NORTHLAKE INVESTMENTS LTD v CIVIL CONSTRUCTION LTD [2023] NZHC 2715

NORTHLAKE INVESTMENTS LTD v CIVIL CONSTRUCTION LTD [2023] NZHC 2715 [28 September2023]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2022-425-79[2023] NZHC 2715BETWEEN NORTHLAKE INVESTMENTS LIMITEDPlaintiffAND CIVIL CONSTRUCTION LIMITEDDefendantHearing: 28 August 2023Appearances: J D McBride and A W McDonald for PlaintiffB M Cash and V Bortsova for DefendantJudgment: 28 September 2023JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 28 September 2023 at 3.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Table of ContentsPara NoIntroduction [1]What happenedThe contracts [7]The Covid Claim [11]The Stage 12 Claim [19]The adjudication [25]The final payment claim [32]Summary judgment principles – Northlake [33]Northlake's pleading [36]Issue one – Was Civil required to dispute the engineer's decisions under thedispute resolution provisions of NZS 3910:2013?[38]The Stage 12 Claim [40]The Covid Claim [44]Conclusion on issue one [47]Issue two – If Civil was required to dispute the engineer's decisions, did itdo so in the manner required?Northlake's position [48]Civil's position [52]My analysis [62]Conclusion on issue two [69]Issue three – Was the adjudicator's determination binding? [70]The Act [71]Northlake's alternative positions [93]Conclusion of issue three [95]Issue four – Does Northlake have a claim for money had and received? [96]Conclusion on issue four [103]Summary judgment application and strike out principles – Civil [104]Issue five – Can the adjudicator's determination now be challenged byNorthlake?[110]Result [114]Introduction[1] Northlake Investments Ltd (Northlake) and Civil Construction Ltd (Civil)entered into construction contracts for the performance of works by Civil atNorthlake's development at Wanaka. The engineer to the contracts disallowed certainpayment claims by Civil, which Civil referred to adjudication under the ConstructionContracts Act 2002 (the Act). An adjudicator issued a determination requiringNorthlake to make payments to Civil in respect of the disputed claims. Northlakemade payment whilst disputing its liability to do so.[2] Northlake now seeks summary judgment against Civil to recover, as moneyhad and received, the $591,040 it paid to Civil in respect to two of the disputed claims.It argues the adjudicator's determination had "no effect" upon decisions made by theengineer disallowing Civil's claims, and the decisions are "final and binding" becauseCivil did not refer them to the engineer or to adjudication as required by the conditionsof contract within three months of the decisions being given.[3] Civil resists summary judgment and makes its own application for summaryjudgment and to strike out Northlake's claim. Civil argues the engineer's decisionsnever became final and binding because it was not required to dispute them, but thatit did so in time in any event. Even if that was not the case, Civil says it was entitledto refer the disputes to adjudication, the adjudication determination was binding andthere is no basis for Northlake to seek recovery of the amount paid pursuant to theadjudication award as money had and received. Civil also argues Northlake has nowlost the right to dispute the adjudicator's determination in subsequent proceedingsbecause it failed to give notice of its intention to do so in accordance with theconditions of contract.[4] The case raises issues as to the legal basis for an action for money had andreceived, the interpretation of dispute resolution provisions in cl 13 of New ZealandStandard Conditions of Contract for Building and Civil Engineering Construction(NZS 3910:2013), and the relationship between those provisions and the disputeresolution procedures in pt 3 of the Act.[5] More specifically, the principal issues that were raised on the applicationsbefore me are as follows:(a) Was Civil required to dispute the engineer's decisions under cl 13.1.1of NZS 3910:2013?(b) If so, did it do so in the manner required?(c) Was the adjudicator's determination binding on the parties?(d) Does Northlake have a cause of action for money had and received?(e) Can the adjudicator's determination now be challenged by Northlake?[6] It appears to me that the applications turn on whether, notwithstanding theengineer's decisions, Civil was entitled to refer the disputes concerning the CovidClaim and the Stage 12 Claim to adjudication under the Act, and the adjudicator'sdetermination is binding. Notwithstanding that, I have addressed the issues as Iunderstood counsel advanced them.What happenedThe contracts[7] Northlake is undertaking a large residential land and mixed-use developmentclose to the Wanaka town centre. It engaged Civil to undertake bulk earthworks andother related civil works in respect of which the parties entered into several contracts.[8] The relevant contracts for present purposes are dated 15 August 2018 (the BulkWorks Contract) and 17 July 2019 (the Civil Works Contract). Both contracts includedNZS 3910:2013.[9] NZS 3910:2013 provides for an adaption of the payment regime contained inthe Act.1 Under it, there are provisional payment schedules issued by the engineer inresponse to payment claims submitted by the contractor. Civil could submit paymentclaims for work conducted during periods of not less than one month. The engineer,on behalf of Northlake, was to issue a provisional progress payment schedule.Northlake was able to notify the engineer in writing of any amendments or deductionsit intended to make from the sum certified by him. In the absence of any suchnotification, the provisional progress payment schedule would become the finalprogress payment schedule and become payable by Northlake to Civil.[10] NZS 3910:2013 has separate provisions dealing with the issue of final paymentclaims and final payment schedules. The submission of the final payment claim byCivil is conclusive evidence that it had no other outstanding claims against Northlake,except for any item which had been referred to arbitration or to adjudication. Uponissue of the final payment schedule, Northlake ceased to be liable to Civil in respectof any of its obligations under the contracts, except in limited respects, includingscheduled amounts shown as payable on the final payment schedule or any priorpayment schedule but unpaid, and monies which had or became payable under cl 13,which deals with the resolution of certain disputes. I set out the most relevantprovisions in cl 13 later in this judgment.The Covid Claim[11] On 6 April 2020, Civil issued a notice to the engineer requesting that hesuspend the Civil Works Contract effective from 26 March 2020 on the basis that theCOVID-19 Level 4 lockdown restrictions necessitated the suspension.[12] The engineer responded on 27 May 2020, that he would not suspend thecontract and recommended discussions between Civil and Northlake to agree amanaged suspension of works and the consequences arising from that.1 SRG Global Remediation Services (NZ) Ltd v Body Corporate 197281 [2022] NZCA 518 at [10]–[12].[13] On 31 July 2020, Civil issued its payment claim 11 to the engineer, whichincluded costs of complying with the Covid-19 lockdowns (the Covid Claim). It saidit was entitled to make the claim as a deemed variation under the change in lawprovision in NZS 3910:20132 and also sought an extension of time due to the "neteffect of the COVID-19–Variation Claim".[14] In a notice to the engineer dated 5 August 2020, Civil asserted that it hadprovided all information necessary for the engineer to fairly assess payment claim 11and awaited the engineer's progress payment schedule which, it noted, was due on11 August 2020.