Monthly Archives: May 2017

Arbitrator appointment notices under clause 1 – a word of warning!

Where parties are unable to agree on the appointment of their arbitrator, or there is default in complying with the agreed procedure, clause 1(4) of the Second Schedule to the Arbitration Act 1996 provides:

… any party may, by written communication delivered to every such party, arbitrator or third party, specify the details of that person’s default and propose that, if that default is not remedied within the period specified in the communication (being not less than 7 days after the date on which the communication is received by all of the persons to whom it is delivered), a person named in the communication shall be appointed …

The normal practice is, once there is clear disagreement over the appointment of an arbitrator (usually within a time period specified in the agreement to arbitrate) either party may try to pre-empt further disagreement by naming their preferred arbitrator and giving the other party not less than seven days to respond.

In Body Corporate 200012 v Naylor Love Construction Limited Justice Muir was not convinced that there was in fact any disagreement or default, and he was not minded to follow the longstanding reasoning established by Justice Hansen in Hitex Plastering Ltd v Santa Barbara Homes Ltd [2002] 3 NZLR 695.  Interestingly, both parties issued notices against each other in the Naylor Love case – one proposing retired Justice Rodney Hansen QC and the other a Mr Walton, none other than the author of this post.

Regrettably, we both missed out on the appointment when the parties settled on Mr Tómas Kennedy-Grant QC.

Such is life!

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Arbitration Amendment Bill 2017 passes first reading

The Arbitration Amendment Bill 2017 (No 245-1) completed its first reading yesterday, and has been referred to the Justice and Electoral Committee.

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Related Services under the Construction Contracts Act 2002

The definition of construction work under section 6 of the Construction Contracts Act 2002 has, with effect from 1 September 2016, been extended to include related services, which are defined in the new subsection (1A) as including:

(1A)   construction work includes –

(a)    design or engineering work carried out in New Zealand in respect of work of the kind referred to in subsection (1)(a) to (d) and (f):

(b)    quantity surveying work carried out in New Zealand in respect of work of the kind referred to in subsection (1)(a) to (g)

For architects, engineers and quantity surveyors, the protections for progress payments under the Act now apply.  Similarly, the provisions relating to adjudicating disputes under their appointment agreements also apply.

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