Start with a Firm Foundation – The importance of sound legal advice on your building project and building-related disputes.

Do you need legal help with a new or existing building project?

Are you embarking on a new building project? Or are you in the thick of a building project and have run into problems with the other party and need help to administer your contract or work through a construction dispute?

Our experienced construction law and dispute resolution experts can assist you in all aspects of your new or existing building project including:

  • Providing general and specific advice on construction law including the Building Act 2004 and the Construction Contracts Act 2002, and where applicable other related legislation such as the Resource Management Act 1991 and the Health and Safety at Work Act 2015 (and regulations promulgated under these Acts)
  • Reviewing, drafting, negotiating and assembling construction contracts and construction related documentation (including warranties, guarantees, bonds and continuity guarantees)
  • Assisting with tender documentation, subcontractor and supplier documentation and consultancy agreements
  • Working with you and your consultancy team to review contractor proposals and contractual tags during the tender phase
  • Assisting with contract administration, including advising on proper processes and procedures applicable to the building industry, having regard to the relevant contractual terms
  • Advising on disputes, including disputes relating to payments, variations, delays and time extensions, workmanship or design issues, insurance, force majeure, cancellation and termination, and
  • Representing you in direct negotiations, mediation, arbitration, adjudication and court proceedings.

Just as any building requires a solid foundation, having a construction contract that is fit for purpose is essential to ensuring the project has the best chance of being completed to the required design and specifications, to budget and on time and that you are legally protected when things go wrong.

In New Zealand, it is compulsory to have a written construction contract for all residential building work that will cost $30,000 or more (including GST). In all cases, a written construction contract is recommended.

As a minimum, a construction contract should be in writing and cover the following:

  • The scope of the building work (and related design, if applicable) the contractor will be undertaking including the expected quality and the materials and products that will be used
  • What subcontractors (if any) will be engaged
  • What materials and products (if any) will be supplied by the principal (owner)
  • Who will be responsible for applying for and obtaining the necessary consents and paying the associated Council fees
  • The contract price for the build and how it is calculated (or to be calculated)
  • How will instalments of the contract price be paid during the construction period
  • When will the building work start and be completed
  • What is required to achieve completion
  • What insurances will be required and who will arrange them
  • Who is responsible for site security and health and safety
  • Who will administer the contract
  • How will variations, delays and time extensions be dealt with
  • What warranties and guarantees will be provided
  • How will defects be remedied
  • How will parties resolve disputes

There are various standard industry forms used in New Zealand and some contractors (particularly franchise home builders) have their own builders’ terms. Each construction contract can allocate responsibilities and risks to the parties differently and the level of detail can vary considerably between the different forms . In determining which construction contract would be right for your building project, the following factors need to be considered:

  • What is the size and complexity of the build and the anticipated project cost?
  • What is the projected time frame for the project?
  • Who will be responsible for the design and consenting?
  • Is the scope of work well understood at the outset or will there be design development involved?
  • Are you wanting early involvement of the builder during the scoping and design phase?
  • Is the building project a new build or renovation?
  • Is the building project a residential or commercial project?
  • Will the construction contract be self administered, or will an architect, quantity surveyor, engineer, project manager or other suitable consultant be engaged to administer the contract?
  • Will the building project involve traditional construction methods or new construction methods, such as off-site construction and modular construction?
  • Will the construction be staged?
  • Is the intended building works a standalone project or one portion of a larger project requiring coordination with other portions?
  • Is the builder required to use a particular form of contract because of the professional body to which it belongs?
  • Are there funder requirements or conditions precedent to be met?

Whether you are a principal (owner), main contractor, subcontractor, supplier or a funder, we can help you review, draft, negotiate and/or finalise the necessary construction contract and related contract documentation for your building project to meet your requirements.

We are familiar with the most common forms of conditions of contract used in New Zealand building projects including the New Zealand Standards (NZS) suite of contracts such as NZS 3902, NZS 3910, NZS 3915 and NZS 3916, the New Zealand Institute of Architects (NZIA) suite of contracts (NBC construction contracts), the Registered Master Builders Association Residential Building Contract, and the New Zealand Certified Builders Association Building Contract.

We are also familiar with the most common pricing models used in construction contracts including lump sum fixed price, guaranteed maximum price, measure and value and cost reimbursement.

Our team can work with yours – whether they include project managers, architects, engineers, quantity surveyors, traffic management consultants or insurance brokers – to help draft and compile tender and construction contracts and ancillary documentation, consultancy agreements and review and negotiate tags, and provide ongoing assistance in contract administration during construction as and when needed.

In addition to technical specifications, drawings and manuals, the building industry relies on a wide range of legal and contractual documentation beyond the construction contracts themselves.

We have expertise in reviewing and advising on common ancillary and other construction related documents and agreements such as (by way of example):

  • requests for proposals, requests for quotations, invitations to tender, and related conditions
  • letters of award
  • consultancy agreements
  • subcontracts
  • supply agreements
  • performance bonds and parent guarantees
  • warranties and guarantees
  • novation agreements
  • continuity guarantees
  • agreements relating to off-site materials
  • preliminary and general specifications, and
  • access agreements and licences.

Ensuring you have the proper legal and contractual documentation to cover each key aspect of a building project will give clarity to both your rights and responsibilities and the other counterparties involved.

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When your building project runs into trouble or a dispute arises, we can help, regardless of which side you’re on

Building projects can go wrong for a variety of reasons including:

  • Failure to carry out proper due diligence and checks on the experience and suitability of contractors, subcontractors, suppliers and consultants before they are engaged on a project
  • Failure to verify the availability of funds and conditions attached to funding of the principal
  • Lack of proper planning and design
  • Inadequate scoping leading to confusion over roles and responsibilities
  • Poor or incomplete contract documentation during the engagement phase
  • Poor communication and coordination among parties and other stakeholders
  • Poor programming
  • Unforeseen site conditions and other similar challenges
  • Inadequate quality control and inspection leading to poor workmanship, defects, omissions and non-compliance with the Building Code
  • Inexperience or incompetence of contractors and subcontractors
  • Changes in project scope or design during construction
  • Poor project management
  • Inadequate risk management, and
  • Unforeseen external factors, such as natural disasters, supply chain disruptions or regulatory changes.

Even if all due diligence was carried out and the proper construction documentation was entered into, some of the problems and issues mentioned above can still arise. It is important to address such problems at the earliest opportunity to avoid or minimise delays and escalating costs.

If you are unsure how to navigate these issues, we can advise you and represent you in direct negotiations with your counterparty. If parties are unable to resolve the issues through negotiations, we can also represent you in mediation, arbitration, adjudication and court proceedings as appropriate.

For expert construction law advice contact Wynyard Wood. We’re ready for what’s next.

If you are involved with a building project and need legal assistance, talk to one of our construction law experts. We can help you objectively review your circumstances, and what next steps are most appropriate for your situation.

Contact Wynyard Wood

Our Construction Law Experts

Advisory and Drafting – Arthur Chung and Wincy Cheung
Dispute Resolution – Karl Robinson and Rod Ewen