My way or the highway: repudiation, cancellation and dispute resolution clauses
In Jade Residential Ltd v Paul, the Court of Appeal reviewed two issues which may arise in contractual disputes: The right to cancel a contract for “partial” repudiation; and Whether an aggrieved...
Making up the shortfall: Subcontractor awarded an interim injunction requiring head contractor to hold its retentions in a separate trust account
In a recent High Court decision,[1] Hanlon Plumbing Limited (Hanlon) successfully obtained an interim injunction on a without notice basis requiring Downey Construction Limited (Downey) to pay retenti...
There are major changes to the Building Act on the horizon that will impact the entire construction sector including manufacturers, builders, building consent authorities, consultants and many others ...
Construction’s Insolvency Predicament: Cooper, Mainzeal and Reckless Trading
Insolvency events have become common place in the construction industry in recent years. In particular, a focus has been investigating whether directors allowed their insolvent company to engage in re...
A high bar to set aside statutory demands to enforce adjudication determinations under the Construction Contracts Act 2002
The “pay now argue later” principle underpins the Construction Contracts Act 2002 (CCA). The recent decision of C&R Property Development Ltd v MR Civil Ltd confirms the importance of this pr...
Blackpool Borough Council v Volkerfitzpatrick [2020] EWHC 1523 (TCC) In 2009, Blackpool Borough Council (Principal), as principal, contracted with Volkerfitzpatrick Ltd (Contractor), as head contracto...
12 June 2020 New Zealand has moved into Alert Level 1 from 8 June 2020. While this means that life has largely returned to normal, as physical distancing and other restrictions have been removed, upd...
Liquidated damages and penalty clauses: the last word on Honey Bees
The Supreme Court’s judgment in 127 Hobson Street Limited & Anor v Honey Bees Preschool Limited & Anor [2020] NZSC 53 confirms the test for determining when a clause in a contract designed t...
On 27 May 2020 the Government announced several in-principle changes to strengthen the retentions regime (Regime) in the Construction Contracts Act 2002 (the CCA). Despite the Regime’s introduction ...
Adjudicators’ Powers: The ability to award statutory damages and to consider matters already determined
Adjudication under the Construction Contracts Act 2002 (CCA) is a commonly used procedure to determine disputes between parties to a construction contract. The recent decision of the High Court in H...
Payment schedule dispute causes delay to Commercial Bay completion
The recent judgment in Fletcher Construction Company Ltd v Spotless Facility Services (NZ) Ltd [2020] NZHC 780 and 871 demonstrates the Court’s pragmatic approach to injunctive relief against a subc...
The High Court[1] has ordered The Fletcher Construction Company Ltd (Fletcher) to pay one of its subcontractors Electrix Ltd (Electrix) $7.5m for electrical work carried out on the recently completed ...
Administration of Retentions Trust: Oorshot v Corbel Construction
In 2018 the decision of Bennet & Ors v Ebert Construction Limited (in rec and liq) [2018] NZHC 2934 (Ebert) established an important precedent for the administration of retentions under constructi...
New Zealand entered Covid-19 Alert Level 4 at 11.59pm on Wednesday 25 March. Anyone not working in essential services is required to stay at home. This restriction does not apply to building or co...
COVID-19: Government contract guidelines for NZS3910:2013
The Government has announced contract guidelines to help support the construction industry during the Covid-19 restrictions. These apply to contracts based on NZS3910:2013 (un-amended), being the mo...
COVID-19: Government signals infrastructure push for economic recovery
While New Zealanders play their part in eliminating the spread of COVID-19 by staying at home, the government has released details of its plans for the construction sector in a post COVID-19 New Zeala...
Adjudication: Conflicts of Interest with Professional Advisors
The last working day of 2019 saw another judicial review of an adjudication determination (Yousseff v Maiden [2019] NZHC 3471), this time focused on conflict of interest and apparent bias. Despite j...
Media reports indicate that class action litigation in relation to ACP cladding is very likely. A litigation funder has announced it will be funding a class action lawsuit for owners of buildings cl...
Between 2016 and 2022, demand for construction-related occupations is projected to increase by approximately 56,000 employees. Temporary workers provided by third party labour hire agencies have long ...
