Building and Construction Law Disputes
WEB213NZA30: Today’s building and construction industry brings with it a range of changes and complex matters that require attention and examination. Spread throughout an information packed afternoon with 4 practical sessions, gain useful information on regulatory reform, significant case updates, insolvency issue and risks and subcontractor agreement issues.
Description
Attend and earn 3 CPD hours
Chair: Helen Macfarlane, Partner, Hesketh Henry
1.15pm to 2.00pm Case Law Update
- Latest cases under the Construction Contracts Act
- Judicial review decisions on CCA and construction related topics
- Arbitration appeals and reviews
- Costs judgments
Presented by Jo-Anne Knight, Partner, Simpson Grierson and Georgina Grant, Partner, Grant & Co
2.05pm to 2.50pm Update on Legislative and Regulatory Reform Affecting the Construction and Infrastructure Sector
MBIE’s ongoing review of the Building Act and regulations, including latest updates on:
- The Building (Products and Methods, Modular Components and Other Matters) Amendment Bill
- MBIE’s proposals for occupational regulation (including LBPs, engineers, plumbers, fitters and drainlayers)
- MBIE’s proposals for addressing risk, responsibility and liability in respect of construction defects
Presented by Helen Macfarlane, Partner, Hesketh Henry
2.55pm to 3.40pm Insolvency: How to Manage and Mitigate Insolvency Risks
- Ebert and the retentions regime
- Supreme Court decisions Debut Homes and Mainzeal create a higher risk of mid-project failure
- Contractors and consultants utilising limited recourse corporate structures
- The impact of the Construction Sector Accord
- What are we expecting to see more of?
- Insolvency processes, class actions and director litigation. As part of this, we will touch on:
- Rights under the NZS standard form
- The contract v the insolvency process
- Incomplete developments
- Competition between public and private procurement
- Retentions law reform
Presented by Hamish Bolland, Partner, Michael Harper, Partner and Sam Holden, Senior Associate, Chapman Tripp
3.45pm to 4.30pm Subcontractor Agreement Issues
- Role of subcontractor in project delivery
- Allocation/transfer of risk:
- Securities: Parent company guarantees and bonds, what and how much?
- Design obligations: When does the obligation pass?
- Programmes/site access/construction methodology - managing risk
- Delay/cost: risk transfer
- Retentions: CCA and other mechanisms
- Defects: technology capture and passing the buck
- Collateral warranties: How much is too much?
- Principal/contractor umbrella agreements: getting the project completed
- Coping with disagreement: early resolution vs litigation
Presented by John Walton, Barrister, Arbitrator, Adjudicator and commercial Mediator, Bankside Chambers
Learning Objectives:
- Catch up on recent important building and construction cases
- Be updated to legislative and regulatory reform affecting the sector
- Examine insolvency implications and how to mitigate risk
- Analyse subcontractor agreement issues
Presenters
Helen Macfarlane, Partner, Hesketh Henry
With over 25 years legal experience, Helen Mcfarlane is a partner in Hesketh Henry's disputes resolution team, focusing on construction and insurance. She read law at Oxford and was admitted as a barrister in London, before moving to New York where she worked as a litigation attorney for 15 years with leading US and international law firm, Shearman & Sterling and returned to Hesketh Henry in 2007. Helen brings an international perspective to her work with US experience that includes disputes relating to remediation of high rise fire damage and international arbitrations arising from the construction of a hydro-electric power plant in the Middle East. In New Zealand, Helen has acted in numerous construction disputes representing contractors, consultants and subcontractors as well as providing front end contract drafting advice. She is a council member of the Society of Construction Law and is presently engaged on sector initiatives to revise NZS 3910 and to assess the role of Engineer to the Contract.
Jo-Anne Knight, Partner, Simpson Grierson
Jo-Anne is a partner in the commercial litigation group. She specialises in construction litigation. Jo-Anne has over 20 years' experience acting for contractors, principals, local authorities and consultants in the full range of building and infrastructure disputes. Jo-Anne also advises in the negotiation and drafting of construction contracts with particular emphasis on the allocation of risks within construction contracts, security arrangements and providing tailored mechanisms for avoiding disputes and managing disputes that cannot be avoided in the most effective manner suitable to the particular project or industry. Jo-Anne has represented construction parties and local authorities in well over 100 mediations and judicial settlement conferences. She specialises in adjudications and also appears as counsel in the courts, specialist tribunals and in arbitrations covering the full range of construction issues, including payment disputes, construction defects cases and enforcement of performance bonds.
