March 2017

In this issue we feature new changes to the Construction Contracts Act – the new statutory trust model for retentions which came into force on 31 March 2017 including the late introduction of a ‘complying instrument’ option as a means of protecting retention money.

We also look at public sector procurement, peer professional opinion defences in negligence cases in Australia, the consequence of skipping a mandatory pre-arbitral step, extensions of time anomalies in relation to subcontracts, post termination calls on on-demand bonds, managing earthquake prone buildings; and more.

In ‘Case in Brief’, Sarah Redding discusses a recent appeal against an arbitral award made pursuant to a NZS3910:2003 contract and I look a a recent Court of Appeal judgment that dealt with the requirement to ‘indicate’ a claimed amount in respect of a contract where no price or payment mechanism was agreed.

CONTENTS
  • Balance restored to public sector procurement – the Problem Gambling case
  • Construction professionals and the peer professional opinion defence
  • The consequence of skipping a mandatory pre-arbitral step
  • Case in Brief – double edition:
    • Custom Street Hotel Ltd v Plus Construction NZ Ltd [2016] NZHC 2011
    • CJ Parker Construction Ltd (in liq) v Ketan [CA, 03/02/2017]
  • Court of Appeal upholds extension of time anomaly
  • Status quo returns: the High Court weighs in on reference dates and the NSW Court of Appeal clears up the grounds for challenge
  • Post-termination calls on on-demand securities Court of Appeal guidance
  • The Building (Earthquake-prone Buildings) Amendment Act 2016
CONTENTS

  • Court review of an arbitrator’s preliminary jurisdictional ruling: de novo or appellate review?
  • Retentions maxed out
  • Case in Brief: Adjudicator’s determination quashed – Anderson and Anor v Swindells & Anor
  • Expert determination clauses – when will they be enforceable to prevent Court proceedings?
  • Don’t get stuck in the penalty box: the world post-Makdessi
  • Sentencing trends under new penalty regime
  • Holding parties to their bargain: the Supreme Court enforces a ‘no oral variation clause’
  • Some clarity on ‘no oral variation’ clauses