is not enforceable in any civil proceedings; and

may not be used as a basis for withholding payments that are due and payable under the contract.

the number of payments under the contract:

the interval between those payments:

the amount of each of those payments:

the date when each of those payments becomes due.

the relevant period for that payment; and

the value of the construction work carried out, or to be carried out, during that period; and

any relevant provisions in the construction contract (including, without limitation, provisions relating to the retention of money or liquidated damages).

the period commencing on the day of the month on which construction work was first carried out under the contract and ending on the last day of that month (the first period); and

each month after the first period.

the contract price for the work; and

any other rates or prices set out in the contract; and

any variation to the construction work authorised under the contract; and

if any work is defective, the estimated cost of rectifying the defect.

the reasonable value of the work; and

the reasonable value of any variation to the construction work authorised under the contract; and

if any work is defective, the estimated cost of rectifying the defect.

has withheld any amount from party B:

has complied with section 18D:

has calculated the retainable amount (as long as it is capable of being calculated):

has prepared, or given to party B, a payment schedule or other record of an amount being withheld:

has paid any amount owing to party B under the contract.

party A chooses not to retain the amount and has paid it to party B; or

the total retainable amount under the contract is less than the de minimis amount prescribed in regulations.

the withheld amount referred to in subsection (5) becomes retention money when it is withheld; and

a reference in this subpart to retention money retained under a contract includes retention money retained in connection with the contract referred to in that subsection.

it is paid to party B:

party B, in writing, gives up any claim to it:

it is used to remedy defects in the performance of party B’s obligations under the construction contract, but only if—

it otherwise ceases to be payable to party B.

if party A holds retention money for 2 or more persons (each being party B), the retention money held for each of them is the subject of a separate trust; and

the retention money is trust property whether or not party A complies with this subpart; and

all of the rules of the common law and equity relating to trusts apply to the trust, party A as trustee, the retention money as trust property, and any other person dealing with the trust property (except to the extent that this subpart provides otherwise).

party A commits an offence and is liable on conviction to a fine not exceeding $200,000 for each offence; and

if party A is a body corporate, each of its directors also commits an offence and is liable on conviction to a fine not exceeding $50,000 for each offence.

that party A took all reasonable steps to ensure that party A complied with section 18D; or

if the defendant is a director, that they took all reasonable steps to ensure that party A complied with that provision.

a member (as defined in section 5(1) of the Local Government Act 2002); or

a receiver or liquidator who is a new trustee under section 18K.

be at a registered bank in New Zealand; and

comply with subsection (2) or (3).

the account holder is party A in their capacity as trustee of the retention money; and

the account is used solely for the purpose of holding retention money (and any interest earned on it even though, under section 18D(5), it is not retention money) that is held by party A—

party A has informed the bank that the account is for the purpose of holding retention money that party A holds on trust under this Act.

it is a bank account ordinarily used to hold trust money; and

the account holder is—

party A informs the account holder that the money to be held in the account is retention money that party A holds on trust under this Act.

retention money is withdrawn from the bank account; and

the ledger records do not record which party B the withdrawal is attributable to; and

it is not otherwise clear from the circumstances which party B the withdrawal is attributable to,—

there is a deficiency in the amount of retention money held in the bank account for 1 or more of the party Bs; and

an amount is deposited into the bank account; and

the ledger records do not record which of those party Bs the deposit is attributable to; and

it is not otherwise clear from the circumstances which party B the deposit is attributable to,—

the retention money must be held and dealt with in accordance with Part 7 of the Public Finance Act 1989 (which deals with trust money); and

sections 18D(1), (2), and (3), 18E, and 18FB do not apply.

is not available for the payment of debts of any creditor of party A (other than party B):

is not liable to be attached or taken in execution under the order or process of any court at the instance of any creditor of party A (other than party B).

a licensed insurer:

a registered bank:

any other person, who is not an associate of party A, prescribed or within a class prescribed in regulations.

