LawTalk Issue 794 by New Zealand Law Society

LAWTALK

27 APRIL 2012 / 794

FOR THE NZ LEGAL PROFESSION

NEW ZEALAND LAW SOCIETY NZLS EST 1869

LEGAL MARKETING FEATURE – PAGE 12 PAGE 4

RENEWING YOUR PRACTISING CERTIFICATE

PAGE 6

WHAT DOES ‘UNTENANTABLE’ MEAN?

Practising Well Supporting Kiwi lawyers since 2009 Be sure to check out our PRACTISING WELL resources at my.lawsociety.org.nz/practising_well

NEW ZEALAND 2

LAW SOCIETY

LAWTALK 794 / 27 APRIL 2012 NZLS EST 1869

INSIDE

FEATURE: LEGAL MARKETING

THE MAGAZINE

“Just how broken “If potential clients don’t know who is the court’s document you are, what you offer and why you management system?” are different, they won’t choose your firm over the competition.” p. 7

p. 14

Standing out in the legal crowd

Renewal of practising certificates All lawyers who want to continue to practise after 1 July 2012 need to apply to renew their practising certificate...

Researching intellectual disability and the law Views on Evidence Act wanted

Step closer to Madrid Protocol

Although legal marketing is nothing new, many firms, big and small, still grapple with how much resource to dedicate to marketing...

NZ to challenge for Lawyers Rugby World Cup New Zealand Lawyers Rugby will challenge current holder Scotland for the Lawyers Rugby World Cup...

Judicial settlement conferences

By HANNAH GRANT

15 Effective marketing By HANNAH GRANT

Victoria wins best memorial

Marketing comes in different forms depending on desired reach and breadth of budget...

Marketing – it’s more than an expensive advertisement

Barristers to enter self-promotion era

By RACHAEL BRECKON

Undoubtedly if your legal service is substandard, no amount of money spent on an advertising or promotional campaign is going to pay off.

Branch News

Four new VicePresidents The New Zealand Law Society now has four new Vice-Presidents...

After much discussion, debate, and analysis...

REGULARS

From the Courts

People in the law

Section News

The Bookshelf

CLE

Overseas

Lawyers Complaints Service

Law Foundation nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety

LAWTALK 794 / 27 APRIL 2012

FROM THE LAW SOCIET Y CHRI S moore

he New Zealand Law Society made a submission on the review of the Real Estate Agents Act (Professional Conduct and Client Care) Rules. Our recommendation, if followed, should help to clarify some of the uncertainty surrounding the responsibility a real estate agent has to understand and convey legal issues to clients. This discussion began at the end of last year when the Real Estate Agents Disciplinary Tribunal decision LB & QB v Real Estate Agents Authority & LI [2011] NZREADT 39 made obiter comments that placed a duty on a licensee to advise prospective purchasers on title issues. The tribunal commented that “licensees should be familiar with and able to explain clearly and simply the effect of any covenants or restrictions which might affect the rights of a purchaser.” This was reaffirmed in the Real Estate Agents Authority February 2012 newsletter. It advised licensees that it considers it “a fundamental part of a licensee’s duty to check the title of any property that they are selling (or to get a competent person to check the title)”. The decision has created practical difficulties, with some property lawyers and real estate agents concerned that too much responsibility is being placed on licensees to give advice and understand complex legal issues outside their area of expertise.

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The Property Law Section prepared the Law Society submission on the Rules. We recommend that a clause be added to rule 5.1, stating that “where legal or technical issues arise in relation to a property, it is sufficient for a licensee to recommend the customer or client concerned to take advice from a lawyer or other person qualified to give that advice.” The submission also explains the complexities of the various forms of title and how interpreting the legal effect of these documents can, in many cases, call for significant legal analysis, and why this is best to continue as the province of a property lawyer, not a real estate agent. On a different note, we are pleased to report that the consolidation of the e-dealing and Property Transactions Practice Guidelines is making slow but steady progress. The effort has been worthwhile, and we are grateful to all our members who have committed time and energy to this project. A payment agreement has been reached with the authors of the 9th edition of the ADLSi/REINZ Agreement for Sale and Purchase, which will ensure consistency between the contract and the guidelines. Members’ comments on a consultation draft of Part 1 have been incorporated. Also, the revised Part 2 (e-dealing guidelines), on which the Section has been working closely with the Registrar-General of Land and his team, will soon be released for consultation. Chris Moore Property Law Section Chair

LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Hannah Grant Ph +64 4 463 2902 hannah.grant@lawsociety.org.nz DISPLAY Advertising: Frank Neill Ph +64 4 463 2982, editor@lawsociety.org.nz CLASSIFIED Advertising: Christine Pugh Ph +64 4 463 2966 christine.pugh@lawsociety.org.nz Inquiries about subscriptions to: subscriptions@lawsociety.org.nz DESIGN: Jesse Cogswell Ph +64 4 463 2981 jesse.cogswell@lawsociety.org.nz Printing: Lithoprint, Wellington ISSN 0114-989X

Coming up … 20th ANZSIL Conference International Law in the Next Two Decades: Form or Substance? is the theme of the 20th Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL). This conference will take place from 5-7 July, hosted by the New Zealand Centre for Public Law at Victoria University. It will provide an opportunity to reflect on the last 20 years in the development of international law, but equally important to look ahead to the emerging issues and to speculate on what the next 20 years will bring for international law and its practice and teaching. See www.victoria.ac.nz/ law/.

Clear legal writing Clarity’s fifth international conference will be held from 21-23 May at the National Press Club, in Washington DC. Clarity 2012 will focus on learning from and encouraging activity responding to the US Plain Writing Act of 2010. Among other things, the conference will look at the opportunities the act presents for plain-language practitioners and lawyers with plain language skills to provide services to government agencies. Clarity is a worldwide group of lawyers and others who advocate using plain language in place of legalese. Sir Kenneth Keith is one of three patrons. Clarity’s New Zealand representative, Lynda Harris, and New Zealander Simon Hertnon will present at this year’s Clarity conference. See https://sites.google.com/site/ claritydc2012/.

Sports law Entries are now open for the Paul Trisley Award, given to the person

CLIENTS WITH

ACC DISPUTES? The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.

