The collapse of high-profile construction businesses such as Mainzeal and Ebert Construction and subsequent judgments dealing with the distribution/management of retentions have prompted some important legislative changes affecting the construction industry. The most recent change being amendments to the Construction Contracts Act 2002 (CCA) contained in the Construction Contracts (Retention Money) Amendment Act 2023 (“the Amendment Act”).
Scope
The Amendment Act affects retention money (commonly referred to as retentions) withheld under a commercial construction contract entered into or renewed after 5 October 2023.
Purpose
The main purpose of the Amendment Act is to provide contractors with more transparency and control over retentions held against them, and to ensure that those retentions are not intermingled with other funds of their customers, which had previously made recovery difficult if the customer became insolvent.
Retention Money Scheme
Retention money is money owed to a contractor that is held back by the customer to secure the performance of the contractor’s obligations under a construction contract. It is common for a customer to be entitled to hold back a percentage of each of the Contractor’s progress payment claims which accumulates as retentions.
In 2017, an earlier amendment to the CCA introduced mandatory rules contained in a then-new Part 2A of the CCA that determined how retentions are required to be held, accounted for and used by the party retaining them. However, deficiencies in these rules were highlighted in the context of liquidation proceedings and related cases following from the collapse of Ebert Construction in 2018. In particular, although the intention that retention money would be held “on trust” and that accounting records must be kept by the party holding those retentions was clear, it was less clear that retention money had to be held in a segregated account or what the consequences were if retention money was not held and accounted for with in the correct manner.
New Requirements
The Amendment Act clarifies and supplements the previous provisions in the CCA regarding retention money. In particular:
- the party who is entitled to withhold retentions is deemed to hold that money on trust from the point in time that it becomes entitled to withhold them (ie. the portion of a payment claim that is able to be held as a retention must be held on trust whether or not the balance of a payment claim is actually paid to the contractor);
- retention money must be segregated from other funds, for example in a trust account or escrow arrangement with a third party. This is to avoid retentions being intermingled with other funds of the customer; and
- accounting records, including a ledger for each retentions account, must be kept by the party holding retention money;
- contractors are entitled to certain information about their retention account including in what type of account, and with whom, the retentions are kept and ledger records;
- continuity of the trust applying to retention money in the event of a liquidation or receivership of the customer is expressly provided for;
- MBIE is given powers to enquire into and enforce compliance with the retentions rules directly; and
- new penalties for non-compliance are introduced including fines of up to $50,000 for a director and up to $200,000 for a company.
Next Steps
Our construction law experts at Holland Beckett can assist people who intend to withhold retention money under a construction contract to ensure they comply with the above requirements and to advise contractors on their rights and remedies in relation to retentions held against them.
Montie Baskett
Tauranga
tel:+6475782199
mailto:lawyers@hobec.co.nz
Pooja Mohun
Tauranga
tel:+6472620436
mailto:pooja.mohun@hobec.co.nz
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What protection do you have as a business purchasing goods? Contract and Commercial Law Act
Everyone knows about the Consumer Guarantees Act 1993 (CGA), which provides a “consumer” with remedies if a business has failed to provide goods or services to a reasonable standard. But what happens if you are a business purchasing goods? The answer is not found in the Consumer Guarantees Act 1993; it is found in the Contract and Commercial Law Act 2017 (the CCLA).
The CCLA implies seven conditions and/or warranties in a contract for the sale of goods:
right to sell;
conformity with description;
fitness for purpose;
merchantable quality;
conformity with samples;
rights of examination, and;
acceptance.
Not every breach of contract allows for rejection, but a trivial breach of a condition does. This means that a buyer can return goods supplied to a seller. Importantly, whether a term is a condition or a warranty depends on the construction of the sale of goods contract.
