Disputes
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What to expect from payment disputes under construction contracts in 2024: a return to orthodoxy
Following the departure from the fundamental principle of the Construction Contracts Act 2002 (CCA) “pay now argue later” in South Pacific Industrial Ltd v Demasol Ltd [2021] NZHC 3597, the Court ...
14.06.2024 Posted in Construction & Disputes
Complexities of contract termination – High Court calls halt on the Contractor’s process in Rau Paenga v CPB
The High Court in Rau Paenga Ltd v CPB Contractors Pty Ltd [2023] NZHC 2947 granted an interim injunction preventing the Contractor from suspending and terminating its contract for the construction of...
30.05.2024 Posted in Construction & Disputes
Tower Troubles – Body Corporate 366567 (Harbour Oaks) v Auckland Council
Standing 40 storeys tall with 406 units, the Gore Street building in downtown Auckland (formerly known as “Harbour Oaks”) is presently the subject of New Zealand’s largest claim for residential ...
18.04.2024 Posted in Construction & Disputes
Properly sequencing your Construction Adjudications: Henry Construction Projects Ltd v Alu-Fix (UK) Ltd
According to the UK’s Technology and Construction Court (TCC) (in Henry Construction Projects Ltd v Alu-Fix (UK) Ltd [2023] EWHC 2010) valid payment claims must be paid before the underlying merits ...
30.10.2023 Posted in Construction & Disputes
Contractor’s Dilemma: Recovering debts from a Principal in liquidation
A party must meet a high bar before the High Court will modify or reverse a liquidator’s decision, or consent to a party commencing adjudication (or other legal proceedings) against a company in liq...
How to load a magic bullet: Legal considerations to facilitate BIM (Building Information Modelling)
Building Information Modelling, or “BIM”, is potentially transformational for the New Zealand building and construction sector.  It has been credited with the potential to spark a “step-change...
15.09.2023 Posted in Construction & Disputes
Construction Framework Wide BW
Disruption claims: Are your project records up to date?
Disruption can be hard to pinpoint.  It is one of those features that you know when you see it and most parties have likely felt it on a construction project.  However, being able to make a claim fo...
14.09.2023 Posted in Construction & Disputes
“David v Goliath”: The case for the formal regulation of third-party litigation funding in Aotearoa New Zealand
Litigation is expensive.  The high cost and inherent uncertainty associated with civil litigation creates a daunting financial barrier for those seeking justice for even meritorious claims. This has ...
31.08.2023 Posted in Construction & Disputes
Collaborative Contracting – Does the theory align with construction reality?
The New Zealand construction industry is rapidly changing, projects are becoming more complex and risks are rising.  As a result, stakeholders need to react and adjust to those changes, this can be a...
31.08.2023 Posted in Construction & Disputes
Chicken or Egg – Does C v D (Hong Kong) help New Zealand solve the question of whether a dispute is decided by arbitration?
Arbitration is increasingly viewed as a beneficial alternative to traditional court litigation, but how do you know if your dispute should go to arbitration or to the courts?  Several recent foreign ...
31.08.2023 Posted in Construction & Disputes
Hands and gavel
High Court imposes record penalty under Fair Trading Act
One NZ (formerly Vodafone NZ) was recently a record-breaker for all the wrong reasons, receiving the largest penalty to date under the Fair Trading Act 1986 (FTA).   On appeal from the District Court...
29.08.2023 Posted in Business Advice & Disputes
Concrete pillars impressive
Limitations on Contribution Claims – will a defendant be left exposed if a claim is filed at the last minute?
Like many jurisdictions, New Zealand has legislation that imposes statutory limitation periods on civil claims.  Under the Limitation Act 2010 (Act) (for claims arising on or after 1 January 2011), t...
22.08.2023 Posted in Construction & Disputes
Hesketh Henry assists with Retention Money Guidance
Our Construction Team has been pleased to assist with the preparation of a Retention Money Guidance (Guidance), which has just been published by the Ministry of Business, Innovation and Employment (MB...
22.08.2023 Posted in Construction & Disputes
Property (Relationships) Act 1976 – Room for Three?
