Litigation funding

A well-publicised change under the August 2025 amendments to the Resource Management Act 1991 (RMA) is the significant increase in maximum fines – from $200,000 to $1,000,000 for individuals, and $600,000 to $10,000,000 for corporates. Were we entering the era of million-dollar RMA penalties? There is a delay between legislative change and new penalties being imposed, as offences are sentenced under the penalties regime in place at the time offending occurs. The question of how high fines would actually go under the August 2025 amendments has been left hanging - until last month, when the Environment Court considered the new regime in Waikato Regional Council v Clarke. In this article we dive into the decision. Waikato Regional Council v Clarke In Waikato Regional Council v Clarke, Mr Clarke was sentenced on one charge of discharging a contaminant, namely effluent, onto land in circumstances where it may enter water. The offending occurred on 2 September 2025, some 12 days after the new RMA penalties regime came into force. When considering an appropriate penalty, the prosecutor submitted that the uplift in RMA fines imposed under the new regime should be significant. This submission was based on similar approaches to penalty uplift in a health and safety context. In Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, the High Court considered the appropriate penalty where maximum fines under the Health and Safety in Employment Act 1992 (HSEA) had been uplifted through legislation reform, from $250,000 to $1,500,000. Penalties under the HSEA are imposed under structured sentencing bands or ranges, where the appropriate penalty band is determined in relation to the seriousness of the offence, with the bands themselves established through guidance judgements. In Stumpmaster, reflecting the uplift in maximum penalty, the Court set new higher ranges for the four penalty bands, starting at $250,000 and reaching to $1,000,000+ for serious offending. RMA sentencing has not historically relied on guidance judgements when setting penalties in the same way that HSEA does. Sentencing under the RMA does draw some guidance from the bands outlined in Waikato Regional Council v GA & BG Chick Ltd (the Chick bands). The Court in Chick found that penalties historically imposed under the RMA could be divided into three bands derived from features of the offending, being: Level 1 – generally an unintentional, isolated incident with little or no environmental effect; Level 2 – generally careless or recurring discharges with little to moderate effect; and Level 3 – deliberate offending or offending involving a real want of care. However, the Chick decision is a survey judgement, being one which reviews and summarises historical decisions, rather than a guidance judgement like Stumpmaster. Further, the quantum of the Chick bands was set in 2007, and is generally considered to be out of step with current RMA penalties. Appropriate penalty setting under the RMA is therefore guided by Chick along with other considerations such as the offender’s culpability, precautions taken to prevent discharges, the vulnerability or ecological importance of the affected environment, the extent of the environmental damage, deterrence, the offender’s capacity to pay a fine, disregard for abatement notices or council requirements, and cooperation with enforcement authorities and guilty pleas (as summarised in Thurston v Manawatu Wanganui Regional Council HC Palmerston North CRI-2009-454-24, -25, -27, 27 August 2010). Relying on the uplifts under the HSEA caselaw, the prosecutor in Clarke submitted that the RMA amendments meant the Chick bands fine ranges should be uplifted, to $50,000-$200,000 for Level 1, $175,000-$500,000 for Level 2 and $450,000-$1,000,000 for Level 3. The Court was not convinced, however, that a sudden uplift in RMA penalties was required, preferring an approach where the uplifts develop over time. The Court noted that: 78] When Chick was decided, the Court could identify a pattern from sentences already imposed. There are not yet sentencing decisions under the amended regime from which to derive equivalent new ranges. Prescribing them now would be premature and might unnecessarily restrict the Court\'s responses as that case-law develops. [79] Further, it is not necessary to create new levels of culpability. Chick’s descriptions remain flexible, while its historical fine ranges need not be followed. …[116] The Court needs to take care to ensure that a fair and consistent approach to sentencing occurs, and one of the means by which that can be achieved is by allowing the approach to develop. That is not to say that I ignore the new maximum penalties; rather that I find that sentencing is not a tick box exercise undertaken with maximum penalties top of mind. It is a more rounded exercise involving all the matters to which the Court is required to have regard to under the Sentencing Act and as helpfully summarised by the High Court in Thurston. The Court determined the