in April 2003 as a speedy dispute determination mechanism to facilitate cash flow. Under the CCA, the adjudicator holds jurisdiction for certain disputes arising under the construction contract and must observe the principles of natural justice. Adjudication has become known as a ‘short and sharp, rough and ready’ process, undoubtedly the preferred dispute resolution forum for contractors or subcontractors.

Adjudication has gained even more momentum globally, arguably due to the significant growth in construction and the Covid-19 environment, increasing the volume of construction disputes requiring resolution. The Covid-19 pandemic has negatively affected construction projects through issues in global supply chains and difficulties in delivering projects on time. Unsurprisingly, the United Kingdom Construction Leadership Council has noted that the level of notifications and claims under construction contracts has increased due to Covid-19.[5] A recent Royal Institution of Chartered Surveyors survey also found that over 40 per cent of professionals reported an increase in disputes since the onset of the pandemic.[6]

However, while adjudication has been a useful tool in dispute determination, the increase in its use has highlighted constraints in the process and caused parties to question whether the scope of adjudicators’ jurisdiction is broad enough to achieve its purpose.

This article focuses on adjudicators’ jurisdiction across key commonwealth jurisdictions (including Australia, New Zealand and the United Kingdom) and whether the breadth of that jurisdiction means that adjudication is fit for purpose in the current construction environment. It also addresses the level of court intervention in the adjudication process across jurisdictions. The increase in alleged jurisdictional issues (perceived or actual) is becoming increasingly common and – importantly – can result in delays to the otherwise short statutory timeframes, prevent parties from relying on otherwise legitimate legal arguments falling outside the strict realms of contract, and ultimately render any determination unenforceable and/or unfit for purpose (although the willingness of the courts to interfere at this juncture varies).

We explore these issues more specifically by discussing the following:

  1. how jurisdiction is determined;
  2. how jurisdiction can be challenged;
  3. what jurisdictional issues may arise;
  4. why jurisdiction matters; and
  5. whether the scope should be expanded.

How is jurisdiction determined?

We examine below the setting of jurisdiction in New Zealand, Australia and the UK. Overall, an adjudicator’s jurisdiction is widest in the UK, allowing ‘any’ dispute arising under the construction contract to be adjudicated. New Zealand follows closely, allowing disputes regarding payment and rights/obligations to be adjudicated. In Australia, jurisdiction is limited to payment disputes only. Most jurisdictions, excluding the UK, provide that parties cannot contract out of the relevant legislation.

New Zealand

In New Zealand, the jurisdiction of an adjudicator is set by the Construction Contracts Act 2002. Adjudicators have jurisdiction to determine disputes regarding payment and the rights/obligations of a party under a construction contract.[7] Originally, New Zealand more closely followed Australia in that only disputes regarding payment were subject to adjudication. However, this was broadened to include rights and obligations by the Construction Contracts Amendment Act 2015. A construction contract is defined as a contract for carrying out construction work including any variations to the construction contract.[8] If the adjudicator determines that a party is liable to make payment, the adjudicator must also determine the amount of payment, date of payment and any other conditions. The parties may extend the adjudicator’s jurisdiction by written agreement.[9]

Australia

In Australia, the legislation governing adjudication differs between states. The legislation in New South Wales,[10] Victoria,[11] and Queensland[12] are largely similar. Unlike New Zealand, jurisdiction is limited in scope to disputes over payment claims (it does not extend to rights and obligations) and can only be invoked by a person who performs construction work and claims to be entitled to a progress payment.[13] An adjudicator has jurisdiction to determine the amount of a progress payment, the date the amount becomes payable and the rate of interest payable. The legislation does not reference extending jurisdiction by agreement as in New Zealand.

In Western Australia[14] and the Northern Territory[15], the adjudicator has jurisdiction to determine matters related to a construction contract regarding payment disputes.

