Adjudication

Dispute Resolution of Construction Disputes

On Monday, 13 November 2017, AMINZ ran a one day seminar on resolving disputes in the construction industry.

The day was chaired by Derek Firth, and presentations were made by Stuart Robertson, from Kensington Swan in Auckland, on the role of the Engineer; Janine Stewart, from Minster Ellison Rudd Watts in Auckland, on adjudication under the Construction Contracts Act 2002; Michael Weatherall, from Simpson Grierson in Auckland, on the use of disputes boards; and I rounded out the day on the use of arbitration.

The panel discussion discussed each process and issues arising from all perspectives, including acting for owners, acting for contractors and acting as adjudicator/arbitrator, and provided valuable information on the topic.  The papers will be loaded on the AMINZ website shortly.  In the interim, my paper is attached:

Arbitration of Construction Disputes

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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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Court of Appeal considers payment claims, again …

On 3 February 2017, the Court of Appeal released its decision in the case of CJ Parker Construction Ltd (in liq) v Ketan [2017] NZCA 3.

Observing that the consequences for not complying with the scheme under section 23 of the Construction Contracts Act 2002 may be draconian, Justice Toogood observed that “a pragmatic, common sense and contextual approach” was required when considering the validity of a payment claim in terms of section 20.  More critically, the Court of Appeal has perhaps thrown a lifeline to owners who are unable to provide a valid payment schedule for an amount less than claimed, if the payment claim itself provides insufficient information.

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Retentions Regime under the Construction Contracts Act clarified

The Construction Contracts Amendment Act 2015 introduced a new regime for the holding of retentions in the new Part 2, Subpart 2A of the Act (sections 18A to 18I of the Act).  There has been some uncertainty as to how the new regime will apply.  The requirement for retentions to be held on trust applies to commercial construction contracts over a yet to be determined value from 31 March 2017.  It has now been clarified that the new regime will only apply to contracts entered into or renewed from 31 March 2017.

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LawTalk article – Construction Contracts Amendment Act 2015

A revised version of my article on the Construction Contracts Amendment Act 2015 has been published in the 2 June 2016 edition of Law Talk, the New Zealand Law Society’s magazine.

To read the article online, click here.

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Construction Contracts Amendment Act 2015 – four new regimes

When the Construction Contracts Amendment Act 2015 come into force on 1 December 2015, many could be forgiven for assuming that all the revisions took effect from that date.  Nothing could be further from the case.

Edit – a revised version of this paper was published in the 2 June 2016 edition of the New Zealand Law Society magazine, LawTalk.  Click here to read the online version.

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Construction Contracts Amdt Act 2015 – in force on Tuesday

The Construction Contracts Amendment Act 2015 was passed into law on 22 October 2015; the Amendment Act, and the Construction Contracts Amendment Regulations 2015 made under it, come into force on 1 December 2015.  That’s next Tuesday!

There is, however, no reason to panic!

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Construction Contracts Amendment Bill 2015 to pass today

Yesterday, 22 September, the Minister introduced Supplementary Order Paper 106 into the House reversing the earlier, and highly controversial aspects of Supplementary Order Paper 52 (particularly in relation to the appointment of adjudicators).  The Bill is now pretty much as it was reported back to the House following the Select Committee hearings, including the new provisions relating to statutory trusts for retentions.

The Bill was debated until the House rose at 10.00 last night.  It is likely that the Bill will pass into law when the debate resumes at 2.00 pm today.

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International Arbitration in NZ

In October 2012, New Zealand arbitrator David Williams QC was part of the arbitral tribunal, appointed by the International Centre for the Settlement of Investment Disputes (ICSID),  which awarded damages against Ecuador in the sum of USD 1.7 billion.  Until the Yukos arbitration last month (USD 50.2 billion, for the expropriation of the Yukos oil group by the Russian Federation), this was the largest arbitral award ever.

In April, NZ was successful in a joint bid with Australia to host a major international arbitration conference (the 2018 ICCA Congress) in Sydney, with an additional day in Queenstown.  The Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) has also recently secured agreement to run a joint conference in Queenstown in 2016 with the International Academy of Mediators (IAM).

Last year, AMINZ formed an international sub-committee, with the aim of promoting international dispute resolution in New Zealand, and using New Zealand dispute resolution professionals.  New Zealand has a strong reputation as a first world economy, with the rule of law, courts which are very supportive of arbitration and the lowest perception of corruption in the world.  The time is ripe for New Zealand and its arbitrators to become more involved in international arbitration.

Here is a copy of my paper to be given at the AMINZ conference in Queenstown at the end of August.

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Construction Contracts Amendment Bill 2013 Update

The Bill has been languishing in the House, awaiting its third reading.

It had its second reading in March of this year, and Supplementary Order Papers were tabled on 17 April (Clayton Cosgrove) and 7 May (Julie Genter).  I understand that the Government is also preparing its own Supplementary Order Paper, presumably to cover the issue of retentions (as do the others).

I have been asked to give an update to the AMINZ breakfast in Wellington on Friday – Update on the Construction Contracts Act.

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