<![CDATA[JOEM BALDESCO LLM MRICS MCIARB AAMINZ - Blog]]>Mon, 22 Jun 2026 07:17:57 +1200Weebly<![CDATA[When an Adjudicator Goes Too Far: Natural Justice Warning from a Recent English Case]]>Sat, 13 Jun 2026 06:52:11 GMThttps://www.joembaldesco.co.nz/blog/when-an-adjudicator-goes-too-far-natural-justice-warning-from-a-recent-english-case
Adjudication and natural justice in construction disputes illustrated through Premier Modular v Maidstone NHS Trust
Only recently, I wrote about adjudicators’ jurisdiction under the Construction Contracts Act 2002, and in particular whether an adjudicator’s jurisdiction is limited to the notice of adjudication. The key point in that discussion was that the notice remains important, but it does not necessarily provide the complete jurisdictional map. The better approach is to identify the real dispute properly referred under the statutory process as a whole, while remaining alert to the limits imposed by natural justice and procedural fairness.
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The recent English TCC decision in Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) provides a useful companion to that discussion. Although it arises under the English adjudication regime and an NEC4 contract, the principle is highly relevant to adjudication practice more generally: an adjudicator may analyse the dispute robustly and is not confined to simply choosing between the parties’ submissions, but must not decide the case on a materially different and decisive basis without giving the parties a fair opportunity to respond.
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In that sense, Premier Modular is not merely a case about NEC compensation events or Accepted Programmes. It is a case about the boundary between legitimate adjudicative reasoning and procedural unfairness. It illustrates that a broad notice of adjudication may answer a jurisdictional objection, but it will not necessarily cure a natural justice problem if the decision ultimately turns on a case that neither party actually had the opportunity to address.
The English Technology and Construction Court’s decision in Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) is a useful reminder that adjudication remains a robust, fast-moving process, but not one in which an adjudicator may decide the dispute on a materially different basis without giving the parties a fair opportunity to respond.

The case is not a rejection of the usual “pay now, argue later” approach. Far from it. The Court expressly recognised the difficult task faced by adjudicators and the courts’ usual reluctance to interfere with adjudication decisions. However, the Court considered this to be one of the rare cases where the manner in which the adjudicator reached his decision was obviously unfair.

Background

Premier Modular Limited (“PML”) was engaged by Maidstone and Tunbridge Wells NHS Trust to design and construct a new barn theatre at Maidstone Hospital. The contract was based on the NEC4 Option A form.

A dispute arose in relation to the availability of a permanent mains water supply. PML said it needed the permanent water supply by 30 October 2023 for testing and commissioning, but that the Trust did not make it available until 20 February 2024, causing delay. The Trust accepted that it was responsible for the mains water supply, but denied that it had to provide it by any particular date.

PML referred the dispute to adjudication. In its Referral, PML advanced its compensation event case under clauses 60.1(1), 60.1(14) and 60.1(18) of the NEC4 conditions. In broad terms, those provisions concerned an instruction changing the Scope, a Client’s liability, and a breach of contract by the Client.

However, the adjudicator ultimately decided the case on a different contractual route. He found that there was a compensation event under clause 60.1(3), which applies where the Client does not provide something it is to provide by the date shown on the Accepted Programme. He also found that a later revised programme had become an Accepted Programme, despite both parties having proceeded on the basis that the original Accepted Programme had not been updated.

The adjudicator awarded PML approximately £1.65 million. The Trust did not pay, and PML applied to enforce the adjudication decision by summary judgment.

The Trust’s challenge

The Trust resisted enforcement on natural justice grounds. Its main complaint was that the adjudicator’s central finding had been made on a contractual basis that neither party had advanced.
The Trust said that PML had not run a clause 60.1(3) case. The parties had instead addressed clauses 60.1(1), 60.1(14) and 60.1(18). The Trust also said that the adjudicator’s finding that a later revised programme had become an Accepted Programme was contrary to the common position adopted by both parties during the adjudication.

There was also a separate complaint that the adjudicator had failed properly to deal with the Trust’s time-bar defence under clause 61.3.

The Court’s approach

The Court drew a distinction between two types of natural justice challenge in adjudication:
  1. where an adjudicator fails to consider a defence; and
  2. where an adjudicator decides the dispute on a basis that a party had no adequate opportunity to address.

This case principally fell into the second category.

The Court accepted that an adjudicator is not required simply to choose between the submissions advanced by the parties. An adjudicator may reach a conclusion that is not precisely the same as either party’s case, provided the relevant issues have been fairly canvassed.

However, there is an important limit. If an adjudicator wishes to decide the dispute on a materially different factual or legal basis, especially one that may be decisive, procedural fairness requires that the parties be given an opportunity to comment.

That did not happen here.

Why enforcement was refused

The Court held that the adjudicator had decided the central issue on a basis that was not argued by either party, was contrary to the parties’ common position on the Accepted Programme, and had not been fairly put to them for comment.

