The introduction of statutory adjudication from 1 April 2003 has undoubtedly, and significantly, improved dispute resolution in the construction sector.¹ In its recent report the Building Disputes Tribunal confirmed that 80% of claimants and 78% of respondents are legally represented in adjudications.²  But what makes a winning claim and how do you, as a party or counsel, best present your case to ensure the most favourable determination from the adjudicator? This article examines some, but not all, aspects of presenting your case in an adjudication.³

Jurisdiction

Understand what you are claiming and avoid jurisdictional challenges. While the New Zealand Act has one of the widest definitions of ‘dispute’ of any commonwealth jurisdiction, there are still some limitations. For example, a dry crane hire (absent an operator) is not ‘construction work’ as it is simply an equipment hire arrangement. On the other hand, a wet hire of the crane (to include an operator) is covered by the definition. If you are contracting with an overseas company, that does not exclude you from coverage under the Act. So long as the contract in question relates to carrying out construction work in New Zealand, then subject to limited exclusions, a dispute under that contract may be adjudicated. The mandatory exclusions are set out in section 11. There is a further exclusion in section 25(3) which relates to international arbitration agreements, unless the parties agree to adjudication. 

If you are seeking approval to a charging order over the construction site (whether owned by the respondent or a third party), there are two important matters to address. You must set out in your Notice of Adjudication that you are seeking a charging order.⁴ A failure to do so cannot be remedied by subsequent inclusion in your Claim.⁵ Second, it is not open for the parties to agree the appointment of an adjudicator. The appointment must be made by an Authorised Nominating Authority.⁶

Formality?

The adjudicator is not your friend. While New Zealand is small, and its legal community even smaller, once in adjudication mode it is important to avoid using informal greetings or colloquial language. Never correspond with the adjudicator without including the opposing party. Aside from the adjudicator not being swayed by such conduct, it opens the door for the opposing party to assert apparent bias in judicial review proceedings.

You are not in court anymore

There are many aspects to great advocacy. These include, amongst others attributes, brevity, focus and knowing your audience. Recognise that the time constraints in an adjudication necessitate a different approach than to traditional court or arbitral proceedings. Drafting a formal statement of claim is not necessary. Let the witness statements tell the story (in the witnesses’ own words, avoiding legalese where possible) and any legal submission be just that. An alternative, if you only have one witness, is for a combined submission/statement of evidence. Answering a Claim by way of a statement of defence (deny, admit, or partially one or the other) does not assist the adjudicator. While you are not barred by the Act from asking for further particulars or additional documents, remembering there is no discovery procedure under the Act and although the adjudicator has wide powers under section 42(1), it is highly unlikely such requests will be acceded to unless the result would be to assist the adjudicator.⁷

The evidence

Memories fade and the recollections of witnesses can be unreliable. Look to contemporaneous material to support your position. Emails, letters and meeting minutes are a practical source of contemporaneous evidence that can significantly aide your case. But be prudent. Too often parties measure their chances of success by the volume of material that accompanies their Claim or Response.⁸ Adjudicators read all this material and especially with email chains, a position taken by a witness can be contradicted by a supporting document if you are not careful.

Associated with this is the funnel principle – as the adjudication progresses the volume of material should decrease. Some indication of this is found in section 37A(4), relating to the Reply (the same should also apply to the Rejoinder). That is not to say a respondent is in anyway constrained in the breadth of its Response. To the contrary, by its very nature a claimant can be quite selective in the presentation of its Claim and accompanying materials. Often the full picture (including backfilling critical parts of the chronology) only appears in the Response. But thereafter, the Reply and Rejoinder must avoid raising new material or issues for the first time, as the adjudicator may refuse to consider them. Given the adjudicator’s express obligation to comply with the rules of natural justice,⁹ if new matters are raised the opposing party should point these out and seek to be heard on them, if the adjudicator proposes to consider those matters.

Emotive language in submissions should be avoided altogether. If needed, it should be left to the witness(es) in their statements. Even then, ask yourself as to whether it addresses the dispute and is persuasive. Repeated vitriol detracts from, rather than improves, the advocacy of a case.¹⁰

There is no need for affidavits in an adjudication. Where a party wishes to provide extracts from the construction contract but are unable to do so (e.g. it is an oral contract) then it may provide the missing information by way of a statutory declaration with any supporting documents.¹¹ But evidence in the form of an affidavit has no standing under the Act. If affidavits are used, say by the claimant, the respondent could clarify with the adjudicator whether it is necessary for it to present its evidence similarly by way of an affidavit. This will solve any concerns as to whether more weight is given to sworn affidavit evidence as opposed to a signed statement.

