WILLIS TRUST COMPANY LTD AND ANOR V GREEN AND ANOR HC AK CIV-2006-404-809

WILLIS TRUST COMPANY LTD AND ANOR V GREEN AND ANOR HC AK CIV-2006-404-809

The adjudicator had jurisdiction and his determination is upheld because Holmes' final payment claim was a progress payment under the Act, Holmes did not waive or estop its statutory rights, the engineer's 20 September certificate did not comply with s21 and therefore no valid payment schedule was provided and the...

Source-derived case information.

Citation
openlaw-a26d9b65_7ea6_4fd2_a530_caf347834b37.pdf
Parties
First Plaintiff: Willis Trust Company Ltd; Second Plaintiffs: Ian Laywood and Gary James Rees; First Defendant (adjudicator): Robert John Green; Second Defendant: Holmes Construction Wellington Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 May 2006
Procedural Posture
Judicial Review of Adjudication Under the Construction Contracts Act 2002 / Interim and Substantive Applications; Final Judgment on Review
Outcome
Willis Trust Company Ltd and Messrs Laywood and Rees applications to set aside the adjudicator's determination dismissed except that findings that Messrs Laywood and Rees were liable for GST and interest on $250,881 are set aside.
Legal Topics
Adjudication, Payment Claims and Payment Schedules, Estoppel and Waiver, Jurisdiction, Charging Orders, Costs, Personal Liability of Directors, Statutory Interpretation
Construction Law Administrative Law Contract Law Equity Adjudication Payment Claims and Payment Schedules Estoppel and Waiver Jurisdiction +4 more

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Parties

Willis Trust Company Ltd

First Plaintiff

Ian Laywood and Gary James Rees

Second Plaintiffs

Robert John Green

First Defendant (adjudicator)

Holmes Construction Wellington Ltd

Second Defendant

Procedural Posture

Judicial Review of Adjudication Under the Construction Contracts Act 2002 / Interim and Substantive Applications; Final Judgment on Review

Legal Issues

  1. 1 Whether the adjudicator had jurisdiction to determine Holmes' final payment claim under the Construction Contracts Act 2002
  2. 2 Whether Holmes' 6 April agreement and 23 August letter estopped or waived Holmes from relying on statutory adjudication
  3. 3 Whether the engineer's 20 September certificate constituted a valid payment schedule under s21

Ratio Decidendi

The adjudicator had jurisdiction and his determination is upheld because Holmes' final payment claim was a progress payment under the Act, Holmes did not waive or estop its statutory rights, the engineer's 20 September certificate did not comply with s21 and therefore no valid payment schedule was provided and the statutory time for Willis (and the directors) to supply one had expired; the adjudicator's award and costs were sustainable except that the directors' liability for GST and interest on the $250,881 collateral obligation was not supported by contract and those parts of the determination are set aside.

Court Disposition

Willis Trust Company Ltd and Messrs Laywood and Rees applications to set aside the adjudicator's determination dismissed except that findings that Messrs Laywood and Rees were liable for GST and interest on $250,881 are set aside.

Orders

  • Dismissal of Willis' application to set aside adjudicator's determination dated 10 February 2006
  • Dismissal of Messrs Laywood and Rees' application except that adjudicator's findings that they are liable for GST and interest on $250,881 are set aside