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XD Notices – Member categories
Currently there are 5 main pathways to MNZIQS, with the applicant needing recognised QS qualifications, fulfilling a minimum period of membership and a minimum period of QS work experience (including at least 12 months in NZ) and assessment (satisfactory) at an approved interview. They are:
1. Obtain a QS degree recognised by NZIQS, or by reciprocal organisations AIQS, SISV, CIQS, HKIS, BSIJ, (or from RICS);
2. Obtain NDQS or a Diploma recognised by the same above-mentioned Institutes;
3. Show evidence of 12 years approved QS work experience if no recognised QS qualification held;
4. Provide evidence of being a full qualified member of one of the organisations listed above - AIQS, SISV, CIQS, BSIJ;
5. Rejoin after leaving as ANZIQS or MNZIQS (or join having been a Registered QS under the 1968 Act).
Council are discussing the membership categories noting NZIQS numbers have increased from 800+ to 1300 + as they wish to recognise members awaiting to fulfil criteria for interview for MNZIQS – between 1 and 12 years!
Overseas and in some professional Institutes there are recognised member categories for applicants waiting to become fully qualified members – such as; AIQS –AIQS (Affil.)" , RICS - Assoc RICS, South Africa – AAQS, IPENZ – GIPENZ. These are usually dependent on the initial educational qualification gained – i.e. degree or non-degree.
Currently in NZIQS, until the applicant is approved as MNZIQS they will be either a student member or a member on probation with no recognition that they are an institute member. Quite often applicants choose not to join NZIQS when they are classified as a student member because they do not have a recognised QS educational qualification – e.g. CM, Engineering degree, an unrecognised QS degree from overseas, etc and/or do not have 12 years QS work experience. Additionally some potential members in NZ are working in restricted estimating and pricing roles without the need or ability to fulfil the wider competencies to become MNZIQS, but would like to be associated with the NZIQS (and have a pathway to MNZIQS if they change jobs and work roles). The current considerations for new categories, additional to student member are
GNZIQS (for QS degree graduates) and
(Affil) NZIQS for Diploma graduates, not recognized - degree graduates and those with QS work experience.
What do you think? Contact Me if you have an opinion/suggestion/comment
John Granville john@nziqs.co.nz 0800 477 469.
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Adjudication – Is it working? CPD Event Report
Presentation by: Trina Lincoln, Barrister and Adjudicator with the Building Disputes Tribunal, Thursday 4 November, Auckland Branch CPD event.
Trina Lincoln presented a reminder of the process involved in being a participant in adjudication and outlined how industry is using the process. She provided some useful insights into tips and tricks used by parties to adjudication and some guidance on how to best place yourselves to reduce disputes and to increase your likelihood of being successful at adjudication. Trina Lincoln packed in a power of information about adjudications from a practitioner’s viewpoint. Some brief opening points;
- Important note consultants ARE NOT covered by the act,
- Adjudications have increased in popularity and are being used by homeowners now,
- There is no limit on the quantum of the dispute,
- The Disputes Tribunal has a published fixed fee service. [QS Link]
Payment Claims and Payment Schedules; probably half are done correctly but it is not until you have a problem that you realise you should have done it right. Failure to issue a schedule or failure to pay a payment schedule are the most common matters adjudicated. And even if there are other issues as to why these things have not happened, the adjudicator is obliged to rule in accordance with the act against the failure of a party to do these two basic things. The simple test for determining a proper payment schedule is “does the party receiving it know why something is not paid.”
Timing and Attitude. There is a tendency to wait until the end of the contract to bring a dispute. Contractors are reluctant to raise disputes early and in NZ are keen to negotiate and avoid a bad reputation. But this is not really a good practice. Perceived reputation damage for delaying dispute resolution is probably misplaced. If you are pursuing a valid contractual entitlement, your client will still respect you afterwards. In fact by raising a dispute early allows the parties to say hey we don’t agree, let’s get someone to help us out so we can get on with the real tasks at hand. “You do need to respect the time limits in the act.” The act is strict on time issues and adjudicators tend to be conservative in using any discretion allowed by them. It seems obvious if the act is about cashflow that delaying the process is counter to the objective of the act. So get your act together, be on time, be concise.
Trina engaged the audience early and it was evident this subject is very near and dear to members hearts.
Adjudication is not rocket science. QS’s are quite capable of preparing their own adjudication claims but a quick review of your work by your lawyer will be a valuable exercise. The people who know the job best (QS) can distil the facts better and quicker than an external hired gun. It is just telling a story. Neat and tidy typed notes please but informal in style and concise, i.e. on the subject matter. Photo’s and plans marked up are helpful, a copy of the contract but not the standard conditions, copy of the payment claim (if that is the issue) and any relevant correspondence.