In the landmark decision of Mead v Paul ,[1] a question was posed to the Supreme Court regarding whether the Property (Relationships) Act 1976 (Act) applies to triangular polyamorous relationships.  ...
18.07.2023 Posted in Disputes & Private Wealth & Property
iStock  Construction dpi
Producer Statements Under Scrutiny
Fraudulent building consent documentation puts renewed attention on producer statements Building consent authorities have been checking their records urgently to identify whether they have issued any ...
12.07.2023 Posted in Construction & Disputes & Property
Where the Consequences End – Fair Trading Act, Negligent Misstatements, and Recoverable Loss
It is a common idiom that ‘mistakes have consequences’, and when it comes to the Fair Trading Act 1986 (“FTA”), it appears the idiom is ‘misrepresentations bring damages’. But how much is ...
22.06.2023 Posted in Disputes
HH Pg  Wave alternative
As Our Dunes Retreat, Will Insurance?
It’s the quintessential Kiwi dream – owning a property only a stone’s throw from the sea.
03.02.2023 Posted in Climate Change & Construction & Disputes & Insurance & Property
rsz large pillars
Court of Appeal to decide whether issuing a Producer Statement can be an offence
Background There has been substantial publicity in recent years about a failed development undertaken by Bella Vista Homes Limited.  After the extent of issues became known, one of the actions taken ...
23.11.2022 Posted in Construction & Disputes
Reception
A return to orthodoxy: Demasol Limited v South Pacific Industrial Limited affirms the CCA’s “pay now, argue later” principle
The Court of Appeal in Demasol Limited v South Pacific Industrial Limited [2022] NZCA 480 has overturned the earlier High Court judgment from last year, shutting the door on suggestions that those who...
20.10.2022 Posted in Construction & Disputes
The latest on NZS 3910:2013 – Review Committee releases draft Special Conditions
The New Zealand Construction Industry Council has commissioned a review of NZS 3910:2013 Conditions of contract for building and civil engineering construction (NZS3910), which is being led by Standar...
19.10.2022 Posted in Construction & Disputes
The UK’s so-called “creditor duty”: Does it exist and when is it triggered?
The recent decision of the UK Supreme Court in BTI 2014 LLC v Sequana SAV & Ors [2022] UKSC 25 has considered the nature of the so-called “creditor duty” and whether directors are required to ...
Russia, Sanctions, and Force Majeure: MUR Shipping BV v RTI Ltd
It is common for force majeure clauses to define a “force majeure event” as being one that cannot reasonably be prevented by the parties. The wording may differ among clauses, but the requirement ...
21.09.2022 Posted in Disputes & Trade and Transport
Retaining the Harvest: the right of receivers to withhold surplus funds to defend litigation
The recent decision of the High Court in Fistonich & Anor v Gibson & Ors [2022] NZHC 1422 considered whether receivers have a right to retain surplus funds to meet the cost of defending actual...
16.08.2022 Posted in Disputes & Insolvency and Restructuring
Westhaven marina black and white
Arbitrating the America’s Cup
In 1970, after Australia was controversially disqualified in Race 2 of AC21, Sir Frank Packer “raged that protesting to the New York Yacht Club was like complaining to your mother-in-law about your ...
29.03.2022 Posted in Construction & Disputes & Trade and Transport
Galtrade Ltd v BP Oil International Ltd – To Reject or Not Reject? Purchaser in Breach when Rejecting Off-Specification Fuel
The English Commercial Court in Galtrade Ltd v BP Oil International [2021] EWHC 1796 (Comm) has held that an oil trader who rejected off-specification cargo wrongfully repudiated the contract, as the specification requirement in the contract was an intermediate term and not a condition.
16.11.2021 Posted in Disputes & Trade and Transport
marine
CMA CGM Libra – General Average Claim Defeated
English Supreme Court confirms defective passage planning made vessel unseaworthy – cargo interests not liable for GA contribution
16.11.2021 Posted in Disputes & Trade and Transport
How watertight is your boat building contract?
New Zealand boat builders beware.
10.11.2021 Posted in Disputes & Trade and Transport
HH office
Home Alone? MBIE forced to reconsider home isolation application
In Bolton v The Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2897 the High Court set aside a decision of MBIE denying an application for MIQ exemption.