An important implied condition is “fitness for purpose”. This means that goods must be reasonably fit for purpose. But, unlike the CGA, this condition will only apply where the buyer makes known to the seller the particular purpose for which the goods are required, and that the goods are of a description that it is in the course of the seller’s business to supply. What this means is that when a buyer of a vehicle makes known to the seller that they will be using a vehicle to tow a caravan, then there is an implied condition that the vehicle is fit for that purpose; towing a caravan. This was the case in Finch Motors v Quinn (No 2) [1980] 2 NZLR 519. Mr Quinn, the buyer, told the seller that he wanted a car for towing a boat on extended trips. The seller, Finch Motors, told Mr Quinn they had the ideal car for the job. Not long after the sale, Mr Quinn used his car to tow the boat when it overheated. This, the Court found, was a breach of the implied condition that goods are fit for purpose.
There is also an implied condition that goods are of a “merchantable quality”. This is similar to “acceptable quality” under the CGA. The test for whether goods are of a “merchantable quality” is found in an old case, Taylor v Combiner Buyers [1924] NZLR 627. In that case, the Court asked the following question: Are the goods of such a quality and in such a state and condition as to be saleable in the market, as being goods of that description, to buyers who are fully aware of their quality, state, and condition, and who are buying them for the ordinary purposes for which goods so described are bought in that market?
Unlike the CGA, the CCLA allows contracting parties to vary or exclude the implied conditions and/or warranties. This includes fitness for purpose and merchantable quality. To do this, the contract must be clear as to the conditions and/or warranties that it purports to vary or exclude. In Wallis, Son & Wells v Pratt & Haynes [1911] AC 394 (HL), for example, the seller’s terms and conditions stated that there is “no warranty express or implied”. The Court found that this did not exclude implied conditions, only implied warranties. If the seller wanted to exclude the implied conditions, including fitness for purpose and merchantable quality, they had to do so expressly.
Holland Beckett has experience advising buyers and sellers. This is a complex area of law and Holland Beckett is available to assist.
With Strings Attached – Exit Strategies for Small Business Owners
It is not an easy time to be selling a small business. High inflation and waning consumer demand has lead to compressed margins and reduced revenue for many.
Uncertainty in the global markets due to wars, protectionism and the changing geopolitical landscape has blunted the confidence of prospective purchasers.
Closer to home, sub 3% interest rates are now a fading memory and house prices have come off their peak, so fewer aspiring business owners can easily ‘top up their mortgage’ to fund the purchase of a business.
How can sellers respond?
Business owners looking to sell and wanting to achieve the best price for their business may need to consider options to reduce a purchaser’s reliance on third party finance to fund the acquisition of their business. This may include:
Asset restructuring: Premises, plant and equipment are restructured to reduce the capital investment required by a purchaser. For example, valuable machinery could be retained by the seller and leased to the purchaser, meaning that the purchaser does not have to finance the upfront cost of purchasing that asset.
Vendor finance: The seller advances a portion of the purchase price to the purchaser to be repaid by the purchaser over time. Vendor loans vary widely in terms of whether they bear interest, whether they are amortising (repaid gradually over the term) or repaid in a lump sum on a fixed date.
Earn Outs: The purchaser agrees to pay part of the purchase price in instalments contingent on the business achieving certain financial targets. Payments could be fixed or adjusted based on the level of revenue generated by the business.
Vendor Shares: The vendor retains shares in the business. The vendor might give the purchaser options to acquire 100% of the shares over time.
Objectives and Risks
From a seller’s perspective, the most common objective of using any of the above mechanisms is to achieve a better price for their business.
Compared to fully bank or finance company debt funded transactions, vendor funded transactions generally expose the seller to risk of purchaser default over a longer period. This is because repayment of vendor loans or achievement of earn-out targets depend on the success of the business under new ownership. These risks can be reduced by, for example:
Requiring the purchaser to pledge security to the seller (mortgages, personal guarantees, registered security interests).
Giving the seller a right to appoint a director for so long as they continue to hold shares in the business.