It’s about getting an independent decision. Someone usually does not like it when a decision is made. It is hard as an adjudicator to say to people “there is nothing wrong with your house”. On the evidence before me this is what I consider to be a good decision.
Trina covered the options to recover money due but made it clear you cannot get money if there is none. “If it is not there, it is just not there.”
Trina Lincoln (Barrister and Adjudicator) from Building Disputes Tribunal & Ciaran Corrigan (Branch Chair)
Closing Question
Audience: So your view overall in summary, say the adjudication provisions under the CCA are working, and if they are, how well?
Trina: I say they are working and I say that they are working by and large very well. Based on the fact that the aim is to resolve disputes. And I don’t think any body is happy when they lose something. The same as a party is not happy if they don’t win 100% of what they thought they were entitled to. But I think the fact they [adjudicated disputes] are not all being referred to court and arbitration suggests that it [the Act] is in fact resolving disputes. That I believe is the premise of it.
Post Meeting Feedback
First Year Degree Student and Student Member writes…
Dear Mentor,
Thank you very much for the invite and taking me along tonight. I started off having no idea what adjudication was and I feel by the end of the night that if asked by someone I could describe adjudication, what it is and how it works.
This leads me to believe that I really need to take the time to get to more of the CPD events because I probably learnt more job related things tonight than I have learnt in most of the university studies this year. I guess this just reinforces the fact that going to university is only a small part of becoming a registered quantity surveyor.
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Sen QS / Contract Admin - Auckland
Career path to Commercial Manager
A career opportunity has arisen for a Senior Quantity Surveyor / Contracts Administrator to demonstrate your ability to move toward management responsibilities at some stage in the future within this sound and successful Auckland based Commercial Construction company.
One Director is wishing to relinquish some responsibilities as Contracts / Commercial Manager. So a Senior QS with sound judgement and proven skills in Contract Law is required to work as QS / Contracts Administrator and to manage a small team of QS’s. You will have strengths in negotiation with Clients and in liaison with Construction professionals.
You will be working autonomously - a professional in your field. Your diplomatic approach and persuasive personality will have won you the respect of your peers and other professionals.
| The Construction Specialists` |
Phone Jill at Corgan Recruitment Consultants on 09 575 9341
Or send your CV to: jill@corgan.co.nz
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Construction Contracts Act 2002 is under review by DBH
DBH discussion document [QS Link]- Consultation closes 16 December 2010
Cabinet has directed the Department of Building and Housing to review the Construction Contract Act 2002 with the aim of improving its application to residential and commercial building disputes. In addition, it is timely to review whether the Act has been achieving its original purposes of improving cash flow in the construction industry, providing for the speedy resolution of disputes and providing remedies for the recovery of payments. Other upcoming changes to the Building Act include mandatory contracts for residential building work over $20,000 and minimum terms and conditions for contracts. One of the proposed minimum terms will provide for disputes to be resolved through adjudication under the Construction Contracts Act. This means it is important the adjudication process works well for a range of building disputes.
This discussion document asks for your views on the following matters:
- whether the Act should apply in its entirety to residential construction contracts;
- whether there are better options for enforcing adjudication orders;
- whether there should be an express right of appeal against adjudication orders that are incorrect (for example, an error in fact or in law has been made) or have not followed the correct process;
- whether adjudication orders should be made public;
- whether related goods and services (for example, supply items) design work and engineering) should be subject to the adjudication process.
During Trina Lincoln’s recent seminar on the Construction Contracts Act 2002 (see above), e-bulletin put these questions to Trina as questions from the floor and Trina obliged by leading the discussion with the audience as follows;
Q1. whether the Act should apply in its entirety to residential construction contracts
A1. Trina: my personal view is yes it should because I struggle with the fact that you can’t enforce a determination against a residential occupier. I still think there should be some additional safeguards so that residential occupiers understand the importance of what it is they are receiving. And I can’t actually recall right now but from the UK you don’t have the residential occupier distinction do you?
Audience: Correct residential falls outside of the act.
Trina: Yes, well here [NZ] you can serve a payment claim and you just have to add a notice at the back saying this is an important document, don’t through it away basically. You can adjudicate but you can’t get a charging order to enforce the payment adjudication determination against them. So what do other people think [about the DBH review question]?
