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Legal Update - Clauses preventing oral modification of contracts are enforceable – UK Supreme Court

Parties to commercial contracts should review their contracts to check whether they contain “no oral modification” (NOM) clauses, and if they do, ensure they are complied with, following the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24, in which the Supreme Court held that a NOM clause was enforceable. ..

Legal Update - Buyer beware: assignment of full replacement insurance claims

When selling their house, is a homeowner entitled to assign their ongoing insurance claim to the purchaser? Not for the full replacement value of their insurance policy and not without the insurer’s consent, according to the recent Court of Appeal decision of Xu & Diamantina Trust Limited v IAG New Zealand Limited [2018] NZCA 149 (11 May 2018). ..

Legal Update - Joint owner-occupiers awarded general damages of $35,000

In a recent High Court decision, Thomas J awarded joint owner-occupiers of a unit in a leaky complex $35,000 in general damages for stress and anxiety arising from the discovery of leaky issues with their unit and the resulting litigation. This is an increase above the previous level of general damages for owners of leaky buildings. Amy Davison, Senior Associate, and Zoe Hollander, Law Clerk, discuss.   ..

Legal Update - Removal of trustees – two recent cases

The Courts have both statutory and inherent jurisdiction to remove trustees and recent cases indicate they are now more willing to use this power. The recent decisions in McCallum v McCallum and Burnside v Burnside are illustrative in this context. Stuart, Dalzell, Partner, and Amy Davison, Senior Associate, discuss. ..

Access to justice and efficiency key to representative (class action) orders: Cridge v Studorp Limited [2017] NZCA 376

Leaky building owners can now join the class action against James Hardie under a five month “opt-in period” granted by the Court of Appeal in Cridge v Studorp Limited [2017] NZCA 376. The Court of Appeal found that issues of duty, breach of duty and Fair Trading Act breach were sufficiently common to all owners to justify a representative or class action. Therefore, the claim had been properly brought as a representative case, stopping time “permanently” for limitation purposes for both the named plaintiffs and represented class members. The later coming into force of the 15-year limitation period under the Limitation Act was not a reason to limit the opt in period. Parker & Associates acted for the successful owners. *Stuart Dalzell, Partner, discusses the decision ..

Mental injury claims: do plaintiffs need to show a recognizable psychiatric illness to succeed?

Stuart Dalzell, Partner and Jackie Frampton, Associate, discuss the recent decision of the Supreme Court of Canada in Saadati v Moorhead 2017 SCC 28, in which the Court held there is no requirement to demonstrate a “recognizable psychiatric illness” supported by expert opinion. ..

Pre-sale report disclaimer no defence for building inspector’s misleading report

In Steel v Spence Consultants Limited & Another (identified as [2017] NZHC 398), the High Court rejected a building inspector’s argument that his liability was limited by the disclaimer clause attached to the original report, and found him personally liable for losses. ..

Leaky home purchasers succeed in misrepresentation claim against Vendors

Parker & Associates acted for the successful plaintiff purchasers, Mr and Mrs Mason, in Mason v Magee [2017] NZHC 51. The decision is an important one for both buyers and sellers of ‘leaky homes'.
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Supreme Court ruling good news for leaky home owners

The Supreme Court on 22 December 2016 released its decision in Lee v Whangarei District Council. At issue was whether section 37(1) of the Weathertight Homes Resolution Services Act 2006 (the WHRS Act) – which provides that an application for an assessor’s report stops the running of the period of time set forth by Limitation Acts – applies equally to claims that proceed in the ordinary courts (rather than the Weathertight Homes Tribunal (WHT)). The Supreme Court held that it did, after the High Court and Court of Appeal had struck out the plaintiff’s claim as time-barred. This ruling is extremely significant to leaky home claimants because it allows homeowners to decide whether to proceed in either the WHT or the High Court without giving rise to any new limitation issues.

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New limitation regime starts to bite

The Limitation Act 2010 came into force on 1 January 2011 but as most limitation periods are six years the limitation periods prescribed under the Act will need to be considered from 1 January 2017 onwards as this is six years after the Act came into force.

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