Building and Construction Regulation and Law Conference 2019

The latest legal developments in building and construction

Event Details


Registration and coffee
Opening remarks from the Chair
John Green, Arbitrator, Adjudicator, Mediator, Building Disputes Tribunal & Director, New Zealand International Arbitration Centre
Opening Address: Overview and update on New Zealand’s current building and construction sector
• What are the key challenges currently facing the building and construction sectors?
• The heart of the issue - procurement
• The way forward for the Construction Sector Accord - what will it mean for the sector?
• The Building Systems Legislative Reform process
• Improvements, collaboration and building a future for New Zealand  
Julien Leys, Executive Director , Construction Strategy Group & Chief Executive , New Zealand Building Industry Federation
Building System Legislative Reform – what’s working, what’s not, and what’s next?

The building sector needs to deliver safe and durable buildings while being able to innovate as methods and practice evolve. The government (MBIE) has published a Discussion Paper to address long-standing sector problems. Changes to the Building Act 2004 and the Regulatory System are proposed - could these reforms solve some of problems facing the industry?

Tim Bates, Principal, Legal Vision
Morning break
Contract design – best practice and tips for drafting

Explore best practice and analyse what you need to know, when negotiating contracts to manage project risks.
• NZS3910:2013 – is this still a good template? What are the other options?
• How to avoid unnecessarily complex special conditions
• Tips and traps from recent cases

Anna Crosbie, Partner, Russell McVeagh
Michael Taylor, Senior Associate, Russell McVeagh
Delay, variation and claims – contract risk management

The larger and more complex the project, the greater the additional costs resulting from delays and variation. To avoid litigation, explore how to get it right from the beginning, then identify and manage the risk through the project life.
• Managing variations – initial drafting, special conditions, role of the engineer and identifying risk
• Understanding Extension of Time (EOT) clauses and the prevention principle
• Exploring different approaches to concurrent delay and how to determine and reinforce explicit and detailed concurrent delay clauses
• Managing and mitigating claims

Karen Kemp , Partner, Anthony Harper
Lunch break
The CCA Retentions Regime – how it has worked out in practice?
The new retentions rules, which came into force on 31 March 2017, were supposed to ensure that contractors and subcontractors received their money, when their principal became insolvent. Experience over the ensuing two years suggests that the rules have fallen short of achieving that ideal.
• Gain an understanding of how the retentions rules operate
• To what extent have the rules changed behaviour within the construction sector?
• What does recent case law reveal about the limitations of the regime?   
Geoff Hardy , Partner, Martelli McKegg
Panel: Risk management and liability in construction contracts – who is accountable?

The high degree of fragmentation in the building and construction sector has led to numerous parties being involved in large-scale and complex projects. Recent cases of project failures raise the significant question: Whose fault is it?
• Understanding “joint and several liability” – a good rule to follow?
• Risk sharing in practice – exploring the gain and pain share model
• Methods to negotiate and agree upon fair risk management
• How to form contract conditions that bridge the gap of disproportionate risk allocation

Jeff Walters, Director, K3 Legal
Jane McTavish Butler, Special Counsel, Meredith Connell
Raine Selles, Managing Director, CMC Asia Pacific
Sara Cheetham, Senior Associate, Chapman Tripp
Josh Taylor, Senior Associate, Wynn Williams
Afternoon break
How to solve disputes efficiently and create fair outcomes

Misunderstandings, discrepancies and different interpretations can create disputes with potential litigation as the outcome. Especially in the building and construction sector, where a wide range of professionals must collaborate.
• Best practice, when it comes to finding a compromise
• Expert determination, dispute resolution board, mediation, adjudication, arbitration – when to use what?
• Understanding different methods of alternative dispute resolution
• Strategies for SMEs with financial restrictions that limit the legal options available to them

John Green, Arbitrator, Adjudicator, Mediator, Building Disputes Tribunal & Director, New Zealand International Arbitration Centre
Case Study: Learning lessons from failure

The industry has recently suffered from the failure of several major construction companies. By identifying underlying causes and monitoring past and present actions, future plans and strategies can be developed to prevent it from happening again.
• Recognizing the first indicators of weak financial condition
• Learning different ways to protect and prepare oneself from other parties becoming insolvent
• When should companies draw a line and stop operating?

