About Mark

Mark Colthart is an Auckland Barrister, who practises exclusively as an independent dispute resolver.

He accepts appointment as arbitrator, adjudicator, expert determiner, mediator, and facilitator of expert conferences, in commercial, construction and property disputes.

Qualifications

Bachelor of Arts (Psychology), University of Canterbury, 1993

Bachelor of Laws, University of Canterbury, 1994

Admitted as a Barrister & Solicitor of the High Court of New Zealand, 1994

Master of Laws (Hons), University of Auckland, 2001

Fellow (Arbitration) of the Arbitrators’ & Mediators’ Institute of New Zealand, 2012

Fellow of the Chartered Institute of Arbitrators, 2012

Fellow of the Australian Centre for International Commercial Arbitration, 2022

Accredited Specialist, Property Law Section, New Zealand Law Society, 2024

Biography

Mark has practised at the independent bar since 2006, and before that was a litigation partner in a national law firm. Across more than thirty years he has argued, and now decides, the disputes that turn on how contracts are written, how buildings are delivered, and how interests in land are held and dealt with.

He has been ranked in Doyle’s Guide as a leading construction and infrastructure dispute resolver for ten consecutive years (2017–2026).

Mark is a member of the Executive of the Property Law Section of the New Zealand Law Society, and is a former chair of the Property Disputes Committee of The Law Association of New Zealand and a Council Member of AMINZ. He has taught on the faculty of the NZLS Litigation Skills course since 2013, and writes and speaks regularly on arbitration, construction and property law.

Parties and their advisers appoint him for sound judgement, commercial understanding and procedural rigour. He is a founding member of FortyEight Shortland Barristers, in the Vero Centre in central Auckland

Arbitration

Arbitration allows a dispute to be resolved privately, before a decision-maker the parties have chosen themselves, with an award that is final and enforceable. It ideally suits disputes where confidentiality matters, where the subject matter is technical, and where the parties would rather appoint someone who already understands the field than explain it from the beginning.

Mark has completed more than forty arbitrations. He accepts appointment as sole arbitrator and as a member of a three-member tribunal, including as chair.

He has determined disputes concerning:

•      commercial leases, including rent reviews;

•      cross-leases and unit titles;

•      easements and covenants;

•      building and construction;

•      infrastructure and major projects;

•      commercial contracts;

•      partnerships and joint ventures;

•      company shareholdings, partnerships and joint ventures;

•      forestry, agriculture and horticulture; and

•      trusts

Domestically, Mark is an arbitration panel member of the Arbitrators’ & Mediators’ Institute of New Zealand (AMINZ), the New Zealand Dispute Resolution Centre (NZDRC) and the Building Disputes Tribunal (BDT). He is also regularly appointed as arbitrator by parties directly, and by the New Zealand Law Society (NZLS) and The Law Association of New Zealand (TLANZ).

Internationally, Mark is an arbitration panel member of the New Zealand International Arbitration Centre (NZIAC), the International Chamber of Commerce (ICC) and the Australian Centre for International Commercial Arbitration (ACICA).

Adjudication

Adjudication under the Construction Contracts Act 2002 gives parties to a construction contract a fast statutory route to a binding determination. It is the mechanism most often used to resolve payment and other disputes while a project is still running. A determination binds the parties unless and until the dispute is finally determined by arbitration or the court — the “pay now, argue later” principle — and in practice the great majority of determinations are accepted by the parties as final.

Mark has completed more than forty-five adjudications, in disputes ranging in value from $50,000 to over $10 million. He is on the adjudication panels of AMINZ and the BDT, and regularly accepts appointment as adjudicator under the Act.

He has determined disputes concerning:

•      payment claims and payment schedules;

•      the contract price and the scope of work;

•      variations;

•      defects and remedial work;

•      delay, disruption and extensions of time;

•      retentions;

•      contract interpretation; and

•      cancellation and damages.

Expert Determination

Expert determination is a creature of contract. The parties agree to refer a defined question to an expert whose decision binds them, without the procedural formality of an arbitration. It is quicker and cheaper than arbitration, and well suited to valuation, price and technical questions that do not require a full hearing.

Mark is appointed as expert determiner in commercial lease disputes, commercial contract disputes, and disputes under the ADLS/REINZ Agreement for Sale and Purchase of Real Estate and Agreement for Sale and Purchase of a Business.

Where the contract does not set out a process, Mark settles a short procedure with the parties at the outset, so each of them knows what is required, what the expert will and will not decide, and when the determination will issue. Defining the question precisely at the start is usually what determines whether an expert determination succeeds.

Mediation

Mark mediates building, construction and property disputes. He has completed mediation training through the University of Canterbury, AMINZ and the New Zealand Law Society.

Parties appoint him where the subject matter is technical and they want a mediator who can move quickly to the substance: someone who has spent his career deciding disputes of the same kind, and who can test the realism of each side’s position because he knows how those positions fare when they are decided.

Expert Conference Facilitation

Where a dispute turns on expert evidence, the experts are usually required to confer and produce a joint statement recording what they agree on and what remains in issue. A facilitator chairs that process. Run well, it removes most of the technical disagreement before the hearing; left to the experts alone, it often produces a statement recording little more than the fact that they disagree.

Mark accepts appointment to facilitate expert conferences, both within arbitrations and as a standalone appointment in litigation. He has been appointed to chair conferences of experts a number of times in complex defective building litigation.

Qualifications & Memberships

• BA/LLB (University of Canterbury), 1993

• Admitted as a Barrister & Solicitor of the High Court of New Zealand, 1994

• LLM (Hons) (University of Auckland), 2001

• Fellow (Arbitration) of the Arbitrators’ & Mediators’ Institute of New Zealand (FAMINZ Arb), Wellington, 2012

• Fellow of the Chartered Institute of Arbitrators (FCIArb), London, 2012

• Fellow of the Australian Centre for International Commercial Arbitration (ACICA), Sydney, 2022

• Certificate in Māori Protocol and Language (Level 4), 2022

• Council Member of the Arbitrators’ & Mediators’ Institute of New Zealand (AMINZ), 2014-2018

• Convener of The Law Association of New Zealand Property Disputes Committee 2016-2025

• Executive Committee Member of New Zealand Law Society Property Law Section, 2022-present

• Education Committee Member of the New Zealand Bar Association, 2021-2023

• Faculty Member, New Zealand Law Society Litigation Skills Programme, 2013-present

• Member of The Law Association of New Zealand

• Member of The New Zealand Law Society

• Member of the New Zealand Society of Construction Law

• Member of the International Wine Law Association (AIDV)