United Kingdom

In the UK, the jurisdiction of an adjudicator is set by the Housing Grants, Construction and Regeneration Act 1996 (HGCRA). An adjudicator’s jurisdiction is largely determined by the contract. Unless otherwise stated, the adjudicator has jurisdiction to determine a dispute arising under the contract.[16] If a contract does not provide for adjudication, the Scheme for Construction Contracts (England and Wales) Regulations 1998 provides that an adjudicator shall decide the matters in dispute including payment disputes. Unlike Australia, the UK legislation allows adjudication to be invoked by any party to a construction contract at any time to resolve any dispute arising under the contract.[17] The right to adjudication cannot be narrowed in scope or contracted out of.[18] This is a broader approach than both jurisdictions discussed previously, but most resembles the New Zealand jurisdiction.

Overall

All jurisdictions have similar themes underpinning adjudication – to facilitate timely payments and efficient cash flow between parties to a construction contract. The scope of jurisdiction in the UK appears to be the broadest, with New Zealand close behind. The New Zealand and Northern Territory of Australia jurisdictions further purport to provide speedy dispute resolution solutions. The New Zealand and UK legislation allows the adjudicator jurisdiction over payment disputes and any other disputes arising from the construction contract. This is broader in scope than the Australian legislation, which only allows payment disputes in relation to progress payments. This is likely attributable to the fact that the Australian legislation specifically relates to security of payment while the New Zealand and UK legislation cover construction contracts in general.

How is jurisdiction challenged?

There are two key junctures at which parties may challenge the jurisdiction of an adjudicator: (1) at the outset of the adjudication; or (2) once the determination has been issued and is being enforced. Jurisdictions differ in relation to the level of court intervention, but courts are generally reluctant to intervene in an adjudicator’s determination.

Overall, New Zealand and the UK have similar approaches by allowing review of an adjudicator’s decision only in the case of jurisdictional errors or an extreme breach of natural justice. Australia has specific review processes set out in the legislation, such as internal review. Most jurisdictions allow adjudicators to determine their own jurisdiction. The courts in all jurisdictions tend to be reluctant to intervene and overturn adjudicators’ determinations.

New Zealand

In New Zealand, if the jurisdictional issue is raised prior to the adjudicator’s determination or during the adjudication, the adjudicator may rule on their own jurisdictional matters. However, if the dispute has already been determined, a party who is required to pay as a result may apply for judicial review of the adjudicator’s determination. This is only in the case of jurisdictional errors that breach natural justice. The courts are vigilant to ensure that judicial review of adjudicators’ determinations do not cut across the scheme of the legislation and undermine its objectives.[19] The Court of Appeal in New Zealand has warned against the courts allowing judicial review proceedings that interfere with the ‘pay now, argue later’ doctrine.[20] This is largely due to the nature of an adjudicator’s determination being interim in nature,[21] and the parties’ right to subsequently determine the dispute in arbitration or litigation.[22]

Australia

In Australia, the procedure for review of the adjudicator’s determination is clearly set out and is overall more limited. However, the legislation does not provide for situations of challenging jurisdiction prior to the determination of a dispute. After the determination of a dispute, Victorian legislation allows the respondent to apply for a review of the adjudicator’s determination only if the respondent provided a payment schedule to the claimant within the time specified, and on the grounds that the adjudicated amount included an excluded amount. The respondent must identify the amount that is the excluded amount and have paid the claimant the adjudicated amount other than the alleged excluded amounts.[23] In Queensland, a review must first be applied as an internal review, and then a review of the original determination to the registrar.[24] The registrar may confirm, amend or substitute the original determination. In Western Australia, a person who is aggrieved by a determination may apply for a review. The determination may be set aside, and the adjudicator must make a determination on the issue.[25] Following the New Zealand and UK positions, the courts in Australia are also unlikely to intervene in an adjudicator’s determination.

