Buildlaw, Issue 6: June 2010

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

The Building Disputes Tribunal is a proud sponsor of the AMINZ Alternative Dispute Resolution Conference to be held in Christchurch in August, for more details please see the welcome section of this edition of BuildLaw.

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

Articles in Issue 6 are as follows:

ASSOCIATES BEWARE – FLOGGING THE CONSTRUCTION SITE MAY NOT BE THE ANSWER MEDIATING CONSTRUCTION DISPUTES: A REPORT FROM THE UK

The Construction Contracts Act (‘Act’) provides machinery for contractors to resolve disputes and recover debts in what was intended to be a fast-track, rough and ready dispute resolution procedure. What happens when title in the construction site (generally the only asset owned by the development company) is transferred away to a related party, to frustrate a contractor’s efforts at recovery?..

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Between 2006-2008, Kings College in London conducted research on the use of mediation in the Technology and Construction Court. The Report was written by Nicholas Gould and Claire King of Fenwick Elliott LLP and Phillip Britton, a professor at the Centre of Construction Law and Dispute Resolution at King’s College, London. For a summary and for more info...

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UNFORESEEN GROUND CONDITIONS AND ALLOCATION OF RISK THE GREAT SHAME – THE LEAKY BUILDING CRISIS: WHERE TO FROM HERE?

"In the construction industry, we hear many adages like “project risk should be allocated to the party best able to manage it”. While commendable, truisms like this do not do justice to the complexities or the subtleties of allocating risk in large construction projects"...

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The leaky home crisis has been labeled as NZ’s worst catastrophe. A catastrophe that the Minister for Building and Construction, Maurice Williamson, is reported to have described as having grown so “ginormous” that the government has almost despaired of finding a solution....in this article John Green suggests there are some solutions

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IS THERE ANY PLACE FOR EXPERTS IN ADJUDICATION? BETTERMENT – A BALANCING ACT

Going back 12 years or so, before the Housing Grants, Construction and Regeneration Act 1996 (the Act) came into effect on 1 May 2008, there was a widespread expectation that the introduction of adjudication would allow disputes to be determined by “experts”, and that the construction industry as whole would be better off as a result of the reduced involvement of lawyers and the law in the resolution of its disputes......Whilst that may have been the expectation, the reality turned out to be somewhat different...

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After deciding that a defendant is liable and the quantum of that liability, the Court, Weathertight Homes Tribunal (or more often than not, lawyers and experts at mediation) must ascertain whether remedial works will do (or have done) more than merely restoring the property to the condition that it would have been in if it had not been a leaky home.Fairly identifying and quantifying betterment is a balancing act which will continue to challenge the judiciary, counsel, plaintiffs and defendants alike...

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