JOHN MILLER LAW

Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I info@jmlaw.co.nz www.jmlaw.co.nz

judged as submitting the best academic paper on a sports law topic each year. The award was named after Paul at the 2001 Australia and New Zealand Sports Law Association (ANZSLA) Conference. The recommended maximum length of the paper is 12,000 words. Entries for the 2012 Paul Trisley Award must be received by ANZSLA’s executive manager via email, anzsla@ anzsla.com by Friday 7 September.

Legal roundtable on IP Alltech’s 28th Annual International Symposium will be held from 20-23 May in Lexington, Kentucky, USA. The symposium will feature a legal roundtable discussion to delve into open dialogue on protecting intellectual property. Leading the discussion will be four authorities on intellectual property (IP), patent and trademark law. The event is expected to draw more than 2,500 delegates from around the world making it the industry’s largest symposium. See www.alltech.com/ symposium.

Negligence conference The Paisley Snail Conference, an international negligence conference, will be held in Paisley, Scotland, on 25 and 26 May. This event marks the exact 80th anniversary of Lord Atkin’s judgment in the famous case Donoghue v Stevenson. The conference is being organised by the University of the West of Scotland, Renfrewshire Law Centre, the Law Society of Scotland and the Faculty of Advocates. Places are limited and must be registered online or by email. See www.uws.ac.uk/schoolsdepts/ business/thepaisleysnail/index. asp.

• Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.

LAWTALK 794 / 27 APRIL 2012

NEWS

Renewal of practising certificates All lawyers who want to continue to practise after 1 July 2012 need to apply to renew their practising certificate and pay the required fees before the due date. The following information is provided to help with your renewal:

How much will my practising certificate cost? Subject to approval by the Minister of Justice, the proposed fees and levies for the year 1 June 2012 to 30 June 2013 are: •

•

barristers and employed barristers and solicitors: $1262 (GST excluded); barristers and solicitors practising on their own account (without a trust account): $1647 (GST excluded); and barristers and solicitors practising on their own account (with a trust account) $1967 (GST excluded).

If finally approved, the fees in each case total a $22 (GST excluded) increase over the 2011-2012 year.

When will I receive my renewal application form and invoice? By mid May, all lawyers who held a practising certificate at 26 April 2012 should receive a notice for renewing their current practising certificate. All current practising certificates expire on 30 June 2012. If you are a member of a Law Society section, or the NZLS Panel of Mediators as a family specialist, the subscription fees will be included on your renewal invoice. There is no subscription fee to renew your Law Society membership. Anyone who has not received a renewal notice by the end of May should contact the Law Society Registry.

What is the deadline for the Law Society to receive my renewal application form and payment? The renewal application form (including the declaration) and

LAWTALK 794 / 27 APRIL 2012

payment is required under the Lawyers and Conveyancers Act 2006 and must be completed by 30 June 2012. Both your application and payment can be mailed or completed online. Instructions on how to do this will be sent to all lawyers and firms. We are requesting everyone to complete their application by 13 June. This deadline has been set to allow for delayed or mislaid renewal applications, and to allow the printing and distribution of the new practising certificates before 1 July. We recommend completing your renewal application and payment online to avoid any potential delays. Law firms and other employers will be able to pay on behalf of their lawyer employees by credit card, direct credit or cheque. Where a firm has nominated a firm administrator, that person will be contacted in early May with information on the procedures for making payments on behalf of lawyers within their organisation.

My employment/practice details have changed. What do I need to do?

fitness to practice.

I no longer require a practising certificate after 30 June 2012. What do I need to do? Please email registry@lawsociety.org. nz. This will enable us to advise you of your options, and to ensure you avoid receiving reminders about renewal.

What happens if the Law Society does not receive my renewal application or payment until after 30 June 2012? If payment is not received or your declaration is not completed, you will not hold a current practising certificate and your name will not appear on the Register of Lawyers. It is an offence to practise law in the reserved areas of work (see s6 of the Act) or to describe yourself as a lawyer (see s21) without holding a practising certificate. After 1 July 2012, you will be required to complete a new application for a practising certificate.

If your details differ from those shown on the renewal application form, you can mark the changes on the form before posting to the Law Society, or you can contact the Registry. Employment details cannot be updated online.

The names of those who do not notify the Law Society that they are not renewing will also be supplied to Courts, Land Information New Zealand and the Ministry of Justice, and published to the profession as appropriate.

Anyone applying for a practising certificate after 26 April 2012 will be issued with one invoice which covers the remainder of the practising year to 30 June 2012, and the fees for the period 1 July 2012 to 30 June 2013.

I have a current Landonline digital certificate and can “certify and sign”. What do I need to know?

I have read the declaration and acknowledgement in the renewal application and I am unsure whether I need to disclose a certain matter. What should I do? If you are unsure, it is best to either declare the matter to the Law Society, or contact our Registry to discuss it further. This component of the declaration is intended to cover (but is not limited to) such matters as criminal convictions, bankruptcy or a mental illness that could affect your

If you have a current Landonline digital certificate and the ability to “certify and sign” instruments, you are required to have a current practising certificate. Please be aware that if you have not renewed your practising certificate by 30 June 2012, you are at risk of having the ability to certify and sign removed from your digital certificate by Land Information New Zealand.

How do I contact the Law Society Registry? You can contact the Registry by email at registry@lawsociety.org.nz or by phone on 0800 22 30 30. LT

NEWS

Researching Views on Evidence Act wanted intellectual disability and the law The Law Commission recently received a reference to review the Evidence Act 2006 and is seeking the views of lawyers.

As required by s202(1) of the Evidence Act 2006, the Minister of Justice has asked the commission to report on:

Developing a Legal System Responsive to People with Intellectual Disabilities is the title of a new multi-institute research project. The researchers include Dr Brigit Mirfin-Veitch, Director of the Donald Beasley Institute; Professor Mark Henaghan, Dean of the Otago University law faculty; and Associate Professor Kate Diesfeld, of the health faculty at AUT University. The project, which has received a New Zealand Law Foundation grant, has identified that young people and adults with intellectual disabilities continue to find it difficult to exercise their human rights and to access the legal system. The extent to which people with intellectual disabilities are able to benefit from key legislation or be active participants in the legal process is compromised by a discernible and widespread inability of legal practitioners to identify or to respond appropriately to clients with intellectual disabilities or to their advocates.