PML argued that the Notice of Adjudication was broad enough to allow the adjudicator to consider the whole of clause 60.1. The Court rejected that answer in the context of natural justice. A broadly framed notice might answer a jurisdictional objection, but it does not necessarily answer a complaint that the parties were not given a fair opportunity to address the decisive basis of the decision.

The adjudicator had asked a clarification question referring to clause 60.1(3), but the Court found that this did not fairly alert the parties that he was considering deciding the case on that basis. The clarification question was directed to whether a particular revised programme was an Accepted Programme. Both parties answered that it was not.

The Court therefore concluded that the adjudicator had, in effect, created a better case for PML than the one PML had actually advanced. That was a breach of natural justice.

On the separate time-bar issue, the Court was less sympathetic to the Trust. Even if the adjudicator had misunderstood the Trust’s case or confused the contractual regime, that would not itself amount to a breach of natural justice. The Court would not, on an enforcement application, pick through the merits of the adjudicator’s reasoning.

The decisive point was not that the adjudicator may have made an error. It was that he had decided the case on a material and unargued basis without giving the parties a proper opportunity to address it.

Practical lessons

1. A broad notice does not cure unfairness
A broadly framed notice of adjudication may assist in answering a jurisdictional challenge, but it does not give an adjudicator unlimited freedom to decide the dispute on any possible contractual basis. If the decisive point has not been fairly raised or argued, natural justice concerns may still arise.

2. Adjudicators can be proactive, but must be careful
Adjudicators are not passive decision-makers. They are entitled to analyse the contract, test the parties’ arguments, and reach their own conclusions. However, where an adjudicator identifies a potentially decisive point that neither party has advanced, the safer course is to raise it clearly with the parties and invite focused submissions.

The question should be direct. It is not enough to refer generally to a clause or ask a related clarification question if the parties are not clearly alerted to the point that may determine the outcome.

3. Parties should plead their contractual route clearly
For claimants, the case is a reminder to identify the contractual basis of entitlement with precision. If a compensation event is said to arise under a particular clause, that route should be clearly pleaded and supported by the evidence.

For respondents, the decision shows that natural justice challenges remain difficult but possible. The complaint must usually be more than “the adjudicator got it wrong.” The stronger argument is that the adjudicator decided a material issue on a basis that was not put to the parties and which they had no fair opportunity to meet.

4. Accepted Programmes matter under NEC contracts
The case also highlights the importance of programme status under NEC contracts. There can be a significant difference between a programme used for practical project management purposes and an Accepted Programme under the contract. That distinction may affect not only delay assessment, but also whether a compensation event exists at all.

Relevance for New Zealand adjudication

Although this is an English TCC decision, the underlying principle is familiar in New Zealand adjudication. Adjudicators are expected to decide disputes quickly and robustly, but they must still comply with natural justice.

The practical message is one of balance. Adjudicators should not be overly technical or constrained by labels used by the parties. But if an adjudicator is considering deciding the dispute on a materially different basis, particularly one that may determine the outcome, fairness requires that the parties be given a proper opportunity to respond.

Conclusion

Premier Modular does not weaken adjudication enforcement. It reinforces the usual rule that courts will enforce adjudication decisions except in rare cases. But it also confirms an important boundary: adjudicators may decide the dispute referred to them, but they should not create and determine a materially different case without first putting that case to the parties.

In short, adjudication may be fast, but it must still be fair.
]]><![CDATA[Adjudicator’s Jurisdiction Under the Construction Contracts Act: Is It Limited to the Notice of Adjudication?]]>Wed, 13 May 2026 12:00:00 GMThttps://www.joembaldesco.co.nz/blog/adjudicators-jurisdiction-under-the-construction-contracts-act-is-it-limited-to-the-notice-of-adjudication
adjudicators-jurisdiction-construction-contracts-act.jpg
One of the more persistent questions under the Construction Contracts Act 2002 is whether an adjudicator’s jurisdiction is fixed by the notice of adjudication, or whether the adjudication claim and the issues actually put in dispute shape the adjudicator’s mandate more fully.

The Traditional View: The Notice Sets the Boundary

Traditionally, many practitioners assumed that the notice of adjudication set the boundaries of the adjudicator’s jurisdiction. That view has obvious appeal. The notice is the document that initiates the adjudication process. It identifies the dispute and gives the respondent its first formal notice of what is being referred. On that approach, the notice is not just procedural housekeeping — it is the document that defines the dispute for jurisdictional purposes.

That was essentially the position advanced by Janine Stewart and Mariam Baho in their February 2021 article, where they argued that the notice remains central in setting the dispute referred to adjudication. Their concern was that if too much weight is given to the later adjudication claim, a claimant could shift or expand the dispute after the adjudicator has already been appointed, creating uncertainty and potential unfairness.

The Alternative View: The Claim Develops the Dispute

John Walton, however, took a different view. He argued that the wording and structure of the Construction Contracts Act suggest that the notice is not the final word on jurisdiction. In particular, the Act distinguishes between the notice of adjudication and the adjudication claim. The notice is required to state the nature and brief description of the dispute, but the adjudication claim is the document that specifies the nature or grounds of the dispute in greater detail. That distinction is important.