[15] On 11 August 2020, the engineer advised Civil that he had not yet made adecision on the Covid Claim but would not be approving any amount in the thencurrent payment claim. That same day he issued provisional progress paymentschedule 11 deducting all amounts claimed in relation to the Covid Claim.[16] The parties' respective lawyers corresponded with the engineer about theCovid Claim, and he took his own legal advice. On 6 October 2020, the engineeradvised that, as required by cl 9.2.4, the Covid Claim would be disallowed. That wasa reference to cl 9.2.4 of NZS 3910:2013, which provides:3Within 1 Month of the receipt of notice under 9.2.2 or 9.2.3 or as soon aspracticable thereafter, the Engineer shall by notice in writing either confirmthat the instruction or matter involves a Variation or disallow a Variationgiving reasons for doing so. Unless within that time the Engineer issues anotice in writing disallowing a Variation, the instruction or matter shall betreated as a Variation.[17] On 10 October 2020, Civil notified the engineer that it disagreed with hisdecision on the Covid Claim. The email stated it was notice to the engineer undercl 13.1.1 of the contract and "we disagree with your decision to reject our variationclaim and the basis for doing so entirely".2 Clause 5.11.10 of NZS 3910: 2013.3 Although Mr Cash suggested that Civil might wish to take the point that the Covid Claim couldnot be disallowed because the engineer had failed to issue a notice in writing within one month,there was correspondence from Civil's lawyers to the engineer dated 26 August 2020 stating thatCivil took no issue with the engineer requiring more time to assess the claim.[18] Neither party engaged further with the dispute resolution procedure under cl 13of the contract, but Civil continued to include the Covid Claim in subsequent paymentclaims, and the engineer continued to deduct those amounts in the progress paymentschedules.The Stage 12 Claim[19] The works under the Civil Works Contract included six separable portionsincluding Portion F, which referred to Stage 12 of the development comprising 39 lots.[20] On 24 April 2020, the engineer advised Civil that the works in Portion F wouldno longer proceed.[21] Civil issued payment claim 1 on 24 February 2021 for preparatory works priorto Stage 12 being removed from the contract. The amount claimed was $19,764excluding GST.[22] The engineer sought further information from Civil in relation to the Stage12 Claim but did not issue a progress payment schedule in response to Civil's paymentclaim.[23] On 19 July 2021, the engineer advised Civil he had valued the Stage 12 Claimat $8,859 plus GST but said Northlake asked that Civil invoice it directly for this sumrather than process it as a variation to the contract. It appears (although it is notexpressly stated) the engineer valued the variation claimed under cl 9.3.4 ofNZS 3910:2013, which provides:The value, if any, of each Variation shall as far as possible be determined byagreement between the Contractor and the Engineer. Failing agreement, thevalue shall be determined by the Engineer in accordance with 9.3. The valueof each Variation when determined shall be confirmed or notified to theContractor in writing. Where the value as determined differs from any valueproposed by the Contractor, the notice shall include the Engineer's reasons forhis or her valuation.[24] On 10 September 2021, Civil advised the engineer it disagreed with hisdecision in relation to the Stage 12 Claim but said it would accept the $8,859 plus GSTin full and final settlement if paid within three working days. The payment was notmade.The adjudication[25] On 28 March 2022, Civil referred the Covid Claim and the Stage 12 Claim(and other claims also) to adjudication under ss 25 and 28 of the Act. Northlake hadlegal representation and participated in the adjudication.[26] The adjudicator issued his determination on 11 July 2022 and requiredNorthlake to pay Civil $17,718 (plus GST) with interest of $3,284 in respect to theStage 12 Claim, and $471,267 (plus GST) in respect to the Covid Claim.[27] Civil initiated enforcement action to recover the amounts payable under theadjudicator's determination, following which Northlake paid the sums in full on28 July 2022. On that date, Northlake's lawyers wrote to Civil's lawyers stating thatNorthlake did not accept it had any liability to Civil and had instructed them to initiatea claim to have the dispute determined in substance. They also advised that whileNorthlake was "obliged under the Construction Contracts Act to satisfy the interimdetermination", upon payment it would become a creditor of Civil in the amounts paid.[28] On 9 August 2022, Northlake issued a letter to Civil that the disputes were tobe referred to arbitration under cl 13.4.2 of NZS 3910:2013.[29] On 12 August 2022, Civil's lawyers pointed out that no formal decision hadbeen issued by the engineer under 13.2.4, which was a precondition to referring anydispute to arbitration.[30] On 30 August 2022, Northlake's solicitors asserted the engineer's decisions of6 October 2020 (in respect to the Covid Claim) and 19 July 2021 (in respect of theStage 12 Claim) were final and binding as Civil had not taken appropriate steps tochallenge them and these decisions "cannot be overruled by belated referrals toadjudication". Northlake demanded repayment of amounts paid in compliance withthe adjudicator's determination by 6 September 2022, failing which it would file HighCourt proceedings to recover its "overpayment".[31] On 2 September 2022, Civil's lawyers disputed the demand, noting that unders 60 of the Act the determination of the adjudicator was binding. The position adoptedby Northlake was, they asserted, an attempt to elevate the contracts above the statutorydetermination process, thereby offending s 12 of the Act (which prevents contractingout of the Act's provisions). They said, while the engineer made decisions andvaluations which Civil disputed:[The adjudicator's] determination takes precedence over those decisions andvaluations, until such time as the balance of the contractual dispute resolutionprocess has been concluded. That is if either party embarks on that process.They have not.The final payment claim[32] For completeness, on 13 June 2022 Civil issued a final payment claim whichincluded the Covid Claim and the Stage 12 Claim. The engineer issued a provisionalfinal payment schedule on 17 June 2022. He did not certify either the Covid Claim orthe Stage 12 Claim, as he said both were under adjudication.Summary judgment principles — Northlake[33] Northlake's application for summary judgment is made under r 12.2(1) of theHigh Court Rules 2016 which reads as follows:(1) The court may give judgment against a defendant if the plaintiffsatisfies the court that the defendant has no defence to a cause of actionin the statement of claim or to a particular part of any such cause ofaction.[34] The principles that apply to a plaintiff's summary judgment applications arewell-known and summarised by Associate Judge Osborne in Mount Grey Downs Ltdv Pinot Properties Ltd as follows:4(a) Commonsense, flexibility and a sense of justice are required.(b) The onus is on the plaintiff seeking summary judgment to show thatthere is no arguable defence. The Court must be left without any realdoubt or uncertainty on the matter.4 Mount Grey Downs Ltd v Pinot Properties Ltd [2018] NZHC 3094 at [12] (footnotes omitted).(c) The Court will not hesitate to decide questions of law whereappropriate.(d) The Court will not attempt to resolve genuine conflicts of evidence orto assess the credibility of statements in affidavits.