be issued in favour of, or endorsed with the interests of,—

require the issuer to pay the retention money to party B if party A fails to pay that money on the date on which it is payable under the construction contract; and

enable party B to enforce that promise against the issuer; and

comply with any requirements that are prescribed in regulations and that apply in respect of the instrument.

apply for all instruments or for classes of instruments (and a class of instrument may be defined by reference to a construction contract or class of construction contract, including a contract entered into or renewed on or after a specified date):

include minimum or prohibited terms and conditions for instruments (including terms and conditions that relate to the manner or time in which party B must submit a claim):

prescribe forms for instruments.

include details of—

be appropriate, having regard to the amount of retention money and the circumstances of the case; and

include any other information required by regulations; and

be kept in a way that complies with any requirements specified in regulations.

identify the bank account as an account in which retention money is held for party B; and

identify the construction contracts under which that money is retained; and

include details of all payments into and out of the account; and

if the bank account holds retention money for any other party B, record that fact; and

comply with section 18E(4) to (6) (if applicable).

a copy of all complying instruments that relate to party B; and

for each instrument,—

as soon as practicable after an amount becomes retention money; and

at least once in every 3 months until the retention money trust ends under section 18C(3).

each amount retained, the construction contract under which it is retained, and the date of its retention; and

the total amount of retention money held by party A for party B under each construction contract between party A and party B; and

the account details for any bank account in which any of the retention money is held; and

if party A relies on section 18D(3), the instrument details for each complying instrument that relates to party B; and

a statement that party B may inspect the accounts and records that party A is required by section 18FC to keep in relation to retention money held for party B; and

any other information specified in regulations.

if the account holder is party A,—

if the account holder is not party A,—

the balance in the bank account that is held for party B; and

if separate ledger records are required under section 18E(4), the name of each ledger record relating to party B and the balance in that ledger record.

the name of the issuer:

sufficient information to identify the instrument (such as a policy number or other unique identifier):

the protected amount.

make the payment of retention money conditional on anything other than the performance of party B’s obligations under the contract; or

make the date on which payment of retention money is payable later than the date on which party B has performed all of its obligations under the contract to the standard agreed under the contract; or

require party B to pay any fees or costs for administering retention money or any bank account or instrument held for the purposes of this subpart.

a receiver (as defined in section 2(1) of the Receiverships Act 1993) is appointed in respect of all or substantially all of the assets and undertaking of party A; or

a liquidator is appointed under the Companies Act 1993 for party A.

party A ceases to be trustee of the retention money trust; and

the receiver or liquidator (or each of them if there is more than 1) becomes trustee of the retention money trust.

if they are a receiver, all of the powers and duties that they have in their capacity as receiver; or

if they are a liquidator, all of the powers and duties of a liquidator under Schedule 6 of the Companies Act 1993.

notify party B of their appointment within 10 working days of becoming trustee; and

give to party B all of the information that the person, in their capacity as receiver or liquidator, gives to unsecured creditors of party A when it is given to those creditors.

to disseminate information and provide educational programmes on matters relating to this subpart:

to publish guidance information on the requirements of this subpart:

to monitor compliance with this subpart:

to take enforcement action (including taking proceedings for offences) if the chief executive considers that it is desirable to do so—

to provide advice to the Minister in relation to this subpart and to matters relating to retention money generally:

to carry out any other functions and duties specified in this subpart:

to take all necessary steps for the implementation and administration of this subpart:

to carry out any functions that are incidental and related to, or consequential upon, the functions set out in paragraphs (a) to (g).

the information or document that must be provided; and

how the information or document must be provided; and

a reasonable deadline by which the information or document must be provided.

commits an offence; and

is liable on conviction,—

the information or document is false or misleading in a material particular; or

there is a material omission from the information or document.

commits an offence; and

is liable on conviction,—

to suspect that an offence against this subpart has been, is being, or will be committed; and

to believe that there is evidential material in the place.

