Important COVID-19 Update

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These are certainly challenging times for us all.

We are committed to doing everything we can to prioritise the wellbeing of our people, those who use our services and their representatives and the communities we serve to help contain the spread of COVID-19. Following the Prime Minister’s announcement on Saturday, our people will begin working remotely from today, Monday 23 March.

Having well developed online dispute resolution options, it will in many ways be business as usual for us as we focus on providing a seamless service, regardless of where our Registry staff, adjudicators, arbitrators and mediators are working.

We know you are working through similar challenges to ours and that these are uncertain times for everyone. From all of us here we send our thoughts to you, your teams and families.

If you have any questions, please do not hesitate to get in touch. Please let us know if we can be of further assistance to you and we will keep you informed with any further updates.

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