(e) In determining whether there is a genuine and relevant conflict offacts, the Court is entitled to examine and reject spurious defences orplainly contrived factual conflicts. It is not required to acceptuncritically every statement put before it, however equivocal,imprecise, inconsistent with undisputed contemporary documents orother statements, or inherently improbable.(f) In assessing a defence the Court will look for appropriate particularsand a reasonable level of detailed substantiation – the defendant isunder an obligation to lay a proper foundation for the defence in theaffidavits filed in support of the Notice of Opposition.(g) In weighing these matters, the Court will take a robust approach andenter judgment even where there may be differences on certain factualmatters if the lack of a tenable defence is plain on the material beforethe Court.(h) The need for judicial caution in summary judgment applications hasto be balanced with the appropriateness of a robust and realisticjudicial attitude when that is called for by the particular facts of thecase. Where a last-minute, unsubstantiated defence is raised and anadjournment would be required, a robust approach may be requiredfor the protection of the integrity of the summary judgment process.(i) Once the Court is satisfied that there is no defence, the Court retainsa discretion to refuse summary judgment but does so in the context ofthe general purpose of the High Court Rules which provide for thejust, speedy and inexpensive determination of proceedings.[35] As noted earlier, Civil has also made an application for summary judgment andstrike out. I will deal with the relevant principles that apply to those applications laterin this judgment.Northlake's pleading[36] Northlake pleads:(a) the engineer disallowed the Covid Claim and the Stage 12 Claimpursuant to the decisions and/or certifications dated 6 October 2020 (inrespect of the Covid Claim) and 19 July 2021 (in respect of the Stage12 Claim);(b) Civil did not refer the engineer's decisions to the engineer undercl 13.2.1 of NZS 3910:2013 or to adjudication under the Act withinthree months of the decisions being given;(c) the engineer's decisions are therefore final and binding;(d) the adjudication under the Act was commenced outside the contractualtime limits for resolving claims and was an abuse of process;(e) the adjudicator's determination has no effect on the engineer'sdecisions;(f) Northlake paid sums found to be owing by the adjudicator in respect ofthe Covid Claim and Stage 12 Claims in the amount of $591,040; and(g) Civil is in receipt of money paid to it by Northlake to which it has noentitlement.[37] Northlake's case, then, is that as Civil failed to challenge the engineer'sdecisions within timeframes set out in the contracts, by default those decisions are nowbeyond challenge regardless of the adjudicator's determination. This, it says, providesthe legal basis for it to recover the payments it made in compliance with theadjudicator's determination as money had and received.Issue one — Was Civil required to dispute the engineer's decisions under thedispute resolution provisions of NZS 3910:2013?[38] Northlake's argument is that Civil was required to, but did not, give notice tothe engineer challenge the engineer's decisions and they are therefore final andbinding in terms of the contracts. This issue concerns cl 13 of NZS 3910:2013.[39] The relevant parts of cl 13 are:13.1.1No decision, valuation, or certificate of the Engineer shall be questionedor challenged more than 3 Months after it has been given or more than1 Month after the date on which any relevant Adjudicator'sDetermination is given to the parties, whichever is the later, unlessnotice has been given to the Engineer within that time. Every decision,valuation, or certificate of the Engineer shall be final and binding ifneither party has referred it to the Engineer under 13.2.1 or toAdjudication within 3 Months after it has been given, unless notice hasbeen given to the Engineer within that time. This subclause 13.1.1 shallnot apply to a Progress Payment Schedule.13.1.2Every dispute or difference concerning the Contract which is notprecluded by the provisions of 12.4, 12.6, 13.1.1 or 13.2. shall be dealtwith under the following provisions of this Section.13.2 Engineer's Review13.2.1Every dispute or difference under 13.1.2 shall be referred to theEngineer not later than 1 Month after the provision of the Final PaymentSchedule under 12.5.1, 12.5.3, or 12.5.4 or more than 1 Month after thedate on which any relevant Adjudicator's Determination is given to theparties, whichever is the later. The Engineer shall give his or herdecision in writing. Except in the case of a decision under 13.2.4 theEngineer may correct or modify his or her decision by a subsequentdecision in writing.13.2.4Unless the dispute or any question arising in connection with it has beenreferred under 13.2.3 and is awaiting a recommendation from theagreed expert, the Engineer may, at any time, in respect of any disputeor difference under 13.2.1 give a decision (in this Section called aformal decision) which states expressly that it is given under thissubclause 13.2.4. The Engineer shall give a formal decision on thematter within 20 Working Days of receiving notice in writing from thePrincipal or the Contractor requiring him or her to give a formaldecision and expressly referring to this subclause 13.2.4. Upon makinga formal decision the Engineer shall forthwith send copies of it to boththe Principal and the Contractor. The Engineer's formal decision shall,subject to 13.3 and 13.4 or any Adjudication proceedings, be final andbinding.The Stage 12 Claim[40] The immediate difficulty Northlake faces is that the engineer did not respondto Civil's Stage 12 Claim (made by payment claim of 24 February 2021) with aprogress payment schedule. Rather, on 19 July 2021, he purported to value the claimanticipating that Civil would invoice Northlake direct for that sum.[41] However, because no payment schedule had been issued in respect to the24 February 2021 payment claim, under ss 22 and 23 of the Act Northlake had becomeliable to pay it as a debt due to Civil. The parties could not contract out of thoseprovisions of the Act.5[42] Northlake's argument that Civil was required to but did not challenge theengineer's decision under cl 13 therefore falls away. For reasons that I set out in detailin relation to issue three below, Civil was entitled to refer the non-payment of itspayment claim to adjudication under the Act and the determination was binding onNorthlake notwithstanding the engineer's decision.[43] For completeness, I note that in the adjudication, Northlake argued that anengineer's email on 11 March 2021 requesting further information concerning theStage 12 Claim met the requirements of a payment schedule under s 21 of the Act, butthe adjudicator rejected that submission. The submission was not advanced before me,and if it had been, I would have rejected it also.The Covid Claim[44] The Covid Claim was made in Civil's payment claim 11 and the disputereferred to adjudication concerned the engineer's failure to certify payment of thoseamounts in his progress payment schedule. It follows, Civil contends, cl 13.1.1 doesnot apply because it expressly provides, "This subclause 13.1.1 shall not apply to aProgress Payment Schedule."5 Construction Contracts Act 2002, s 12.