36 * If agreements are made in a business setting there is a presumption by the Court that there was no

intention to create legal relations if one party actually thought that when it entered the agreement

37 * If agreements are made in a social or family setting there is a presumption by the Court that there

was an intention to create legal relations which either party may argue against

38 * A legally binding contract can be made by A promising to do something for B in exchange for a

promise by B to do something for A

39 * Some legislation in New Zealand applies solely to construction work including the

Construction Contracts Act 2002 and the Building Act 2004

40 * A builder and a property owner agree a price to extend a house, which requires a building consent but

has not yet been applied for. Shortly before the builder is due to start work, the owner tells the

builder she will not be proceeding with the work and because there is no building consent, then under

s73(1) Contract and Commercial Law Act 2017 because they had not got a building consent when

they made their agreement, it was an illegal contract so the builder cannot take action against her

to recover as damages, the profit etc. the builder would have made if the work had proceeded

41 * A misrepresentation is an untrue statement of a future fact for the purposes of the Contract and

Commercial Law Act 2017 e.g. the statement made to sell agricultural land that it will produce a

certain quantity of corn per acre next year which it fails to do

42 * A tells B that A's house is constructed entirely with treated timber. B relies on that being true and buys

A's house but later discovers the timber is untreated and the house leaks and rots. B says she has two

options under the Contract and Commercial Law Act 2017 being to either keep the contract in place

and claim damages or cancel the contract but lose entitlement to damages

43 * A tort is a 'wrong' which when committed by someone [a tortfeasor] gives someone harmed by it

a right to take action, for example the tort of trespass by placing building materials used to build a

house on an adjacent section without the owner's permission would entitle the owner to have the

materials removed and receive compensation for any damage caused

44 * There were once in NZ three types of trespass, to land, to property, and to a person, and trespass to

a person is now superseded by the crime of assault in New Zealand, the difference being

that trespass to a person was once only actionable if the 'injured' person pursued it whereas the

State can take action against a person committing assault [refer Crimes Act 1961] and punish them

45 * Nuisance is similar to trespass to land but whereas trespass is direct intrusion to land, nuisance

is indirect intrusion such as: smells, fumes, noise, smoke, dust, noxious weed seeds, crop

spray and so on which leaves one area and intrudes upon another to affect the 'quiet enjoyment'

by a person of their land

46 * There is a single category of the tort of nuisance

47 * Nuisance is the most common category of tort raised in court cases involving construction work

48 * Negligence is the most common tort applied in court cases generally

49 * If someone does something with insufficient care and skill thereby causing harm to another person

s/he is automatically liable to compensate that person for the harm caused

50 * Whether a person is liable to another person for the consequences of his/her negligence depends

on whether in such circumstances the Court has found that s/he owes a duty of care to that person

51 * Liability for the consequences of negligence are limited to physical harm to persons or property

52 * A person can be held concurrently liable for both a breach of contract and in the tort of negligence

53 * Any harm suffered that but for a person's negligence would not have arisen has to be compensated

by the negligent party

54 * A professional indemnity insurance policy is designed to bear the costs of defending an action

against the policy holder for his/her negligence but not to cover the cost of damages if it is proven

s/he was negligent

55 * Designers are particularly vulnerable to claims for negligence because their designs may lead to

defective work or even structural failure