The Torrens system of land registration is used in New Zealand to register and

transfer interests in land. Priority ownership takes place at the time of registration,
and registration has the power to erase previous defects on the land. The
government undertook this approach in an attempt to simplify the transfer process
and to protect purchasers rights, as under previous law, proof of ownership had to
exist all the way back to receiving the land from the Crown, and ownership could be
challenged. This was costly for the government, as many cases would be taken to
court, and the process was expensive and time intensive.

As there is no mortgage on the property, it is unclear whether there is a registered

interest over the land by Bosco and Bel. Even if there was a registered interest
however, the mortgage was registered afterwards in their name (fraudulently).

In accordance with the doctrine of indefeasibility, and the Land Transfers Act, as
both the mortgage and the transfer of title are registered, Bosco and Bel no longer
own their house. Although both were registered under fraudulent conditions, the
doctrine of indefeasibility came into effect once the transfer of title was registered
to Susan, which protects Susans property rights against other claims of interest on
the land.

There is an allowance for fraudulent behaviour in the Act, but unless it can be
proven that Susan either knew the sale was under fraudulent conditions, or had
enough knowledge to do further enquiries, her registered title will hold true under
the law. Considering the sale was made as a mortgagee sale by the bank, proving this
will be difficult for Bosco and Bel, as it would be highly likely that Susan did not
know, and had little reason to suspect a mortgagee sale of occurring fraudulently.

If Bosco and Bel had registered a caveat of their interests over the land, the
fraudulent behaviour could maybe have been proven as a registered notice of their
ownership exists, and Susan could have been found wilfully blind of the behaviour
for not doing further enquiry into this registration of interest. Bosco and Bel may
have been able to reclaim their property. However, no such registration has been
stated in the example, so it is assumed that they have no registered interest over the
land that would not have been dominated by the registered mortgage that occurred
while they were gone.

The Land Transfers Act allows for the registration system to have errors, and under
it, the government may compensate you for any loss of land due to fraudulent
behaviour under the Act. Bosco and Bel would not receive their land back, however
they may receive compensation for the lost land unable to be reclaimed due to the
Act.

Further action that could be taken by Bosco and Bel would be to investigate why the
bank did not do enough research into the ownership of land the mortgage was going
on, and potentially sue them for negligence. They failed at their jobs, and it
significantly cost Bosco and Bel.

Bosco and Bel could also go to the police, and charge their daughter, Zoe, for theft
and fraud.
5. Year 4 Ltd undertakes the design for the Railway Project.

Bel continues as Year 4 Ltds project manager. She project manages the design, prepares the
contract documentation and helps manage the procurement process. She is very experienced
having worked for Year 4 Ltd for 17 years, and is considered to be a very loyal employee and
ideal for the role of Engineer to the contract.

The general conditions for the construction contract are NZS3910:2013. Bel is named in the
Special Conditions as the Engineer and the contract is awarded to Railbuild Ltd. Bels good
friend Bosco (also a loyal employee of Year 4 Ltd) is then appointed under clause 6.3.1 as the
Engineers Representative.

During construction there are several disputes regarding under-certification and deduction of
liquidated damages from payment certificates by the Engineer (Bel) and as a result there is a
serious deterioration in the relationship between Bel, Bosco and Railbuild Ltd. Railbuild Ltd
then threaten to sue the Engineer for negligence.

Describe the roles of the Engineer and the Engineers Representative. In your answer,
comment on risks or issues possibly created by the Engineer and Engineers Representative
being employees of Year 4 Ltd and also being intimately involved in the design and project
management of the project. Also explain whether Railbuild Ltd will be successful in any
action against the Engineer.

Role of Engineer from 3910: The dual role of the Engineer in the administration of the
Contract is:

. (a) As expert adviser to and representative of the Principal, giving directions to the
Contractor on behalf of the Principal, and acting as agent of the Principal in
receiving payment claims and providing Payment Schedules on behalf of the
Principal; and

. (b) Independently of either contracting party, to fairly and impartially make the
decisions entrusted to him or her under the Contract, to value the work, and to
issue certificates.

(why is it Bosco and Bel all the time??)

IRAC Issue, Rule, Application, Conclusion

The role of the Engineer is two-fold. They are to be both, an expert advisor and
representative of the Principal, as well as act independently of the Principal and
Contractor in order to make decisions as required by the contract (valuation and
issuing certificates, etc.) impartially. The Engineer has the power to elect another
person as the Engineers Representative, who can act as the Engineer, except for
dispute resolutions or decisions on final and binding certifications. (The Contractor
does have the power to dispute decisions made by the Representative, and have the
Engineer reassess the situation).

The Engineer and Engineers Representative both being employed by Year 4 Ltd is
not an uncommon situation, however as it is a rail project, it is likely that the
Principal is council-based and a very large client for their company, if they regularly
operate in this field. The companys performance on this job will likely have an effect
on the business relationship between the organisations. An issue that may arise due
to this is the compromising effect on the Engineers ability to remain impartial on
decisions regarding variations and payment between the Principal and the
Contractor.

Currently, precedent exists such that Railway Ltd will be unlikely to win a negligence
case against the Engineer. The NZS3910:2013 standard for contracts is deemed to
cover consequences for the Engineer failing to do their job correctly (wherein
failures are to be treated as Variations under the standard). Due to this being in the
contract, it is likely that the Contractor will have trouble establishing a duty of care
for the Engineer in court or mediation.
2016 Q2

Contract variations are common place in construction. However, if variations to the

contract become too significant, there is a risk of them becoming a breach of
contract (i.e. if the quantity of work is decreased significantly, or if the build varies
too much from design).

Omitting work so that it may be carried out by another contractor could be seen as a
breach of contract. The NZS3910:2013 standard states that this cannot occur
without consent of the Contractor, however, parties are advised to look for further
legal advice as there are cases where this can be allowed. Rather, the power to omit
work that the Engineer has is limited to alterations to the design of the project and
what is expected to be built. Unless the work being given to another contractor was
not in the design drawings or not agreed upon by the Principal and the Contractor in
the contract, it is unlikely that this behaviour will be accepted as part of the
Engineers power.

b)
The Dispute Adjudication Board (DAB) is formed when 1 to 3 members are selected
before the project begins to give (impartial) decisions on disputes.

The DAB has 4 main functions:

- To visit the site periodically and become familiar with the projects details.
- To keep up to date with the activities, problems, progress, and developments
on the site
- To encourage the resolution (preferably amicable) of disputes by the parties
- To hold a hearing when disputes are referred to it, complete deliberations
and prepare a Decision in a professional and timely manner.

(not much more that copy pasting this section can really be done here?)