offending in Clarke to be “well within” Chick level 2, and adopted a starting point of $130,000. Relevantly, the Court noted “If it assists the parties, I record that if the legislation had not been amended I would have likely adopted a starting point of $85,000.” What does Waikato Regional Council v Clarke mean for RMA penalties? The penalty starting point in Clarke was approximately a third higher than would have been imposed under the old regime. The author notes that the starting point for mid Chick Level 2 offending would have been $337,500 if the prosecutor\'s proposed new “sudden uplift” bands had been accepted. The Court\'s sentence in Clarke indicates that, under the new penalties regime, RMA penalties are likely to increase gradually over time towards the top end of new penalties, as opposed to suddenly jumping nearer the maximum. A gradual increase in penalties is consistent with historical patterns of RMA penalty increase. A study undertaken by Andrew Franklett and published in the August 2025 Resource Management Journal looked at penalties imposed between 2000 and 2025. Analysis of sentencing decisions concerning discharges to water showed a steady increase over time (bar some outliers which dragged the average penalty up in some years), as shown below: ©Andrew Franklett, 2005 Notable is that after the last significant statutory uplift in RMA penalties in 2009, rather than there being a sharp uplift in penalties imposed, the steady rise continued. Clarke appears to indicate the Court’s desire to continue on this gradual upward trajectory, noting that some uplift above pre-August 2025 penalties attributable to the legislative change can be expected going forward. Our Resource Management enforcement team is keeping a close eye on the new enforcement provisions as they jump from the legislation page and into the courtroom. If you have questions about environmental compliance, an RMA investigation or potential enforcement action, please contact one of our team members.

Construction disputes and dispute resolution Construction disputes are an unavoidable aspect of the building and infrastructure sector in New Zealand. Construction projects are inherently complex, involving multiple parties, technical designs, tight timeframes, significant financial exposure, and evolving site conditions. Even well-planned and well-managed projects can experience disagreements that, if left unresolved, can escalate into formal disputes with serious commercial consequences. Holland Beckett regularly advises developers, homeowners, builders, contractors, subcontractors and consultants across the full construction spectrum. We assist clients to avoid disputes where possible, resolve them efficiently when they arise, and protect their legal and commercial positions throughout the project lifecycle. What are construction disputes? Construction disputes are disagreements arising under a construction contract as defined by the Construction Contracts Act 2002 (CCA). These disputes can range from relatively minor issues, such as defective workmanship or disputed progress invoices, through to high-value claims involving unagreed variations, delay and disruption costs, defective design, or responsibility for extensive remedial works. Construction disputes typically fall into two broad categories: Payment disputes – including late or non-payment, underpayment, variation claims, re-measurement issues, delay and disruption costs, contra charges, and final account disputes. Defect disputes – relating to the quality of design or construction work. Defects may not become apparent until months or years after completion and can raise complex questions regarding liability, remedial solutions and cost allocation. Construction disputes are often highly factual, reliant on contemporaneous project records, and technically complex. They frequently involve multiple parties and overlapping claims and counterclaims, which can significantly increase complexity, cost and risk. Why early dispute resolution matters Unresolved construction disputes can quickly stall or derail a project. Cashflow may be disrupted, work may be suspended, project relationships may deteriorate, and management time may be diverted away from delivery toward dispute management. Early and effective dispute resolution is critical. Addressing issues promptly can: Reduce delay and project disruption. Limit legal and expert costs. Preserve commercial relationships. Maintain cashflow. Protect project margins. In many cases, disputes can be resolved at an early stage through negotiation or structured discussions, provided the underlying issues are identified and addressed before parties become entrenched in their positions. Payment disputes and the Construction Contracts Act 2002 Payment disputes are the most common source of construction conflict. To address chronic payment delays in the industry, the Construction Contracts Act 2002 introduced a statutory payment regime designed to ensure cash continues to flow through the construction