The statutory sequence supports that analysis. The notice begins the process. The adjudicator is then appointed. The claimant must then serve an adjudication claim. The respondent serves a response. The adjudicator determines the dispute. Viewed in that way, the notice is the initiating document, but not necessarily the complete jurisdictional map.

That reasoning gained support in the Alaska Construction + Interiors Auckland Limited v Lahatte & Anor [1] line of authority, where the Court accepted that the adjudication claim may refine, and in some respects supersede, the grounds stated in the notice. This has led to a more flexible understanding of jurisdiction under the Act. Rather than treating the notice as a rigid pleading, the courts have shown a willingness to look at the dispute as referred under the statutory process as a whole.

However, that broader approach has limits.

The Boundary: Horizon Investments and Natural Justice

The useful counterpoint is Horizon Investments Ltd v Parker Construction Management (NZ) Ltd & Hunt [2]. In that case, the adjudicator decided the matter on the basis that the payment schedules were invalid in form, even though the parties had not put that issue in dispute. The parties had instead advanced substantive issues about unpaid amounts, work said not to have been done, double counting, time allowances, and liquidated damages. Because the adjudicator decided the case on an unsubmitted issue, and did not determine the issues actually advanced, the High Court set the determination aside.

The key point from Horizon case is that an adjudicator’s jurisdiction is defined by the dispute that has been referred. The Court emphasised that identifying the dispute is a factual exercise: what claim, head of claim, issue, contention, or cause of action has actually been referred? The Court also recognised that it makes sense to respect the parties’ ability to identify the points of dispute they want answered. On the facts, it was not open to the adjudicator to move outside the dispute submitted by the parties and decide a point that neither party had raised.

Horizon case is important because it does not support a narrow “notice only” approach. Rather, it supports a broader but disciplined approach. The adjudicator is not confined to a mechanical reading of the notice alone, but equally cannot roam beyond the real dispute referred and decide matters not fairly put before the parties. Where an adjudicator proposes to determine a point not advanced by either party, natural justice requires adequate notice and a proper opportunity to respond.

That principle remains important even where the adjudicator considers the unraised point to be legally significant. The adjudicator’s duty to apply the Act does not displace the requirement to comply with natural justice. Nor does it allow the adjudicator to reframe the dispute in a way that deprives the parties of the opportunity to address the decisive issue.

The Broader Statutory Mandate: Haskell Construction

The later High Court authorities help clarify the modern position.

In Haskell Construction Ltd v Ashcroft [3], the High Court confirmed that an adjudicator’s powers under the Act are not to be read narrowly. The Court accepted that an adjudicator could determine issues concerning the parties’ rights and obligations in a broader sense, including damages associated with statutory implied warranties. Just as importantly, the Court accepted that issue estoppel can apply in the adjudication context. In practical terms, this means parties cannot simply re-run the same issues in later adjudications once they have already been determined.

That is significant because it shows that the courts are less concerned with overly technical jurisdictional arguments and more concerned with the substance of the dispute and the integrity of the adjudication process.

The Importance of Determining Rights and Obligations: G K Shaw

The position is reinforced in G K Shaw Ltd v Green [4]. In that case, the High Court emphasised that where a claim for payment is referred under s 48(1)(a), the adjudicator must also determine any questions in dispute about the parties’ rights and obligations under the contract under s 48(1)(b). The Court rejected an attempt to separate the issues artificially and was critical of a second adjudication that was, in substance, an attempt to repackage an already determined dispute in different legal clothing.

That case is particularly important because it confirms that jurisdiction under the Act is not determined by a narrow comparison between isolated documents. The real inquiry is whether the matters determined fall within the dispute properly referred under the statutory scheme, taking into account the notice, the adjudication claim, the response, and the adjudicator’s obligation under s 48 to determine the questions actually in dispute.

So, Is Jurisdiction Limited to the Notice of Adjudication?

So, is an adjudicator’s jurisdiction limited to the notice of adjudication?

In my view, the better current answer is no — at least not strictly. The notice remains important, but it does not alone and exhaustively define jurisdiction. The adjudication claim can refine or develop the grounds of dispute, and once the dispute is properly before the adjudicator, the Act requires the adjudicator to determine not just liability to pay but also the disputed rights and obligations arising under the contract.

But Horizon reminds us of the boundary. A flexible approach to jurisdiction does not mean an open-ended one. The claimant cannot use the adjudication claim to introduce an entirely different dispute. The adjudicator cannot decide a decisive issue that the parties have not raised without giving proper notice. And the process must still respect natural justice.

A Better Formulation

The better formulation is this: the notice starts the jurisdictional inquiry, but it does not necessarily finish it. Jurisdiction is better understood as arising from the dispute properly referred under the Act as a whole — informed by the notice, developed by the adjudication claim, tested by the response, and ultimately determined through the adjudicator’s statutory task under s 48.

Practical Lessons for Parties and Adjudicators

For claimants, the lesson is to draft the notice carefully, but not to mistake it for the only document that matters. The adjudication claim remains an important document for developing the grounds of dispute, subject always to staying within the dispute properly referred.