(a) the operation of the provisions of the Act since its commencement;

(b) whether those provisions should be retained or repealed; and (c) if they should be retained, whether any amendments to the Act are necessary or desirable. The commission’s report to the Minister is required by 28 February 2013 (being one year from the date on which the reference occurred: s202(2) of the Act). The commission has begun its consultation process and is interested in hearing from lawyers about their experiences with the Act. In particular, the commission would like to receive any feedback regarding problems in the way that the Act is operating that may require legislative amendment. The present review will build on the commission’s consideration

of the operation of the veracity and propensity provisions in the 2008 report Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC R103, 2008) and subsequent ministerial briefing (on 1 April 2010), copies of which can be found at www. lawcom.govt.nz.

Other areas that have been identified on a preliminary basis as needing consideration are previous consistent statements and identification evidence. For those wishing to make a submission, the commission has created a template form that is available for download at www. lawcom.govt.nz. Alternatively, comments or feedback can be emailed to evidenceact@lawcom.govt.nz or sent by post to Evidence Act Review, Law Commission, Level 19, 171 Featherston Street, PO Box 2590, Wellington 6011. The closing date for submissions is 1 June. The Law Commission has specifically invited the New Zealand Law Society to provide feedback as to the shape and substance of the review, and the Law Society will, as part of its law reform function, be considering the paper. LT

Judicial settlement conferences

To achieve optimum outcomes for this group, it is imperative that lawyers and judges have the requisite knowledge to develop appropriate strategies within the legal system, the research team says.

Guidelines for lawyers on judicial settlement conferences are now available. The new guidelines are on the Courts of New Zealand website at www.courtsofnz.govt.nz/ business/practice-directions.

Earlier research suggests that legal professionals are concerned to address the lack of knowledge in this area, although relatively few research projects have focused on the views and perspectives of lawyers or judges involved in legal proceedings that concern people with intellectual disability.

The guidelines have been promulgated

The project is designed to address this issue and to improve outcomes, and has been motivated by the importance of human dignity, particularly in legal proceedings. It has the potential to contribute to an important field of study both within New Zealand and internationally as well as influence policy and practice. LT

New Zealand will be the first country to undertake an “operational preparedness” test before it implements the protocol, Mr Foss said.

following a 2011 review the High Court undertook on offering of judicial settlement conferences. As a consequence of that review, guidelines were formulated to communicate with the profession what parties and counsel could expect at a settlement conference. LT

Step closer to Madrid Protocol New Zealand is a step closer to joining the Madrid Protocol, Commerce Minister Craig Foss announced on 4 April.

The Madrid Protocol provides an international regime for the registration

of trademarks, called the Madrid system. It will enable New Zealand businesses

to file a single application directly with the Intellectual Property Office of New Zealand and designate one or more overseas countries where protection is sought. Currently, New Zealand businesses need to submit separate applications in each country where protection is required. “When New Zealand is fully signed up, Kiwi companies will have a onestop-shop for worldwide trade mark registration,” Mr Foss said. LT

LAWTALK 794 / 27 APRIL 2012

FROM THE COURTS What does ‘untenantable’ mean? By Ben France-Hudson* Comments made in a recent LawTalk article suggest dissatisfaction with the courts’ approach to the test for untenantability under clause 26.1 of the ADLS Inc Deed of Lease (LawTalk 789 17 February 2012, page 12). There is limited judicial discussion of untenantability. The current approach can be traced back to Justice Robertson in DFC New Zealand Ltd v Samson (1993) ANZ ConvR 481 where he suggested that untenantability involved a degree of permanence and was likely to be established where there was substantial interference with a tenant’s ability to enjoy, use and operate the premises. This has been approved in the different context of agreements for sale and purchase. However, 2011 saw a rash of cases concerning the meaning of untenantability under the ADLS Inc lease. In Russell v Robinson [2011] 2 NZLR 424 (April), the tenant’s painters caused a fire resulting in extensive damage. Justice Priestley rejected the tenant’s argument that if they wished to remain in the premises it could not properly be described as “untenantable”. He noted that untenantable is an objective state to be determined on specific relevant facts. The focus of the inquiry must be on whether the premises are capable of being tenanted by the tenant who went into the premises for a specific purpose and term. Consequently, the tenant’s purpose is integral to the permitted use of the premises and, in turn, whether the premises have become untenantable. However, this focus cannot be coloured by the subjective preference of either the landlord or the tenant. In May, Justice Chisholm was required to consider the meaning of untenantablity in the context of a

LAWTALK 794 / 27 APRIL 2012

commercial building damaged as a result of the Christchurch earthquakes. GP 96 Ltd v FM Custodians Ltd (2011) 12 NZCPR 489 involved an application for an interim injunction by a tenant to prevent a mortgagee in possession from taking any further steps with regard to terminating the lease or demolishing the damaged building. Justice Chisholm considered both DFC and Russell v Robinson. He noted that the meaning of untenantability requires an objective test which reflects that the clause is for the benefit of both parties. Before untenantability can be established there needs to be some degree of permanence; something merely temporary will be insufficient. All relevant facts must be taken into account, including the purpose and duration of the lease, the extent of the damage and the time that repairs will take. He noted that if untenantability is established the lease will automatically terminate. The court considered that, on the facts, untenantability had not been established. The lease had 16 years left to run. Full repairs would take a period of 15 weeks. This did not indicate an element of permanence, but could more accurately be characterised as temporary. The mortgagee in possession had argued that the existence of the restrictions imposed by the “red zone” should be considered in determining untenantability. In considering what weight, if any, could be given to these facts, Justice Chisholm indicated that taking this into account would have significant implications for Christchurch and had the potential to lead to “commercial chaos”. He was not prepared to consider the issue in the context of an application for an interim injunction. He did, however, note that even if the red zone

