BuildLaw in Brief
Welcome to BuildLaw in Brief, our blog page which hosts a collection of news, articles, and announcements relating to the Building Disputes Tribunal, our processes, people and the construction sector.
The Building Disputes Tribunal was established in 1996 as a specialist centre for providing a full range of private dispute resolution for all types of building, construction and infrastructure disputes. We are an authorised nominating authority under the Construction Contracts Act 2002, and provide a full range of services including adjudication, arbitration, mediation, arb-med, early neutral evaluation, expert determination, and dispute review boards. Our aim is to provide effective, credible and proportionate dispute resolution options.
As part of our services, we strive to foster and participate in discussions and positive debate concerning all matters relating to the effective resolution of building, construction and infrastructure disputes. This blog helps us to do so. We hope you enjoy the content.
Obstructed view review
Written by Maria Cole Introduction In Wynyard Quarter Residents Association Incorporated v Auckland Council and Orams Group Limited,[1] a group of apartment owners filed judicial review proceedings seeking to overturn an Auckland Council decision to grant resource...
The losing streak is over: English rugby wins… right to bring claim against contractor
Written by Alexander Lyall Nearly 10 years on, English rugby finally has a victory related to the 2015 Rugby World Cup. In FM Conway Ltd v Rugby Football Union,[1] a company contracted by the English Rugby Football Union (the RFU) for maintenance works at Twickenham...
Keep calm and carry on: English Court of Appeal overturns controversial High Court ruling and clarifies guiding principles in serial adjudications
By Kate Holland The English High Court caused concern earlier this year when it held that an adjudicator had breached natural justice by holding himself bound by a previous adjudicator’s findings. Now, in Sudlows Ltd v Global Switch Estates 1 Limited,[1] the Court of...
Moving home
Written by Richard Pidgeon A family became dissatisfied with a house removal firm who had shifted their home from Remuera to Katikati. In Stott v Uplifting Homes Ltd [2023] NZHC 1514, the High Court determined the level of compensation after the contract was...
Big loss for insurer in legal battle with Napier Council over leaky building clause
Written by Sam Dorne In a recent case, the Supreme Court of New Zealand ruled in favour of the Napier City Council in an insurance claim involving building defects including weathertightness or “leaky building” issues, in what is seen as a return to the status quo...
BuildLaw Issue 51
September 2023Download PDF CONTENTS BuildLaw in Brief Keep calm and carry on Mainzeal saga ends in the Supreme Court New Zealand: Insurance under Scrutiny Obstructed view review Case in Brief: Esk Valley marae injunction Res judicata and declarations relating...
Take a rain cheque – Full Federal Court of Australia reads common sense into insurance policy
By Alexander Lyall A decision by the Full Federal Court of Australia has provided clarification about the wording of an insurance policy for a construction project. In Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47,[1] ...
Case update: English Court of Appeal confirms ‘useless’ ADR procedure too uncertain to enforce
By Kate Holland In our December 2022 issue of BuildLaw, we reported on a case in the English High Court[1] about an unusual alternative dispute resolution (ADR) procedure in a construction contract that was held to be too uncertain to be an enforceable condition...
English Court of Appeal confirms ‘useless’ ADR procedure too uncertain to enforce
By Kate Holland In our December 2022 issue of BuildLaw, we reported on a case in the English High Court[1] about an unusual alternative dispute resolution (ADR) procedure in a construction contract that was held to be too uncertain to be an enforceable condition...
Disgruntled builders lose defective cladding dispute
By Sam Dorne In Goodman-Jones v Hughey & ors [2023] NZHC 604, two experienced builders brought a claim for damages for a perceived defective installation of cladding for a new build. Despite the action being brought against multiple defendants the Court found that...
BuildLaw Issue 50
June 2023Download PDF CONTENTS BuildLaw in Brief: Recent key developments in the construction industry Bad faith and without substantial merit – What it means and what it takes Disgruntled builders lose defective cladding dispute High-rise blues Build-to-Rent:...
Craftiness is not an abuse of process
With cashflow a persistent concern for companies in the construction industry, a recent decision in the New South Wales Supreme Court may alleviate some of the stress. The decision should affirm to struggling parties that there is no problem with taking strategic...
Privileged glimpses: Curtain falls on art gallery’s nuisance ‘human zoo’ exhibit
By Kate Holland The UK Supreme Court has ruled that the London Tate Modern’s public viewing gallery overlooking the luxury glass-walled apartments nearby, is a visual intrusion amounting to the tort of nuisance. The decision in has attracted criticism for prioritising...
Waiver and estoppel arguments raised in interim payment dispute
By Sam Dorne The English Court of Appeal case of A & V Building Solutions Limited v J & B Hopkins Limited has highlighted issues parties face when there is ambiguity in relation to dates for requesting interim payment in construction contracts.[1] The case...