[45] I accept Civil's submission. Civil issued its payment claim on 31 July 2020 incompliance with s 20 of the Act. The engineer responded with a provisional paymentschedule disallowing that claim on 11 August 2020. Civil referred the dispute arisingfrom the payment schedule disallowing its payment claim to adjudication. That it wasentitled to do so is recognised in Northlake's submissions that:For that reason, the dispute resolution machinery set out in section 13 ofNZS 3910 does not apply to disputes over progress payment schedules. If thecontractor is unhappy with a progress payment schedule and wants to accessadditional cashflow, its recourse is to refer the dispute to an adjudication underthe [Act] to provide it with immediate cashflow, with its final account to besettled at the conclusion of the contract, resolving all disputed items.(footnote omitted)[46] The course Northlake submits a contractor may take in response to a disputedpayment schedule is the very course that Civil did take in this instance. It did not haveto give notice of that dispute to the engineer under cl 13.1.1 because that clause doesnot apply to a dispute concerning a progress payment schedule.Conclusion on issue one[47] I find that Civil was entitled to refer the disputes concerning its Covid Claimand the Stage 12 Claim to adjudication without giving notice challenging theengineer's decisions under cl 13.1.1 of NZS 3910:2013.Issue two — If Civil was required to dispute the engineer's decisions, did it do soin the manner required?Northlake's position[48] Northlake's contention is that cl 13.1.1 has two limbs, both of which must beindependently satisfied if a party wishes to challenge an engineer's decision.[49] It says that in respect to the Covid Claim, Civil's email of 10 October 2020satisfied the first — but not the second — limb of cl 13.1.1. This is because, havinggiven notice to the engineer that it disputed his decision in respect to the Covid Claim,Civil did not otherwise escalate the dispute by way of a request for an engineer'sreview of the decision under cl 13.2.1 or an adjudication within three months.[50] As a result, Northlake asserts, the engineer's decision rejecting the CovidClaim became "final and binding". It notes that it was only on 28 March 2022, some17 months after the engineer's decision, that Civil referred the Covid Claim toadjudication, which Northlake says was too late.[51] Northlake interprets cl 13.1.1 as follows:(a) notice of dispute to the engineer must be given, within either:(i) three months of the decision, valuation, or certificate of theEngineer being given; or(ii) one Month after the date on which any relevant Adjudicator'sDetermination is given to the parties;whichever is the later,and(b) the dispute must be referred to either:(i) an engineer's review under cl 13.2.1; or(ii) an [adjudication under the Act],and notice of such given to the Engineer within three months of therelevant decision, valuation, or certificate of the Engineer.(emphasis added)Civil's position[52] Civil does not accept Northlake's interpretation of cl 13.1.1. Civil says theonly notice required to avoid the engineer's decision becoming final and binding is anotice disputing the engineer's decision given within three months of the decision. Itsays there is no requirement that a party who has given such a notice must then escalatethe dispute by way of a request for an engineer's review under cl 13.2.1 oradjudication, or for a further notice that it has done so to be given to the engineer.[53] Civil argues Northlake's argument is flawed as it has had to rewrite the secondsentence of cl 13.1.1 by adding the words "and" and "as such" (see para [51] above)which fundamentally changes the meaning of the sentence.[54] Civil also argues that Northlake's interpretation makes no commercial sense asit requires a party to give notice to the engineer that the dispute has been referred tothe engineer under cl 13.2.1 when the engineer will necessarily be aware of that. Itsays such a requirement is pointless, but also may be draconian, when the failure togive such notice would have the effect of the original decision becoming binding.[55] Civil says its interpretation is consistent with the words of cl 13.1.1, and todemonstrate this, counsel set out those words but breaking the clause down into itsconstituent parts. The first sentence reads:a No decision, valuation, or certificate of the Engineerb shall be questioned or challenged more thani 3 Months after it has been given orii more than 1 Month after the date on which any relevantAdjudicator's Determination is given to the parties,whichever is the later,c unless notice has been given to the Engineer within that time.[56] Adopting the same approach to the second sentence, it reads:a Every decision, valuation, or certificate of the Engineerb shall be final and binding if neither party hasi referred it to the Engineer under 13.2.1 orii to Adjudicationwithin 3 Months after it has been given,c unless notice has been given to the Engineer within that time.[57] Civil says the critical part of the second sentence concerns the meaning of thewords "unless notice has been given to the Engineer within that time". It contendsthose words denote an exception to the rule that the engineer's decision will be finaland binding if the other two avenues for dispute resolution (under cl 13.2.1 oradjudication) are not pursued. It says, alongside referring a decision to the engineerunder cl 13.2.1 or to adjudication within three months, giving notice to the engineerserves as a means to avoid the decision becoming final and binding.[58] Civil then submits that the notice to be given and referred to in the secondsentence is the same notice given under the first sentence of cl 13.1.1; that is a noticethe engineer's decision, valuation or certificate is disputed. It says this must be so forseveral reasons. First, because the wording at the end of each sentence is identical andboth provide for notice to be given to the engineer within three months. Second,because a notice of dispute under the first sentence of cl 13.1.1 is the only noticereferred to in cl 13.1.1. Civil says cl 13.1.1 does not, for instance, refer to a notice tothe engineer under cl 13.2.1 or a notice to adjudicate.[59] Civil submits the framework created by cl 13.1.1 is therefore:a a party who wishes to dispute the decision of the Engineer must givenotice of a dispute to the Engineer within 3 months of the decision (firstsentence);b unless such a notice of dispute is given, the party must refer the disputeto the Engineer under 13.2.1 or to Adjudication within that 3 monthperiod to avoid the decision becoming final and binding (secondsentence).[60] Civil also argues that its interpretation is consistent with the scheme of cl 13,which envisions that disputes can be referred to the engineer for review after the worksare completed. It says there are good commercial reasons parties are able to give anotice that preserves their right to subsequently refer a dispute to either adjudicationor to the contractual dispute resolution procedure but do not have to do so immediately.For example, while the contract works are still underway, referring a dispute may beboth counterproductive to maintaining good working relationships and completing thecontract works, and ultimately unnecessary with the passage of time and subsequentevents.