Jessica Kellow, Business Insolvency and Recovery Partner, BDO Wellington
James MacQueen, Advisory Partner, Construction and Real Estate Sector National Leader, BDO Auckland
Summary remarks from the Chair & networking drinks
John Green, Arbitrator, Adjudicator, Mediator, Building Disputes Tribunal & Director, New Zealand International Arbitration Centre
Welcome back from the Chair
John Green, Arbitrator, Adjudicator, Mediator, Building Disputes Tribunal & Director, New Zealand International Arbitration Centre
Ensuring practical compliance with health and safety in building and construction

Reviewing the practical aspects of the Health and Safety at Work Act 2015
• Client leadership in construction health and safety
• Exploring the ToTika scheme – pre-qualification and its role in procurement

Chris Alderson, CEO, Construction Health and Safety NZ
Legal update - delivering health and safety compliance in building and construction
Updates on the Health and Safety at Work Act 2015
• How are the court’s interpreting overlapping duties?
- What trends are we seeing in enforcement?
- The role of the employer in addressing mental health and wellbeing in construction
• How has WorkSafe’s focus on the construction sector
Sarah-Lee Stead, Special Counsel, Kensington Swan
Morning break
Natural hazards in New Zealand – hazards, risk and risk management

• Common natural hazards in New Zealand – coastal, flooding, earthquakes, erosion/soils
• Building and development in natural hazard areas – key issues
• Key risks and potential liabilities – what to look out for
• Managing hazards and risk – what you should do

Chris Timbs, Senior Associate, Berry Simons
Quasi-legal lessons from the quantity surveyor’s notebook
• Exploring industry inefficiencies that arise from bad practice in design, contract terms, pricing, cashflow and claims
• The design standard warranty – a principal’s indemnity to the contractor
• Sustainable market pricing – when is this a reality? What is distorting the system?
• Cashflow games – bad actors, overclaims, under payments, retentions, interests, bonds and bonuses
• Learning to make good decisions early – common language, understanding and processes
Matthew Ensoll, Director, Quantum Meruit Project Management
Sourcing materials, products and resources – what needs to be taken into consideration
The wide range of imported and manufactured goods present risks. Due to past incidents with fatal consequences, more product information is required on the part of suppliers. Resulting amendments have significant effect on the operating process leading to an increase in expenditures. 
• Reviewing the product certification scheme: CodeMark 
• Building product substitution – what needs to be considered 
• Alternative solutions – how to efficiently demonstrate compliance 
• Impacts of potential Building Act amendments on the procurement process  
Peter Laurenson , Manager Project Assessment South, Auckland Council
Lunch break
Emerging modern building concepts and off-site construction

Challenges within the sector and technological advances are driving adoption of modern methods of construction. Modular, off-site and factory system built methods are becoming popular, but new concepts bring new compliance requirements as well the need to maintain adherence to existing standards.
• Manufacturing off-site – when, what and how can this be done to optimise success?
• What are the legal and compliance requirements relating to off-site construction?
• What precautions need to be taken in the construction contract and documentation to cover the new methodologies?

Tina Hwang , Associate, Queen City Law
Max Shin , Senior Solicitor, Queen City Law
Compulsory guarantee and insurance products for residential building: MBIE review and the implications for builders

• Understanding what MBIE are proposing
• What could this mean for the residential building sector?
• Exploring what the current market for these policies looks like

Ben Rickard, Director, Builtin Insurance
Afternoon break
Government procurement – new rules for public sector contracting

From 1 October 2019 the “Government Rules of Sourcing” will be replaced with the “Government Procurement Rules”.
• What are the government procurement rules? Why do we have them?
• The new rules, focusing on the new changes including “secondary benefits”, construction skills and training, engagement with the New Zealand Infrastructure Commission and reporting requirements

Kylie Mutch , Senior Associate, Chapman Tripp
Dr Fei Ying, Senior Lecturer , AUT
Workforce of the future – driving excellence through training and innovation

• Creating the workforce capacity and capability to deliver the building and construction needs of New Zealand  
• Education reforms – what changes have been made to increase capacity and capability? 
• Understanding the required leadership skills to succeed in a fast-moving and agile environment  


James Rotimi, Associate Professor and Academic Dean, Massey University
Focusing on the future – time for a ‘sea change’

• A stocktake of the current building sector
• Exploring the impact of present and potential upcoming reforms and legislation on productivity levels in the building industry
• What could the future look like?

Grant Florence , Chief Executive , New Zealand Certified Builders Association & Director, BCITO
Closing remarks from the Chair and end of conference
John Green, Arbitrator, Adjudicator, Mediator, Building Disputes Tribunal & Director, New Zealand International Arbitration Centre
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