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Our People

FRANA DIVICH

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Frana graduated from the University of Otago in 1993 and was admitted to the New Zealand Bar that year. She was admitted as a solicitor of the Supreme Court of England and Wales in 2000.

She first practiced in Whangarei, specialising in criminal and civil litigation including appearing as counsel in jury trials. She moved to the UK and joined the in-house legal team of an insurance company specialising in professional indemnity work, before joining a London local authority, where she defended judicial review proceedings, property law claims, injunctions, and prosecuted quasi criminal matters. 

Frana returned to New Zealand in 2001. She worked in general commercial and criminal litigation, before joining the predecessor of the firm in 2005.  

Since then, her focus has been defending councils from all manner of tortious claims including building defects, LIMs, flooding, fire, land slips, fallen trees and breaches of the RMA.

She has appeared regularly in the specialist Weathertight Homes Tribunal and in the High Court, defending councils. She has acted for insurers defending professional liability claims brought against valuers, solicitors, financial advisors and project managers. She has appeared in the Supreme Court of New Zealand and the House of Lords in the UK.

As well her court advocacy skills, Frana frequently represents her clients in alternative dispute resolution processes, having been involved in hundreds of mediations and judicial settlement conferences over her career.

Frana heads the firm’s enforcement and recoveries team. She regularly presents seminars for clients and has also been invited to provide seminars to the legal profession.

Frana was appointed an associate in 2007 and became a partner in 2013.

OF INTEREST

5 September 2017

Cattell v Auckland Council (HC)

We successfully defended the council from a negligence claim due to limitation and although the council was found liable in nuisance, it was only for damage to a concrete driveway turning bay and not for the more expensive damage to the house.

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1 September 2017

Southland Stadium

At the Senior Building Control Officer's Forum we convened a panel on the lessons that could be taken from the Stadium Southland case.

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18 June 2017

Dr Grant Lester: Managing Unreasonable Complainant Behaviour

The complaints of difficult people take up a disproportionate amount of time and resources of employers. They also impact emotionally on those trying to manage their complaints. For that reason Heaney & Partners brought Dr Grant Lester, Consultant Forensic Psychiatrist, over from Melbourne to present to the delegates at the 50th Celebratory BOINZ Conference in May.

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13 June 2017

Double J Smallwoods v Gisborne District Council [2017] NZAR 1167 (HC)

We successfully defended the council against claims in nuisance and Rylands v Fletcher and although found liable in negligence, it was for only 26% of the amount claimed.

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11 June 2017

A win for the Councils in the Court of Appeal

On 21 March 2017 the Court of Appeal gave judgment in a case concerning the collapse of Stadium Southland’s roof. The Court of Appeal overturned the High Court’s decision and found that the Invercargill City Council was not liable.

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1 March 2017

Where it all began

Over the last 45 years there has been a proliferation of negligence cases brought against councils. Have you ever wondered how it all started?

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1 February 2017

Stop the Clock

A judgment released by the Supreme Court on December 22, 2016 provides leaky building owners, who have an assessor's report and an eligible claim, a choice of jurisdictions where one may not have existed before.

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1 December 2016

Risks posed by non-compliant passive fire measures

Concern about non compliance with passive fire protection requirements has been expressed by the industry for a number of years.

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1 November 2016

What the LIM cases have taught us

We now have a useful body of case law to guide us in the interpretation of S44A. The cases tell us who the council owes duties to and the extent of those duties.

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1 October 2016

Record Keeping - a litigator's perspective

Records become protection should your work ever be called into question. Having good records can be proof that you gave appropriate advice, made considered decisions and took appropriate action.

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1 September 2016

G6 of the NZ Building Code (Soundproofing)

Bob Russell (acoustic engineer) and Frana Divich (lawyer) met at the end of 2015. Bob had noticed an increase in the number of sound proofing issues on building sites. Frana had noticed a trend in claims against councils for claimants to include multiple building code breaches (including sound proofing). Together they resolved to write a teaching resource for their mutual clients, councils.

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1 September 2016

Sneaky, Creaky & Leaky

An article published in "The Property Lawyer" summarising Frana's co-presentation to the NZLS Property Law Conference on climate change, earthquake issues and leaky buildings.

