Latent Defect Litigation – A Growth Area for ADR?
Wednesday 23rd August | 3.30 pm
Discussion Panel: Janine Stewart, Charlene Fairnie and Matthew Ferrier
Talking points:
Whether arbitration is a suitable and indeed more efficient alternative dispute resolution forum for latent defect/ product liability litigation - and if so how arbitrations could be structured to accommodate these disputes;
Whether agreements to arbitrate in standard form contracts should be broadened to cover latent defects (in addition to project disputes); and
Insights into navigating the arbitration process based on construction arbitration and High Court experience.
Overview:
Defective building litigation has long been known for its lengthy trial durations, including several cases being set down for up to six months and more in recent years – Body Corporate 366567 v Auckland Council (Gore St), White v James Hardie, Cridge v Studorp, Body Corporate 384825 v QLDC (Oaks Club), Body Corporate 355492 v QLDC (Oaks Shore), Metlifecare v James Hardie, to name a few. While the Government and Courts have taken steps to manage such heavy workloads and mitigate delays, there remains a heavy burden on the Court and cases are slow to progress through the system. This raises the question of whether such cases are an area ripe for ADR – to the benefit of all parties, the Courts, and other cases seeking more efficient resolution through the Court system. Arbitration specifically may be fit for purpose, with its many advantages (albeit not without its disadvantages also).
Janine Stewart
Partner | MinterEllisonRuddWatts
Janine is a specialist construction, property and projects lawyer who acts on the full spectrum of construction projects and property disputes.
Janine is known for her pragmatic approach, adopting either litigation and/or dispute resolution to achieve a commercially effective outcome for her clients. Janine developed the syllabus for, and is the lead lecturer in, the first Construction law elective paper at Auckland University (which started in 2018) and developed the post graduate Construction legal course at the University of Auckland Faculty of Engineering.
Janine also lectured in the ‘Law for Construction’ in the Masters of Project Management programme at AUT University, and is a member of the New Zealand Society of Construction Law. Janine was a member of the Building Advisory Panel to MBIE from 2018. Janine was invited to participate in the New Zealand Government’s Construction ‘Accord’, a leadership group focused on tackling key issues in the construction industry.
Janine presents annually at the ADLS Property Law forum and is a prominent thought leader in construction and property matters. Janine is also a director of Black Interiors.
Speaker session: Defective Building litigation - a growth area for ADR?
Charlene Fairnie
Special Counsel | MinterEllisonRuddWatts
Charlene is a seasoned litigation lawyer in our construction and infrastructure team with a breadth of experience in disputes relating to defective buildings, including weathertightness claims.
Charlene acts for the full spectrum of parties involved in the construction of residential and commercial buildings, including owners, professionals, manufacturers and suppliers of building products, and local Government bodies, including Auckland Council.
She regularly represents her clients in a wide range of complex proceedings in the District Court, High Court and Weathertight Homes Tribunal. Charlene has also appeared in the Court of Appeal. Complementing her Court advocacy skills, Charlene acts for clients in alternative dispute resolution processes including mediation, arbitration, and judicial settlement conferences.
Charlene is a master of detail, excelling at absorbing and analysing complex and competing legal and factual material. She is a practical thinker and strategic adviser and is highly skilled in addressing substantive and procedural issues. Charlene is passionate about achieving the best results for her clients.
Prior to joining MinterEllisonRuddWatts, Charlene practised law at other top tier law firms where she gained a diverse range of legal experience in commercial settings. She has been a contributing author to Laws of New Zealand, Building and Construction, Weathertight Homes Resolution Services Act 2006 and to Building Law in New Zealand.
Speaker session: Defective Building litigation - a growth area for ADR?
Matthew Ferrier
Partner | MinterEllisonRuddWatts
Matthew is an experienced litigator, with a particular interest in major latent building defect litigation. He is also a regulatory investigations and prosecution specialist. He acts for both private and public sector clients on a broad range of complex and high-profile disputes.
His recent experience includes complex latent building defect litigation involving novel claims for structural and fire defects, claims arising from the Canterbury earthquake sequence, defending regulatory investigations and prosecutions brought by various regulators, Coronial inquiry work, fraud recovery, and public law litigation.
Prior to joining MinterEllisonRuddWatts, Matthew worked for the office of the Crown Solicitor in Wellington as a Senior Crown Prosecutor. He has significant advocacy experience, having appeared regularly in the District and High Courts undertaking jury and judge-alone trials, as well as before various professional disciplinary bodies and tribunals. He has assisted with complex appeals in the Court of Appeal and Supreme Court in connection with prosecutions for serious fraud and tax evasion.
During his time as a prosecutor, Matthew acted for numerous regulators, including WorkSafe New Zealand, Maritime New Zealand, local and regional councils, the Financial Markets Authority, the Serious Fraud Office and Inland Revenue. He also worked in-house on secondment for the Financial Markets Authority. This experience gives him a unique and valuable perspective when acting for clients in regulatory investigations and prosecutions.