Georgina Grant, Partner, Grant & Co
Georgina joined Rainey Law in 2012. She is a member of AWLA (Auckland Women Lawyers' Association). Georgina is a natural advocate with a combined passion for people and the law. She has specialised in litigation since her admission in 1997, representing a diverse client base in predominantly commercial and civil disputes. She has particular expertise in handling disputes featuring negligence, insurance issues, construction, contract disputes and insolvency. Another niche area of Georgina’s expertise is insurance litigation and advice work. She has defended professional indemnity, public liability and material damage claims brought against local authorities, solicitors, accountants and a variety of other insured parties. Georgina also has broad experience in insurance law in assessing indemnity, liability and risk management issues.
Helen Macfarlane, Partner, Hesketh Henry
With over 25 years legal experience, Helen Mcfarlane is a partner in Hesketh Henry's disputes resolution team, focusing on construction and insurance. She read law at Oxford and was admitted as a barrister in London, before moving to New York where she worked as a litigation attorney for 15 years with leading US and international law firm, Shearman & Sterling and returned to Hesketh Henry in 2007. Helen brings an international perspective to her work with US experience that includes representing a major multi-national engineering firm in connection with an international arbitration arising from the construction of a hydro-electric power plant in the Middle East. In recent years, Helen has advised in relation to off-shore IFI funded projects on both contractual and compliance issues, including conducting internal investigations and liaising with / reporting to funders such as the World Bank and JICA.
Hamish Bolland, Partner, Chapman Tripp
Hamish has experience across a variety of sectors including infrastructure, energy (including renewable), water, health, ports, oil and gas, tourism, commercial and residential. He advises on national and international large-scale construction projects. Previously, Hamish worked for UK magic circle law firm Allen & Overy in their Dubai projects team acting for sponsors undertaking major projects in the Gulf region, as well as financial institutions lending to those projects. He advises on a wide range of project procurement models including early contractor involvement and pre-construction services, build-only, design-build, full EPC/turnkey, DBO, BOOT, design, build, operate and maintain and concession arrangements. Hamish is recognised as a Next Generation Partner in Legal 500 Asia Pacific 2020 and an Up and Coming lawyer in Legal 500 Asia-Pacific 2020>.
Michael Harper, Partner, Chapman Tripp
Michael is one of New Zealand’s experienced restructuring and insolvency advisors and co-leads our Restructuring & Insolvency team. Focusing solely on restructuring and insolvency, he brings an unrivalled depth of knowledge and expertise to any distressed situation. For more than 15 years Michael has acted for all of the major New Zealand banks, significant insolvency practitioners, distressed companies, distressed debt and special situations participants, and acquirers of distressed assets and directors. An acknowledged market leading advisor to distressed boards of directors, Michael regularly advises companies facing complex legal, regulatory and reputation challenges of insolvency. His experience includes advising boards of NZX-listed companies, high profile private enterprises, as well as a number of venture capital and private equity companies. Michael is recognised as a Band 1 lawyer in >Chambers Asia Pacific 2020, a leading individual in Legal 500 Asia Pacific 2020 and as highly regarded by IFLR 1000 2020.
John Walton, Barrister, Arbitrator, Adjudicator and commercial Mediator, Bankside Chambers
John Walton is a barrister, at Bankside Chambers in Auckland. He is also the President of the Arbitrators' and Mediators' Institute of New Zealand, and a former Council member of the Society of Construction Law. John practices as an arbitrator (both domestically and internationally), construction contracts adjudicator and commercial mediator. He also probity audits and peer reviews major construction and public procurement projects as an independent advisor. John is also admitted as a solicitor in England and Wales and in Hong Kong; he is a Fellow of AMINZ, the Chartered Institute of Arbitrators in the UK and of the International Academy of Mediators.
Sam Holden, Senior Associate, Chapman Tripp
Sam is an experienced commercial litigator, specialising in construction and insolvency disputes. He acts for clients in all sectors of the construction industry, including principals, contractors, subcontractors, engineers, suppliers and manufacturers. Sam has provided dispute resolution and strategic advice to significant infrastructure projects, including state highways, hospitals, wastewater treatment plants, high-rise buildings, and stormwater networks. He also routinely advises insolvency practitioners and creditors in contentious insolvency disputes, including in relation to failed construction companies, most recently acting for a significant secured creditor in the Ebert liquidation. Sam is recognised as a Rising Star by NZ Lawyer 2021.