MinterEllisonRuddWatts in the market

  • Publications and reports

    19 April 2022

MinterEllisonRuddWatts in the market Desktop Image MinterEllisonRuddWatts in the market Mobile Image

New Zealand Law Society Continuing Legal Education webinar

Stephen Price and Janine Stewart recently presented a NZLS CLE webinar on warranties and obligations in a commercial lease context.  They addressed how the inclusion or exclusion of warranties and obligations can substantially impact the clarity of risk allocation within a commercial lease agreement.  There are significant nuances to consider – and a fundamental consideration is the different nature of the liabilities, responsibilities, and remedies attached to a warranty, versus an obligation.

Stephen and Janine examined these differences with close reference to the relevant case law. Key points include:

  • A warranty is a statement of fact and/or of affairs.  For example, a common warranty seen in a lease context is that a property is free from asbestos contamination or that it otherwise achieves a specific NBS rating.
  • Warranties can of course be qualified, for example by knowledge, or best endeavours.  Warranties qualified in this way can serve a useful commercial purpose, if tailored appropriately.
  • Many clauses in a lease agreement may appear to be a warranty at first glance.  However, while a warranty guarantees a state of affairs, obligations expressly require a party to take an action (or to continue to take an action).  The distinction is important, as the consequences (and remedies) for breach differ.
  • While warranties can be implied where it is necessary to give effect to the intentions of the parties, this is typically done with great caution.
  • In an earthquake rating context, there is increasing discussion on seismic provisions.  While these are now standard for significant and/or long-term leases in Wellington and Christchurch, they are less common elsewhere (unless the lease involves a government or large corporate tenant).  Parties are becoming increasingly alive to the issue of earthquake rating.
  • Warranties and obligations also attach different limitation periods, an important point for those seeking remedies against a party who has breached a warranty, or failure to fulfil an obligation.
New Zealand Institute of Builders workshops

Janine Stewart presented a series of workshops to the New Zealand Institute of Builders (NZIOB) over the course of March and April.  Janine facilitated these sessions alongside Sam Lomax, General Manager and Director of Savory Construction, and Charles Brown, Engineer to Contract Lead and Project Director of The Building Intelligence Group.

The sessions covered contract formation and application to procurement process; the basics of offer and acceptance (and the application to procurement process); and key principles of contract interpretation. There was a heavy emphasis on considerations from a practical perspective, and the feedback from NZIOB was that the sessions were extremely helpful in a real-world context.

If you would like to get in touch to organise a similar session for your team, please get in touch by emailing [email protected].

Lecturing for The Auckland University of Technology’s Masters programme

Earlier this year in May, Jordan Oldham (Senior Associate) and Geoff White (Senior Associate) each ran a full day of lectures for the Auckland University of Technology Masters of Construction Management paper “Law for Construction Management”.  Jordan and Geoff covered a wide range of topics, including the legal framework for the construction management industry, procurement models, liabilities, suspension and termination principles.

Partners recognised in Best Lawyers®

We have again been recognised in the latest edition of Best Lawyers® with many of the firm’s partners listed as best in their fields in the 2023 New Zealand guide. Chair and Partner Sarah Sinclair was named Best Lawyers ‘Lawyer of the Year’ 2023 for Energy Law and recognised for Construction Law and Natural Resources Law. Partners Mark Crosbie, Stephen Price and Janine Stewart were also recognised for Construction Law.

Click here to view the full list of our firm-wide recognition.