chain. The CCA allows parties carrying out construction work to issue compliant payment claims, which trigger strict response deadlines. Payers wishing to dispute a payment claim must issue a payment schedule setting out the amount they propose to pay and the reasons for any reductions or withholding of payment. Where a payer fails to issue a payment schedule within the required timeframe, they may become liable to pay the full claimed amount. The Act also provides for statutory adjudication – a rapid, enforceable dispute resolution process designed to resolve payment disputes quickly and keep projects moving. Strict compliance with the CCA is essential. Missed deadlines or non-compliant documentation can significantly weaken a party’s position or expose them to enforcement action. Early legal advice often proves decisive in payment disputes. Dispute resolution clauses – following the contract Most construction contracts contain dispute resolution clauses that prescribe how disputes must be managed. Many of these clauses are multi-tiered, requiring disputes to pass through sequential steps such as negotiation, referral to an engineer, expert determination or mediation before arbitration or court proceedings can be commenced. Some contractual steps are optional, while others operate as mandatory conditions precedent. Failure to comply with mandatory dispute resolution steps can result in proceedings being delayed or stayed, jurisdictional challenges, and increased cost and uncertainty. Standard form contracts commonly used in New Zealand – including NZS 3910 – and international contracts such as FIDIC include detailed dispute resolution pathways. Understanding and complying with these provisions is essential to preserving contractual rights and avoiding unnecessary procedural disputes. Dispute resolution options available A wide range of dispute resolution options are available for construction disputes in New Zealand. Some processes can be initiated unilaterally, while others require agreement between the parties. Selecting the appropriate process depends on factors such as value, urgency, complexity, technical issues and contractual requirements. Adjudication Adjudication is the dispute resolution process prescribed by the CCA. It is designed to be fast and cost-effective, typically resulting in a binding and enforceable determination within weeks. Adjudication is particularly suited to payment disputes and is commonly used during live projects to maintain cashflow. Mediation Mediation is a confidential and consensual process in which an independent mediator assists the parties to reach a negotiated settlement. Mediation is flexible, cost-effective, and can preserve commercial relationships in what is often a relatively small and interconnected industry. Arbitration Arbitration is a private, binding dispute resolution process governed by the Arbitration Act 1996. It allows parties to appoint specialist decision-makers and tailor the procedure to the dispute. Arbitration is often suitable for technically complex or high-value disputes where confidentiality is important. Court Proceedings Court proceedings remain available through the Disputes Tribunal (claims up to $30,000), the District Court (claims up to $350,000) and the High Court. Litigation is generally slower and more expensive than alternative processes and is often a last resort once other methods have failed. Expert Determination and Engineer’s Decisions Some disputes, particularly technical valuation or design issues, may be well suited to expert determination or referral to the engineer under the contract, where required. These processes can offer speed and technical expertise, though their binding nature depends on the contract. Dispute avoidance and live project management The most effective construction dispute strategy is prevention. Careful contract drafting, appropriate risk allocation, clear communication and diligent contract administration all play a critical role. Best practice includes maintaining clear and detailed project records, issuing timely notices, addressing issues as they arise, and seeking advice early. On large or complex projects, parties increasingly use dispute boards or dispute resolution advisors to provide real-time assistance and resolve issues before they escalate. How we help We provide commercially focused legal advice across all stages of construction disputes, including contract drafting and review, payment claims, dispute avoidance strategies, adjudication, mediation, arbitration and litigation. We understand the commercial realities of the construction sector and work closely with our clients to achieve efficient outcomes that protect cashflow, minimise disruption and allow projects to progress. If you are involved in a construction dispute, experiencing payment issues, or want advice on managing dispute risk under your construction contracts, our dispute resolution team can help. Please contact us to discuss how we can support your project and protect your position.

