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Construction Dispute Services

Construction
dispute available options

The options available for dealing with building disputes depend on several things, often including:

How quickly you want the
dispute to be remedied

What your
available budget is
What kind of
process you prefer

1. Claim

2. Negotiations

3. Mediation

4. Dispute tribunal

5. Adjudication

6. Arbitration

7. Court litigation

We can help with all in some
way, some we manage ourselves and some we can assist with in other ways.

Making claims

Our clients are typically subcontractors in the commercial and residential sectors.

This matters because the contracts are often subject to the requirements of the Construction Contracts Act 2002.

The Act states that payment claims must include important information, and if this is not provided with the claim the claim is void. However, if the claim is valid then the recipient MUST provide you with certain information within a certain time, this is called a Payment Schedule.

If the recipient does not provide the information… they MUST PAY the claim.

Note that invoices do not meet the requirements of the CCA 2002 typically.

How can we help ?

We can assess and draft the claim before negotiating on the customers behalf with the other party. Alternatively if required we provide can the customer with the information/claim to discuss with the other party accordingly

Similarly, if you have a claim you would like some assurances with, or have a claim which has been rejected incorrectly, we can assess that critically and/or suggest additional strengths.

The benefit to this step is that you receive an impartial peer review of the claim with ‘fresh perspective’ and if any other stages of dispute resolution were to occur, then clarification of the claim would likely be required anyway.

Negotiations

We often experience situations where the customer feels they should be entitled to make a claim but finds difficulty in articulating entitlement using the contract.

To add to frustrations, claims are often frivolously rejected without due cause. On the other side of this coin, claims themselves may also be incorrect and our customers may not be quite sure whether they should be paying the bill or not.

In either scenario it may be helpful to have the claim / issue reviewed by us to establish the validity of the claim, and to draft either the claim or response accordingly.

Talking with the view to negotiate in the first instance is often a good first step as it enables the customer to understand the pertinent alternative points of view

How can we help ?

To achieve this, we are able to assess and provide the information directly to the customer for their own use or negotiate with the other party on the customers behalf.

We are able to fully assess and articulate the correct contractual position and provide a report as required which sets out the facts and contract terms on which the claim relies.

This is a highly effective method to avoid costly disputes and potentially broken relationships which may result from disputes which may be avoided

Mediation

Mediation is a non-binding discussion between the parties, held at any location of choice but often neutral.

The difference between this and simply sitting down and having a chat at any other time is that the discussions are facilitated (helped along) by the mediator.

The mediator is an impartial party who assists the parties to understand the other parties position, and to assist the parties finding resolution to the dispute.

This often comes in the form of asking questions such as:

‘if you had to walk out of here today without a deal, you may have to undertake other costly options and may not be guaranteed a positive result. What would be lowest you would be willing to go to avoid that scenario ?’ The parties are free to make their own decisions and decisions are not binding, but the process can be valuable due to face-to-face interaction and the injection of a reasonable voice into the discussion process.

How can we help ?

We can represent you during mediations with the other party.

We can also provide expert mediators to assist parties with disputes where mediation is the preferred option.

Mediator packages may include a mediator in addition to a conference room at an appropriate location with remote conferencing facilities.

Dispute Tribunal

Parties submit their respective positions to the disputes tribunal remotely.

The partis must attend a hearing at the prescribed location.

The partis must attend a hearing at the prescribed location.

Fees range from between $45.00 and $180.00

How can we help ?

We can assist you by formulating your claim for you and by ensuring you have sufficient information and evidence which would avoid a wasted hearing trip, however we cannot submit documents on your behalf or represent you in the proceeding. The disputes tribunal does not allow representation.

Adjudication

This is where an adjudicator is assigned to determine the matter pursuant to the Construction Contracts Act 2002 (CCA).

The claimant gets to submit its claim to the adjudicator before the respondent gets their say. The process is carried out remotely however in person meetings may be called (very rarely).

The adjudicator then makes a determination on the dispute which is binding under law, and typically requires payment of a successful claim within 2 business days.

The whole process takes between 17 and 55 working days (making a small assumption about when the adjudicator accepts to determine the matter, as it may be a few days here or there).

The Claimant usually pays a deposit to the adjudicator from which the adjudicators fee is deducted at the end. If the adjudicators fee (which is based on the amount of time needed to determine the matter) exceeds the deposit then the claimant must pay the remainder before the determination is provided.

The adjudicator can assign the fees of the whole process, including the costs of the other party, to whomever they choose if certain conditions are met.

Adjudications are binding unless superseded by a higher jurisdiction (either an arbitration or a court ruling).

How can we help ?

We can fully formulate your claim and manage the whole adjudication process for you.

We will represent you and communicate with all other parties on your behalf.

We simply require your contract, the relevant facts and the supporting evidence.

We will guide you through the full process and ask simple questions to arrive at the information we need to provide as part of the process.

Arbitration

Arbitration is a similar process to adjudication, but it’s performed pursuant to the Arbitration Act 1996.

The ruling is binding internationally which is the reason they are a favoured dispute resolution method for international contracts.

The timing and costs for arbitration are significantly higher than adjudication of the same claim. This is due to several reasons including that all parties must be represented by lawyers and the timing of the process is typically far longer and is not mandated by the strict quick turn around requirements of the CCA.

How can we help ?

Arbitrations must be undertaken by lawyers, but we usually help our customers by assessing the claim in the first instance and presenting a case file to our customers legal representation ready for the proceedings, and to provide an expert analysis of issues which should be specifically considered.

We are also able to initially examine documents which would otherwise need to be reviewed by legal representation at a far higher cost, often requiring less time than would otherwise be required. This is especially important when working to tight timeframes.

Whether or not arbitration is required depends on the contract, this is another reason to have your contract professionally checked prior to execution if you are not familiar with terms which may preclude adjudication.

Court litigation

Court litigation is subject to similar timing and cost implications as arbitration however the extent of the process both in respect to time and cost may be even higher due to ongoing stress to the court systems and availability issues regarding availability of all parties to attend the court.

How can we help ?

We can assist you and your lawyer assess and formulate your claim.

We can also provide expert witness services for submission via affidavit and evidence as required.

We have experience with various forms of contract, common and not so common construction dispute scenarios.
Providing professional advice to
the construction industry across
New Zealand

Information

Links

Have a question ?

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Unit 3/77 Williams St,
Kaiapoi, 7630
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03 669 4803
Email
admin@contractcontrol.nz

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