Audience: It depends. It is not one rule fits all in terms of residential. If it was your fence, it would a bit of travesty if someone got a charging order on your property because you have fallen out about how much you should pay for the fence. But you have a $25M house, and the air conditioning contractor is owed $1M it’s a different kettle of fish;
Trina: thing to remember is against the background of a payment claim payment schedule process and I think there will need to be a lot of education of residential occupiers because if I issued payment schedule in that instance they could get a charging order it would be a dispute then and it would be forwarded on. So [that’s my view] if I had a legitimate basis for my dispute;
Audience: One of the reasons residential was excluded from the UK act was because there was a perception that the act was meant to redress a fair balance of payments in the industry as a whole. There was a worry that residential (home owners) couldn’t afford to take on litigation to get a final solution. E.g. concern that contractors could rush off to adjudication, get an award, get it enforced and there would be no recourse because they have lost all their money or alternatively they thought it was unfair to enforce such a process on residential property;
Trina: Yes. And I think we should go one way or the other. Either take them out of the act or they are subject to all the same things, because it is actually hard to remember [act options] what they [residential occupiers] are allowed to get and what they are not allowed to get [the current provisions cause some confusion]. SO I think it should be one rule for all or residential owners out altogether.
Audience: Mediation is quite popular for residential disputes in UK;
Trina: My experience is that mediation does not tend to work as well here, in relation to pure construction disputes putting aside leaky buildings. Because in NZ people to tend to do all they possible can to resolve a dispute and by the time you actually get them in the same room they physically hate each other. They really hate each other.
Q2. Are there are better options for enforcing adjudication orders?
A2. Trina: I don’t think there are better options. I just think people don’t necessarily know what needs to happen - there needs to be some clear guidelines given to the people who enforce them stating “this is what you do”. It is frustrating as a lawyer when you turn up to a court and they ask for one form and process then you take their advice and move along to another court and they give you a different story. So there needs to be some certainty through clarity of what is required.
Q3. Should there be an express right of appeal against adjudication orders that are incorrect (for example, an error in fact or in law has been made) or which have not followed the correct process?
A3. Trina: I think what we have now is a better result than a right of appeal. I think the ability to have your entire dispute re-heard by someone fresh is more beneficial for the parties than the right of appeal similar to what you would have in an arbitration although this question does say “whether (there is) an error in fact or in law.” I personally don’t think an appeal is necessary because you have got those rights. If you don’t think someone has done it properly then you ‘judicial review’ them and if they agree then it is sent back to be determined anyway.
Q4. whether adjudication orders should be made public?
A4. Trina: Part of me says yes and part of me says no. How is that for sitting on the fence? When The Building Disputes Tribunal was started it was their intention to publish adjudication determinations in a sanitised format. And it was just met with horrific opposition. New Zealand is too small. Even if a matter is summarised, informed readers will still know who is being talked about. I think the outcomes should be made public. If there was a way you could have a record of the number of payment claims that have not had a payment schedule and just the basic facts, etc.
Audience: The RICS publish sanitised ones in Queensland where the RICS Dispute Resolution service is a nominating authority. It is part of their contract in using their service that you won’t object.
Audience: It is more than that, Queensland, Northern territory, Western Australia and Singapore.
Trina: Don’t get me wrong. I think it would be great. But I am not a party to the adjudication and part of the attraction to adjudication and arbitration is that it is confidential. So why should adjudication not enjoy that same privilege? But as a lawyer and an adjudicator I think it would be great to be able to read everyone’s decisions.
Audience: An awful lot of the English ones are published because they go to court too.
Trina: Yes a lot more go to court in the UK.
Q5. whether related goods and services (for example, supply items) design work and engineering) should be subject to the adjudication process.
(The definition of construction work excludes related goods and services to construction work. This means (for example) supply of goods, materials and equipment, and similar work carried out for its own purposes (not preparatory to other work), design or architectural work, engineering work and quantity surveying are excluded from all provisions of the Act.)
A5. Trina: My personal view is yes. The act is aimed at improving cashflow for the industry. Consultants work in the industry, why should they not be able to enjoy the same privileges just because you don’t pick up a hammer?
Audience: Because they [consultants] chose not to.
Trina: Well what did NZIQS vote for or submit?
Audience: NZIQS for inclusion. NZIA, IPENZ, ICENZ, against inclusion. This is a key issue and if you want consultants included after this review then you as an individual MUST make a submission to that effect.
Trina: In terms of supply of goods. That is a hard one. I sort of have this Placemakers test. If I can buy it from Placemakers then it is not included in the Act.
Audience: The issue with the related goods and services arose from the NSW Act. The NSW Act had that wording originally and it has carried on with other acts [that followed] and New Zealand is the only act in the world that does not have consultants services covered under related goods and services.
Trina: I think you should be.
Audience: What has the rest of the world found by having consultants included in their act compared to the fears of the engineers and the architects in NZ who have successfully lobbied not to have it so far?
Audience: It is surprising when you say to architects and engineers have you spoken to your colleagues in Australia? They are very silent at that stage. And they have made strong representations to try and be excluded from the act and for that to continue. But with some of these professions there are individuals and groups who are showing opposition to this.
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If you want to have your say there is a discussion document and questionnaire at [QS Link] The consultation closes 16 December.)