[61] Applied to this case, Civil says that it gave notice to the engineer that itdisputed his decision within three months and it did not become final and binding.My analysis[62] An issue of interpretation of cl 13.1.1 arises. The proper approach tocontractual interpretation is an objective one to ascertain the meaning the documentwould convey to a reasonable person having all the background knowledge reasonablyavailable to the parties at the time of the contract.6 The contractual language must beinterpreted within its overall context broadly viewed.7 If the language used, construedin the context of the whole contract, has an ordinary and natural meaning it will be apowerful, but not conclusive, indicator of what the parties meant.8[63] The Court can determine questions of law on a summary judgment applicationincluding issues of contractual interpretation. However, it must be satisfied that thefacts are sufficiently ascertained, the matter is adequately argued and the Court can beconfident that the point at issue turns on pure questions of law or interpretation.9[64] I am not satisfied that I am in a position to finally determine the interpretationissue that arises because there is relevant material I do not have before me. By wayof example, I understand that cl 13.1.1 differed from the comparable clause inNZS 3910:2003 by including what Northlake referred to as the "escalationrequirement" in the second sentence of cl 13.1.1. I would have been assisted to havesubmissions directed to those and any other changes, as well as evidence from expertsin the industry as to how such contracts operate in practice and the considerations thatmay have a bearing on that issue. In this regard, Civil relied on matters relating to themanagement of building contracts about which there is no evidence.[65] I am faced with competing interpretations of cl 13.1.1, both of which are, atleast, plausible in my view. Counsel were not able to refer me to any decisions wherethe issue has been considered. I was referred to several articles prepared by law firmsdescribing the changes introduced by NZS 3910:2013 which support Northlake's6 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR432 at [60], citing Investors Compensation Scheme Ltd v West Bromwich Building Society [1998]1 WLR 896 (HL) at 912, per Lord Hoffmann.7 At [61].8 At [63].9 Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188, [2015] 1 NZLR383 at [37], citing International Ore & Fertiliser Corp v East Coast Fertiliser Co Ltd [1987] 1NZLR 9 (CA) at 16.interpretation, but I accept that given the nature of those publications they do notadvance matters. I note that the guidelines attached to NZS 3910:2013 also supportNorthlake's position, but they do not form part of the contract and neither counselreferred to them.[66] That all said, and despite Mr Cash's very able submissions, I am not attractedto Civil's position on this issue. To my mind, the intention of cl 13.1.1 is that anengineer's decision, valuation or certificate shall become binding after three monthsunless it has been referred to the engineer for review under cl 13.2.1 or to adjudication.The second sentence of cl 13.1.1 appears to have been added to ensure that, onceraised, disputes are promptly resolved and to set time limits within which that is tooccur. Importantly, and consistent with this, upon the raising of a dispute either partyhas the right to make a referral to the engineer or to adjudication. I do not believe thatit was intended that a party can give notice of a dispute within three months of anengineer's decision and then do nothing at all to advance it to a resolution.[67] As I have noted, I do not have before me evidence on matters concerning themanagement of such contracts, but Civil's argument that it may be beneficial to leavethe resolution of disputes until the end of the works is not convincing, particularlygiven the statutory background of the Act and its emphasis upon the speedy resolutionof disputes.10 In addition, if it suits the parties in any particular case to park a dispute,they can always agree to that notwithstanding cl 13.1.1.[68] Further, while Civil argues that on Northlake's interpretation the words "unlessnotice has been given to the Engineer within that time" serve no purpose, that is notso in the case where a party chooses to refer the dispute to adjudication rather than tothe engineer for review. It appears to me that it is in fact Civil's interpretation thatrenders those words in the second sentence of cl 13.1.1 redundant.Conclusion on issue two[69] I am not satisfied that I am able to finally resolve the interpretation issue onthis application.10 Construction Contracts Act, s 3(b).Issue three — Was the adjudicator's determination binding?[70] Northlake's position is the adjudication was both pointless and of no effect.That argument is contrary to the Act, and would do great violence to its scheme ifaccepted. It is also contrary to case law.The Act[71] Turning first to the Act, its purposes are set out in s 3 and are:(a) to facilitate regular and timely payments between the parties to aconstruction contract; and(b) to provide for the speedy resolution of disputes arising under aconstruction contract; and(c) to provide remedies for the recovery of payments under a constructioncontract.[72] Section 12 is a no contracting out provision as follows, "This Act has effectdespite any provision to the contrary in any agreement or contract." Civil's positionhas consistently been that Northlake's argument that the engineer's decisions arebinding notwithstanding the adjudication determination attempts to elevate thecontract terms above the dispute procedures of the Act, offending s 12.[73] Part 3 of the Act sets out processes for the adjudication of disputes. Section 25provides that any party to a construction contract has a right to refer a dispute toadjudication and may exercise that right even though the dispute is the subject ofproceedings between the same parties in a court or tribunal.[74] Section 26 defines the relationship between adjudication under the Act andother dispute resolution procedures. Section 26(1) provides that nothing in pt 3prevents a party to a construction contract from submitting a dispute to another disputeresolution procedure, whether or not that procedure takes place concurrently with anadjudication. The examples provided of other dispute resolution procedures areproceedings to a court or tribunal, or to mediation, but there is no mention of decisionsmade by contract administrators (such as the engineer).[75] Under s 26(2), a submission of a dispute to another dispute resolutionprocedure while the dispute is the subject of an adjudication does not bring theadjudication to an end or otherwise affect the adjudication. However, under s 26(3),an adjudicator must terminate adjudication proceedings if, before the adjudicatordetermines the dispute, that dispute is determined under another dispute resolutionprocedure.[76] Section 26(4) provides that nothing in any other enactment or rule of law orany contract affects the application of the adjudication provisions.[77] Section 27(1) provides that nothing done under, or for the purposes of, anadjudication affects any civil proceeding arising under a construction contract.[78] Pursuant to s 27(2), in any civil proceeding before a court, tribunal or a memberunder the Weathertight Homes Resolution Services Act 2006 in relation to any matterarising under a construction contract, the court, tribunal or member:(a) must allow for any amount paid to a party to the contract under, or forthe purposes of, this Part in any order or award the court, tribunal, or amember makes in those proceedings; and(b) may make any orders that the court, tribunal or member considersappropriate, having regard to any steps taken by a party to the contractin good faith and in reliance on an adjudicator's determination underthis Part (including an order requiring a party to the contract to pay forgoods and services supplied by another party to that contract in goodfaith and in reliance on an adjudicator's determination).