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Featuring:• Seismic aftershocks: legal issues

highlighted by the Christchurchquakes which are relevant to allof New Zealand

• An update on the Building Act 2004and the current Amendment Bill

• A review of the Construction ContractsAct 2002 and the department’sDiscussion Document

• Leaky buildings—Fair Trading Act claims

• The tax implications ofweathertightness claims

• EQCover—What’s in and what’s not?

• An essential case law update

The Building industry is dynamic in nature and constantly evolves to meet continuing challenges from changing technology and high client expectations. The law recognises this by keeping the subject under constant review with a succession of Amendment Bills and Discussion Documents, the current crop being well covered by this conference. As ongoing case law is making a significant contribution, this event includes an essential case law update.

Practitioners and all those involved in the industry must constantly keep up to date with current issues, developments and trends to successfully ride on the leading edge of knowledge and skill. This ensures they consistently give the best and most effective advice to their clients.

BuildingandConstructionLawConferenceAn intense and authoritative review of key current issues, developments and trends impacting on the building and construction industry. 2 September 2011, Rydges Hotel, Auckland

9.00 Opening Remarks from the ChairBill Hodge, Associate Professor, Faculty of Law, University of Auckland

Seismic AftershocksThe Christchurch earthquakes brought to the surface a diverse range of legal issues that were thrust under an intense spotlight. The following two sessions closely focus on those Christchurch concerns which are relevant to all of New Zealand.

9.10 Canterbury Tales — Part One• Issues relating to building on land known to

be subject to the risk of earthquake, landslip,flood, volcanic activity— Who is liable for resulting damage: owners,

developers, consulting engineers, councils,insurers, the Earthquake Commission?

— Problems where a Conditional BuildingConsent is issued: Building Act 2004,ss 72—74

— Tensions between private insurers andthe EQC

— Is it worth the risk?

Mark Crosbie, PartnerMinter Ellison Rudd Watts Janine Stewart, Senior AssociateMinter Ellison Rudd Watts

9.50 Canterbury Tales — Part TwoGeneral lease issues• The inadequacy of the current ADLS standard

form raised by the earthquake:— No provision for lack of access— Issues with determining whether premises

are “untenantable”—current judicial view— Rent abatement issues

• Leases and agreements to lease for the future:— Force majeure clauses— Access clauses

— Termination clauses — Landlord and tenant amendmentsDeveloping tenant trends• Information from recent surveys• A summary of what tenants are likely to look forDisaster recovery policies and communication• Communication with tenants, insurers, other

stakeholders post-disaster event:— What happened in Christchurch— Ideas for the future

• The importance of legal advice in this context• Landlords and disaster recovery plans• Where should communication come

from—landlords, property managers?Issues arising from different ownership structures• Body corporate issuesInsurance issues and understanding insurance policies• A summary of issues arising with business

interruption insurance—loss of rents, limitationsof current insurance policies

• Damage and destruction issuesThe rebuild and new construction• Insurance• Funding• The need to supplement the traditional team

with experts, insurers at an early stagePaul Dorrance, Partner, Duncan Cotterill

10.40 Refreshment Break

BuildingandConstructionLawConferenceAn intense and authoritative review of key current issues, developments and trends impacting on the building and construction industry.

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11.00 Update: Building Act 2004The Building Act, the legal centrepiece of theconstruction industry, is not static but underconstant review and continually evolving. Thisessential session closely examines the latestdevelopments including an update on the currentAmendment Bill in respect of which submissionsclosed last March.• The first Bill (Amendment Bill No 3) and the

proposed changes— New consent classes— The demise of Code Compliance

Certificates— Councils’ inspection role— The “owner-builder”— What is a ”dangerous building”?

• How has the first Bill changed through theselect committee process?

• The balance of the review processStuart Robertson, Partner, Kensington Swan

11.40 Review: Construction Contracts Act 2002

The Construction Contracts Act, which iscomplex and technical and must be mastered,is being reviewed. This session analyses theunderlying ongoing issues and discusses the likelyoutcome.• The Department of Building and Housing

Discussion Document• Perceived weaknesses in the protection of

consumers• Proposals contained in the Discussion

Document• Differing views from submissions• The likely outcome, followed by a review update Edward Scorgie, Principal, Chapman Tripp

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12.20 Essential Case Law UpdateAll major legal subjects are constantly evolving,tugged by the tide of case law coming to termswith commercial reality. This session comprisesa crucial and comprehensive case law update forthose who are serious about their practice in andknowledge of building and construction law.Abolition of expert immunity — Jones v Kaney• The UK Supreme Court abolishes expert

witness immunity• Public policy considerations• What does this mean for building experts in

New Zealand?• The nature of experts’ dutyLimitation difficulties for vendors• Exposure of vendors to vendor warranty claims• The 10-year long stop and the joinder of

contractors• The 6-year limitation period and the joinder of

real estate agentsDuty of care developments• The boundaries of Hamlin duty

defined—Sunset/Bryon

• The liability of parties issuing producerstatements

• Can the BIA be liable in respect of its review ofcouncil operations?