For respondents, a jurisdictional objection is likely to be stronger where the claimant has introduced a genuinely different dispute or caused procedural unfairness, rather than where there is only a minor difference in wording between the notice and the adjudication claim.

For adjudicators, the task is one of substance over form: to identify the real dispute referred, while ensuring that the process remains fair, natural justice is observed, and matters already determined are not simply recycled in later proceedings.
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Conclusion

The practical takeaway is this: the notice of adjudication is foundational, but modern authority points to a broader and more functional view of jurisdiction. What matters most is the dispute properly referred under the Construction Contracts Act, not the notice in isolation.

But that broader view remains controlled by natural justice, procedural fairness, and the need to stay within the dispute the parties have actually referred.


[1] [2020] NZHC 1056.
[2] CIV 2007-485-332.
[3] [2020] NZHC 772.
[4] [2023] NZHC 605.
]]><![CDATA[From Decision to Dollars: Enforcing an Adjudicator’s Determination in New Zealand]]>Thu, 30 Oct 2025 11:00:00 GMThttps://www.joembaldesco.co.nz/blog/from-decision-to-dollars-enforcing-an-adjudicators-determination-in-new-zealand
Professional reviewing legal documents related to enforcement of an adjudication decision.
Receiving an adjudicator’s determination is a major milestone — but it’s not the finish line. In many cases, the real challenge begins after the decision is issued: ensuring the losing party actually pays or complies.

Under the Construction Contracts Act 2002 (CCA), adjudication is designed to be fast, binding, and practical. But when compliance doesn’t happen voluntarily, the Act provides a clear enforcement pathway to turn a paper decision into actual recovery.
When Is a Determination Enforceable?

A determination becomes enforceable immediately upon delivery. Unless the adjudicator specifies a longer timeframe, payment is due within 2 working days.

Key rule:
It must be complied with even if a party disagrees.

There is no appeal under the CCA, and judicial review is limited to procedural issues. The “pay now, argue later” principle is very intentional — it keeps the industry’s cash moving.

What If the Losing Party Doesn’t Pay?

If a party ignores the determination, the claimant can enforce it through the District Court. This is a straightforward administrative process, not full litigation.

To enforce a determination, the claimant typically files:
  • A copy of the Determination
  • A declaration confirming it is valid and unpaid
  • Supporting documents such as invoices or proof of service

Once filed, the determination becomes a court judgment, and full civil enforcement powers become available.

Enforcement Tools Available to the Claimant

Once registered as a judgment, the claimant can take several enforcement actions depending on the debtor’s assets and structure.

a. Attachment Order (Wages or Bank Accounts)

​This directs an employer or bank to pay funds directly to you.

Useful when:
  • The debtor is an individual
  • You know where they work or bank

b. Charging Order (Property or Land)

Used to secure the debt against:
  • Real property
  • Company shares
  • Other registrable interests

This is often effective for solvent companies or directors with property.

c. Seizure of Assets / Warrant to Seize Property

For situations where valuable physical assets exist (vehicles, tools, equipment).

d. Liquidation or Bankruptcy Proceedings

When large debts go unpaid or a company is insolvent.

While insolvency should not be used as a bluff, it is a powerful tool — particularly when the determination clearly confirms a due and payable debt.

When the Respondent Is a Company

Most construction disputes involve companies. Subpart 3 of the CCA also strengthens payment rights by effectively removing “pay when paid” defences.

If the determination orders payment, the claimant may:
  • Issue a statutory demand
  • Pursue liquidation if unpaid after 15 working days

This frequently results in fast settlements — very few companies risk liquidation over adjudication debts.

Practical Strategy: How to Maximise Recovery
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  • Act quickly — delays weaken your leverage.
  • Stay factual and non-emotional in communications.
  • Document everything — payments, promises, defaults.
  • Know your enforcement options before sending demands.
  • Seek advice early if insolvency is suspected.

As someone who both issues and enforces determinations, I’ve seen that the strongest outcomes come from swift, decisive action.
]]><![CDATA[The Adjudicator’s Determination: What It Means and What Comes Next]]>Mon, 27 Oct 2025 11:00:00 GMThttps://www.joembaldesco.co.nz/blog/the-adjudicators-determination-what-it-means-and-what-comes-next
Construction adjudicator reviewing a final determination in an office setting.
Once the adjudicator has received all submissions and completed any meetings or site visits, the process moves to its most significant stage — the Determination. For many parties, this is the moment where uncertainty turns into clarity. But understanding what the determination actually means, and what must happen afterward, is critical to navigating the final phase of the Construction Contracts Act 2002 (CCA).
What Is an Adjudicator’s Determination?

A determination is the adjudicator’s written decision, delivered under Subpart 4 of the CCA. It sets out:
  • The issues considered
  • The findings and reasoning
  • The amount (if any) payable
  • Any orders relating to interest or costs
  • Timeframes for compliance

The determination is not merely advisory. It is binding, and the losing party must comply — even if they disagree.