[79] Section 58 deals with the enforceability of an adjudicator's determination.Importantly, it provides in s 58(1) that, "An adjudicator's determination unders 48(1)(a) is enforceable in accordance with section 59." Section 48(1)(a) concernsdisputes as to whether an amount of money is payable under a construction contract.[80] Section 59 provides for the consequences of not complying with anadjudicator's determination under s 48(1)(a). These are set out in s 59(2) whichprovides:(2) The consequences are that the party who is owed the amount (party A)may do all or any of the following:(a) recover from the party who is liable to make the payment (partyB), as a debt due to party A, in any court,—(i) the unpaid portion of the amount; and(ii) the actual and reasonable costs of recovery ordered againstparty B by that court:(c) apply for the adjudicator's determination to be enforced by entryas a judgment in accordance with subpart 2 of Part 4.[81] Section 60 provides that an adjudicator's determination is binding on theparties to the adjudication and continues to be of full effect even though a party hasapplied for judicial review of the determination, or any other proceedings relating tothe dispute between the parties has been commenced.[82] From this summary of provisions of the Act, the clear legislative intention isthat parties to construction contracts have the right to refer disputes or differences forspeedy resolution by way of adjudication, which will be binding and enforceablesubject only to a later substantive and final determination of the dispute by way ofsome other dispute resolution procedure.[83] The Act also makes clear that an adjudication may proceed in tandem withother dispute resolution procedures, such as court proceedings, arbitration ormediation, whether or not the adjudication process commences before or after suchother proceedings are initiated and will only terminate if such other proceduresdetermine or resolve the dispute before the adjudicator does. If the adjudicator issuesa determination before a court or arbitrator has determined the dispute, thedetermination will be binding on the parties and continue to have full effect, even ifone party has issued judicial review or other proceedings.[84] Northlake argues that the position I describe in [82] and [83] is not entirelycorrect as an adjudication determination can be "overruled" by a private agreement ofthe parties, and an earlier "final and binding" agreement will also take priority overany interim adjudication. It submits that agreeing a contractual process by whichdisputes are finally resolved is not contracting out of the Act as a party is not therebydeprived of its right to adjudicate, but an adjudication determination is subordinate tothe parties' "final and binding" agreement.[85] Northlake's stance that Civil was entitled to refer the Covid Claim and theStage 12 Claim to adjudication under the Act, that it could participate fully in thatprocess which, no doubt, came at significant cost to both parties, but then simplyignore the result as pointless and of no effect, is both unreal and unappealing. It also,in my view, renders Civil's right to refer the dispute to adjudication under s 25 of theAct illusory and offends s 12. Further, if Northlake considered the engineer'sdecisions were binding and an answer to Civil's claims, it could and should have raisedthat in its defence in the adjudication and the adjudicator would have been required torule upon it.11[86] I accept Civil's submission that the fact the parties cannot contract out of theright to refer disputes to adjudication under the Act is reflected in the terms of cl 13 ofNZS 3910: 2013. This provides that the time within which steps may be taken underthe prescribed processes may run from the date of an adjudicator's determinationinstead of the date from which an engineer's decision that is under challenge wasissued.[87] That the parties may after an adjudication enter into a final and bindingagreement that effectively supersedes the adjudication determination is undoubtedlycorrect, but beside the point. Such an agreement is entered into by way of compromisefollowing the exercise of the parties rights under the Act, but does not contract out ofthem.[88] The case law also confirms the adjudicator's determination was binding. InBody Corporate 200012 v Keene, Brewer J held that an adjudicator's determination isa judicial decision that is binding pro tem and can be enforced.12 He endorsed remarksof Coulson J in Benfield Construction Ltd v Trudson (Hatton) Ltd in relation to theHousing Grants, Construction and Regeneration Act 1996 (UK), which Brewer Jdescribed as having similar purposes to the Construction Contracts Act, that:1311 Construction Contracts Act, s 45(d).12 Body Corporate 200012 v Keene [2017] NZHC 2953, [2018] NZAR 120 at [81].13 At [82], citing Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333 (TCC) at[34].(a) The parties are bound by the decision of an adjudicator on a disputeor difference until it is finally determined by court or arbitrationproceedings or by agreement made subsequently by the parties.[89] In DHC Assets Ltd v Toon, the issue was whether the plaintiff should be grantedleave under s 248 of the Companies Act 1993 to pursue claims by way of adjudicationunder the Act against a company in liquidation.14 An argument was raised that leaveshould not be granted as the engineer's decision had not been challenged in time undercl 13 of NZS 3910:2003. The plaintiff argued that the dispute resolution provisions ofthe contract could not curtail its rights to refer the dispute to adjudication under theAct. While it was not necessary for Duffy J to express a definitive view on the issue,she observed:[15] Section 12 of the [Act] prohibits any contracting out from the provisionsof that Act. I cannot see, therefore, how the more restrictive time frames forbringing a dispute under cl 13 can be superimposed on DHC's rights under the[Act]. To allow that to occur would be in effect to allow a contracting out ofthat Act's provisions insofar as they impose time limits for bringing aproceeding under that Act. In my view there is a sound argument that cl 13does not detract from the other rights and legal remedies that DHC may haveeither under the [Act] or the law of contract.[90] Willis Trust Co Ltd v Green was an application for judicial review of anadjudicator's determination alleging that the adjudicator had no jurisdiction when theparties had agreed to submit disputes to arbitration.15 Harrison J held that s 12 of theAct is unambiguous16 and:17 subordinates the effect of an arbitration provision where a claim is madeunder the Act. As a result, the statute prevails notwithstanding an agreementto arbitrate.