Adjudicator’s Jurisdiction Under the Construction Contracts Act: Is It Limited to the Notice of Adjudication?

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.