Experts

Experts can be useful in an adjudication, for example on delay claims and for quantum.¹² They bring to the process a level of objectivity often lost when those intimately (and financially) involved in the dispute are giving evidence. Coupled with this, it is helpful for the expert to confirm or otherwise their independence and that they have complied with the Schedule 4 code of conduct found in the High Court Rules 2016. As with affidavits, this code has no standing under the Act, but acknowledging and complying with it is helpful.

In presenting expert evidence, the advocacy element should be considered. Do not confuse this with the expert straying into being an advocate – which they should not. It is in the context of how their evidence is presented. Yes, attach the expert’s full analysis (often in a report) but summarise this in the covering witness statement by simple tables (say for quantum) or bar/line charts (say for delay). This assists the adjudicator to digest the often highly technical materials. In Reply and Rejoinder, consider putting in alternative analyses to assist the adjudicator. By this I mean ‘In the event party X is correct, the result [cost/delay] will be…’. This approach is consistent with the expert’s Schedule 4 duties and ultimately makes it easier for the adjudicator. It in no way weakens that party’s case. Absent this evidence, you are leaving such matters solely to the adjudicator.

GST

Deal with GST up front. A simple solution is driven by the parties involved. If this is a residential contract (between owner and builder) then all figures can be expressed inclusive of GST. If it is a commercial contract (developer/builder) then all figures should be exclusive of GST. Whichever approach is taken, be consistent, do not chop and change between the two.

Costs

If seeking determinations on costs (party’s and adjudicator’s) it is not enough to simply ask for them. The Act presumes each party bears their own costs and share equally the adjudicator’s costs¹³ and provides the bases for a departure from this. You should direct the adjudicator to examples of bad faith, without substantial merit and conduct of a contemptuous or improper manner, as appropriate. As these relate to matters within the adjudication process, they are most efficiently dealt with in Reply and Rejoinder. Absent that guidance, the adjudicator will be left with making their own assessment. Remember with party’s costs, section 56(1) provides that just because you have ‘won’ does not absolve you from an adverse costs award. If the ‘losing’ party’s costs have been unnecessarily incurred by the claimant’s conduct, the adjudicator can make an adverse cost award.

The Determination

The final observations relate to corrections to the determination. Section 47(3) provides for the adjudicator to make corrections within 2 working days of the parties receiving the determination. There is no mention of a party requesting the adjudicator to do the same, but this is neither prohibited by the Act or is common practice. But you need to act promptly as any such correction must be made within those 2 working days.  Second, the corrections are limited to errors in computation or any clerical or typographical errors or errors of a similar nature. They do not extend to errors of fact or law. As well as acting promptly, only request of the adjudicator matters within their jurisdiction to correct.

Stuart Robertson is a Partner and co-leader in Dentons New Zealand’s Major Projects and Construction team and highly experienced adjudicator under the Act. He is the current Immediate Past President of the Society of Construction Law NZ, Member of Engineer NZ, and Fellow (Arb) of the Arbitrators’ and Mediators’ Institute of NZ. Stuart is on the adjudication panels for Building Disputes Tribunal and AMINZ. Victoria Bortsova is a solicitor in the Auckland office of Dentons New Zealand.

1. Part 3, Construction Contracts Act 2002 (the ‘Act’).
2. Tracking the Trends A report on statutory adjudication in New Zealand 2003-2023, Building Disputes Tribunal. BDT is an Authorised Nominating Authority under the Act.
3. Other areas include if and to what extent should you ask for an extension for a Response, how to present accompanying documents (paginated, hyperlinked etc), the structure of submissions, how to claim interest, and so on. 
4. Section 28(2)(e) and (f).
5. Section 31A(2).
6. Section 38A.
7. See for example section 42(1)(c), (h) and (i).
8. And Reply or Rejoinder.
9. Section 41(c).
10. In a recent appointment I counted over 80 such instances across the claimant’s Clam and Reply submissions and witness statements.
11. Section 31A(4).
12. Indeed many aspects of construction can be addressed by a relevant expert. For example, geology, hydrology, fire (passive and active), façade, structural etc.
13. Sections 56(2) and 57(3)(b).