United Kingdom

In the UK, the Technology and Construction Court (TCC) determines disputes about buildings, engineering and surveying. Prior to the final decision, a party can challenge the jurisdiction of an adjudicator by: agreeing to widen the adjudicator’s jurisdiction; referring the jurisdictional dispute to another adjudicator; referring the jurisdictional dispute to the courts; or refusing to participate.[26] After the determination, a party may challenge the adjudicator’s decision by either opposing enforcement of the determination in court or arbitration proceedings, or by itself commencing court or arbitration proceedings to seek a declaration that the adjudicator’s determination is unenforceable.[27] Lack of jurisdiction is a ground for judicial review of an adjudicator’s determination. Other grounds, such as errors of procedure, fact or law, are unlikely to be valid.[28] The courts will rarely interfere with the adjudicator’s determination.[29] If a party doubts the jurisdiction of an adjudicator but wishes to proceed with the adjudication in the interim, it should proceed with the adjudication while reserving the right to challenge the adjudicator’s determination on the grounds of jurisdiction in later proceedings.[30]

Unlike the UK, New Zealand and Australia do not have a designated construction court. This means that High Court judges may have less specialisation regarding construction matters than an adjudicator. The courts should rightly be reluctant to interfere in adjudication processes. If the purpose of adjudication is to provide a speedy resolution for construction disputes, with the further option of utilising arbitration or litigation, review of adjudicators’ determinations goes directly against this purpose. The courts should only interfere in exceptional circumstances and this is more so in New Zealand and Australia since adjudicators are specialised in their area. A potential option is to have more vigilant appointment processes to ensure adjudicators have the expertise they require to make the determination.

What jurisdictional issues may arise?

At the two key junctures in which parties may challenge the adjudicator’s jurisdiction, jurisdictional issues may arise as to whether the adjudicator has jurisdiction to determine the dispute at the outset and/or whether the adjudicator has remained within their jurisdiction in making their determination. Some common examples of jurisdictional issues are briefly explored below for illustration purposes:[31]

Notice of adjudication relates to matters not yet in dispute

Parties to a construction contract have the right to refer a ‘dispute’ to adjudication. New Zealand legislation defines dispute as ‘a dispute or difference that arises under a construction contract’;[32] UK legislation also refers to ‘a dispute arising under the contract’ and clarifies that dispute includes ‘any difference’;[33] and Australian legislation does not define ’dispute’. The construction contract may further define what constitutes a dispute.

Parties may seek to argue that there is no dispute (therefore no right to refer a matter to adjudication for which the adjudicator may determine) where the claim has not been rejected, where the claim cannot be admitted or rejected based on the information available, or because the contractual claims process has not been followed. This is commonly referred to as there being no ‘crystallised’ dispute, and is common across all commonwealth jurisdictions.

Whether there is a dispute will depend on the definition of dispute under the applicable legislation and contract. In Amec Civil Engineering Ltd v The Secretary of State for Transport,[34] the UK House of Lords set out seven propositions regarding what does and does not constitute a dispute: in essence, a dispute will not arise unless or until it emerges that the claim is not admitted, which may be established in a number of ways (expressly or by inference, with the duration of the action or inaction being informative), but not necessarily by reason only of a claim being submitted.[35] In New Zealand, although the contractual claims and dispute resolution process may indicate whether a dispute has arisen, it is not a prerequisite given the wide definition of a dispute and the prohibition on contracting out of applicable legislation.[36]

Notice of adjudication relates to multiple disputes

Again, parties to a construction contract have the right to refer ‘a’ dispute to adjudication (singular, not plural). Parties may seek to argue that multiple disputes have been referred to a single adjudication, and in the absence of consolidation and/or extension of the adjudicator’s jurisdiction by agreement, the adjudicator does not have jurisdiction to determine more than one dispute.

Whether the dispute involves multiple disputes will depend on the wording of the applicable legislation and the relevant facts. The courts will generally take a broad approach. In the UK case Fastrack Contractors Ltd v Morrison Construction Ltd,[37] it was said that the question involves a careful characterisation of the dispute, which will not necessarily be determined solely by the wording of the notice of adjudication but must be construed against the underlying factual background from which it arose and which is known to both parties. In Western Australia, the courts have gone further – in Clough Projects Australia Pty Ltd v Floreani,[38] it was held that an adjudicator may adjudicate more than one payment dispute, without the consent of the parties, where the adjudicator is satisfied that doing so will not adversely affect their ability to adjudicate fairly and as quickly, informally and inexpensively as possible.