The Payment Claim / Payment Schedule regime in the Construction Contracts Act 2002 (CCA) can be a powerful tool in assisting cashflow in the industry. Please click here for a practical explanation o...
CONSTRUCTION CONTRACT REFORM: Ten Guidelines the Government could Adopt
“We need to lead by example and if there are things that we can do to take a leadership position with that industry then we should be.” Prime Minister Ardern[1] As 2018 draws to a close a...
Ebert Construction: Court provides Guidance on the Retentions Trust Regime
Following our previous updates (Ebert Construction Receivership – What You Need to Know and Ebert Construction – Receivership and Liquidation), on 12 November 2018 the High Court ordered that the ...
Introduction Following our Initial Note, the receivers of Ebert Construction Ltd (Ebert) released their first report on 1 October 2018. Then, on 3 October 2018, Ebert put itself into liquidation, wi...
Partners Nick Gillies, Helen Macfarlane and Christina Bryant are the contributing authors of the New Zealand Chapter of the 2019 edition of “Getting the Deal Through Construction”. Getting...
Hesketh Henry was pleased to host the New Zealand Institute of Quantity Surveyors on 14 August 2018, where one of our construction partners, Nick Gillies, presented on concurrent delay. The same pre...
EBERT CONSTRUCTION RECEIVERSHIP – What You Need To Know
What is currently known? On 31 July 2018 Ebert Construction Ltd (Ebert) was placed into receivership. John Fisk, Lara Bennett, and Richard Longman from PwC have been appointed receivers. The recei...
The SA-2009 form of Subcontract Agreement is commonly used in the construction industry. It has undergone a review and a new SA-2017 form has been produced.
Two of the most commonly used standard agreements to engage consultants are the ACENZ / Engineering New Zealand (formerly IPENZ) Short Form Agreement (“SFA”) and the Conditions of Contract for Consultancy Services (“CCCS”).
Members of Hesketh Henry's specialist construction team have been busy presenting papers at a number of recent industry conferences on various topics of interest
It is now widely accepted that New Zealand is in the midst of the largest construction boom in 40 years. For anyone working in or providing professional services to the construction sector, it is im...
Carter Holt Harvey Ltd v Minister of Education & Ors [2015] NZCA 321 Last year the High Court[1] refused to strike out a negligence claim that a designer, manufacturer and supplier of building m...
Regrettably, building and engineering is prone to disputation. As New Zealand moves through a period of significant construction activity, the risk of claims is likely to rise. High demand combi...
Our construction team has been featured in the August 2015 edition of Business North, commenting on New Zealand’s current building boom. The article outlines reasons for the increase in demand, up...
Download PDF Helen Macfarlane, together with Christina Bryant, Nick Gillies and Michael O’Brien are the authors of the New Zealand chapter of the 2015 edition of “Getting the Deal Through: Co...
Introduction Since its introduction twelve years ago, the Construction Contracts Act 2002 (CCA) has become a cornerstone of New Zealand’s construction sector. The CCA followed similar statutory in...
Responding to Progress Payment Claims: Lessons from the Court of Appeal
Two recent Court of Appeal decisions, SOL Trustees Limited v Giles Civil Limited and Watts v Hughes Construction Limited v Complete Siteworks Company Limited highlight potential pitfalls when respondi...
The Building (Residential Consumer Rights and Remedies) Regulations 2014 (the Regulations) are coming into force on 1 January 2015. These implement a number of new consumer protection measures for r...
Rebuilding New Zealand: A case for Dispute Resolution Boards
Download pdf paper Download Powerpoint slides New Zealand sits on the cusp of the largest construction boom in a generation. One of the challenges (and opportunities) that this presents is how best ...
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 Servi...
Download full article For ten years NZS 3910:2003 was the form of construction contract most commonly used in New Zealand. However, following industry feedback, NZS 3910:2003 has now been superseded...
The Government has released its Construction Report, which takes an in-depth look at the state and direction of NZ’s construction industry. Construction is one of the largest sectors in NZ’s eco...
You are the subcontractor and supplier of tiles to the cladding contractor on a major commercial construction project. Midway through the project, one of your payment claims is not paid. Some weeks la...