was not to be lifted for another seven months, this would be unlikely to alter the degree of permanence in the context of a 16-year lease. Finally, in August 2011 Justice Ellis considered the meaning of untenantable in New Lynn Compliance Centre Ltd v Birdwood Custodians Ltd (HC Auckland, CIV 2011-404-1551, 4 August 2011). This decision muddies the waters considerably. The leased premises had been damaged by fire on 2 November 2008. The landlord purported to terminate the lease and brought proceedings to recover arrears in outgoings. The tenant counter-claimed seeking damages for conversion of chattels that had remained at the premises following the fire. Whether the tenant could succeed in conversion depended on whether they had been unlawfully denied entry to the premises from the time they had been advised the lease had been terminated. This required consideration of whether notice was required to terminate the lease, and what period of time following termination is allowed for the tenant to remove its chattels. Clause 26.1 of the ADLS Inc lease was crucial to these issues. Justice Ellis focused on the distinction between clauses 26.1(a) and (b). In her view, cl 26.1(a) exists for the benefit of the tenant. Tenantability is a fundamental prerequisite from the tenant’s perspective, not from the landlord’s. In reaching this view, the judge looked at the consequences of using a simple objective test for untenantability exercised by the landlord. The District Court held that the lease had terminated the day of the fire. Coupled with cl 32.1, the consequence of this was that the tenant had only seven days to remove its chattels. Justice Ellis thought that this was “unfair”, particularly given it was accepted that the landlord had initially

expressed a view that the tenant might be able to stay on. Justice Ellis considered that this simply could not be right. Her Honour noted that, by contrast, cl 26.1(b) logically applies where the tenant remains in possession and the landlord wishes to terminate. Consequently, she decided that cl 26.1(a) could not be interpreted so as to allow a landlord the choice about whether to terminate the lease or not. Any “choice” is reserved to the tenant about whether the premises remain tenantable. It would be expected this choice would be exercised reasonably. If a tenant perversely chose to stay the landlord could always terminate under cl 26.1(b). Of course, this analysis is in stark contrast to Russell where the tenant expressly wanted to retain the premises. Justice Priestley dismissed the contention that the clause is primarily for the benefit of a tenant, stressing that untenantability is an objective state to be determined on specific relevant facts. Justice Ellis’s decision is difficult to reconcile with the line of authority and stretches the plain words of cl 26.1(a). However, it does demonstrate some of the practical problems with the test and with the structure of cl 26 more generally. In particular, there is a glaring problem regarding the consequences of a finding of untenantability. Moreover, from a policy perspective Birdwood is very interesting. Clause 26.1(b) is clearly drafted for the benefit

of the landlord. Given the context, it is easy to see why Justice Ellis accepted that cl 26.1(a) is for the tenant’s benefit. However, the way in which cl 26.1(a) is currently drafted does not clearly express this policy. Indeed, the logical conclusion of Justice Ellis’s reasoning is that untenantability as a standard becomes irrelevant. The tenant would need to make a choice in any situation where there was destruction or damage to the premises, regardless of whether it happened to be untenantable. On the current wording “untenantable” must mean something. Conversely, it is difficult to articulate why the subjective view of the tenant should not be taken into account where the tenant is still interested in the premises on the original terms. The landlord will still get what they bargained for, the building will be repaired, the tenant will meet its obligations and the landlord will still have the option to terminate under cl 26.1(b) if the damage is so bad as to require demolition or reconstruction. The current approach can be criticised on the basis that it is not obvious why the tenant should not also have the option to choose. ADLS Inc says that it is currently reviewing its Deed of Lease, which is used extensively in the context of commercial renting. It appears there is some validity to the dissatisfaction expressed regarding the

test for untenantability. In particular, the cases can be read as suggesting that untenantability might not be a useful standard in this context. If, as seems appropriate, cl 26.1(a) is to operate primarily for the benefit of the tenant, this needs to be more clearly expressed. However, on the current drafting, recourse to an objective interpretation is appropriate. There is nothing inherently objectionable in an objective test. The law is comfortable with this sort of test, particularly in relation to the interpretation of contracts. In addition, it is difficult to imagine an interpretation of untenantable that did not require consideration of the specific facts and circumstances of individual cases. Anything too rigid is likely to lead to other forms of injustice. Suggestions such as incorporating time limits for repairs and modifying breakout clauses may make the question of tenantability easier to answer and will assist in allocating risk. They will not, however, solve the issue of how to deal with a tenant who wishes to retain possession. Assuming a test of untenantability is to be retained, careful thought should be given to the practical implications of an objective and factually specific test in this context and the specific policy at operation within the clause. *Benjamin France-Hudson is a PhD candidate at Otago University. He is investigating the registration of interests in natural resources as a method of assisting regulation. LT

How broken is the court’s document management system? “Just how broken is the document management system of Ontario’s Superior Court of Justice?” was the opening sentence of Justice David Brown’s 14 March 2012 judgment. Exploring this question took up well over half his decision, one of the mostread judgments on the CanLII website in the week after it appeared. “I suppose that on a sunny, unusually warm, mid-March day one should be mellow and accept, without complaint, the systemic failures and delay of this court’s document management system,” Justice Brown wrote in Romspen Investment Corp v 6176666 Canada Ltée, 2012 ONSC 1727. “The problem is that from the perspective of the members of the public who use this court, delays caused by our antiquated, wholly-inadequate document management system impose unnecessary, but all too real, costs on them,” he said. “Let me tell a little story. It is not an

unusual story. Indeed, it is a common story in this court. But the story illustrates an important point, a point which judges, as the ultimate stewards of the health of our system of justice, must be vigilant in keeping on the radar screens of those who hold the purse strings of this court’s administration system.” Justice Brown went on to outline the sale of condominium units by a receiver. As part of this process, it had filed sealed appraisals of some of the units, but only one copy of each appraisal. Needing multiple copies, Justice Brown sent a member of his staff to a nearby court building, where sealed documents for commercial list matters are kept. “My CSO duly went across the street, waited until the responsible person was back from a break, ultimately retrieved the documents, and brought them back over. Elapsed time? One hour. “At the same time receiver’s counsel had contacted her office and her

assistant was able to locate copies of the appraisals which had been filed and brought them up to court. Elapsed time? One hour. A tie of sorts. “And the consequences of that one hour delay? On my part, none. I walked across the plaza, picked up a latte at Starbucks, came back and continued working on a reserve from yesterday,” he said. “But the consequences to the litigant, the court-appointed receiver? A delay of one hour, involving the expenditure of additional counsel time, higher legal fees, an increase in the expenses of administering the receivership, and a consequent reduction in the net recovery for the creditors of the project.” Justice Brown then went on to ask what the real solution was. “Consign our paper-based document management system to the scrap heap of history and equip this court with a modern, electronic document system,” was his answer. LT

LAWTALK 794 / 27 APRIL 2012

PEOPLE IN THE LAW

ON THE MOVE

Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email editorial.lawtalk@lawsociety.org.nz. The usual editorial discretion applies.