Doing business in Australia? Then you need to know when you still might have to pick up the whole tab
By Maria Cole If you have a commercial contract in Australia, it’s probably governed by Australian law, which includes the proportionate liability regime.[1] Broadly, proportionate liability means if there are multiple parties to a contract and things go wrong, a...
Parliament passes sweeping amendments to construction payment regime
By Alexander Lyall Parliament has recently enacted legislation allowing for comprehensive changes to the Construction Contracts Act 2002. The Construction Contracts (Retention Money) Amendment Act 2023 passed its third reading on Wednesday 29 March and received Royal...
BuildLaw Issue 49
March 2023Download pdf CONTENTS Diamond Glass slices damages in airport contract Case in Brief: Craftiness is not an abuse of process (Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd [2023] NSWSC 99) That...
Builder terminates contract with a “sorry mate…costs are going through the roof”
By Kate Holland With the construction industry in the grip of labour and supply shortages and spiralling costs, a recent decision of the Queensland court is a timely reminder of the established principles of contractual repudiation. The decision is a warning to...
Ripping up the Resource Management Act
By Adrian Sharma The Resource Management Act 1991 (RMA) is one of New Zealand’s most important pieces of legislation. It governs what can be built where, when, and how. But more than 30 years on from its introduction, and after numerous amendments, the controversial...
To bespoke or too bespoke – the case of an ADR clause that couldn’t be enforced
By Kate Holland In a recent English decision, the Technology and Construction Court held that a clause in a construction contract requiring the parties to refer a dispute to ADR was a condition precedent to commencing litigation in the courts. However, the Court also...
The Court of Appeal sounds the all clear and it’s business as usual under the CCA: so file a payment schedule or pay up!
By Maria Cole A decision issued by the High Court last year caused a “head in hands” moment in the construction industry in relation to the payment claim regime. The High Court set aside a statutory demand which had been filed to enforce a payment claim as a debt due...
BuildLaw Issue 48
December 2022Download pdf CONTENTS The Court of Appeal sounds the all clear and it’s business as usual under the CCA: so issue a payment schedule or pay up! Case in Brief: Builder terminates contract with a “sorry mate… costs are going through the roof” but...
Labelling an image as an ‘artist impression’ was found not to give a developer artistic licence in a claim of misleading and deceptive conduct over an ‘off-the-plan’ premium apartment
By Maria Cole Australian consumer protection law was given an outing in the Federal Court of Australia when a developer merely added the words ‘artist impression’ to a computer generated image it intended to use in its marketing materials for an ‘off-the-plan’...
Fire risk – defective cladding litigation heats up
By Sam Dorne In England and Wales, the Technology and Construction Court in Martlet Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC) (14 July 2022) has released the first decision arising out of a defective cladding dispute following the Grenfell Tower...
BuildLaw Issue 47
September 2022CONTENTS Competition not working well in residential building suppliesmarket Fire risk – defective cladding litigation heats up Case in Brief: Supreme Court of New South Wales finds forcemajeure clause offered no protection for loss and damage togoods in...
WA Supreme Court finds no implied licence to use home design plan
By Kate Holland In a recent Australian case, the WA Supreme Court was unwilling to interpret a contract between a home builder and their client to imply a licence allowing the client to use the builder’s design in whatever way they pleased. Although the case was...
Overhaul coming to the regulation of engineers
By Sam Dorne The Ministry of Business, Innovation and Employment (MBIE) undertook a consultation in 2021 to reform the regulatory regime for engineers. The reforms will move away from a voluntary accreditation scheme into a formal regulated regime. Current...
Expert “evidence” needs to be more than just bald assertions to win the day
By Adrian Sharma Leakage issues in a building can be a real dampener. A recent decision of the Queensland Civil and Administrative Tribunal (the Tribunal) which considered conflicting expert evidence on water ingress issues in a newly built property highlighted the...
An adjudicator’s decision on a construction contract is definitely worth the paper it’s written on!
By Maria Cole It’s only in rare circumstances that the courts will interfere with the decision of an adjudicator on a construction contract. A recent decision out of the English Technology and Construction Court (TCC) considered arguments that an adjudicator acted in...
You break it you bought it: Supreme Court confirms you can’t cancel a contract for failure to satisfy a condition if your own behaviour had a material effect on the failure
By Belinda Green. We’ve known for a long time that a party can’t rely on a failure to satisfy a condition if the condition failed to satisfy because of their action. But we never really had an explanation of how bad that “failure” had to be until now. In its...
BuildLaw Issue 46
March 2022CONTENTS You break it you bought it: Supreme Court confirms you can’t cancel a contract for failure to satisfy a condition if your own behaviour had a material effect on the failure Case in Brief: Unhelpful expert witness sees homeowners succeed in defective...
Vicarious liability and subcontractors
By Sam Dorne Liability in tort depends upon proof of a personal breach of duty, with one true exception, vicarious liability. The law of negligence is generally fault based; a defendant is personally liable only for the defendant’s own negligent acts and omissions....