This “pay now, argue later” rule is a central pillar of adjudication in New Zealand. It ensures cash continues to flow through the industry, protecting contractors and subcontractors from crippling delays.

How Quickly Must Payment Be Made?

Unless the adjudicator specifies a different period, the default requirement is:
  • Payment within 2 working days of receiving the determination.

This is intentionally short. The CCA aims to avoid prolonged stalling tactics and support financial stability in construction projects.

If the determination relates to rights and obligations rather than money (e.g., validity of a variation), the parties must comply with whatever directions the adjudicator has given.

What If a Party Disagrees with the Determination?

A common misconception is that parties can simply “appeal” an adjudicator’s determination. Under the CCA:
  • There is no appeal.
  • The only challenge is judicial review, which is limited to procedural issues (jurisdiction, natural justice).
  • Substantive disagreements (e.g., valuation or factual findings) are dealt with later through arbitration or litigation, if the parties pursue it.

However, the determination remains binding in the meantime — it must be complied with even if further dispute resolution is planned.

This interim-binding effect is precisely what differentiates adjudication from other processes.

Non-Payment: What Happens Next?

If the losing party does not comply:
  • The determination can be enforced through the District Court.
  • The adjudicator’s determination is treated as a judgment debt, after filing a simple statutory declaration and paperwork.
  • Enforcement tools then become available:
    • Attachment orders
    • Charging orders
    • Garnishee orders
    • Bankruptcy or liquidation steps

For contractors, this enforcement path is often faster and more cost-effective than traditional litigation.

Practical Tips: Making the Determination Work for You
  • Act quickly — enforcement options are stronger when pursued early.
  • Communicate professionally — especially where ongoing project relationships matter.
  • Keep documentation organised — determinations are only as enforceable as the clarity of the underlying evidence.
  • Seek advice if cashflow is at risk — delays can compound quickly.
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As someone who prepares, defends, and decides adjudication claims, I've seen countless parties misunderstand what a determination requires. Clarity at this stage prevents costly mistakes.
]]><![CDATA[Inside the Adjudication Room: How the Process Actually Works]]>Thu, 23 Oct 2025 11:00:00 GMThttps://www.joembaldesco.co.nz/blog/inside-the-adjudication-room-how-the-process-actually-works
Adjudicator reviewing documents during a construction dispute in New Zealand.
Once the Notice of Adjudication has been served and an adjudicator appointed, the process formally begins. What happens next is a tightly structured yet flexible procedure designed to deliver a fair, enforceable decision—usually within 25 to 35 working days.
Setting the Ground Rules

After accepting the appointment, the adjudicator issues a Notice of Acceptance and often provides a short procedural direction outlining:
  • Deadlines for each submission (claim, response, reply);
  • How evidence will be presented; and
  • Any meetings or site inspections if needed.

Under Section 37 of the Construction Contracts Act 2002 (CCA), the adjudicator has wide discretion to manage the process, provided each party is given a reasonable opportunity to be heard.

The Claim: Building Your Case

The referring party must submit an Adjudication Claim within five working days of the adjudicator’s acceptance (unless extended). The claim should clearly set out:
  • The dispute and issues to be determined;
  • The relief sought (e.g., payment amount, EOT, or prolongation costs); and
  • Supporting evidence such as payment schedules, emails, programmes, or expert reports.

This is the claimant’s opportunity to tell the story—logically, factually, and persuasively. A well-prepared claim not only aids understanding but also helps the adjudicator identify what is truly in dispute.

The Response: The Other Side of the Story

The responding party then has five working days to file its Response. It must directly address the issues raised, providing its own evidence and reasoning. While it can introduce new arguments, it cannot expand the dispute beyond the scope defined in the original notice.

Adjudicators appreciate focused, professional responses that separate matters of fact from opinion. Excessive rhetoric rarely helps; clarity and evidence do.

Reply, Rejoinder, and Further Submissions

The Act permits the adjudicator to allow further submissions—such as a Reply or Rejoinder—where fairness requires. Many adjudicators adopt a concise exchange:
  • Claimant → Claim
  • Respondent → Response
  • Claimant → Final Reply

Additional submissions beyond that are usually permitted only where necessary.

Hearings and Meetings

Although adjudication is primarily paper-based, the adjudicator may convene a meeting or conference call to clarify key points. These are not formal court hearings but informal discussions to test understanding or resolve factual ambiguities.

The Determination

The adjudicator must issue a Determination within 20 working days of receiving the response (extendable by agreement). The determination sets out:
  • Findings on each issue;
  • The decision and reasons; and
  • Any orders for payment, interest, or costs.

Once delivered, the determination is binding on the parties unless and until overturned by arbitration or litigation.