Grace ThomasEdmond has joined Buddle Findlay’s Wellington office as a solicitor in the corporate and commercial team. Before joining Buddle Findlay, Grace was a judges’ clerk at the High Court in Wellington. Rupert Rouch has joined Buddle Findlay’s Wellington office as a solicitor in the banking and finance team. Rupert previously worked in tax and litigation at another large law firm.

lawyer who has held a variety of roles in the investment management sector, Lisa brings a broad understanding of commercial aspects of law, and firsthand knowledge of what clients want in a law firm. Grant Goldsmith has joined the firm’s banking, finance and insolvency team as a special counsel. Grant specialises in property finance, sponsor-backed acquisition finance and syndicated corporate facilities. He has advised borrowers and financial institutions on a wide range of financing matters in New Zealand, and over several years in the banking department of Linklaters LLP.

Environmental law specialists Sue Simons and Simon Berry launched new boutique environmental law firm BerrySimons in Auckland on April 2. Both Sue and Simon have more than 25 years’ experience in environmental law as well as experience as partners in traditional, larger law firms. They are supported in their new Shortland St offices by an experienced team of specialist environmental lawyers. Anthony Harper has a new Chief Operating Officer and has appointed a new corporate banking lawyer. Lisa Jacobs has joined the firm in the newly created position of Chief Operating Officer. A qualified accountant and

LAWTALK 794 / 27 APRIL 2012

Buddle Findlay has appointed five new senior associates. Two are based in the Auckland office: Matthew Triggs (banking and insolvency) and Jo Giboney (taxation).

Three are based in the Wellington office: Joss Opie (employment and litigation), Peter Niven (litigation and insolvency) and Natasha Wilson (public law).

Waikato firm Norris Ward McKinnon has appointed Rachel Scott as an associate. Rachel is a senior member of the litigation and employment team, specialising in civil and tax litigation, insolvency, debt recovery and general litigation. Adderley Head has appointed two new lawyers to the firm’s team of resource management law specialists. Samantha Buckley is moving from the Environment Court at Auckland to Christchurch to join the firm. Rohan Wanigasekera recently graduated from Waikato University with first class honours. Michael Vukcevic has been appointed chief executive at Baldwins Intellectual Property. Michael was previously chief executive for a trans-Tasman clinical research organisation. Before this, Michael worked at Ernst and Young where he was executive director business development. He was also the associate awards director for Ernst and Young’s Entrepreneur of the Year programme. Michael has held executive roles with Fonterra (primarily focused in the Japanese and Asian markets), and in the information technology, telecommunications and recruitment industries. He is the current chairman of the New Zealand Middle East Business Council and a director of Transparency International (NZ).

PEOPLE IN THE L AW Maria Clarke Lawyers has appointed two new senior lawyers to its specialist sports law practice. Tara Pryor has over 10 years’ legal experience in the finance industry as well as general commercial experience. Tara is a former New Zealand football representative. Dave Kapa specialises in intellectual property, commercial, media and sports law. He is returning to New Zealand from a boutique firm in Australia, where he also spent time as an athlete manager on the Association of Surfing Professionals World Championship Tour. Sarah Little has been made an associate of Horsley Christie. Sarah has practised with the firm since May 2006 and specialises in family law, including parenting and care

PEOPLE Judge Sir David Carruthers KNZM has been appointed member and chairperson of the Independent Police Conduct Authority (IPCA) for a fiveyear term. Sir David succeeds Justice Lowell Goddard QC, whose term has ended. “I would like to thank Justice Goddard and acknowledge the fine work she has done over the past five years,” Justice Minister Judith Collins said when announcing the new appointment on 12 April. Sir David is a former Chief District Court Judge and former Principal Youth Court Judge. He was appointed a District Court Judge in 1985 and has been chairperson of the New Zealand Parole Board since 2005.

and protection matters, domestic violence, relationship property, personal and property rights, adoption, paternity and estate claims. Sarah also undertakes work in employment law and debt collection. Jacquie Lethbridge became a partner of Grove Darlow & Partners on 1 April. Jacquie specialises in civil, commercial and insolvency litigation. Before joining the firm in January 2008, Jacquie worked as a defence lawyer at the Public Defence Service and as a prosecutor at the Ministry of Social Development. Duncan Cotterill has appointed two new associates to its Wellington office. Dan Winfield advises clients in intellectual property, trade practices and advertising law matters, with a particular focus on brand related issues. Dan has experience working in New Zealand and in London both in-house and as Just weeks after joining Stout Street Chambers in Wellington, barrister David Turner has been awarded a Frank Knox Memorial Fellowship to study at Harvard University. Last year’s Cleary Memorial Prizewinner, David plans to spend his year at Harvard studying international relations and human rights. After graduating in both law and arts at Canterbury University, David became a Supreme Court judge’s clerk for Justice Blanchard. David chairs the Wellington Young Lawyers’ Committee and is directing the Wellington Law Review this year. Former Governor General Sir Anand Satyanand has been made patron of Transparency International New Zealand. In accepting this position, Sir Anand is recommitting to involvement in the organisation which he was not able to

external counsel, including on secondment as acting IP Counsel with Diageo. Aaron Sherriff is in the Wellington litigation team. He joined Duncan Cotterill after working for five years for a leading Vancouver firm. Aaron specialises in complex commercial disputes and insurance law. In particular, he advises clients on insurance, construction, construction tendering, contract, tort and company disputes. Auld Brewer Mazengarb & McEwen has promoted Marie Callander to associate. Marie joined the firm in June 2010 and her main areas of practice are company and commercial, energy, finance and banking, government and property, with a special focus on governance issues in the charitable sector.

