Buildlaw, Issue 5: March 2010

Welcome to the March 2010 Issue of BuildLaw in which we bring you articles from New Zealand, 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 5 are as follows:

The Leaky Home Debacle Must Stop Now Bonds, Warranties and Guarantees

The latest initiative by the present government may be a step in the right direction if it will significantly eliminate legal proceedings and enable the victims to get their homes repaired. It may well be that an across the board apportionment of liability is the only practical solution (and legal purists will just have to remain numb with anxiety)...

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Article highlighting:

• the basic legal principles underlying them (a refresher is always useful).

• what some of the key provisions mean and why they are needed.

• issues to consider when drafting and some of the common pitfalls....

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Unictral Model Law The Cost of Litigation

In December 2009, Tómas Kennedy-Grant QC published a paper looking at the New Zealand experience of the UNICTRAL Model Law with reference to the Arbitration Act 1996...

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In the United Kingdom, Lord Justice Jackson of the Court of Appeal has spent the last 12 months reviewing the costs of litigation. This followed a request by the Master of the Rolls for Lord Justice Jackson to make recommendations to promote “access to justice” at proportionate cost...

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The Immunity of Expert Witnesses A Review of the CCA 2002 Cases

Developments in the UK may result in a decision from the Supreme Court whereby expert witnesses do not retain immunity from being sued in relation to evidence given in civil proceedings....

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Late last year, Mr Tómas Kennedy-Grant QC prepared a very comprehensive paper reporting the most relevant cases as at 24 November 2009. His paper helpfully considers the key outcomes and findings from the cases under various headings such as definitions, the right to progress payments, payment claims and schedules and adjudication...

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Can a Party Recover Whatever Amount it might Agree to Pay to Settle a Dispute from a Culpable Third Party


Improving the Construction Contracts Act 2002

A recent case in the UK has considered the issue of whether a party can successfully recover from a third party any sums that it has paid in settlement of a claim or is the amount recoverable limited to a ‘reasonable’ amount...

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The Act has been in force for almost 7 years now (since 1 April 2003) and has been 'tested' both at adjudication and in the Courts...In general it would seem that the Act works well However, as with any new legislation, there will always be flaws and imperfections that require amendment to better achieve the stated purpose and objectives...

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The Building Disputes Tribunal Mediation Service Full and Final Settlement - Does it Mean what it Purports to?

The Building Disputes Tribunal has launched a new mediation programme which includes a new and revised form of Mediation Agreement complete with a back to back Confidentiality Agreement for execution by advisers and support persons to parties to mediations and our Fees and Expenses provisions as Schedules to the Agreement...

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In the recent case of Morrison-Love v Thermocrete Ltd, Justice Mallon considered an application by Ms Morrison-Love to set aside a default judgment for the sum of $14,274.65. The answer to this issue depended on whether or not the settlement entered into between the parties was a compromise of the whole of the dispute which had arisen between them or not...

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Hierarchy of Contract Documents Cube Building Solutions Ltd v Thomas and Judith King

The issue of hierarchy of documents within a building contract is a perennial problem - the sheer volume of documents to be included in a building contract means there is a high risk of discrepancies between them and the question of which, if any, document should take priority will need to be resolved to decide which provision prevails...

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The High Court in Christchurch recently considered an application for summary judgment due to the failure of Thomas and Judith King to issue payment schedules in accordance with the Act...

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