Practical Takeaway

Adjudication is intentionally swift and document-driven. Success depends less on legal manoeuvring and more on clarity, evidence, and organisation. Parties who prepare early—collecting key records, correspondence, and expert input—are best placed to achieve a fair outcome.
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If you’re currently involved in a construction dispute or anticipating one, understanding this timeline helps you stay one step ahead.
]]><![CDATA[How to Start an Adjudication: The Importance of Getting the Notice Right]]>Sun, 19 Oct 2025 11:00:00 GMThttps://www.joembaldesco.co.nz/blog/how-to-start-an-adjudication-the-importance-of-getting-the-notice-right
Person drafting a Notice of Adjudication under the Construction Contracts Act 2002 in New Zealand.
Once a dispute has crystallised, the next step is to start adjudication properly. This begins with a single but crucial document — the Notice of Adjudication. Getting it right sets the tone for the entire process; getting it wrong can derail the claim before it begins.
What the Act Requires

Section 28 of the Construction Contracts Act 2002 sets out what a valid notice must include:
  • The names and contact details of the parties;
  • A brief description of the dispute;
  • The relief or outcome sought; and
  • The details of the location of the dispute.

The notice must also be served correctly on the other party. Errors in service or vague descriptions can later be challenged as jurisdictional defects.

Choosing an Adjudicator

Under Sections 33–34, the parties have five working days to agree on an adjudicator. If they cannot, either may apply to an Authorised Nominating Authority (ANA) such as Arbitrators' and Mediators' Institute of New Zealand (AMINZ), Royal Institution of Chartered Surveyors (RICS), Fair Way Resolution, or the Adjudicators Association of New Zealand (AANZ). The ANA then appoints an adjudicator, who confirms acceptance and issues a Notice of Acceptance, formally starting the timetable.

The choice of adjudicator can influence how efficiently the process runs. Select professionals experienced in the relevant technical and contractual issues.

Framing the Dispute

Clarity at this stage is critical. The notice defines the scope of the adjudication. Anything outside it cannot later be decided. Avoid broad or emotional statements — focus on facts: what was claimed, how it was valued, and why it remains unpaid or disputed.

A concise and well-structured notice demonstrates professionalism and helps the adjudicator and the respondent understand the case immediately.

Timing and Strategy

The referring party controls the timing of referral — an advantage if used strategically. Preparing evidence, key documents, and an initial draft of the adjudication claim before issuing the notice ensures readiness once the clock starts. Remember: once accepted, strict statutory deadlines apply (usually 5 working days for response and 20 for determination).

Common Pitfalls to Avoid
  • Issuing the notice before a genuine dispute exists.
  • Referring to multiple unrelated disputes in one notice.
  • Failing to specify the relief sought.
  • Serving the notice to the wrong address or via invalid means.

Practical Takeaway

The Notice of Adjudication is more than a formality — it establishes the adjudicator’s jurisdiction. A precise, compliant notice builds credibility and reduces the risk of procedural challenge later.
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If you are considering starting adjudication, seek guidance early. As an adjudicator and dispute-resolution practitioner, I’ve seen that success often depends on how the process begins.
]]><![CDATA[The Right to Adjudicate: Your Fast-Track Path to Resolving Construction Disputes]]>Sun, 12 Oct 2025 11:00:00 GMThttps://www.joembaldesco.co.nz/blog/the-right-to-adjudicate-your-fast-track-path-to-resolving-construction-disputes
Construction adjudication process in New Zealand explained step by step by Joem Baldesco.
Disputes are an inevitable part of construction. Tight timeframes, evolving designs, and payment pressure mean disagreements can quickly arise. Fortunately, New Zealand’s Construction Contracts Act 2002 (CCA) provides a clear and powerful tool to resolve them — adjudication.
What is Adjudication?

​Adjudication is a statutory dispute-resolution process created to keep cash flowing in the construction industry. It allows any party to a construction contract to have a dispute determined by an independent adjudicator, usually within 20 working days. The guiding principle is simple: “pay now, argue later.”

Instead of waiting months for a court outcome, an adjudicator’s determination can be obtained in weeks — ensuring contractors and subcontractors are not starved of cash while the project continues.

Who Can Use It?

Anyone who is party to a construction contract (as defined under Section 5 of the Act) — clients, head contractors, subcontractors, consultants — can invoke adjudication. The dispute might concern:
  • Non-payment or undervalued payment claims;
  • Variations or disputed scope;
  • Time extensions or delays; or
  • Alleged defects or incomplete work.

Importantly, adjudication rights apply whether or not the contract expressly provides for it. The CCA overrides any contractual limitations.

When Does the Right Arise?

A dispute “crystallises” when one party asserts a claim and the other either disputes it or fails to respond. At that point, the referring party can issue a Notice of Adjudication under Section 28 of the CCA to start the process.
​
Why It Matters?

For many smaller contractors, cashflow is survival. Adjudication was introduced to stop the destructive cycle of payment delays and prolonged legal battles. It offers:
  • Speed – decisions within weeks;
  • Affordability – compared with court or arbitration;
  • Binding effect – enforceable like a court judgment; and
  • Flexibility – disputes of any size can be referred.

While determinations are “interim-binding,” they remain effective unless overturned by arbitration or litigation. In practice, most are accepted and complied with.

Practical Takeaway

Understanding this statutory right early can prevent disputes from escalating. Well-prepared documentation — clear payment claims, variation notices, and correspondence — will make any future adjudication faster and stronger.