continue while serving as Governor General. “Transparency International is an organisation with a respected name that helps encourage high standards in governance in organisations everywhere in the world,” Sir Anand says. Former lawyer and former Telecom New Zealand Ltd chair Wayne Boyd has been appointed to the APEC Business Advisory Council (ABAC) for a three-year term. “Mr Boyd’s extensive business, banking and legal experience stands him in good stead to be an active and effective contributor to ABAC’s work,” Prime Minister John Key said when announcing the appointment. Mr Boyd joins existing New Zealand ABAC representatives Tony Nowell and Maxine Simmons. ABAC is a network of business representatives from each of the 21 APEC economies, which meets to develop business perspectives on issues the APEC economies are discussing. Timaru lawyer Mark Clark passed a major milestone on 5 April. On that day, the partner of Petrie Mayman Clark had been practising in Timaru for 40 years. Mr Clark works primarily in conveyancing, commercial, wills and powers of attorney, and company law. LT

LAWTALK 794 / 27 APRIL 2012

PEOPLE IN THE L AW

Four new Vice-Presidents The New Zealand Law Society now has four new VicePresidents. They were elected at the Law Society’s annual Council meeting on 13 April from four areas of New Zealand: Auckland, Central North Island, Wellington and South Island. One nomination was received from each of the four areas. The Law Society’s President, Jonathan Temm, was also Allister Davis, South Island VicePresident Currently President of the Law Society’s Canterbury-Westland branch, Allister Davis is the new South Island Vice-President. He was elected the branch President in June 2010 and his two-year term will expire this year. Mr Davis’s long Law Society service began in 1997, when he was elected to the Canterbury District Law Society Council, being re-elected in 2000. Just how long his service has been is illustrated by the fact that Supreme Court judge Sir William Young was the Canterbury District Law Society President when Mr Davis joined the council. During his time on that council, Mr Davis served as treasurer, VicePresident and President. He was the council’s spokesperson on youth justice in 2001, 2002, 2005 and 2006, on the council’s costs committee from 20022007 and was the council’s employment law spokesperson in 2007. In 2007 and 2008, he was on the executive. He is also a Past President and life member of the Canterbury Criminal Bar Association and was an ex officio member of the Common Law Committee in 2000. A partner of Clark Boyce, Mr Davis is a litigator, practising mainly in four areas: criminal, family, employment and civil law. He has a beautiful partner and together they have four children and two dogs. Mr Davis is interested in all sports. His long rugby career continued on the field until he was forced out of the game with a shoulder injury when he was 42. He is the number one supporter of the Crusaders and serves as the Chairman of the Canterbury Rugby Football Union Appeals committee.

LAWTALK 794 / 27 APRIL 2012

re-elected at the annual Council meeting. Again, only one nomination was received. The President and the four Vice-Presidents comprise the Law Society Board. The outgoing Vice-Presidents − Andrew Gilchrist, Auckland; Bruce Gilmour, Central North Island; Mary Jeffcoat, Wellington and Anne Stevens, South Island – attended the 13 April Council meeting. Chris Moore, Auckland VicePresident

The Law Society’s new Auckland Vice-President, Chris Moore, is also President of the Auckland branch and is the current Chair of the Property Law Section. Mr Moore, in fact, was the Auckland branch’s inaugural President, taking up the top position following the implementation of the Lawyers and Conveyancers Act 2006, which saw the “one society” model established throughout New Zealand. He was also an inaugural member of the Property Law Section executive when the section was established in 2000 and has been the section’s chair since April 2003. A partner of Auckland firm Meredith Connell, Mr Moore has more than 30 years’ experience in the areas of commercial and commercial property. His firm is run by a board, of which Mr Moore was a member for 10 years, five of them as chair. Last year, Auckland Transport appointed him to run the inquiry into transport issues arising on the opening night of the Rugby World Cup. He is also deputy Chairperson of the Hearing House, a national charity involved principally with deaf children. Chris is married to Heather, a practising naturopath, and they have three children. Two of them are in law: daughter Sarah with Minter Ellison in Wellington, while son George works for Chapman Tripp and is currently undertaking his professionals. Son Tom is a marketer in London. He has a wide variety of interests, from reading and spending time with family and friends to sporting interests, which include running, swimming, tennis,

John Unsworth, Central North Island Vice-President The Law Society’s new Central North Island Vice-President, John Unsworth, was President of the Whanganui branch until he stepped down on 30 March this year. When succeeded by Kathryn Crooks, he had served in that role for four years. His leadership of Law Society affairs goes back to the days of the Wanganui District Law Society. In fact he was the final President of the old district society and was on the society’s Council for a number of years before that. Mr Unsworth grew up in Blenheim and attended Canterbury University before taking up his first job in Wanganui in 1984, with a firm then known as Horsley Brown and Co. That firm was to become Horsley Christie, following a merger with another law firm in 1986. Mr Unsworth is still with that same firm he started with, becoming a partner 21 years ago in 1991. It is not the only firm he has worked for, however. He left Wanganui in 1988 and worked for two years in London, before returning to Horsley Christie. Mr Unsworth has a general litigation practice, which excludes criminal work. He is involved in civil, employment and family law. He appears in the Māori Land Court, and he has represented the Whanganui District Health Board in a number of coronial inquests. He is district chair of the New Zealand Automobile Association and on the board of Sport Wanganui. He is also the convenor of the Whanganui Lawyers Standards Committee. Married with three children aged 1116, he continues playing football, now masters, having earlier played through the age groups and later reached the super club championships, featuring New Zealand’s top eight clubs in the early 1990s. He also enjoys playing golf.