commits an offence; and

is liable on conviction,—

if the contract provides for the matter, at the end of the relevant period that is specified in, or is determined in accordance with the terms of, the contract; or

if the contract does not provide for the matter in the case of a progress payment, at the end of the relevant period referred to in section 17(2); or

if the contract does not provide for the matter in the case of a single payment expressly agreed under section 14(1)(a), following the completion of all of the construction work to which the contract relates.

be in writing; and

contain sufficient details to identify the construction contract to which the payment relates; and

identify the construction work and the relevant period to which the payment relates; and

state a claimed amount and the due date for payment; and

indicate the manner in which the payee calculated the claimed amount; and

state that it is made under this Act.

an outline of the process for responding to that claim; and

an explanation of the consequences of—

be in writing; and

be in the prescribed form (if any).

be in writing; and

identify the payment claim to which it relates; and

state a scheduled amount.

the manner in which the payer calculated the scheduled amount; and

the payer’s reason or reasons for the difference between the scheduled amount and the claimed amount; and

in a case where the difference is because the payer is withholding payment on any basis, the payer’s reason or reasons for withholding payment.

a payee serves a payment claim on a payer; and

the payer does not provide a payment schedule to the payee within—

becomes liable to pay the claimed amount to the payee under section 22 as a consequence of failing to provide a payment schedule to the payee within the time allowed by section 22(b); and

fails to pay the whole, or any part, of the claimed amount on or before the due date for the payment to which the payment claim relates.

may recover from the payer, as a debt due to the payee, in any court,—

may serve notice on the payer of the payee’s intention to suspend the carrying out of construction work under the construction contract.

the ground or grounds on which the proposed suspension is based; and

that the notice is given under this Act.

a payee serves a payment claim on a payer; and

the payer provides a payment schedule to the payee within the time allowed by section 22(b); and

the payment schedule indicates a scheduled amount that the payer proposes to pay to the payee; and

the payer fails to pay the whole, or any part, of the scheduled amount on or before the due date for the payment to which the payment claim relates.

may recover from the payer, as a debt due to the payee, in any court,—

may serve notice on the payer of the payee’s intention to suspend the carrying out of construction work under the construction contract.

the ground or grounds on which the proposed suspension is based; and

that the notice is given under this Act.

any of the following circumstances applies:

party A has served on party B a notice under section 23(2)(b), 24(2)(b), or 59(2)(b), as the case may be; and

the amount mentioned in paragraph (a)(i) or (ii) is not paid, or the determination mentioned in paragraph (a)(iii) is not complied with, within 5 working days after the date of that notice.

is not in breach of the construction contract; and

is not liable for any loss or damage suffered by party B, or by any person claiming through party B; and

is entitled to an extension of time to complete the contract, but is not entitled solely by reason of this Act to recover any costs incurred as a consequence of the extension of time; and

keeps party A’s rights under the contract, including any right to terminate the contract; and

may at any time lift the suspension, even if the amount has not been paid or the determination has not been complied with.

affect any rights that would otherwise have been available to party A under subpart 3 of Part 2 of the Contract and Commercial Law Act 2017; or

enable party B to exercise any rights that may otherwise have been available to party B under that subpart as a direct consequence of party A exercising the right conferred by subsection (1).

has the right to refer a dispute to adjudication; and

may exercise that right even though the dispute is the subject of proceedings between the same parties in a court or tribunal.

whether an amount is payable under the contract (for example, a progress payment) or the reasons given for non-payment of that amount; or

whether there has been a breach of a term of the contract (including a term implied into the contract under the Building Act 2004 or any other enactment).

the parties to the relevant construction contract have agreed to refer disputes between them to arbitration; and

the arbitration is—

bring to an end the adjudication proceedings; or

otherwise affect the adjudication.

must allow for any amount paid to a party to the contract under, or for the purposes of, this Part in any order or award the court, tribunal, or member makes in those proceedings; and

may make any orders that the court, tribunal, or member considers appropriate, having regard to any steps taken by a party to the contract in good faith and in reliance on an adjudicator’s determination under this Part (including an order requiring a party to the contract to pay for goods and services supplied by another party to that contract in good faith and in reliance on an adjudicator’s determination).