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1 September 2016

Defective Cladding

Supreme Court gives green light to claim against CHH.

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27 April 2016

When more are not necessarily merrier

For a litigant, the council is the perfect target. It is solvent. It is not going to flee the country or hide its assets in a family trust. It cannot go bankrupt. It just sits there, collecting rates and rubbish, issuing building and resource consents, and making sure the public libraries are stocked with books.

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13 April 2016

Corbett v Voulk (HC)

We supported a successful application to have the self representing claimant declared an incapacitated person and a litigation guardian appointed to act on his behalf. The proceeding has been stayed pending the appointment of an appropriate litigation guardian.

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9 March 2016

Horwood v Opotiki District Council (HC)

The council successfully defended an application for particular discovery of irrelevant documents.

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21 December 2015

Body Corporate 326030 v Auckland Council (H47 Apartments) (HC)

We persuaded the claimants to discontinue against the council. We then obtained the council’s costs on the discontinuance from the claimants and an order that the claimants pay the costs of three out of four of the third parties joined by the council. The court found that the joinder of those third parties was the inevitable result of the claim being made against the council.

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1 November 2015

NZ Property Lawyer – Case Note

Our summary of Monticello for the magazine published by the Property Law Section of the New Zealand Law Society

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1 October 2015

On Council's Duty of care

Does the council owe a duty of care when issuing a project information memorandum PIM)? Is the council required to disclose information from historical records? These questions were answered in a very recent decision of the High Court: Monticello Holdings Ltd v Selwyn District Council [2015] NZHC 1674.

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31 July 2015

Good news for councils

Ten year Building Act long stop does not apply to cross claims

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26 March 2015

Wellington City Council v Registrar of Companies & Ors (Salamanca Investments Ltd) (HC)

The council succeeded in restoring a solvent developer to the Companies Register in circumstances where it is being sued for $21million in the Weathertight Homes Tribunal and may not have had other construction parties to share the burden of an adverse judgment with. The restoration allowed the council to join the developer to the Tribunal claim.

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26 March 2015

Don't give up the fight

The benefits of tactical plays with solvent builders

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25 September 2013

Liu v Auckland Council (WHT)

The council admitted liability but went to hearing to reduce the amount of damages payable and to recover against the other construction parties. It succeeded on all arguments including the measure of damages (loss in value as opposed to the cost of repairs), contributory negligence, remedial scope and it recovered 70% of the damages award from the other liable parties.

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31 July 2013

Gauld v Waimakariri District Council (HC)

The council succeeded at trial in its arguments relating to causation, loss of chance and contributory negligence.

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8 February 2013

Darby v Auckland Council (WHT)

The council succeeded in its cross claim against the previous owner in deceit for knowingly supplying to the council a forged producer statement and negligence.

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14 June 2012

Lee v Ryang (CA)

The council successfully opposed the project manager’s application for special leave to appeal to the Court of Appeal.

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21 March 2012

Paterson v Whangarei District Council (WHT)

The council escaped liability for 92% of the claim made against it.

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1 March 2012

Scandle v Far North District Council (CA)

The council preserved the finding that it had no liability to the owner of a building with foundation and weathertightness defects on appeal to the Court of Appeal.

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28 September 2011

Lee v Ryang (HC)

The council succeeded in preserving on appeal an 80% contribution from the project manager and a finding that he owed a non delegable duty of care.

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31 March 2011

Lucy Stanley Family Trust v North Shore City Council (WHT)

The council escaped liability for the negligence claim brought against it by the owner of a leaky building.

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30 July 2010

Scandle v Far North District Council (HC)

The council successfully defended all causes of actions alleged against it.

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16 December 2008

Trustees Executors Limited v Wellington City Council (HC)

The council preserved on appeal from the Weathertight Homes Tribunal the findings that it had not breached duties of care owed to the claimant and that it was entitled to costs in the Tribunal.

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7 March 2008

Trustees Executors Ltd v Wellington City Council (WHT)

The Tribunal found that the council had not been negligent and dismissed the claim against it.

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