Contractual provisions that exclude artificial reduction of gross profits for the purposes of earn out calculations.
Complexity and Cost
If not managed well, transactions that include vendor funding mechanisms can be more complicated and take longer to negotiate than similar deals that are not vendor funded (and increased legal costs as a result). Also, the downstream consequences of vendor funding arrangements need to be carefully thought through to avoid unforeseen negative consequences. For example, if the vendor registers a security interest in the business assets, how will that affect the purchaser’s ability to raise finance or obtain trade credit moving forward?
In our experience, the best outcomes typically start with a well-designed structure. Convoluted and legally complicated structures are generally less effective in practice than more straight forward, logical structures. Complexity can often be avoided if the transaction is properly designed from the outset.
Business owners considering vendor funding options should:
Discuss potential structures with their business broker or lawyer to identify fit-for-purpose options that could be offered to potential purchasers;
Focus on the characteristics of the business and the specific circumstances and objectives of the seller and buyer when designing a transaction structure - do not start with a particular structure in mind and adapt it to fit the circumstances (this is a recipe for legal complexity); and
Try to aim for a structure that makes commercial sense and avoids risks being transferred to a party who cannot control it or who would not naturally be exposed to it.
A well designed vendor funding structure should be easy for all parties to understand and give the purchaser sufficient freedom and control to ensure the business remains successful while minimising the default risk faced by the seller.
Our commercial team at Holland Beckett is experienced in business sale transactions from $50,000 to $100 million including vendor funding arrangements of all types and would be happy to discuss how to make the sale of your business a success for you and your purchaser.
Incorporated Societies Act 2022 – How do I reregister?
The Incorporated Societies Act 2022 (“New Act”) came into force on 5 October 2023. The New Act replaces the Incorporated Societies Act 1908 (“1908 Act”).
All existing incorporated societies must apply to reregister under the New Act before April 2026 if they wish to continue as an incorporated society. Failing to do so will result in the society being deregistered.
The online registration process is now open to existing societies on the Companies Office website.
What do I need to do?
In order to reregister, the society must first:
Update its constitution to comply with section 26 of the New Act.
Develop a membership record and membership consent form to comply with section 76 of the New Act;
Have at least 10 members to comply with section 74 of the New Act;
Hold consent in writing from each of the committee/board members (officers) to be an officer and ensure that each officer meets the criteria recorded in section 47 of the New Act;
Provide at least one person’s contact details to enable the Companies Office to contact the society.
What must the constitution contain?
Section 26 sets out all matters which must be included in a constitution. These matters are largely administrative. One of the most important additions is the requirement to have a dispute resolution procedure. The compulsory provisions include:
The name of the society.
The purposes of the society.
How a person becomes a member of the society, including a requirement that a person must consent to be a member.
How a person ceases to be a member of the society.
Arrangements for keeping the society’s register of members up to date.
The roles, functions, powers, and procedures of the committee/board.
How the contact person or persons will be elected or appointed.
How the society will control and manage its finances.
The method by which the constitution may be amended.
Procedures for resolving disputes, including providing for how a complaint may be made.
Arrangements and requirements for general meetings.
The nomination of a not-for-profit entity, or a class or description of not-for-profit entities, to which any surplus assets of the society should be distributed on a liquidation of the society or on, or to enable, the removal of the society from the register.
It is also an opportune time for you to review the society’s objects and any procedures that may no longer be fit for purpose.
How do I vary/replace the constitution?
You must refer to your current constitution. Most constitution contain a ‘variation/amendment’ provision describing the procedure that must be followed to formally vary or amend the constitution. You are likely to find that the proposed changes must be circulated prior to a general meeting and can only be adopted if a resolution is passed by the majority stipulated in the constitution.
How can Holland Beckett assist?
Holland Beckett can assist you with reviewing and updating your constitution, reviewing and developing policies to comply with the New Act and navigating the reregistration process. Please do not hesitate to contact us if you require assistance with this transition.