BuildLaw, Issue 7: September 2010

Welcome to the September 2010 Issue of BuildLaw in which we bring you articles from New Zealand, Australia and the United Kingdom on building and construction law matters.

You can either download and print the complete newsletter or read those articles of interest.

Articles in Issue 7 are as follows:

WELCOME TO ISSUE 7 CONSTRUCTION EARTHQUAKES AND NZS3910

John Green welcomes you to this issue of BuildLaw and comments on current topics of interest including: Earthquakes and Construction, Building Controls and Standards, The Construction Contracts Act Review, Subcontract Agreement SA-2009...

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With the recent earthquakes in Canterbury, many queries have surfaced as to liabilities and obligations of the parties under construction contracts based on NZS3910:2003.

Unfortunately, the situation is not as clear as it could be…

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LIQUIDATED DAMAGES AFTER TERMINATION OF A CONTRACT IS INSERTING ‘NIL’ ENOUGH TO AVOID DELAY DAMAGES?

In March 2010 the Technology and Construction Court handed down the decision Hall v Van Der Heiden (No.2) which dealt with the issue of whether an employer may be permitted to recover liquidated damages up to the date of completion even though completion falls some time after the contractor's employment has been terminated...

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Recently, in J-Corp v Mladenis the WA Court of Appeal was asked whether a clause limiting liquidated damages to “NIL” prevented the owners from claiming general damages for delay when the builder ran late finishing their home...

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THE COURT OF APPEAL PRONOUNCES ON LEAKY BUILDINGS - SUNSET AND BYRON AVE HAMLIN SURVIVES ROUND ONE

These judgments reaffirm the homeowner's right to take action against Councils for defective building work. In the current climate of government proposals to address the leaky building dilemma, they provide a timely reminder that litigation can bear fruit...

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The Court of Appeal has emphatically rejected an attempt by territorial authorities to limit or reduce their ongoing exposure to leaky building claims...

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ADJUDICATION UPDATE: THE BEGINNING, THE MIDDLE AND THE END HOUSING GRANTS CONSTRUCTION AND REGENERATION ACT: CONSULTATION ON AMENDMENTS TO THE “SCHEME”

Since Tómas Kennedy-Grant QC last wrote a review of the cases on the Construction Contracts Act 2002 (as at 24 November 2009) a further 17 cases have appeared on the Judicial Decisions Online website.

In this article he picks out some issues under the Act and identifies how the more recent cases relate to them. Under the heading “The Beginning” he writes on payment claims and payment schedules. Under the heading “The Middle” he looks at some aspects of the adjudication process. Under the heading “The End” he considers some of the problems which have arisen in relation to the enforcement of payment...

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The Housing Grants Construction and Regeneration Act 1996 was amended by Part 8 of the Local Democracy Economic Development and Construction Act 2009. Hamish Lal writes on consultation on proposed amendments to the existing “Scheme” so as to enable the 2009 Act to take effect. The consultation raises complex points which if adopted would require extensive amendment to standard forms of contract…

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DISPUTE BOARDS AND CONSTRUCTION CONTRACTS PRACTICAL ISSUES IN THE ESTABLISHMENT AND OPERATION OF A DISPUTE RESOLUTION BOARD

Dr. Donald Charrett writes an overview of Dispute Boards in Australia and internationally. He gives an overview of how they operate, the benefits of using Dispute Boards, the success of Dispute Boards etc...

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George Golvan shares his experiences as the Chairperson of Sydney’s Desalination Plant Project Dispute Resolution Board from the beginning of the Project in August, 2007 until the Project commenced operating in 2010...

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CONSTRUCTION DISPUTES AT THE CROSSROADS NEW PROCESSES FOR CLAIMS IN THE DISTRICT COURT – DON’T GET CAUGHT OUT

Report on the 10th annual conference of the Dispute Resolution Board Foundation (DRBF) (650 members worldwide) whose aim is "fostering commonsense dispute resolution worldwide" by promoting the use of Dispute Boards (DBs). The topic is clearly of widespread national interest: of the approximately 160 conference delegates, there were representatives from every continent except Antarctica – 109 from Europe, 16 from Africa, 11 from North America, 9 from Asia, 5 from Australia and 2 from South America.

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New processes for civil claims in the District Court have been in place since November 2009. However, people are still being caught out by failing to comply with the new simple procedures. The summary judgment process is no longer used for simple debt recovery matters. There are now duties on both parties to take action within specified time frames and if these are not complied with judgment may be granted against them without a formal hearing process.

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TIME IS OF THE ESSENCE NEW SUBCONTRACT AGREEMENT – SA-2009

In a recent UK case, Sunshine Ventures and Rashmith Thakar vs Hussein Kurdieh the Judge had to decide whether “urgency” is sufficient grounds to terminate a contract

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The new Subcontract Agreement SA-2009, the work of the Registered Master Builders Federation (RMBF), and the New Zealand Specialist Trade Contractors Federation (NZSTCF) is nearing its first birthday and both Federations are happy with industry response to the document.

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An Authorised Nominating Authority
under section 65 of the Construction Contracts Act 2002