As a practising adjudicator, I have seen how this process restores fairness and balance between contracting parties. When used properly, it is not merely a remedy of last resort but a practical project management tool.
]]><![CDATA[Blog Series: Understanding Adjudication in New Zealand under the Construction Contracts Act 2002]]>Sun, 05 Oct 2025 11:00:00 GMThttps://www.joembaldesco.co.nz/blog/blog-series-understanding-adjudication-in-new-zealand-under-the-construction-contracts-act-2002
Construction adjudicator explaining the right to adjudicate under New Zealand’s Construction Contracts Act 2002.
​Disputes are part of construction life — but how they’re resolved can make all the difference.

The Construction Contracts Act 2002 (CCA) gives every party in a construction contract a statutory right to adjudication— a fast-track process designed to keep cash flowing and projects moving.

As a Chartered and Registered Quantity Surveyor and practising Adjudicator, I’ve seen how powerful (and misunderstood) this process can be. This five-part series explains adjudication step-by-step — from the first notice to enforcement — offering both clarity and practical insight.

The Series
​
The Right to Adjudicate — Your fast-track path to resolving construction disputes

How to Start an Adjudication — The importance of getting the Notice right

Inside the Adjudication Room — How the process actually works

The Adjudicator’s Determination — What it means and what comes next
​
From Decision to Dollars — Enforcing adjudicator’s determinations in court

Whether you’re a contractor, consultant, or principal, understanding each stage helps you manage disputes with confidence — and compliance.

]]><![CDATA[From Conflict to Clarity: The Power of Dispute Resolution Clauses in Construction Contracts]]>Tue, 23 Sep 2025 08:18:38 GMThttps://www.joembaldesco.co.nz/blog/from-conflict-to-clarity-the-power-of-dispute-resolution-clauses-in-construction-contracts
From Conflict to Clarity: The Power of Dispute Resolution Clauses in Construction Contracts
​Every construction project begins with excitement—the vision of a new home, a refurbished office, or a large-scale development. But behind that excitement lies a reality I’ve seen many times over nearly two decades in this industry: projects succeed not just because of good design and strong teams, but because of solid contracts.

In my work as a Chartered Quantity Surveyor and dispute resolution practitioner, I’ve come across contracts that were little more than handshakes on paper. Inevitably, those projects ran into trouble. On the other hand, where the contract was carefully drafted—with clear scope, timelines, payment terms, and especially a dispute resolution clause—the project was far more likely to stay on track, even when challenges arose.
Take one example: a homeowner and contractor found themselves at odds over additional variations. Without clear procedures in place, the disagreement could have stalled the entire project and drained both sides in legal costs. But because their contract included a mediation and adjudication pathway, they were able to resolve the dispute quickly, keep the project moving, and preserve their working relationship.

Think of it this way: a construction contract is like the foundation of a building. If it’s weak or vague, cracks will appear under pressure. If it’s strong and well-designed, it can carry the weight of the project and protect everyone involved. That’s why dispute resolution clauses matter—they provide a roadmap for navigating inevitable disagreements without derailing the bigger picture.

​The Essentials of a Good Contract
Your contract should cover:
  • What work is being done and to what standard.
  • The commencement and completion of the project..
  • How and when payments will be made.
  • How changes to the scope of work will be handled.
  • The responsibilities of both you and your contractor.

Getting these details right from the beginning avoids confusion and costly disputes down the track.

Why the Dispute Resolution Clause Is Critical
Disagreements in construction are common, whether about delays, costs, or quality of work. A dispute resolution clause sets out how these issues will be resolved. Instead of rushing to court, the contract can guide the parties through:
  • Negotiation
  • Mediation
  • Adjudication
  • Arbitration

This means problems can be addressed quickly, fairly, and cost-effectively – giving you peace of mind.

How I Can Help
I assist clients by drafting and reviewing construction contracts, including dispute resolution clauses tailored to their project. Having a well-prepared agreement not only protects your investment but also helps you move forward with confidence, knowing that any potential issues will be managed in a structured way.
]]><![CDATA[Weekend Emails and Payment Claims: A Tale of Two Jurisdictions]]>Sun, 14 Sep 2025 02:13:17 GMThttps://www.joembaldesco.co.nz/blog/martinus-rail-v-cbh-2025-payment-claims
Construction site with cranes and workers illustrating payment claim timing under WA Security of Payment Act vs NZ Construction Contracts Act 2002
It’s a quiet Saturday afternoon. The cranes stand still, the excavators are parked, and most of the crew have gone home to their families. Yet, behind the scenes, the project doesn’t really sleep. An email pings into a company’s inbox—a payment claim. Nobody reads it that day. Nobody even sees it until Monday morning.

For many contractors, subcontractors, and clients, that scenario feels harmless. But in the world of construction law, timing is everything. The moment that email landed, the statutory clock had already started ticking. By the time the office opened again, precious days had already been lost.
This was precisely the issue at the heart of Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373. The case reminds us that the construction industry runs not only on concrete and steel, but also on strict legal timelines designed to keep cash flowing.

