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Arbitration Act 1996 – Reconstructing the Agreement to Arbitrate

Written by Alan Sherlock and Shukti Sharma on July 9th, 2014.

The recent stream of alternate dispute resolution methods is part of the zeitgeist where disputants are shying away from Courts and attempting to settle their differences outside the Courtroom steps.  Consistent with that theme, the Arbitration Act 1996 (“the Act”) limits the right of appeal to questions of law.  The case of Ewan Robert Carr and Brookside Farm Trust Limited v Gallaway Cook Allan [2014] NZSC 75 is an example of the import of contract law principles on the question of whether an arbitration agreement is held to be valid.


Presumed Built When Certified

Written by Anya Reardon on June 30th, 2014.

John Anthony Osborne and Helen Osborne v Auckland Council 
On 10 June 2014, the Supreme Court delivered a decision on the eligibility criteria under s 14(a) of the Weathertight Homes Resolution Services Act 2006 (the WHRSA). The practical effect of this decision is that what is in effect a ten year limitation period (governing the time by which an assessor’s report must be sought in order for a claim to be eligible for a WHRSA determination) starts running from the date of issue of the code compliance certificate by the local authority.

‘They’re Contractors Not Employees’ – Really?

Written by Jim Roberts and Sarah Holderness on June 24th, 2014.

Are your ‘workers’ employees or contractors?  When it comes to termination, you need to make sure you have the classification spot on.  A contractor can be terminated subject to the terms of his or her contract.  An employee, however, can only be terminated if that termination can be procedurally and substantively justified.  This includes the labyrinth of ‘good faith’, natural justice and ‘test of justification’ that permeates employment law.
Topics: Employment Law

The Rules of the Game are Changing

Written by Nick Gillies and Michael O'Brien on June 23rd, 2014.

Nothing says excitement quite like the rules of civil procedure.  We might laugh at that statement, but such rules are important insofar as they govern the way cases are commenced and managed through to resolution.

Do Post Employment Earnings Attract Holiday Pay?

Written by Sarah Holderness on June 10th, 2014.

The Employment Court answers the question: is a former employee entitled to holiday pay on earnings received after they have finished work?
Topics: Employment Law

New Workplace Health and Safety Legislation

Written by Alison Maelzer on June 5th, 2014.

As you might be aware, the Government is in the process of introducing new workplace health and safety legislation. The Health and Safety Reform Bill is currently before Select Committee, and is expected to become law in April 2015.

Cladding manufacturers and leaky schools - sufficiently close to care?

Written by Anya Reardon on May 21st, 2014.

The Minister of Education and others, including four school boards of trustees, issued proceedings against Carter Holt alleging its cladding product, called shadowclad and installed in various school buildings throughout New Zealand, was defective and allowed water to enter.


Rent Reviews - What can you do?

Written by Joanne Chilvers on May 15th, 2014.

Rent reviews are a fairly frequent occurrence in most leases and often a source of disagreement between landlords and tenants as to what level the reviewed rent should be set at.  If you have received a notice from your landlord stating that you have a rent review due and the landlord wishes to increase your rent, then unless you are happy to pay the increased rent the first thing to do is to obtain a copy of your lease and check the rent review provisions.  By Joanne Chilvers, Solicitor, Hesketh Henry

Dotcom v United States of America [2014] NZSC 24

Written by Alan Sherlock and Shukti Sharma on May 7th, 2014.

Kim Dotcom’s anticipated Political Party aspirations may have taken a hit when the Supreme Court delivered a judgment against Dotcom.

The New Giant - plotting the course between Admiralty and cross border insolvency rules

Written by Alan Sherlock & Sarah Holderness on May 2nd, 2014.

Admiralty proceedings against a vessel are necessarily territorial in nature. A debtor’s vessel may sail into a certain jurisdiction and be arrested and sold for the benefit of creditors who both have Admiralty in rem claims against the vessel and actively take the required steps in the Court proceeding concerned.  Creditors not having rights of claim of that nature would miss out or only have a very low priority in respect of the proceeds of sale.  In contrast, the Insolvency (Cross-Border) Act 2006 (“Act”) is designed to facilitate the realisation of the debtor’s assets in a single jurisdiction in accordance with the pari passu principle (that is, equably, without preferring one creditor – no matter where they are located – over another).
Topics: Marine Law

Crystal Imports Ltd v Certain Underwriters at Lloyds of London [2013] NZHC 3513

Written by Brett Morley, Christina Bryant and Shukti Sharma on April 28th, 2014.

Like Ridgecrest, Marriott and Wild South,[1] this claim concerns damage sustained by an insured property in successive earthquake events.  The question arising in all of these claims is whether the insured can claim the cost of remedying damage caused by each earthquake.  Crystal Imports is of particular interest due to Cooper J’s decision that the doctrine of merger applied to the material damage policy at issue in that proceeding.
[1] Ridgecrest New Zealand Ltd v IAG New Zealand [2013] NZCA 291, [2013] 3 NZLR 618 (CA), Marriott v Vero Insurance New Zealand Ltd [2013] NZHC 3120, Wild South Holdings Ltd v QBE Insurance (International) Ltd [2013] NZHC 2781
Topics: Insurance Law

Marriott v Vero Insurance New Zealand Ltd [2013] NZHC 3120

Written by Brett Morley, Christina Bryant and Shukti Sharma on April 28th, 2014.

This claim, Wild South and Crystal Imports[1] all involve the application of an automatic reinstatement clause in a policy, in circumstances where the insured property sustains damage in successive earthquakes.  Both Marriott and Crystal Imports make it clear that reinstatement occurs at the time of damage, and notice that cover will not reinstate must be given before a further event occurs giving rise to a right of claim under the policy.  
[1] Wild South Holdings Ltd v QBE Insurance (International) Ltd [2013] NZHC 2781, Crystal Imports Ltd v Certain Underwriters at Lloyds of London [2013] NZHC 3513
Topics: Insurance Law

Mr V v Sovereign Assurance Co Ltd [2013] NZHC 3051

Written by Brett Morley, Christina Bryant and Shukti Sharma on April 28th, 2014.

Mr V was a member of a group insurance scheme for income protection.  He suffered from chronic pain syndrome, which prevented him from working in his former occupation.  Under his policy, Sovereign could cease payment of his benefit after two years if it considered on reasonable grounds that he was not suffering from a total disability.  Sovereign obtained expert opinions from an occupational physician and a vocational assessor, and decided that Mr V was no longer entitled to a benefit.
Topics: Insurance Law

Skyward Aviation 2008 Ltd v Tower Insurance Ltd [2014] NZCA 76

Written by Brett Morley, Christina Bryant and Shukti Sharma on April 28th, 2014.

Skyward and O’Loughlin[1] concern the interpretation of Tower’s Provider House Policy.  The judges dealing with the claims in the High Court largely agreed on the policy’s meaning (see our December 2013 update).  The plaintiffs in O’Loughlin settled their claim with Tower; Skyward, however, was successfully appealed.
[1] [2013] NZHC 670, [2013] 3 NZLR 275
Topics: Insurance Law

BFSL 2007 Ltd v Steigrad [2013] NZSC 156

Written by Brett Morley, Christina Bryant and Shukti Sharma on April 28th, 2014.

On 23 December 2013, the Supreme Court delivered a controversial decision on the operation of s 9 of the Law Reform Act 1936 on costs-inclusive liability policies, which is likely to have ongoing adverse consequences for insurers and their insureds.
Topics: Insurance Law
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