Notice of adjudication relates to matter previously determined by another adjudicator

A party to a construction contract may seek to refer a dispute that has already been determined in another adjudication. In New Zealand, estoppel may be raised as a defence to any claim where the same subject matter has already been determined so as to prevent a party from commencing multiple adjudications in relation to the same subject matter.[39] The purpose of the relevant legislation in seeking to provide speedy resolution of disputes is a determining factor, as re-adjudicating the same subject matter goes against this purpose. In the UK, it has been held that the adjudicator is required to resign if a party attempts to re-adjudicate the same matter,[40] and it has also been suggested that a party may have an obligation to refer the adjudicator to a determination of a previous adjudicator of the same dispute.[41] In practice, if a party raises the issue, an adjudicator may seek submissions from the parties and determine their jurisdiction to avoid the issue undermining the determination.

The question of whether the subject matter is the same or substantially similar to the one previously determined may not be clear cut and will depend on the facts of the case. In Benfield Construction Ltd v Trudson (Hatton) Ltd,[42] it was said that a dispute will generally be the same or substantially the same if there are no material differences in the facts or the same documents will be relied upon. If an adjudicator’s determination is made on the same dispute, the later decision will not be enforceable, and the earlier decision will be binding until the dispute is finally resolved by arbitration, litigation, or agreement between the parties.[43]

Determination falls outside scope of notice of adjudication

The jurisdiction of an adjudicator is defined by the terms of the dispute that has been referred.[44] New Zealand legislation requires an adjudication to be initiated by a notice of adjudication, which must state the nature and a brief description of the dispute and of the parties involved.[45] Once the adjudicator has been appointed, the claimant must refer the dispute in writing by an adjudication claim specifying the nature or the grounds of the dispute.[46] In Alaska Construction + Interiors Auckland Ltd v LaHatte and Lovich Floors Ltd,[47] it was confirmed that the grounds of the dispute set out in the notice of adjudication may be superseded by the adjudication claim – with the notice of adjudication having no more relevance or significance than initiating the adjudication process.

Comparatively, in the UK, a notice of adjudication primarily defines the dispute,[48] although the respondent may enlarge the adjudicator’s jurisdiction by introducing new matters not identified in the notice of adjudication.[49] The notice of adjudication cannot be used to limit the adjudicator’s jurisdiction to consider valid defences.[50] It may be considered a breach of natural justice if the adjudicator disregards a potentially valid defence by taking a restrictive view on its jurisdiction.[51]

The New Zealand legislation is more procedurally prescriptive than the UK legislation as a result of the requirement to state ‘the nature and a brief description of the dispute’[52] (as opposed to the ‘notice of intention to refer a dispute to adjudication’[53]), as well as the requirement for the adjudication claim to set out the nature or grounds of the dispute.[54]

Determination relates to claims, defences and/or relief outside the construction contract

As above, the parties have a right to refer a dispute arising under a construction contract to adjudication. The reference to ‘arising under’ arguably prevents the adjudicator from considering matters falling outside the scope of the construction contract itself – that is, beyond matters relating to contractual entitlement, such as statutory and equitable claims and/or relief.

In the UK case Premium Nafta Products Ltd v Fili Shipping Co,[55] the House of Lords considered the difference between ‘arising under’ and ‘arising out of’ the construction contract in the context of an arbitration clause, preferring a pragmatic and commercial approach to interpretation to allow a wide range of disputes to fall under the category of disputes able to be referred to arbitration for resolution.[56] The same principles are seen to apply to adjudication.

In Haskell Construction Ltd v Ashcroft,[57] the New Zealand High Court rejected the argument that the adjudicator could only determine amounts payable under the contract and therefore cannot award damages that exist separately and not under the contract. The Court considered the purpose of the relevant legislation and held that the adjudicator’s jurisdiction extends to include compensation for loss or damages under a relevant statutory remedy.

In an adjudication context, an adjudicator will ordinarily have jurisdiction to decide upon rectification of the contract,[58] but not matters regarding pre-contractual misrepresentations or settlement agreements.[59]

Discussion: why does jurisdiction matter?

