Monthly Archives: August 2017

High Court’s new specialist commercial panel starts work today

The Senior Courts (High Court Commercial Panel) Order 2017 received Royal Assent on 7 August 2017.   Clause 5 authorises the Chief High Court Judge to assign panel judges to deal with specialist commercial disputes and applications under the Arbitration Act 1996 where the sum at issue is not less than $2 million. 

On 10 August 2017, the Chief High Court Judge announced the establishment of a specialist judicial commercial panel, comprising Justices Venning, Heath, Courtney, Wylie, Katz and Muir in Auckland, and Justices Mallon and Dobson in Wellington.

The order came into force today, 1 September.

This is great news for arbitration practitioners; this is a strong bench with considerable arbitration expertise; Justice Venning’s decision in the Danone v Fonterra case springs to mind, and Justice Heath has been a long time member and former Council member of AMINZ.


Direct Payment Agreements and s292 – Ebert Construction v Sanson

There is growing acceptance across the construction industry, particularly among financiers and owners, that payments need to flow down the contract chain to those actually doing the work.  This has seen a growth in construction contracts requiring head contractors to prove payment of their subcontractors, if cashflow is to continue; and in financiers also requiring proof of such payment.  Similarly, head contractors are seeking direct payment obligations from project financiers to protect themselves against developer default.

The difficulty with these arrangements is that, in the event of insolvency, preferring one subcontractor over other unsecured creditors (for the obvious reason that they are needed on site), thereby diverting those payments out of the creditor pool, runs the risk of being voidable insolvent transactions in terms of s292 of the Companies Act 1993.

The recent decision of the Court of Appeal in Ebert Construction v Sanson clarifies that position.  The attached article was published in the September edition of LawTalk and has been submitted to the International Bar Association’s publication Construction Law International.


America’s Cup 2017 – New Development for Auckland?

Following the success of Team New Zealand’s America’s Cup challenge in Bermuda last month, there has been rather a lot of comment in the press over where the next Cup defence should be held, what will be needed, and who will pay for it.

Back in 1995, we were confronted with the same questions.  The erstwhile Auckland Regional Services Trust came to the rescue, and Auckland’s Viaduct Basin has seen the benefit since.

Here is an article I drafted for the latest edition of the New Zealand Law Society’s magazine, Law Talk, discussing that development –  LT 909 Americas Cup 2017