Module 12 Flashcards by Brittany Familton

Name the primary law’s and acts that make up New Zealand’s ‘Legal Liability Framework’ for Architects

STATUTE (CONTRACT) LAW, CONTRACTUAL LIABILITY, COMMON (CIVIL) LAW, PROFESSIONAL NEGLIGENCE TORT, COPYRIGHT ACT 1994, MORAL RIGHTS, AUTHORSHIP OF CULTURAL KNOWLEDGE, FAIR TRADING ACT 1986, CONSUMER GUARANTEES ACT 1993

How well did you know this?

Not at all

Perfectly

What is another term used for ‘Statutes Law’

Contract Law

How well did you know this?

Not at all

Perfectly

What is another term used for ‘Common Law’

Civil Law

How well did you know this?

Not at all

Perfectly

What is ‘Statutes Law’

The laws passed by Parliament

How well did you know this?

Not at all

Perfectly

What is ‘The Common Law’

Civil Law

How well did you know this?

Not at all

Perfectly

What are the two main sources of law

Statutes and Common Law (Contract & Civil)

How well did you know this?

Not at all

Perfectly

Before Courts apply ‘Statutes’, what must they do?

Interpret what they mean

How well did you know this?

Not at all

Perfectly

Can Common or Civil Law be amended and developed by the courts to meet changing circumstances and set precedents for future cases?

Yes

How well did you know this?

Not at all

Perfectly

What do the laws of the ‘Civil Law area’ govern?

Legal rights and responsibilities in interactions between private individuals

How well did you know this?

Not at all

Perfectly

What is ‘Liability’?

The obligation to compensate someone else for loss or damage

How well did you know this?

Not at all

Perfectly

Name the key types of an ‘Architects Liability’

‘Breach’, ‘Client-architect agreement’, ‘Tort of negligence or professional negligence’ & ‘Breach of copyright and defamation’

How well did you know this?

Not at all

Perfectly

What is Rule 54 of the ‘NZRAB Architects’ Code of Ethics’?

Defamation or Malicious Criticism

How well did you know this?

Not at all

Perfectly

What must a registered architect NOT do in the Architectural Practice in relation to Malicious Criticism?

A registered architect must not maliciously or in bad faith criticise or attempt to discredit another registered architect or another registered architect’s practice.

How well did you know this?

Not at all

Perfectly

What is a ‘Breach’?

an act of failing to observe a law, agreement, or code of conduct

How well did you know this?

Not at all

Perfectly

To be liable contractually…

requires the formation of a contract

How well did you know this?

Not at all

Perfectly

What does the formation of a contract first require?

an offer

How well did you know this?

Not at all

Perfectly

What is the second part of a contract?

the acceptance of an offer

How well did you know this?

Not at all

Perfectly

After the first and second ‘part’ of a contract, what will it now involve?

a consideration (i.e., fee) or an act or promise of the offeree party to a contract

How well did you know this?

Not at all

Perfectly

Prior to being bound to a contract what must you do?

a person of legal capacity must give genuine consent

How well did you know this?

Not at all

Perfectly

List a person(s) incapable of binding themselves to a contract…

‘Underage children’, ‘those with mental concerns’, ‘persons with declared bankruptcy’, ‘someone under the influence of liquor’

How well did you know this?

Not at all

Perfectly

‘Expressed terms’ are major components of a contract, what else are they called?

a ‘condition’ of the contract

How well did you know this?

Not at all

Perfectly

What is a ‘Tort’?

civil wrongs or injury that leads to legal liability and causes harm, damage or loss to the claimant

How well did you know this?

Not at all

Perfectly

Does ‘Torts Law’ depend on the existence of a contract?

How well did you know this?

Not at all

Perfectly

How does ‘Torts Law’ relate to Architecture?

Architects owe duty of care to the client, building users and future owners and users of the building.

Liability for negligence must have what elements in order to be applicable?

a duty of care, and the standard of care must have been breached, and the plantiff must have suffered loss or damage.

What is the CODE for Rule 49 of the 'NZRAB Architects' Code of Ethics'?