Limitation for payment claims under construction contracts
By Sam Dorne The decision in Hirst v Dunbar [2022] EWHC 41 (TCC) considers the impact of payment provisions in a construction contract, whether through contract or implied terms, and the commencement of the limitation period for payment claims under the contract. It...
Extensions of time in construction contracts
By Jo O’Dea In an extension of time claim, blame for the delay was a relevant consideration when assessing what was “fair and reasonable”. In CAJ v CAI [2021] 5 GCA 102, the Singapore Court of Appeal considered the issue of extensions of time in...
BuildLaw Issue 45
March 2022CONTENTS Extensions of time in construction contracts Construction contract procedure and dispute resolution: There really is a reason to pay attention to the boring stuff Principals beware, constructive acceleration is here UK: Important announcement on the...
Testing the waters: New South Wales Supreme Court considers the prevention principle
By Hannah Aziz Court provides further confirmation that the prevention principle can be excluded by the terms of a contract. Introduction Following our recent commentary comparing the operation of the prevention principle in New South Wales and Victoria, the...
Construction contract or product warranty? Not all collateral warranty disputes can be adjudicated
By Belinda Green Collateral warranties might be parasitic on a construction contract, but that doesn’t automatically mean they are one. The individual wording and circumstances need to be considered. In some cases, like in Toppan Holdings Limited v Simply Construction...
When you think the amount of your personal guarantee had a limit – but it didn’t.
In a recent Court of Appeal case, Cancian v Carters [2021] NZCA 397, Carters sought to enforce a personal guarantee against Mr Canican. The Court dismissed an argument from Mr Cancian that Carters had not notified him that that the limit on his personal guarantee had...
BuildLaw Issue 44
December 2021CONTENTS Testing the waters: New South Wales Supreme Court considers the prevention principle Adjudication enforcement by companies in liquidation: Court of Appeal raises fundamental objections Wilful breaches of contract – Do exclusion clauses and...
Leaky Home Case: Failure to obtain a building report results in reduction of damages for contributory negligence
By Melt Strydom. Apportionment for contributory negligence allows a court to share the responsibility between parties in circumstances where the test for causation and remoteness of damage justifies it. It doesn’t mean a respondent will not be held liable for...
Do payment claims for retention money ‘fit’ with the standard terms of contract in New Zealand?
By Maria Cole The New Zealand Construction Contracts Act 2002 (CCA) does not explicitly state that payment claims can be used to recover retention money. That said, it is clear the 2015 amendments to the definition of a ‘payment’ under the CCA are broad enough to...
Resolving Construction Disputes – Is Adjudication a Good Option?
By Natalia Vila. With few exceptions, the Construction Contracts Act 2002 (the Act) applies to every construction contract relating to construction work carried out in New Zealand. Statutory adjudication under the Act is the most commonly used dispute...
BuildLaw Issue 43
September 2021CONTENTS Construction contracts: enforcement of debts due and mandatory alternative dispute resolution clauses Cost certainty for resolving building and construction disputes: extension to the BDT Adjudication Low Value Claim scheme Engineers’ corner:...
Cost certainty for resolving building and construction disputes: Extension to the BDT Adjudication Low Value Claim Scheme
By Belinda Green. One of the main barriers to dispute resolution is cost: no one wants to risk spending more than the amount they recover. With inflation and construction costs always on the rise, BDT is extending its Low Value Claim (LVC) Scheme for...
Construction Contracts – Enforcement of Debts Due and Mandatory Alternative Dispute Resolution Clauses
By Melissa Perkin. The recent High Court decision in Hellaby Resources Services Limited v Body Corporate 197281 [2021] NZHC 554 is of particular interest in the construction sector for several key reasons: it is a rare example where a stay of enforcement of summary...
The Enforceability of Liquidated Damages Clauses
Author: Melissa Perkin Liquidated damages clauses, a common feature of construction contracts, stipulate the amount of money payable as damages for loss caused by a breach of contract, irrespective of the actual loss suffered. A recent United Kingdom decision of the...
Building and Construction Under COVID-19 Alert Level 4
For information and guidance on what building and construction work can be done at Alert Level 4: · Health and Safety protocols at different alert levels, visit CHASNZ COVID-19 and working at the current alert level (chasnz.org); and · COVID-19 guidance...
Class-action lawsuit against Harditex cladding fails
By Melissa Perkin. A second class-action lawsuit[1] brought by a group of 144 homeowners whose homes were clad in Harditex fibre-cement cladding, has failed. The homeowners alleged that Harditex manufacturer James Hardie, between 1987 – 2005, knowingly sold defective...
What types of disputes can be referred to adjudication?
The types of dispute that can be referred to adjudication are listed below: Default liability claim These are claims for technical non-compliance with the payment regime under the Act. Where a valid payment claim has been served by a payee on a payer and the payer...
Important Guidance on Contract Interpretation Issued by the Supreme Court
Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85 The Supreme Court in Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85 has provided important guidance on how extrinsic evidence and implied terms are used to aid interpretation of...