PEOPLE IN THE L AW Nerissa Barber, Wellington VicePresident The Law Society’s Wellington branch President Nerissa Barber is the new Wellington VicePresident. Chief Legal Advisor at the Ministry for Culture and Heritage, Ms Barber finds that one of the many highlights of her current role is working with other people who also love working in the arts and heritage sectors, and enjoys making a contribution and a difference. It’s a busy and varied role, which was essentially as start-up, as before her appointment the Ministry had no in-house legal counsel. An aspect of the role she enjoys is appearing in the Māori Land Court in claims for ownership of Māori cultural objects (taonga tūturu applications). Visual art is a passion of hers. Ms Barber is a friend or member of just about every art gallery in the country including Auckland Art Gallery, Govett Brewster (Life Friend and member of the Foundation), Te Papa, Wellington Art Gallery, The Dowse, Christchurch Art Gallery (life friend), Dunedin Art Gallery (life friend). After graduating BA LLB from Victoria University, with a double major in German and History, Ms Barber was admitted in 1990. She worked for Brandon Brookfield, which became Simpson Grierson, before moving to Crown Law and then into the State Services Commission and other inhouse roles. She was elected Wellington branch President in 2010 after a year as VicePresident. That followed two years on the Wellington District Law Society Council. As well as the arts, Ms Barber is interested in wine and food, walking, and claims she is “trying to get back into golf”. (Little recent progress has been observed in this endeavour, alas.) Her husband, David Morriss, is similarly interested in things artistic. He studied almost every music paper going at Canterbury University in his BA and BMus, works as a classical music broadcaster with Radio New Zealand and sings as a bass soloist. LT

Action from last year’s match between the New Zealand Lawyers team and France, won by New Zealand 71-17.

NZ to challenge for Lawyers Rugby World Cup New Zealand Lawyers Rugby will challenge current holder Scotland for the Lawyers Rugby World Cup (LRWC). The challenge, the first outside an LRWC tournament, will take place in Edinburgh on 11 November − the weekend of the All Blacks v Scotland game. The game will also be the first match in the Lawyers Northern Tour, which will stick closely to the All Blacks itinerary. After Scotland, the New Zealand Lawyers will play Italy in Rome on 18 November and France in Paris on 25 November. The tour will culminate in London on 2 December with a match against England. Nominations are now being sought for lawyers with rugby credentials for the New Zealand team. Players may come from within New Zealand or from NZ lawyers currently in the UK and Europe. The management team is led by Auckland Police Senior Prosecutors

Paul Watkins and Jeff Johansson, along with Wellington senior solicitor Samuel Walker and Sean Rush, originally from Hawke’s Bay. Sean is a prominent international energy lawyer and partner of London firm Memery Crystal. “This is a fantastic opportunity not only to meet and play rugby against lawyers from some of Europe’s grand old firms and bring the LRWC back to New Zealand, but also to support the All Blacks on their Northern Tour,” Paul Watkins and Jeff Johansson say. Nominations can be made by emailing Paul and Jeff at nzlawyersrugby@clear. net.nz or Samuel at srwalker@gywlaw. co.nz. As well as nominations for the team itself, the management team would like to hear from people interested in taking up a management/sponsorship role with the team. Scotland first won the LRWC trophy in Paris in 2007 and successfully retained it in 2009 at home. LT

Victoria wins best memorial Victoria University won the prize for best memorial at the recent 10th Annual Red Cross International Humanitarian Law Moot in Hong Kong. The team of Marin Van Hove and Ella Watt (oralists) and Zoe Halliday (researcher) also reached the semifinals of the moot, losing to the eventual winners of the competition, Hong Kong

University. This was the second time in three years that Victoria has won the top prize for the written memorial. The competition featured 20 teams from the Asia-Pacific region. Alberto Costi and Joanna Mossop, who shared coaching duties, accompanied the students to Hong Kong. LT

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LEGAL MARKETING

Marketing – it’s more than an expensive advertisement BY RACHAEL BRECKON Undoubtedly if your legal service is substandard, no amount of money spent on an advertising or promotional campaign is going to pay off. Most clients assume they will receive top-notch advice when they approach a legal service provider so quality legal advice is not enough to keep your business growing in this day and age, according to Auckland-based marketing consultant Steve Bridges. He gives his chiropractor as an example of this concept. “I love my chiropractor’s service. Why? Because he crunches my back well? No, I wouldn’t have a clue, ‘cause I am not trained in that. So, his technical skill is a given; I just assume he does that well,” Mr Bridges says. “So the reason I think he’s great is that − among other things − I never have to wait, he knows my wife’s and my kids’ names and what they are doing, he plays golf with me. In other words, it’s not just what he does but how he does it.” All right, but what has good service got to do with a marketing strategy? Apparently, everything. Tom Agee, senior lecturer Auckland University Business School Department of Marketing, says one of the biggest mistakes any organisation can make is to believe that marketing is just about

LAWTALK 794 / 27 APRIL 2012

“

The study of markets is what fuels the success of every mega client that every law firm is chasing, and yet most law firms still don’t really understand the marketing function.

”

Tom agee

advertising and promotion. Legal services providers need to change from an internal focus to an external focus so their business models are “client-centred” on service and value creation, he says. “Not how much the client is worth to you – but more importantly, how much you’re worth to the client. That’s what today’s marketing is all about,” Mr Agee says. “This critical business discipline [marketing] is still shunned by many lawyers who think of it as nothing more than cheap advertising and unseemly ambulance-chasing,” he says. “The study of markets (aka marketing) is what fuels the success of every mega client that every law firm is chasing, and yet most law firms still don’t really understand the marketing function.” Mr Bridges says the initial focus should be on existing clients and getting service right for them. He gives two reasons for this. “One is there is no use going out and promoting the firm if you don’t have your service right for your existing clients. “Second thing is if you have your service right for your existing clients you won’t need to go out to promote. “The number one source of new business and new clients for any professional service firm − not just law firms − is through word-of-mouth

LEGAL MARKETING referrals. And you are only going to get that from clients who love you − not from clients who think you are just ‘OK’,” Mr Bridges says. Mr Agee gives three points outlining what a successful marketer does to attract new business. “First they find out what clients or customers are looking for and try to provide it better than their many competitors – not the other way around. “Second they try to create points of difference important to their target market – the people or firms they’re best equipped to serve, for example full service or specialists. “Third, they use those points of difference to create a perception or position in the minds of their target, which they are able to communicate clearly in order to get on their ‘shopping’ lists.” Many lawyers also struggle with the idea of business development programmes, which are the means by which you capitalise on your marketing information and knowledge, according to Mr Agee. “If marketing is studying your customers to position and communicate your services to meet their needs (getting ready for battle), then business development is coming up with a plan to win those customers and get more of their business (a specific strategy and tactics for winning the war).”

Research It is vital that legal services providers find out what their clients “actually want”, not what they “think they want”

according to Mr Bridges.