The adjudicator’s jurisdiction is of critical importance given that limitations can severely impact a party’s ability to best present its case, and lead to allegations that the adjudicator has (or will) act outside their jurisdiction. This can undermine the purpose of the process to provide a cost-effective and efficient dispute resolution process.

Jurisdiction issues in practice

In practice, jurisdictional issues have become part of the ‘lawyers toolbox’ – used to: extend the statutory timeframes; leverage the inclusion of counterclaims with opposing counsel; prevent the opposition from raising otherwise valid claims/defences; limit the other party’s efforts in reply/rejoinder by detracting resources elsewhere; and to set the foundation for later challenging any unfavourable determination.

As matters stand, it is therefore critical to understand when jurisdictional challenges are valid or simply strategic – or both – and how to deal with such issues when they arise. But, is it satisfactory to simply ‘deal’ with such issues when they arise, or is more fundamental change required to avoid jurisdictional issues interfering with the legislative purpose of adjudication?

Evolution of disputes referred to adjudication

In the authors’  opinion, the overall objective of adjudication remains the same globally: parties to construction contracts require speedy and cost-effective resolution of disputes as a means of facilitating cash flow in the sector, particularly as the sector experiences increasing growth and demand.

What has changed is the utility of adjudication (i.e., how it is being used by parties to a construction contract); the nature of the disputes now being referred to adjudication (increasing in complexity and significance, often requiring extensive expert and factual evidence); and the environment in which disputes are arising (increasing in pressure as a result of Covid-19 and sector demand/resource strain). In some instances, what has also changed is the parties’ objectives when engaging in the adjudication process – not always intended to resolve a single dispute for which a party believes it has a genuine entitlement in respect of, but rather used to seek an independent opinion on the dispute to then be used to guide commercial resolution and/or as a strategic tool, for example, to leverage a commercial project reset or settlement under threat of multiple time consuming and expensive adjudications detracting resources from project completion.

Impact of jurisdictional issues in evolving environment

The impact of jurisdictional issues arising in this evolving environment can be significant and differs between jurisdictions, affecting the extent to which adjudication may be considered no longer fit for purpose across jurisdictions. By way of example:

  1. The efficiency of adjudication may be compromised because of timetable extensions granted – or agreed, under threat of jurisdictional issues being relied on to avoid any unfavourable determination – because of jurisdictional issues being raised at the outset. This is a greater issue in Australia and the UK, where there is no ability for the adjudicator to extend the applicable timeframes in the absence of agreement, unlike in New Zealand where the adjudicator has a wide discretion to grant an extension to the timeframe for the respondent’s response.
  2. The cost of adjudication may significantly increase because of time spent by counsel and the adjudicator in raising or responding to jurisdictional challenges, enforcing or avoiding the enforcement of a determination that falls outside the scope of the adjudicator’s jurisdiction, or any judicial review on grounds related to jurisdiction. Of course, the reluctance of the courts across all jurisdictions to intervene and overturn adjudicators’ determinations does reduce the chances of jurisdictional issues being escalated and increasing costs, assuming the parties appreciate this prior to submitting any application for judicial review. The costs of resolving the dispute may be further exacerbated in the event either party refers the dispute to a substantive hearing (court or arbitration) for a final decision.
  3. The ability to obtain a sufficiently robust interim decision that the parties ‘can live with’ pending any final decision or commercial resolution may be threatened due to the restrictions on extending the statutory timeframes (affecting the parties’ ability to put forward their best position); the inability to re-adjudicate matters already determined (increasing the importance of determinations given the ‘precedent’ value); and access to suitably qualified adjudicators. The latter is a particular issue in New Zealand for a variety of reasons (including population and litigation appetite compared with Australia and the UK) and can result in the inability to appoint the parties’ preferred adjudicator and in some instances an adjudicator appointed to determine a dispute that is outside their experience or skillset.

Concluding comments: should the scope be expanded?