[91] An interesting case demonstrating the binding nature of adjudicationdeterminations is G K Shaw Ltd v Green where the applicant was unsuccessful in anadjudication under the Act and then attempted to raise a second adjudicationproceeding on the same facts.18 The second adjudicator held that he lacked jurisdictionin view of the earlier determination of the claim on the merits. The applicant sought14 DHC Assets Ltd v Toon [2016] NZHC 140.15 Willis Trust Company Ltd v Green HC Auckland, CIV-2006-404-809, 25 May 2006.16 At [30].17 At [34].18 G K Shaw Ltd v Green [2023] NZHC 605.judicial review of that decision. In the High Court, Isac J dismissed the applicationfor review. While it was not the basis for his decision, the Judge considered that incircumstances where the applicant could and should have raised all its claims the firsttime around, it was an abuse of process to bring an "almost identical claim dressed upin different legal regalia".19[92] Northlake relied on John Holland Pty Ltd v Roads and Traffic Authority of NewSouth Wales,20 but I do not consider it supports its position that the adjudicator'sdetermination was of no effect. To the contrary, there Giles JA said, in relation tosimilar legislation:62 It is not correct that [a contract administrator] who in performing hiscontractual function comes to a determination negates a statutory rightto retain an adjudicated amount. The adjudicator's determinationremains, and brings payment of the adjudicated amount, but that isinterim and subject to a different position being established in relationto payment for the relevant work or related goods and services,contractually or in proceedings. If in civil proceedings, it is decidedthat the contractor was entitled to $10 or $30, rather than the $20determined by the adjudicator, that does not undo the adjudicator'sdetermination. It has done its work in ensuring "prompt interimprogress payment on account, pending final determination of alldisputes" So also if in the manner earlier described, the contractualmechanisms result in a contractual obligation on the principal to pay thecontractor or the contractor to pay the principal. The contractor's rightunder the Act is to receive the adjudicated amount, but subject to finaldetermination, and if the final determination involves the [contractadministrator] determining that the contractor was entitled to $10 or$30, rather than $20 determined by the adjudicator, the [contractadministrator] is not negating the contractor's statutory right.(citation omitted)Northlake's alternative positions[93] Taking a different tack, Northlake relies upon s 26(3) of the Act, whichprovides that an adjudicator must terminate an adjudication if the dispute is determinedunder another dispute resolution procedure. Northlake contends that if the contractbetween the parties provides that a decision of the engineer has become binding byreason of a party having failed to challenge it, then the statutory process must yield tothat agreement. I do not accept this argument either. Section 26 is concerned with19 At [45].20 John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2007] NSWCA 140.other dispute resolution procedures such as court proceedings, arbitration ormediation. It is not concerned with engineer's decisions as contract administrators.[94] Northlake also argues that under s 27(2) of the Act, if an adjudicator'sdetermination exceeds a party's contractual entitlement, a court must make allowancefor that and order restitution. Section 27(2) does not create a free standingrestitutionary remedy. It provides for the specific circumstance where a binding butinterim determination under the Act is superseded by a subsequent decision of a court,tribunal or under the Weathertight Homes Resolution Services Act. There has been nosuch decision in this case, which, as I shall come to below, raises a fundamentalobstacle to Northlake's claim as presently framed.Conclusion of issue three[95] I am satisfied that the adjudicator's determination was binding on bothNorthlake and Civil.Issue four — Does Northlake have a claim for money had and received?[96] Northlake argues the cause of action for money had and received provides arestitutionary remedy where there has been an unjust enrichment. It contends all thata claimant advancing such a claim need establish is an enrichment of the defendant,the deprivation of the plaintiff, and the absence of any legitimate reason for theenrichment.[97] I do not accept Northlake's submission. While the concept of unjustenrichment is sometimes used as an organising principle that may explain the basis forsome restitutionary claims, it is not yet a recognised cause of action in its own right inthis country. Northlake relies upon Napier v Torbay Holdings Ltd21 and NationalBank of New Zealand Ltd v Waitaki International Processing (NI) Ltd,22 but both cases21 Napier v Torbay Holdings Ltd [2016] NZCA 608, [2017] NZAR 108 at [21].22 National Bank of New Zealand Ltd v Waitaki International Processing (NI) Ltd [1997] 1 NZLR724 at 728 and National Bank of New Zealand Ltd v Waitaki International Processing (NI) Ltd[1999] 2 NZLR 211 (CA) at 215.concerned claims within established categories where the law recognises a plaintiff'sright to recovery, for example payments made under a mistake.[98] In Martin v Pont, Tipping J said:23Although, as stated, unjust enrichment can be regarded as the rationale of(albeit not necessarily the test for) a number of restitutionary claims, it is nota prerequisite of the action for money had and received.[99] In a recent article in the New Zealand Law Journal, Sean McAnally expressedthe view, with which I agree that:24Money had and received and unjust enrichment are not synonyms to be usedinterchangeably. One may describe a species of actions falling within the lawof obligations, but is not, at least yet, a cause of action. The other is a causeof action, with its own history and precedents, and even if it is now justifiedby the concept of unjust enrichment, it is a long way from being the cause ofaction that now exists in England and Wales. The two should not be confused.[100] Further, even in English law I understand there is "no general principle that toretain money paid without any legal basis (such as debt, gift, compromise, etc) isunjust enrichment".25 The learned authors of Goff & Jones on Unjust Enrichmentstate:26A claimant must be able to point to a ground of recovery that is established bypast authority, or at least is justifiable by a process of principled analogicalreasoning from past authority. There is in English law "no general rule givingthe plaintiff a right of recovery from a defendant who has been unjustlyenriched at the plaintiff's expense", and the courts' jurisdiction to orderrestitution on the ground of unjust enrichment is subject "to the bindingauthority of previous decisions": they do not have "a discretionary power toorder repayment whenever it seems just and equitable to do so".[101] Related to this, the law will generally not order restitution where a paymenthas been made pursuant to a legal, equitable or statutory obligation owed by theclaimant to the defendant, including payment made pursuant to an order of a court ortribunal of competent jurisdiction. A claim to recover such payment can justly be23 Martin v Pont [1993] 3 NZLR 25, 30.24 Sean McAnally "Money had and received: we're sorry, will you have us back?" [2023] NZLJ258.25 Deutsche Morgan Grenfell Group Plc v IRC [2006] UKHL 49, [2007] 1 AC 558 at [21].26 Charles Mitchell, Paul Mitchell and Stephen Watterson Goff & Jones on Unjust Enrichment (10thed, Sweet & Maxwell, London, 2022) at [1-30] (footnotes omitted).answered on the basis the payee had every right to receive it.27 While it appears thisprinciple will not apply in circumstances where money was paid under a judgment thatwas void, it will apply even if there is reason to believe that the court has made amistake.28[102] Here, Northlake made payment to Civil because the adjudicator determined itmust do so, and Civil took steps to enforce that binding determination. At the time itmade the payment, its then lawyers acknowledged it was obliged to pay to "satisfy theinterim determination". Even now, Northlake accepts that the adjudication was"perfectly valid", which is to my mind irreconcilable with the case it advances that thedetermination is pointless and of no effect, and that it is entitled to recover the paymentas money had and received. The position might well be different if Northlake had thedisputes that were determined by the adjudicator on an interim basis substantively andfinally determined in its favour in other proceedings, but it has not yet taken thatcourse.Conclusion on issue