the other party or parties to the construction contract; and

the owner if—

the date of the notice:

the nature and a brief description of the dispute and of the parties involved:

details of where and when the dispute arose:

the relief or remedy that is sought:

whether approval for the issue of a charging order under section 29 is being sought:

whether a determination of an owner’s liability under section 30(a) and an approval for the issue of a charging order under section 30(b) are being sought:

details sufficient to identify the construction contract to which the dispute relates, including—

a statement of the respondent’s rights and obligations in the adjudication; and

a brief explanation of the adjudication process.

a determination under section 50 that an owner who is not a respondent is jointly and severally liable with the respondent to make a payment to the claimant; and

approval for the issue of a charging order in respect of the construction site.

an individual who is occupying, or intends to occupy, wholly or mainly as a dwellinghouse, the premises that are the subject of a construction contract:

a trustee of a family trust, where the premises that are the subject of a construction contract are—

the notice is in writing; and

the nature of the dispute and the names of the parties involved are stated in the notice; and

any non-compliance does not mislead or unjustly affect the interests of the recipient.

this Part applies as if no notice of adjudication had been served; and

the claimant may serve on the respondent a new notice of adjudication that complies with section 28(3).

is a party to adjudication proceedings in which the claimant seeks—

has all the rights of a party, including (without limitation),—

a reference to a respondent in sections 37, 37A, 39, 43, 45, 46, and 57; and

a reference to a party, or the parties, to an, or the, adjudication in this Part or in section 73.

request the person (if any) chosen by agreement between the relevant parties to act as adjudicator; or

if the person referred to in paragraph (a) has already indicated that he or she is unwilling or unable to act, request any other person chosen by agreement between the relevant parties to act as adjudicator; or

if no person is agreed on, request a nominating body chosen by agreement between the relevant parties to select a person to act as adjudicator; or

if the persons referred to in paragraphs (a) and (b) are unwilling or unable to act, and paragraph (c) does not apply, request an authorised nominating authority chosen by the claimant to select a person to act as adjudicator.

for the purposes of subsection (1)(a) and (b), as soon as practicable after the notice of adjudication has been served; and

for the purposes of subsection (1)(c), 5 working days after the notice of adjudication has been served or any further period that the parties may agree; and

for the purposes of subsection (1)(d), 2 to 5 working days after the notice of adjudication has been served or any further period that the parties may agree.

be in writing; and

be accompanied by a copy of the notice of adjudication; and

state that it is made under this Act.

must disclose to the parties to the adjudication and, as the case may be, the nominating body or the authorised nominating authority, any conflict of interest (whether financial or otherwise); and

must not act as an adjudicator in that dispute unless all of the parties to the adjudication agree.

must specify the nature or the grounds of the dispute and, to the extent that it remains relevant, be accompanied by a copy of the notice of adjudication; and

may be accompanied by any other documents.

within 5 working days after receiving that claim or the adjudicator’s notice of acceptance (whichever is the later); or

within any further time that the parties to the adjudication agree; or

within any further time that the adjudicator allows.

must allow the respondent additional time to serve a written response if the adjudicator considers it necessary—

may allow the respondent additional time to serve a written response if the adjudicator considers that additional time is reasonably required for any reason.

refuse to consider any new material or issues raised in the reply:

allow the respondent up to 2 working days to serve a rejoinder to the claimant’s reply.

the matters referred to in sections 48, 49(1)(c), and 50(1)(c); and

any other matters that are of a consequential or ancillary nature necessary to exercise or complete the exercise of the jurisdiction conferred by paragraph (a).

is nominated for the purpose by an authorised nominating authority; and

has the specific additional qualifications, expertise, and experience that may be prescribed for the purposes of this section (if any).

the claimant serves written notice of withdrawal on the adjudicator, unless the respondent objects to the withdrawal and the adjudicator recognises a legitimate interest on the respondent’s part in obtaining a determination in respect of the dispute; or

the parties agree on the withdrawal.