A registered architect must perform the architect’s professional activities with reasonable skill, care, and diligence

What ACT further enforces Rule 49 of the 'NZRAB Architects' Code of Ethics'?

Consumer Guarantees Act 1993

What is 'The standard of care' in relation to the Architectural practice?

what a reasonable person having the skills of a necessary competent architect would have done in response to the reasonably foreseeable risk

The NZRAB can only accept complaints about architectural practices, not individual architects or former architects.

False

The NZRAB can only accept complaints about individual architects or former architects, not architectural practices.

True

Can LBP's be filed complaints?

Yes

How many grounds for discipline for a licensed building practitioner are there?

How many grounds for discipline for a registered architect are there?

When plantiffs seek from defendants to compensate their loss and damage they have suffered due to the contractual liability or negligence of the architect or architectural designer, this is?

Remedy

What can come from the court's decision for an injunction (judicial order), to a party to begin, or stop, or continue an action to mitigate the loss, damage, or nuisance to the claimant?

Relief

Evidence or means of proof can NOT be oral evidence by factual witnesses, documentary evidence, and real evidence

False

It is important then to put important project decisions and actions in writing as an architect to have a written record to fall back on, if needed.

True

Who can be called upon to provide their professional opinion based on their best knowledge of what would be reasonable skill and care?

Expert witnesses

'Dispute Resolution' can include one or a number of the following processes...

Negotiation, Mediation, Arbitration, Expert Determination, Adjudication, The Building Disputes Tribunal, The District Court, The High Court or Appeals

What is Negotiation?

Talking about the issue offsite in a neutral venue after everyone has calmed down. Perhaps with the help of an experienced person

What is Mediation?

two parties negotiating a solution with the help of a mediator. It is cheap, simple and quick but relies on a consensus or mutual agreement

What is Arbitration?

an independent and impartial arbitrator making a decision. Generally both parties need to agree to go to arbitration. This is still relatively cheap and simple. The Arbitration Act 1996 encourages arbitration to settle commercial disputes rather than litigation in the courts.

What is Expert Determination?

Expert Determination is a consensual process by which parties to a contract agree to refer matters of dispute to an independent person to decide. The independent person has expertise relevant to the matters in dispute between the parties and is engaged to decide the disputed matters as an Expert and not as an Arbitrator. Process is controlled by the parties themselves.

What is Expert Adjudication?

only one party can turn up at the hearing. Even if the other party does not attend they are still bound by the decision. Adjudication can take on various meanings depending on the Act, and can also mean going to court.

What do the Expert The Building Disputes Tribunal offer?

a private company that offers a service to handle arbitration and adjudication as required by the Construction Contracts Act 2002. It is a mechanism used for disputes between contractor, sub-contractors and homeowners.

What does The District Court do?

for criminal cases and will deal with civil cases up to NZD $200,000.00

What does The High Court do?

handles most civil litigation. But it is also not uncommon to settle out of court or half way through a court case.

The Building Disputes Tribunal is a public company

False

The District Court will only deal with civil cases over NZD $200,000.00

False

An architect, if convicted, is liable for negligence if they failed to inform their clients of the risky and terrible soil conditions that they hoped to build on.

True

What are two relevant 'dispute resolution processes' that you can suggest to your client if the builder and client have a dispute and are unable to resolve it and they are both financially unable to go to court.

Mediation & The Building Disputes Tribunal

What act determines intellectual property rights to a person who creates an original work exclusive rights to copy, publish, publicly perform, transmit and adapt their material and claim authorship?

Would an office photographer for websites, staff photos etc. own the copyright of their images and control their use and production?

Yes

What is 'False Attribution'?

misattributing a work, quotation, or idea to the wrong person or group

Can the rights to Intellectual Property be assigned to clients?

Yes

A client is protected by a 'license to use'?

True

When working with Indigenous communities, architects have authorship of their design and authorship of their cultural knowledge...

False. (They do not have authorship of cultural knowledge that was given to them by cultural experts, community, and traditional knowledge holders etc.)