four[103] Northlake has not supported its claim in reliance upon, or by analogy to,established categories of case where the law recognises a cause of action for moneyhad and received. It has failed to satisfy me that Civil does not have a defence to itsclaim for this reason. Northlake's only cause of action cannot succeed also because Ido not accept the premises upon which it is founded, namely, that the engineer'sdecisions were final and binding and the adjudicator's determination was of no effect.Summary judgment application and strike out principles — Civil[104] A defendant's summary judgment application is made under r 12.2(2) of theHigh Court Rules, which provides:The court may give judgment against a plaintiff if the defendant satisfies thecourt that none of the causes of action in the plaintiff's statement of claim cansucceed.27 At [2-32]—[2-36], citing Marriott v Hampton [1775-1802] All ER Rep 631 (KB); Wilson v Ray(1839) 113 ER 32; and Clydesdale Bank Ltd v Schröder & Co [1913] 2 KB 1. See also P Twist,J Palmer and Marcus Pawson Laws of New Zealand, Restitution (online ed) at [10] and n 6.28 Mitchell, Mitchell and Watterson, above n 26, at [2-38] and [2-41].[105] The position where a defendant applies for summary judgment is differentfrom an application by the plaintiff because a defendant must show the plaintiff cannotsucceed on any of its causes of action.[106] Summary judgment in favour of a defendant will also not be appropriate whereit is possible for a plaintiff to amend its claim so as to remedy defects relied upon bythe defendant; it should only be used where the defendant has a clear answer to theplaintiff's claim which cannot be contradicted.29 In this respect, Elias CJ in WestpacBanking Corp v M M Kembla New Zealand Ltd relevantly said:30Although [the predecessor to r 12.2] refers to the causes of action "in theplaintiff's statement of claim", [the predecessor to r 15.1] (which permits theCourt to strike out a cause of action) similarly is based upon "the pleading".Under [r 15.1] the Court does not strike out pleadings where a defect can becured by amendment which the party is willing to make. Similarly, theresidual discretion of the Court under [r 12.2] to refuse summary judgmentwould be properly invoked to avoid the oppression which would otherwiseresult if an application by a defendant for summary judgment would preempta plaintiff exercising the right to amend the pleadings Indeed, use of thediscretion to enable amendment is arguably more necessary in the interests ofjustice in the case of summary judgment than in the case of strike-out becausesummary judgment results in issue estoppel.[107] Civil also relies upon r 15.1 of the High Court Rules. It permits the Court tostrike out all or part of a pleading in specified circumstances as follows:15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.(4) This rule does not affect the court's inherent jurisdiction.29 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [66]; andAttorney-General v Jones [2003] UKPC 48, [2004] 1 NZLR 433 at [5].30 At [66].[108] The Court will exercise its power to strike out a pleading sparingly and only inclear cases.[109] I accept the general approach in Attorney-General v McVeagh, where the Courtof Appeal said:31The Court is entitled to receive affidavit evidence on a striking-outapplication, and will do so in a proper case. It will not attempt to resolvegenuinely disputed issues of fact and therefore will generally limit evidenceto that which is undisputed. Normally it will not consider evidenceinconsistent with the pleading, for a striking-out application is dealt with onthe footing that the pleaded facts can be proved But there may be a casewhere an essential factual allegation is so demonstrably contrary toindisputable fact that the matter ought not to be allowed to proceed further.Issue five — Can the adjudicator's determination now be challenged byNorthlake?[110] Civil says its application for summary judgment/strike out is simply theflipside of the arguments that it raised in defence of Northlake's claim. It submits thatif the Court accepts it was entitled to take the disputes concerning the Covid Claimand the Stage 12 Claim to adjudication, the adjudicator's determination was bindingon the parties until such time as there is a final determination by a court or tribunal ora procedure of the same nature rules differently on the substance of the dispute. It saysthis is enough for it to be awarded summary judgment or for Northlake's case to bestruck out.[111] Civil also submits Northlake's claim should be struck out because Northlakehas now lost the right to dispute the adjudication determination. It says cl 13.1.1envisions there may be a binding and enforceable adjudication determination thataffects in some way (such as approving or overturning in full or in part) the engineer'sdecision, valuation or certificate with the effect the engineer's prior decision isessentially replaced by the binding adjudication determination. It argues the effect ofcl 13.1.1 is that unless notice of a dispute is given to the engineer within one month ofthe adjudication determination, it cannot be questioned or challenged. Civil says that31 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566 (citation omitted).as Northlake did not give notice of its intention to dispute the adjudicationdetermination within one month or at all, Northlake cannot now challenge it.[112] I do not accept this argument. There is no requirement in cl 13.1.1 for a partyto give notice to the engineer disputing an adjudication determination. The provisionis concerned with challenges to engineer's decisions, not adjudication determinations.An adjudicator's determination cannot replace an engineer's decision, it simplyresolves a dispute on a provisional and interim basis pending final resolution by othermeans.[113] I am not satisfied that Northlake has no prospect of having the disputesconcerning its liability for the Covid Claim and Stage 12 Claim finally determined,including in this proceeding (subject to the amendment of its pleadings). It may alsobe able to seek to have those disputes determined by using the dispute resolutionprocedures in the contracts, but I make no comment as to whether that is still the case.In these circumstances, it would be wrong to enter summary judgment for Civil. Iconsider the correct approach is to strike out Northlake's present cause of action,which I am satisfied cannot succeed, but grant leave for Northlake to amend itspleadings.Result[114] Northlake's application for summary judgment is dismissed.[115] Civil's application for summary judgment is dismissed.[116] In relation to Civil's application for strike out, I order that Northlake's causeof action is struck out but with leave reserved for it to file an amended statement ofclaim within 28 days of the date of this judgment.[117] The case is to be set down for a further case management teleconference on adate to be fixed by the Registrar. Counsel shall file memoranda at least three workingdays prior to the next conference with a full suite of proposed timetable directions onthe matters in sch 5 to the High Court Rules 2016.[118] It appears to me that both parties have had some degree of success and thatcosts would be appropriately reserved. If that is not accepted and either party seeks aruling on costs, then memoranda may be filed within 28 days and are to be no morethan five pages. Any reply memoranda may be filed within 14 days thereafter. I shalldetermine costs (if necessary) on the papers._______________________O G PaulsenAssociate JudgeSolicitors:LeeSalmonLong, AucklandDentons Kensington Swan, Wellington