act independently, impartially, and in a timely manner; and

avoid incurring unnecessary expense; and

comply with the principles of natural justice; and

disclose any conflict of interest to the parties to an adjudication; and

if paragraph (d) applies, resign from office unless those parties agree otherwise.

conduct the adjudication in any manner that he or she thinks fit; and

request further written submissions from the parties to the adjudication, but must give the relevant parties an opportunity to comment on those submissions; and

request the parties to the adjudication to provide copies of any documents that he or she may reasonably require; and

set deadlines for further submissions and comments by the parties; and

appoint an expert adviser to report on specific issues (as long as the parties are notified before the appointment is made); and

call a conference of the parties; and

carry out an inspection of any construction work or any other thing to which the dispute relates (as long as the consent of the owner or occupier is obtained before entry to any land or premises is made and, if the owner or occupier is a party to the adjudication, that party’s consent must not be unreasonably withheld); and

request the parties to do any other thing during the course of an adjudication that he or she considers may reasonably be required to enable the effective and complete determination of the questions that have arisen in the adjudication; and

issue any other reasonable directions that relate to the conduct of the adjudication.

the respondent to serve a response on the claimant under section 37; or

any of the parties to—

draw any inferences from that failure that he or she thinks fit; and

determine the dispute on the basis of the information available to him or her; and

give any weight that he or she thinks fit to any information provided outside any period that he or she requested or directed.

the provisions of this Act:

the provisions of the construction contract to which the dispute relates:

the adjudication claim referred to in section 36 and the claimant’s written reply (if any) referred to in section 37A, together with all submissions (including relevant documentation) that have been made by the claimant:

the respondent’s response (if any) referred to in section 37 and the respondent’s rejoinder (if any) referred to in section 37A(4)(b), together with all submissions (including relevant documentation) that have been made by the respondent:

the report of the experts appointed to advise on specific issues (if any):

the results of any inspection carried out by the adjudicator:

any other matters that the adjudicator reasonably considers to be relevant.

must not determine a dispute until after the end of the period referred to in section 37(1) within which the respondent may serve on the adjudicator a written response to an adjudication claim; and

must not determine a dispute having regard to that response unless it was served on the adjudicator before the end of that period.

within 20 working days after the end of the period referred to in section 37(1) during which the respondent may serve on the adjudicator a written response to an adjudication claim; or

within 30 working days after the end of the period referred to in that section if the adjudicator considers that, even though the parties to the adjudication do not agree, further time for the determination of the dispute is reasonably required; or

within any further time that the parties to the adjudication agree.

must be in the prescribed form (if any); or

if there is no prescribed form,—

whether or not any of the parties to the adjudication are liable, or will be liable if certain conditions are met, to make a payment under that contract; and

any questions in dispute about the rights and obligations of the parties under that contract.

must also determine—

may determine that the liability of a party to the adjudication to make a payment depends on certain conditions being met.

must terminate the adjudication proceedings; and

if requested by the parties, may record the settlement in the form of a determination on agreed terms.

a claimant has referred to adjudication a dispute about whether an amount is payable by a respondent under the construction contract; and

the claimant has sought, in the notice of adjudication, the adjudicator’s approval for the issue of a charging order in respect of a construction site owned by the respondent; and

the adjudicator has determined that the respondent—

approve the issue of a charging order in respect of the construction site owned by the respondent; and

record that approval in his or her determination accordingly; and

include in his or her determination sufficient particulars to identify the construction site to which the approval for the issue of a charging order relates.

a claimant has referred to adjudication a dispute about whether an amount is payable by a respondent under a construction contract; and

the claimant has sought, in the notice of adjudication,—

the adjudicator has determined that the respondent—

determine that the owner is jointly and severally liable, with the respondent, to pay (whether in whole or in part) the amount claimed in the adjudication; and

record in his or her determination that the owner is so liable and the amount of the owner’s liability; and

approve the issue of a charging order in respect of the construction site, and record that approval in his or her determination accordingly; and

include in his or her determination sufficient particulars to identify the construction site to which the approval for the issue of a charging order relates.