04.11.2021 Posted in Disputes
Class Actions Update
Class actions and litigation funding continue to grow in prominence in New Zealand, despite the lack of a regulatory framework for the same.
27.10.2021 Posted in Construction & Disputes
Gavel
Exclusion of liability for deliberate breaches of contract 
In Mott Macdonald Ltd v Trant Engineering Ltd [2021] EWHC 754 (TCC) the English High Court considered a summary judgment application on the applicability of a limitation of liability clause to an alle...
01.10.2021 Posted in Construction & Disputes
How low can you go?  Commerce Commission’s prosecution against Bunnings dismissed
The District Court recently dismissed the Commerce Commission’s case against Bunnings for alleged misleading and deceptive representations under the Fair Trading Act 1986 (FTA). In dismissing the Co...
01.10.2021 Posted in Disputes & Regulatory
Formation of Contract: Black Sea Commodities Ltd v Lermarc Agromond Pte Ltd
The English High Court decision in Black Sea Commodities Ltd v Lermarc Agromond Pte Ltd [2021] EWHC 287 highlights the importance of parties to commodities contracts expressly including an arbitration clause in the contract. This is particularly when the contract is formed by email or instant messaging negotiations.
20.09.2021 Posted in Disputes & Trade and Transport
Clarity on Liquidated Damages following Termination
The United Kingdom Supreme Court in Triple Point Technology Inc v PTT Public Company Ltd [2021] UKSC 29 has clarified the operation of liquidated damages clauses in the event of termination.  The dec...
17.09.2021 Posted in Construction & Disputes
Contract dictionary
When Contracts Contradict: Septo Trading Inc v Tintrade Ltd
Contracts in international trade are often formed by a combination of emails recording expressly agreed terms, but with a reference to standard terms and conditions being incorporated.
02.09.2021 Posted in Disputes & Trade and Transport
marine
Maritime New Zealand v Genera Limited:  Health & Safety Prosecution in International Waters
In the first case of its kind, Genera Limited has been convicted of an offence under the Health and Safety at Work Act 2015 (HSWA) in relation to an incident that occurred in international waters. The...
18.08.2021 Posted in Disputes & Health & Safety & Trade and Transport
Contractors, Caveats, and Retention of Title clauses
The High Court in Development Construction Company Ltd v Mackenzie [2021] NZHC 546 has confirmed  that retention of title (RoT) clauses do not provide contractors with a caveatable interest. This dec...
20.04.2021 Posted in Construction & Disputes
New ICC Arbitration Rules 2021 come into force
The revised International Chamber of Commerce (ICC) Arbitration Rules for 2021 (2021 Rules) have now come into force and apply to all ICC arbitrations begun after 1 January 2021.  While the new Rules...
10.03.2021 Posted in Disputes & Regulatory
“Recklessness” under the Health and Safety at Work Act 2015
The High Court has clarified the elements of the offence of reckless conduct in the Health and Safety at Work Act 2015.
19.02.2021 Posted in Business Advice & Disputes & Health & Safety
English Supreme Court clarifies approach to determining the governing law of an international arbitration agreement
The English Supreme Court has recently clarified how the governing law of an arbitration agreement should be determined, where the agreement lacks an express choice of law provision.  In an area of l...
18.02.2021 Posted in Disputes & Trade and Transport
Class Actions – Supreme Court rules it’s “opt-out”, Law Commission Issues Paper imminent
Following the Supreme Court decision in Southern Response v Ross [2020] NZSC 126 the Law Commission is now set to release its Issues Paper on Class Actions and Litigation Funding on 4 December 2020. ...
03.12.2020 Posted in Disputes & Insurance
Court of Appeal cuts fine for Steel & Tube’s breaches of the Fair Trading Act 
The Court of Appeal in Commerce Commission v Steel & Tube Holdings Limited [2020] NZCA 549 has set aside last year’s High Court decision under the Fair Trading Act 1986 (FTA) where it imposed a ...
23.11.2020 Posted in Business Advice & Disputes
Gavel
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...
19.11.2020 Posted in Construction & Disputes & Property
Proposed Reforms to Building Act and Regulations
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 ...
