By Diana Clement
Nolan’s steady hand and attention to black letter law has guided the most important document in New Zealand property law for more than 15 years, presiding over the form at a time when the sector was riding the wave of leaky buildings and property investment scandals. He has been involved in every new form since 1999 and from 2005 onwards has been the principal drafter.
It kicked off back in 1999 when Nolan was approached by the then ADLS Forms Committee, now called the Documents and Precedents Committee. It was debating the 7th edition at the time.
Peter Nolan
“They had a few issues amongst the committee they weren’t comfortable they had resolved,” says Nolan. “They decided to call in an independent person to overview the draft agreement they had come up with because there were quite a few changes from the previous edition. I had a keen interest in the form. That’s where it all starts.”
Fast forward six years and the committee had begun the process of creating the 8th edition. Niamh McMahon, partner at McMahon Butterworth Thompson Lawyers, was in the driving seat as committee convenor and had launched one of the most far-reaching reviews of the agreement to date.
The committee was inundated with opinions about what was wrong with the agreement, but none of those commentators was more thorough than Nolan, McMahon says.
“Peter became involved [with the 8th edition] because he wrote in, in very black and white terms, pointing out the shortcomings of the agreement. He took the time to write a lengthy letter, not just a quick line to say: ‘hey, I don’t like that clause’.”
Nolan’s communication was almost a thesis. It explained, word by word, with supporting documents and case references, how the existing agreement was no longer fit for purpose, how it needed to change and what the committee needed to do, she says.
Thanks to that letter, Nolan landed himself a permanent place on the drafting team. “Like anything, if you get your biggest objector on board, you get are source that becomes very valuable,” says McMahon. “It was obvious that he was the best person to steer that ship.”
Nolan wasn’t one for chit-chat or banter. But he did a grand job of taking onboard comments from the profession, coming up with suggested changes and drafting clauses, says McMahon. Those changes would then be thrown into the ‘lion’s den’ at committee meetings.
“Peter can take the credit for doing the hard yards and all the heavy lifting in terms of drafting words that ultimately found their way onto the page to meet those challenges.
“Our forebears gifted us a document that everybody accepted was fair. It[didn’t] try to be the vendor’s version or the purchaser’s version. It was just ‘what do Kiwis expect when they buy a property?’ It just needed updating to keep pace with the times.” He built on a good base document, says McMahon.
The 8th edition was particularly tricky. “We were in the thick of the leaky building era,” says McMahon. “It was abhorrent that people [had] unwittingly purchased properties where issues weren’t fully disclosed.”
With that in the background, the incumbent agreement needed revising to ensure it still met fairly the needs of both vendor and purchaser. The pendulum was swinging away from caveat emptor, says McMahon, and the form was redrafted to keep pace.
Nolan took on the challenge. He had always made a point of keeping up-to-date with the latest case law and legislation and was determined that the form accurately reflected that.
At meetings, Nolan had always done his homework, says McMahon. His research was exhaustive. “If you had to be corrected on the point, it was done in an appropriate way and your dignity was left intact. He was unfailingly polite. He holds his views strongly but has good skills to bring you along with that.”
Nolan was a top wordsmith, and he needs to be honoured for his hard-core skills, says McMahon. “He is your old-fashioned black-lettered lawyer. He knows his onions. He knows his law. He’s almost invariably right.
“I think that encapsulates Peter. And we need Peters in the world. We need loads of them: people who are really focused on the black letter stuff, the straight and narrow, so we’re not swaying with the winds of change in a way that takes us away from core principles. Peter’s the person for that.”
After the publication of the 8th edition in 2008, the committee didn’t get to rest for long. A Supreme Court decision in Property Ventures Investments Limited v Regalwood Holdings Limited meant Nolan was soon in the thick of one of the most significant changes to the agreement in recent years, says barrister Tim Jones, who has been involved with the ADLS Documents and Precedents Committee for years.
The Property Ventures case centred on breach of warranty. It was probably the best example in the history of the form of how judicial commentary shaped the drafting, says Jones.
“There was a comment by the Supreme Court in the decision and a statement by the court that it surely shouldn’t be too hard upon the drafters of the form to provide a clause that would deal with this situation,” Jones says. Nolan rose to the occasion and drafted what was called the interim compensation provision, released in the eighth edition 2006(3) in August 2010. It introduced a process to be followed before a purchaser would be entitled to compensation or an equitable set-off resulting from an error, omission or misdescription of the property or the title.
In cases such as this, Nolan moved quickly when redrafting was required with urgency. An example, says Jones, was the building report clause to sit with finance, LIM and OIA/Land Act conditions added into the 9th edition (1) – (8).
“I distinctly recall getting the pressure that we needed to give this consideration, so we sat down with Peter, we looked through the concepts, the case law [and] the issues, and then Peter came up with the draft clause.
Jones describes Nolan as a “first class lifesaver”, always stepping in when needed and completing his work for the committee in a very timely fashion. “He is thorough, he is accurate. He knows his mind. If he doesn’t like what we’re doing, he will tell us [and] give some very good reasons. He doesn’t shirk from telling you he thinks that you’ve got it wrong. Often, he’s right.”
The committee rarely diverged from Nolan’s advice because it was always so precise, Jones says.
“He knows the form inside out and he’s very meticulous about it and ensures that the drafting is consistent. We are pretty lucky to have had him all those years and are very disappointed that he is retiring.”
Nolan’s expertise in property law was also noted by the New Zealand Law Society (NZLS). In the late 2000s he was invited to join the NZLS working party that prepared and presented submissions to Parliament’s select committee on the Property Law Bill, which was later enacted as the Property Law Act 2007.
“There was a committee formed by the New Zealand Law Society to review the bill and to make a comment on it,” Nolan says. “And that was how I got involved at the New Zealand Law Society level.”
He went on to present a nationwide series of seminars for the NZLS in the late2000s, again in 2012 and then 2017.
When Nolan looks back at the highlights of his career, his membership of the ADLS committee is at or near the top.
“It really has been a highlight and I’ve thoroughly enjoyed the work. Otherwise, like most lawyers, it’s the contact with clients, the relationships you make and the vision you get from hopefully doing a good job and achieving an outcome. Solving problems and giving good sound advice.”
Nolan graduated with a Bachelor of Arts and Bachelor of Law from the University of Otago in 1973. He was admitted as a barrister and solicitor in 1976.
Five years later he was made partner at Towle & Cooper, which subsequently merged with Brookfields. Nolan went on to join Kensington Swan as a partner in 2002. He was attracted to Kensington Swan because it was a much larger national law firm and he could work with the legendary Ian Haynes ONZM. At Kensington Swan, Nolan was the partner in charge of the property department at the firm’s Auckland office.
Nolan practised his entire legal career in property law. Over the years he saw first-hand the fallout from property transactions gone wrong. “I acted as an expert witness in many cases, including in particular in the Blue Chip debacle, where the lawyers acting for the purchasers were sued for negligence.” He has also acted as expert on leaky homes cases.
The form wasn’t at fault in either of these scandals, he says. “It really came down to the poor quality of the legal advice they got, rather than the form. It’s a standard form. You still need to take sound, proper legal advice before signing anything or any contract.”
Nolan says he has enjoyed his entire legal career, but particularly the collegiality and camaraderie of the profession. “I particularly found that when I was starting to [give] expert evidence and mingle a bit more with the litigation barristers. You could ring anybody up and ask for advice.
“The other thing actually is the calibre of the people on the committee. There have been some really good lawyers on the committee and the profession owes it a big debt.
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