In conclusion, there is a clear place and continued need for adjudication – if anything, the need is now greater as the construction sector grows and faces its own set of challenges because of Covid-19 and widespread constraints on resources and supplies. Unfortunately, the existence of jurisdictional issues (perceived or actual) is likely to continue to be used in practice as a method for slowing down the process or avoiding unfavourable determinations, particularly as the adjudication framework struggles to adapt to the evolving environment and utility of adjudication.

In the authors’ opinion, there is scope to increase the breadth of adjudicator’s jurisdiction across all jurisdictions to fully enable parties to put forward their best position and receive a robust determination that reflects a reasonable outcome. It is suggested that this may be achieved by increasing the ambit of matters able to be determined (for example, to all disputes arising out of or in relation to a construction contract, including statutory and equitable claims) and providing adjudicators in Australia and the UK with the ability to extend the statutory timeframes where the circumstances permit (for example, where the dispute is particularly complex and involves voluminous materials).

However, there are downsides to this approach, which cannot all be canvassed within this article, for example, the fact that adjudication is meant to be an interim measure, and extending jurisdiction will potentially result in determinations becoming the final step for parties.

For adjudication to become/remain a credible dispute forum for parties, particularly where breadth of jurisdiction is more extensive (and may be increased), measures are necessary to increase scrutiny over the experience and expertise of adjudicators and the robustness with which adjudicators are appointed – this necessarily also requires an increased supply of suitability qualified adjudicators.

This article was co-authored by Irene Kim, a solicitor in our Construction team. 

Footnotes:

[1] Ministry of Business, Innovation and Employment (MBIE), ’Construction fact sheet – January 2021’ (MBIE, 11 February 2021)  available at: www.mbie.govt.nz/dmsdocument/13358-construction-factsheet-january-2021 accessed 6 July 2021.

[2] Graham Robinson, ‘Global construction market to grow $8 trillion by 2030: driven by China, US and India’,  (Global Construction Perspectives and Oxford Economics), available at: www.ice.org.uk/ICEDevelopmentWebPortal/media/Documents/News/ICE%20News/Global-Construction-press-release.pdf accessed 6 July 2021.

[3] Construction Contracts Act 2002, s 3(b); Construction Contracts (Security of Payments) Act 2004 (NT), s 3(b).

[4] Building Disputes Tribunal, ‘What is adjudication?’, available at www.buildingdisputestribunal.co.nz/what-is-adjudication/ accessed 6 July 2021.

[5] Construction Leadership Council, ‘CLC Covid-19 Claims and Disputes in Construction’ (11 January 2021) available at www.constructionleadershipcouncil.co.uk/wp-content/uploads/2021/01/21.01.11-CLC-COVID-19-Claims-and-Disputes-in-Construction-V1.0-FINAL.pdf, accessed 6 July 2021.

[6] World Built Environment Forum, ‘More common, more costly: Is COVID-19 causing conflict in the construction sector?’ (24 February 2021) available here, accessed 6 July 2021.

[7] Construction Contracts Act 2002, s 25(2).

[8] Construction Contracts Act 2002, s 5.

[9] Construction Contracts Act 2002, s 38.

[10] Building and Construction Industry Security of Payment Act 1999 (NSW).

[11] Building and Construction Industry Security of Payment Act 2002 (Vic).

[12] Building and Construction Industry Payments Act 2004 (Qld).

[13] Julian Bailey, Construction Law,2nd ed, Informa Law from Routledge 2016) at [24.03].

[14] Construction Contracts Act 2004 (WA).

[15] Construction Contracts (Security of Payments) Act 2004 (NT).

[16] Housing Grants, Construction and Regeneration Act 1996 (UK), s 108.

[17] See n 13, above, at [24.03].

[18] Although this is not expressly stated in the legislation, section 108 has been interpreted as being unavoidable. See n 13, above, at [24.04].

[19] Haskell Construction Limited v Ashcroft [2020] NZHC 772.

[20] Rees v Firth [2011] NZCA 668.

[21] Carillion Construction Ltd v Devonport Royal Dockyard [2006] BLR 15.

[22] John Ren, ‘Judicial review of construction contract adjudicators’, [2005] NZLJ 461.

[23] Building and Construction Industry Security of Payment Act 2002 (Vic), s 28B.