• The final frontier—mixed use and commercialdevelopments

Gareth Lewis, Partner, Grimshaw & Co

12.50 Networking Lunch

1.50 A Hardy Perennial — Leaky Buildings Update

The leaky buildings saga is one of epicproportions and will present problems foryears to come with 42,000 buildings mainlyin Auckland, Wellington, Tauranga andChristchurch affected. The repair bill is estimatedat $11.3 billion. This session spotlights keycurrent issues and developments.• The Fair Trading Act in the context of leaky

building claims—Mok v Bolderson (High Court,April 2011)

• The complete defence of voluntary assumptionof risk in leaky building litigation: current caselaw update—More and more houses are soldwith known building defects; council files haveLIM notifications and/or “tags” for dwellingswith known problems

• Update on the Weathertight Homes ResolutionServices (Financial Assistance Package)Amendment Bill—to be enacted shortly— How it works: the machinery of the

legislation; the definition of “reasonable costof repair”

— Who decides what is reasonable?— How can an owner benefit from opting into

the scheme?— What are the pitfalls or downsides for the

owner?— How can a Territorial Authority or any other

defendant/respondent party benefit froman owner opting in?

— What are the pitfalls or downsides for theremaining defendants/respondents wherelitigation continues against them for thebalance of the “reasonable costs of repair”?

— Is the scheme a better choice than thestandard Court or WHRS/WHT route? Canthe scheme and the litigation path coexist?

Doug Cowan, Associate, Rainey Law

2.40 Tax Implications of Weathertightness Claims

The tax implications of a plan or transaction areoften overlooked but they could prove crucial.This session provides practical tax insights toweathertightness claims.• Selling or transferring a property with

defects—structuring• Losing income or assets because of

defects—rental, demolition, shortfall on sale• Fixing the defects—design, repairs,

maintenance, legal costs• Receiving or paying proceeds from a

weathertightness claim—settlement, awards,insurance

Iain Stephenson, Solicitor,Minter Ellison Rudd Watts

Mark Ainsworth, Senior Solicitor,Minter Ellison Rudd Watts

3.10 A Better Building Blueprint — Build it Right First Time!

Government plans to phase in changes to theBuilding Act 2004 to provide more incentivesto build it right first time and cut red tape andcreate exemptions for low risk work. This sessionmakes informed observations and offers insightsinto the Blueprint.

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• Implications of builders, designers andconsultants being accountable for meetingBuilding Code requirements

• The imposition of mandatory written contractsfor building work over $20,000: warranties,remedies, disputes

• Requirement that those doing the work mustdeclare what, if any, financial backup orinsurance is available to fund the remedy ofany faults

• Associated issues

Marcus Beveridge, Principal, Queen City LawTina Hwang, Lawyer, Queen City Law

3.30 Refreshment Break

3.50 Unit Titles and a Smorgasbord of other Delicacies

• A consideration of the key issues arising fromthe Unit Titles Act 2010, concentrating on thepractical side of how developments will beconstructed and managed

• A review of the key changes arising from theLimitation Act 2010 affecting those working inthe building industry

• Can the building sector be certain about therules affecting heritage orders?

• A look at other local government issuesaffecting the building industry including LIMs

Daniel Kelleher, Partner, Buddle Findlay

4.20 All Shook Up? The Role of the Earthquake Commission

The EQC has an important role with respectto natural disasters and often this is not wellunderstood. Given that the aftermath of theCanterbury quake has caused certain tensions,the EQC canvasses the most topical issues inthis session.• EQCover—What’s in and what’s not?• The Natural Disaster Fund and its protection• Research and Education—Unique contributions

to risk management• Issues and opportunities—Lessons from

Canterbury and abroadHugh Cowan, Research Manager,Earthquake Commission

4.50 Closing Remarks from the Chair

RegistrationformBuildingandConstructionLawConference 2 September 2011, Rydges Hotel, Auckland

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