As an adjudicator, I see time and again how the smallest detail—like the day or even the hour a claim is served—can determine the outcome of a dispute. And as this case shows, what counts as “served” in one country may be treated very differently in another.
​
Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373

Court / Jurisdiction: Supreme Court of Western Australia.
​
Facts
  • Martinus Rail served a statutory payment claim under the Western Australian Building and Construction Industry (Security of Payment) Act 2021 (WA) (“SOPA”) on 31 August 2024 by email.
  • That date was a Saturday, and although the email was capable of being retrieved then, the recipient (CBH) opened it only on the next business day, Monday.
  • CBH responded with a payment schedule by email on 24 September 2024.
  • Key dispute: when did the 15 business-day timeframe for CBH to issue a compliant payment schedule begin? From Saturday (when the claim was served / capable of retrieval) or Monday (when it opened / business day)?

Issues
  1. Whether under the SOPA Regulations (particularly reg 23(d)) & the Electronic Transactions Act 2011 (WA), an email delivered on a weekend and capable of being retrieved then should be taken as “given” on that day.
  2. Whether a contractual deeming clause (in this case clause 47.4 in the contract between Martinus and CBH) that declared that notices/payment claims sent on a Saturday are taken to be given only on the next business day could shift / delay the start-date of the SOPA timeframe.
  3. Whether such a contractual deeming provision is valid (i.e. whether parties can, by contract, alter or extend SOPA’s statutory time limits).

Decision
  • The Court held that the payment claim served by email on Saturday was, under SOPA and the Electronic Transactions Act, deemed to be given on that Saturday, since it was capable of being retrieved then.
  • The contractual deeming clause in the contract (clause 47.4) purporting to make the claim “given” only on the next business day (Monday) was ineffective for the purposes of calculating the timeline under SOPA.
  • The Court reinforced that statutory time limits under SOPA are strict and cannot be overridden by contractual agreement. In particular, section 111 of SOPA renders of no effect any contract that purports to alter or postpone the statutory timeframes.

Significance
  • First full hearing in WA Supreme Court on operation of s. 27(3) of SOPA: If no payment schedule is given in time, the claimant may proceed to judgment for the full claimed amount.
  • Clarifies that “email” + “weekend” do not protect respondents from strict statutory deadlines if the email could be retrieved. The notion of “capable of retrieval” is central.
  • Reinforces that contractual clauses which try to delay or change the statutory start point are void / of no effect to the extent they conflict with SOPA.
  • Emphasises importance of prompt, automated systems for receiving and registering claims (even over the weekend) and ensuring that contract terms are aligned (or better: do not try to frustrate statutory timelines).

Practical Lessons for Adjudicators / Contractors / Claimants
  • Always check when a payment claim is sent and whether it is capable of being retrieved immediately—even if it’s weekend or after hours. That timestamp can matter.
  • Review contracts for deeming clauses: if they seek to adjust the start date of statutory timeframes, they likely will be ineffective under SOPA.
  • For respondents: monitor email systems or other receipt infrastructures so you’re not caught off guard. Whether or not you “read” or “open” the email may be less important than whether it was delivered / retrievable.
  • For claimants: this case provides confidence that statutory deadlines are robust; if the respondent fails to schedule in time, you may have strong grounds under s. 27(3) to pursue judgment.

Adjudicator’s Perspective
From the vantage of someone who adjudicates (or presides over security-of-payment / construction payment disputes), this case is a reminder of how strictly the courts will enforce SOPA’s timing provisions. The statute’s purpose of ensuring cash flow in the construction industry depends on certainty and predictability: parties must know that when payment claims are served, the clock starts ticking, regardless of weekends or inconvenient contract clauses. From a fairness perspective, this helps claimants who cannot control business hours; from a process perspective, it imposes diligence on respondents.

Contrast with New Zealand’s CCA 2002

In New Zealand, the Construction Contracts Act 2002 defines “working day” strictly. Documents (including payment claims and payment schedules) must be served during working days only—weekends and public holidays are excluded from the calculation.
  • If a payment claim were emailed on a Saturday in NZ, service would not be valid until the next working day.
  • This means NZ respondents are not exposed to “weekend service” risk, unlike under WA’s SOPA regime.
Why the distinction matters?
  • In WA, claimants can start the statutory clock immediately upon retrievable service—even outside business hours.
  • In NZ, the statutory clock runs only against working days, giving respondents clearer protection against “out-of-hours” claims.
Adjudicator’s Reflection
Both approaches reveal the policy balance between protecting cash flow (strict timeframes in WA) and ensuring procedural fairness (working-day service in NZ). For practitioners, it underscores the importance of knowing which statutory regime governs—what is effective service in one jurisdiction may be invalid in another.

Takeaway​
Internationally, security of payment legislation shares the same goal—cash flow—but the mechanics differ. Understanding the nuances between regimes like WA’s SOPA and NZ’s CCA 2002 is crucial for contractors, consultants, and adjudicators alike.
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