[24] Building and Construction Industry Payments Act 2004 (Qld), s 92.

[25] Construction Contracts Act 2004 (WA), s 46.

[26] Nicholas Gould, Jeremy Glover et al, ‘Guidance note: Jurisdiction of the UK Construction Adjudicator’ (Fenwick Elliot, 2011) at 4.1, available at www.fenwickelliott.com/sites/default/files/guidance_note_-_jurisdiction_of_the_uk_construction_adjudicator-1.pdf, accessed 6 July 2021.

[27] See n 13, above, at [24.95].

[28] Carillion Construction v Devonport Royal Dockyard Ltd [2005] BLR 310.

[29] Twintec Limited v Volkerfitzpatrick Limited [2014] EWHC 10 (TCC).

[30] Fastrack Contractors Ltd v Morrison Construction Ltd [2000] EWHC 177 (TCC).

[31] Other examples include (without limitation) allegations that the adjudication relates to a contract that is not a construction contract; the adjudication notice not valid or validly served; the claim or response was served out of time; the adjudicator does not have jurisdiction to determine their own jurisdiction; the determination is based on arguments not presented by either party; the claimant’s reply is not strictly in reply; the respondent’s rejoinder is not strictly in rejoinder, etc.

[32] Construction Contracts Act 2002, s 5.

[33] Housing Grants, Construction and Regeneration Act 1996 (UK), s 108.

[34] [2004] EWHC 2339 (TCC). Subsequently approved by the Court of Appeal.

[35] Similar conclusions were reached in Fastrack Contractors Limited v Morrison Construction Limited [2000] EWHC 177, where it was said that in order for a dispute to have crystallised, ‘the subject matter of the claim, issue or other matter [must have] been brought to the attention of the opposing party and that party [must have had] an opportunity of considering and admitting, modifying or rejecting the claim or assertion’; and Witney Town Council v Beam Construction (Cheltenham) Limited [2011] EWHC 2332 (TCC), where it was said that a dispute arises generally when and in circumstances in which a claim or assertion is made by one party and expressly or implicitly challenged or not accepted.

[36] See DHC Asserts v Toon [2015] NZHC 140 and Body Corporate 200012 v Keene QC [2017] NZHC 2953.

[37] [2000] BLR 168.

[38] [2018] WASC 10.

[39] Haskell Construction Ltd v Ashcroft [2020] NZHC 772.

[40] HG Construction Ltd v Ashwell Homes (East Anglia) Ltd [2007] BLR 175.

[41] Arcadis UK Ltd v May and Baker Ltd [2013] BLR 352.

[42] Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333 (TCC).

[43] Quietfield Ltd v Vascroft Construction Ltd [2006] BLR 67.

[44] Horizon Investments v Parker Construction Management HC Wellington CIV 2007-485-332.

[45] Construction Contracts Act 2002, s 28.

[46] Construction Contracts Act 2002, s 36.

[47] [2002] NZHC 1056.

[48] KNS Industrial Services (Birmingham) Ltd v Sindall Ltd (2000) 75 Con LR 71.

[49] Pilon Ltd v Breyer Group Plc [2010] BLR 631.

[50] Kitt v Laundry Building Ltd [2015] BLR 170.

[51] Thermal Energy Construction Ltd v AE&E Lentjes UK Ltd [2009] EWHC 408 (TCC).

[52] Construction Contracts Act 2002, s 28(2)(b).

[53] Housing Grants, Construction and Regeneration Act 1996 (UK), s 108,

[54] Construction Contracts Act 2002, s 36(2)(a).

[55] [2007] UKHL 40.

[56] See n 13, above, at [24.21].

[57] See n 38, above; see also M Van Der Wal Builders & Contractors Ltd v Walker HC Auckland CIV-2011-004-83, 26 August 2011, which confirmed that liability to pay damages for breach of contract was a determination of rights and obligations.

[58] Christiani & Neilson v The Lowry Centre Development Co Ltd unreported 28 June 2000.

[59] Shepherd Construction Ltd v Mecright ltd [2000] BLR 489.

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