Holland Beckett is pleased to announce the promotion of Cory Lipinski, Lucy Vala-Blackmore, Shannon Eldridge, Anya Sherwan and Jemma Hollis to Associate. The promotions span the firm’s Environment and Planning, Corporate and Finance, Family Law and Litigation teams, recognising professional achievement, leadership, technical expertise and a commitment to delivering excellent outcomes for clients and communities across the Bay of Plenty. L-R: Cory Lipinski, Lucy Vala-Blackmore, Shannon Eldridge, Anya Sherwen, Jemma Hollis Cory Lipinski Associate – Environment and Planning Cory is an environment and resource management specialist with expertise across planning, local government and environmental matters. After completing an LLB and BA at Victoria University of Wellington, Cory began his legal career in Auckland before returning to Tauranga and joining Holland Beckett\'s Environment and Planning team. He advises a wide range of clients, from private individuals seeking resource consents to organisations undertaking major infrastructure and nationally significant projects. Cory has acted as lead counsel in Council and Department of Conservation hearings and as junior counsel in the High Court. Known for his technical expertise and strategic judgement, Cory translates complex planning and regulatory issues into practical advice that helps clients achieve their objectives. Lucy Vala-Blackmore Associate – Family Law Lucy Vala-Blackmore is a specialist family lawyer based in Holland Beckett’s Rotorua office. A Rotorua local, Lucy completed her LLB at the University of Waikato before returning home and joining Holland Beckett as a Summer Clerk in 2019. Since then, she has progressed through the firm from graduate to senior solicitor and now associate. Lucy has developed extensive experience across all areas of family law and regularly appears in the Family Court. She is known for her calm, solution-focused approach to complex family, relationship property, and trust disputes. Lucy is a Lead Provider for family legal aid, serves on the Executive Committee of the New Zealand Law Society Family Law Section, and is a Board Member of Te Wāhi Whakaora Rotorua and District Women\'s Refuge. She has played an important role in the growth of Holland Beckett\'s family law practice in Rotorua and contributes to both the legal profession and the Rotorua community through her governance and voluntary roles. Shannon Eldridge Associate – Civil Litigation and Dispute Resolution Dr Shannon Eldridge (Whakatōhea) is a litigator recognised for his technical excellence, analytical approach and strong advocacy skills. Shannon joined Holland Beckett\'s Litigation and Dispute Resolution team in Rotorua in late 2024, bringing experience across a diverse range of legal matters. Shannon advises on a broad range of civil disputes as well as criminal, employment and administrative law matters. His practice is supported by a strong academic background, including degrees in Law and Psychology, a Master\'s degree with First Class Honours in Criminology, and a PhD in Law from the University of Auckland. Shannon serves on the Rotorua District Licensing Committee and volunteers his time and expertise with Citizens Advice Bureau. Outside of work, he is also involved in local theatre productions. Anya Sherwen Associate – Corporate and Finance Anya Sherwen joined Holland Beckett’s Corporate and Finance team in 2024, bringing commercial experience developed across New Zealand and Switzerland. After graduating from the University of Otago with honours degrees in French and Law, Anya began her legal career in Wellington with a focus on commercial law. She then spent several years in French-speaking Switzerland, where she completed a bilingual Master of Laws specialising in Business and Tax Law, and International and European Law, before returning to her hometown of Tauranga with her family. Anya is highly regarded for her commercial acumen, collaborative approach and the strategic advice she provides to clients across a broad range of corporate and commercial matters. She works closely on the team’s international aviation practice, advising on financing, acquisitions and sales, leasing and lease restructuring. Jemma Hollis Associate – Environment and Planning Jemma combines specialist legal expertise with more than a decade of planning and policy experience, giving her a unique perspective on resource management matters. Her experience spans resource management and planning, public works acquisitions, local government processes, enforcement, and emerging legislative reforms. She has appeared as counsel in the District Court, Environment Court, High Court, and Supreme Court of New Zealand. She has also acted on complex consenting, planning, judicial review, heritage, conservation, and coastal matters. Between 2021 and 2024, she worked at a Tauranga-based law firm, providing advice and representation in mediations, hearings, and court proceedings. Before entering legal practice, Jemma spent a decade in planning and policy roles with local and regional authorities in Tauranga and Auckland. During that time, she specialised in notified applications and appeals, regularly providing expert planning evidence at hearings and in the Environment Court. Her combined legal and planning background enables her to deliver strategic advice on complex resource management issues.