BuildLaw is the Quarterly Publication of the Building Disputes Tribunal BuildLaw Issue 14
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Welcome to the June 2012 Issue of BuildLaw in which we bring you articles from New Zealand, Australia and the United Kingdom on building and construction law matters.
We are most grateful as always to our local contributors and for the support that we receive from dispute resolution professionals and law firms around the globe that allows us to bring you a broad perspective on dispute resolution and construction law generally.
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The articles in Issue 14 are as below:
John Green's comments on articles in this issue and developments in the industry since our last issue...
Concurrent Delay: City Inn not Law in England, but what is?
Our first article by Aidan Steensma of CMS discusses the perennial issue of concurrent delay in light of the recent decision of the Commercial Court in 2011 in Adyard Abu Dhabi v S D Marine Services  EWHC 848 (Comm) which has raised doubts over the majority and minority views in decision of the Scottish court in City Inn Ltd v Shepherd Construction Ltd  CSIH 68. The Adyard Abu Dhabi case is an excellent and simple judicial statement about entitlement to time in the event of concurrent delays. It is well worth looking at – especially paragraph 276...
BONDS Encouraging people to do what they said they would
John Walton’s paper; Bonds - Encouraging people to do what they said they would, questions the need for issuing bonds using the standard form attached to NZS3910:2003. NZS3910 and NZS3915 are the only civil engineering standard forms of contract published in New Zealand and this comprehensive and thought provoking paper is most timely given the latest round of revisions to NZS3910 is currently underway...
Copyright Infringement in House Plans: When will inferences be drawn about similar features?
This article and the judgment (which can be found on our website) will be of particular interest to those who are in the business of designing residential homes for the general market where ‘standard plans’ are commonplace, readily obtained, and in respect of which, there appear to be more design and construction similarities than differences these days. A word of caution to would be architects. The plans at issue are annexed to the judgment - do not become the subject of another!...
Councils' Duty of Care for LIM Information is Confirmed
The Supreme Court has confirmed, in the long awaited decision in Marlborough District Council v Altimarloch Joint Venture Limited and Others  NZSC 11, that councils owe a duty of care to the recipient of a Land Information Memorandum (LIM) if the LIM negligently misstates information it is obliged to contain. Denis Sheard, Special Counsel in the Local Government and Environment practice at Simpson Grierson says the judgment is a reminder to all territorial and unitary authorities of the need to ensure that information held is accurate, easily accessible, accurately captured and correctly recorded in the LIM preparation processes...
Council Avoids Liability for Leaky Building
In the article ‘Council avoids liability for leaky building’ we look at the recent Supreme Court decision in McNamara & Ors v Auckland City Council SC 85/2010  NZSC 34 in which the Supreme Court upheld the Court of Appeal's decision that the Auckland City Council did not owe a duty of care in respect of a building certificate issued by Approved Building Certifiers Ltd, a private certifier approved by the Building Industry Authority...
In All Aboard The Fair Pay Express, Tony Bingham tells us that Network Rail buys an awful lot of building work … something in the order of £4bn worth a year. He also says government departments were the worst payers in the business once, but the light has dawned. Really?...
In Careful Who You Trust, Tony discusses the recent TCC decision in Walter Lilly & Company Ltd v Mackay & Anor  EWHC 649 (TCC). Walter Lilly decided to sue the developer DMW and asked for copies of all the correspondence between DMW and its claims consultant. Taht caused the balloon to go up...
Was There a Dispute? - Crystallisation of Disputes and the Severability of an Adjudicator's Decision
We look at the recent decision of Mr Justice Akenhead in the case of Working Environments Ltd v Greencoat Construction Ltd,  EWHC 1039 (TCC) to look at the whether a dispute can arise before the date for payment? And when issues of jurisdiction arise, can an adjudicator’s determination be severed by the courts to exclude those issues that fall outside his or her jurisdiction so as to give effect to that part of the determination in respect of which the adjudicator did have jurisdiction?...
Superintendent’s Obligation to Act Honestly, Fairly and Reasonably
In the article, Superintendent’s Obligation to Act Honestly, Fairly and Reasonably, we discuss the New South Wales Supreme Court case of Walton V Illawarra  NSWSC 1188 in which McDougall J held that the obligations on the Superintendent were to act honestly and fairly and determine reasonable EOTs to be granted where Walton had shown a right to them and to determine reasonable values for the variations. The Judge observed that the Superintendent could act honestly and fairly, but if she did not arrive at a reasonable decision in respect of EOTs and the value for variations, then Walton had not received what it was entitled to receive under the contract and Illawarra was in breach.
This case demonstrates that when the Engineer is the designer, the contract administrator, and the employer’s agent, the potential for conflict of interest is patently obviously for all to see, save for perhaps by the poor blinkered Engineer!...
Sweett As - No duty owed by QS to ensure Bond executed
In ‘Sweett As’ we look at the duties of professionals to procure bonds following the recent decision of HHJ Childblood QC in Sweett (UK) Ltd (formerly Cyril Sweett Ltd) v Michael Wight Homes Ltd  EW Misc 3 (CC).
Whilst this is a UK county court judgment, it will no doubt come as some relief to those who act as consultants and principal’s agents and whose obligations include, inter alia, “arranging” for bonds to be provided by contractors. It would seem that such obligations are subject only to an implied common law duty to exercise reasonable skill and care, rather than being strict or absolute obligations as was argued in this case...
Book Review: A review of 'Kennedy-Grant on Construction Law, 2nd Ed.' by Tómas Kennedy-Grant QC
This book is a truly impressive publication in every respect. It comprises 958 pages. The text is set out in 31 Chapters. The full table of contents runs to 40 pages and there is a summary of contents for ease of reference. The author’s helpful introduction sets out the scope and structure of the book and the introductory remarks put the component parts of the text in perspective.
This is the second edition of the work first published in 1999. Although the basic structure of the book remains unchanged, this new edition is, in large measure, a comprehensive new text. The first edition has been extensively rewritten and the coverage of New Zealand law substantially updated and widened.
"This work is truly indispensable. It is already a standard work of reference, and the author is to be congratulated."
NOTICES & CONFERENCES
We are delighted to welcome Professor Doug Jones AM, John Sharkey AM, and Rashda Rana to our Dispute Resolution panels. Doug, John and Rashda are of course well known and highly regarded and respected internationally and their involvement with BDT only serves to strengthen and enhance the already high standard and quality of the dispute resolution services we provide.
For more information on our panels CLICK HERE
If you have any questions regarding any of our panelists or how our panels, or appointment procedures operate please contact us on + 64 (09) 486 7143 or at email@example.com
AMINZ Conference "Global to Local"
It's the last week for Early-Bird registration for this year's AMINZ conference! - If you're not already registered GET IN QUICK
CLICK HERE to register online now.
This years conference "Global to Local" will be held in Wellington, New Zealand - 2nd - 4th August
The AMINZ Conference is the only national dispute resolution conference held annually. A comprehensive programme, over 2 1/2 days, with concurrent streams in consensual and determinative processes and many networking opportunities means that the conference attracts dispute resolution professionals from around New Zealand and around the globe.
This year the Advisory Council of the United Nations Convention on the International Sale of Goods will convene in Wellington, to coincide with Conference. The Advisory Council members will be part of the conference programme.
For more information on the program and speakers for this years conference CLICK HERE
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