06.11.2020 Posted in Construction & Disputes
contracts flying
Is a Contract a Contract (if a Court says it’s not)?
Savvy Vineyards 4334 Ltd v Weta Estate Ltd [2020] NZSC 115
06.11.2020 Posted in Business Advice & Disputes
Law Scales e
Government calls time on Dodds litigation
Southern Response Earthquake Services Limited v Dodds [2020] NZCA 395
25.09.2020 Posted in Disputes & Insurance
Singapore Convention comes into force
The Singapore Mediation Convention has now entered into force, creating a comprehensive framework for the enforcement of international mediation settlement agreements.
16.09.2020 Posted in Disputes & Trade and Transport
Design life in the spotlight
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...
10.07.2020 Posted in Construction & Disputes
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...
11.02.2020 Posted in Construction & Disputes
law scale
ACP Cladding Update – Class Action Proposed
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...
27.11.2019 Posted in Construction & Disputes
law scale
New Era for International Dispute Resolution?
A common issue for New Zealand companies engaging in international trade and dealing with foreign counterparties is how and where to resolve disputes and ensuring payment is received when the dispute ...
17.09.2019 Posted in Disputes & Trade and Transport
pina messina  unsplash
Employment Litigation Costs: In for a penny, in for a pound?
Vindication is frequently offered as a motivation for litigation.
26.11.2018 Posted in Disputes & Employment
Construction
Managing Risk and Dispute Resolution in Construction Projects ….
The best way to manage a dispute is not to have one.
23.05.2018 Posted in Construction & Disputes
Leaking Buildings: A Council Class Action In The Making?
We are now on what may be called the “third wave leaky buildings”.
23.05.2018 Posted in Construction & Disputes & Property
Reception
Hesketh Henry Recognised in Legal 500 Asia Pacific 2017 Legal Directory
Recognised in Legal 500 Asia Pacific 2017 Legal Directory
Investment Properties Vulnerable to Relationship Property Claims
It is important to understand that if the Property (Relationships) Act applies
18.02.2016 Posted in Disputes & Private Wealth
Selecting and Tailoring Dispute Resolution Clauses
  Dispute resolution clauses are often relegated to the end of contractual negotiations or standard “boilerplates” are included with little or no thought as to their appropriateness.  Frequently...
07.10.2015 Posted in Disputes
Arbitration Act 1996 – Reconstructing the Agreement to Arbitrate
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. ...
09.07.2014 Posted in Disputes & Regulatory
Bridge
The Rules of the Game are Changing
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...
23.06.2014 Posted in Disputes
Bridge
Dotcom v United States of America [2014] NZSC 24
Kim Dotcom’s anticipated Political Party aspirations may have taken a hit when the Supreme Court delivered a judgment against Dotcom.  Most New Zealanders are no strangers to Dotcom and the storm o...
07.05.2014 Posted in Disputes
The New Giant – plotting the course between Admiralty and cross border insolvency rules
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 ha...
Bridge
New District Court Rules
Download PDF Article Over the past few months the Rules Committee has been considering a total revamp of the District Court Rules (DCRs).  At the same time, Parliament has been considering the Judica...
21.03.2014 Posted in Disputes
Diminution of value or the cost of cure: assessing the “normal” measure of damages in leaky building claims
Download full article Johnson v Auckland Council [2013] NZCA 662 Mr and Mrs Johnson purchased a leaky home in a mortgagee sale.  They were aware at the time of purchase that the house might leak.  T...
03.02.2014 Posted in Construction & Disputes & Insurance & Property
Competing claims scuppered: A ship repairer’s priority rights following the ship’s arrest and sale
Alan Sherlock, Partner at Hesketh Henry, has been involved in a number of Admiralty cases, and has experienced the following recent success. In Babcock Fitzroy Limited v The Ship “The M/V Southern ...
11.08.2012 Posted in Disputes & Trade and Transport
Investor Losses: A Fruitful Ground for Class Actions?
In tough economic times when share prices fall, corporate profits drop and companies edge towards insolvency, investors can face the depressing reality of dwindling retirement portfolios. Whether they...
11.11.2009 Posted in Disputes & Insolvency and Restructuring
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