NZIQS will also make a submission and will have a representative in DBH review. Let XD know if there if there is a change you would like to promote to CC ACT CHANGE SUPPORTED
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Salient points for inclusion of CONSULTANTS
under the Construction Contracts Act 2002
1. The DBH has indicated that they are looking at having a dispute resolution process which covers all parties involved in construction projects and provides protection to consumers. This is an important aspect because an important question would be: why should the consultants be provided with any special position by excluding them from the Act?
2. If consultants work is not covered by the CCA, consumers under the Building Act would have one form of dispute resolution with contractors and subcontractors and some other form of dispute resolution with consultants. The DBH is look towards a “one-stop-shop” in dispute resolution and inclusion of all consultancy work as “related goods and services” under the definition of construction work in the CCA would resolve the problem;
3. In 12 jurisdictions (including all Australian States) consultants have found no problem with being covered by their respective acts. This indicates that the reasons for NZ architect and engineering associations to lobby against the inclusion of consultants lack substantive support by way of example. Continued “unjustified” lobbying for exclusion is to the detriment of ALL consultants;
4. The current resolution of payment of professional services is firstly by goodwill negotiation, including the prospect of future work and ongoing reputation and ultimately a threat of with-holding services. In the final instance the only way for a consultant to attempt to be paid (without inclusion under the CCA), is to withdraw services. There are numerous projects where disputes over consultants fees have effectively brought jobs to a standstill;
5. Contractual "adjudication" of fee disputes i.e. referring disputes to contractual adjudication rather than statutory adjudication, provides no power to the adjudicator to resolve the dispute other than that agreed to by both parties. A contractual adjudicator faced with obstruction by one party in a contractual adjudication has virtually no power to proceed on and give a determination;
6. In relation to Design and Build contracts where the employment of the Consultants is novated to Contractors, in essence the consultants would have no protection against non-payment in D&B contracts unless covered by the CCA. With more innovation in procurement, a statute to protect the consultant in all situations is better than a myriad of relationships and an encyclopaedic set of engagement conditions;
7. Many Quantity Surveyors have stated through the NZIQS that they want to be covered by the CCA. Many of those quantity surveyors work for head consultants, not for suppliers and contractors. If the head consultants are not covered by the CCA, this encourages head consultants to use “pay-if-paid” and “pay-when-paid” clauses against payment of Quantity Surveying sub-consultants. This is the type of behaviour that the CCA was introduced to eliminate in the construction industry.
Edited from selected portions of preliminary works by NZIQS Fellow, Geoff Bayley for NZIQS on this subject matter.
Your support is vital to bring this much needed change to the act.
Respond now – My views on the inclusion of Consultants in the CCA are.
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QS Snippets
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- Goodbye to the Palace. I used to walk past the Palace early each evening and see many of my Sky City construction site co-workers relaxing at the end of a hard days work. Only to walk past again 6:30am the next morning and see that some of them had not moved in the last 12 hours and I worried they were going to turn up to work later. I guess the Palace was partly responsible for re-fuelling the last economic recovery! View the last pictures of the Palace at Stuff.co.nz
- NZIQS Website has 3 new job listings for your attention (and not your usual) http://www.nziqs.co.nz/career/vacancy.html;
- Member Response to last e-bulletin. Thanks. That information on ethics was very useful. Cheers [QS Tutor];
- GETS 31611. Cost Consultant/ Quantity Surveying (QS) Services for the Rotorua Police Station – Stage 2 Redevelopment. Respond by Thursday, 2nd of December 2010 at 12:00 pm. The formal Request for Proposal (RFP) will need to be responded to and can be obtained from: Sheryl Kirner Tel: 021 223 3878 Email: sheryl@rdtpacific.co.nz Login to GETS and get the details.
- A to M transfers – because united we stand! TRANSFER NOW [Please transfer me to Member]
- Call for more Mentors. While demand varies in the branches, this is a long term project and all areas are expected to grow. So the Institute needs your help to fulfil the current shortfall in Auckland and in Tauranga so that we can sign an agreement early 2011 with the Bay of Plenty Polytechnic and build a bank of mentors in advance of growth expectations. [QS Link]
- Earn CPD Points. Become a NZIQS accredited Student Mentor [email: john@nziqs.co.nz]
- Do YOU have anything that you would like to say in the Bulletin or which you would like to see mentioned in the Bulletin OR on the website? If so, send your contribution to [QS Link]
- “Friend Get Friend” NZIQS Fee Rebate Scheme. Become an NZIQS advocate who encourages membership of NZIQS for quantity surveyors. With success comes the NZIQS “friend get friend” bonus. For each new full member you are credited with joining the NZIQS your next annual membership fees will contain a credit of $150.00 + GST.
- “FADE STREET star Vogue Williams (QS) is "absolutely devastated" “Quantity Surveyor in the NEWS” - now on Facebook. [QS Link]. QS current affairs making the news…
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Out of town? Plane or Train?