•

the firm’s name and logo;

“That means you have to find out how clients define ‘service quality’, in other words, the attributes of service that will delight their clients.”

•

brand;

•

colours;

•

wardrobe;

•

To understand this takes an investment in ongoing research and the ability to react and change with client demand.

font;

•

letterhead;

•

website;

•

communications;

•

reception;

•

car parking; and

•

the availability of lawyers.

“Legal service providers must keep in touch with their clients: keep researching, keep listening, keep changing, keep adapting. Not just do research once and then let it rest for years. After all, clients’ needs and expectations for service are always evolving,” Mr Bridges says. “You can’t just make improvements with your service based on one lot of client interviews and then stop because two or three years down the track you will be back in the same place.” Important things to understand about clients include the following: •

why your clients buy your services;

•

what services they buy;

•

what are the attributes or features of service that constitute “service quality”;

•

when and how they make buying decisions;

•

what they are willing to pay for those services;

•

what other problems they have that you can solve with additional services;

•

what causes them to defect; and

•

what causes them to stay with you.

Premium service could also include learning what clients think of:

The client interview Mr Agee and Mr Bridges both stress the usefulness of interviewing existing clients as a marketing/research tool. “One of the single most effective marketing and business development tools that law firms can use is the client interview,” Mr Agee says. The interview can determine the client’s relative degree of satisfaction with the firm’s service as well as satisfaction with an individual’s service. It also serves as a point of contact toward learning the client’s service preferences, complaints, suggestions for improvement, opinions of the competition and other viewpoints that can help to better develop the client relationship. “The client interview can be as simple as an informal face-to-face visit with a client to learn how you’re doing and what the client’s changing needs are. Or it can be a formal interview with a client, often performed by someone other than the relationship lawyer.” LT

Standing out in the legal crowd BY HANNAH GRANT Although legal marketing is nothing new, many firms, big and small, still grapple with how much resource to dedicate to marketing and which strategies to employ to position themselves as the crème de la crème of legal service providers. For those who want to develop their practices and gain competitive advantage in terms of brand awareness, marketing is as important as ever and most large firms now hire full-time marketing managers.

Sarah Burch, Marketing Manager at AJ Park says the firm’s marketing strategies are based around providing a consistently good client experience.

“You have to make sure that the client experience is consistent, even though you have individual personalities and behaviours.”

“We align our brand values to the experience and values that our clients want. Brand differentiation is very important to us and values are core foundations of our brand. We make sure that all systems, processes and culture are aligned to the values that we hold true.

From a consumer’s perspective, it is hard to choose a legal services provider as the legal market is becoming increasingly competitive, Ms Burch says. “All firms need to clearly tell a story about the services they provide so that it makes it easier to choose.”

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LEGAL MARKETING

“If potential clients don’t know who you are, what you offer and why you are different, they won’t choose your firm over the competition.” JOANNE ROBINSON Seasoned marketers will tell you that to remain static in the business world is to lose ground, where basic marketing allows a firm to keep pace and aggressive marketing enables a firm to gain market share.

years to make sure we are meeting expectations, developing new services and responding to changes in our clients’ businesses or sectors.

Long gone are the days when law firms could sit back and wait for work and clients to come to them. Now firms must actively demonstrate the value they can bring, Joanne Robinson, Marketing Director at Chapman Tripp, says.

“Strong individual partner brands are also important. Research and client feedback highlights that many clients instruct individuals who have been personally recommended to them, whom they trust and enjoy working with. Firms need to provide scale, depth of team and excellent resources to back this up.

“Marketing is important in a competitive market. If potential clients don’t know who you are, what you offer and why you are different, they won’t choose your firm over the competition.

As law firms do not intrinsically increase in value over the years, some firms may need to remind themselves that marketing is an area of necessary investment.

Chapman Tripp’s marketing activities include producing regular commentary and publications on legal issues, hosting events, giving media commentary, maintaining an active website, operating three social media channels and undertaking selected advertising.

Determining what resources to allocate to marketing will depend upon location, size of firm, a firm’s areas of practice and expectations for the results of any efforts. If the goal is to increase the client base for existing practice areas or add new practice areas, costs may be greater than if you are just trying to maintain a revenue stream.

“We also run a sponsorship programme to support our areas of strategic focus and our community partners. These tools help us to raise awareness of the issues that are directly affecting our clients, influence debate in the media, and support the industries and organisations that are driving New Zealand’s growth.” Brand and reputation, while largely intangible, are integral components of any firm’s success. Ms Robinson says that although traditional marketing tools form part of their programme, it’s the service delivery that ultimately influences the type and quality of work the firm receives. “We are known for quality and innovation, and we work hard to make sure our clients experience that in all their interactions with us. We have run a client feedback and relationship management programme for many

LAWTALK 794 / 27 APRIL 2012

Many marketing professionals say that the lower the allocated budget, the less strategic marketing possible. Much planning and resource is dedicated to marketing at DLA Phillips Fox, its national Marketing Manager, Joanna Simon explains. “Marketing is essential for professional services firms, because relationships have always been key to service delivery. Over the last 10 or more years, the tools employed to build relationships have become more sophisticated with new media and online strategies. Ms Simon says that the key to successful marketing is relationship development and maintenance with key target audiences whether they are clients, referrers, the media, the business and legal community, graduates or potential employees. “It’s not good enough that people are

satisfied with legal services. They have to be loyal. This is why a strategic integrated approach to marketing is key, including your positioning and communication of your expertise, and a crucial focus on your relationships. “You have to know that it costs to get a prospect, and to convert one and keep them. You can only convert prospects properly if you have a marketing sequence and then the whole return on investment in the marketing picture alters dramatically. That’s why you have to keep in front of people all the time, with a sequence so that you educate, persuade and entertain your prospects, she says. Malcolm Harris, CEO at Meredith Connell, explains they have a website, and brochures for their clients but they don’t participate in extensive marketing. “We also sponsor many events, however our choice of events is done purely out of a belief in the cause rather than from a marketing perspective. “We place a lot of importance on the service we provide our clients because we believe that reputation and word of mouth is the best marketing tool we can employ,” says Mr Harris. Meredith Connell’s marketing ethos is based around its employees and the quality of service they provide. Mr Harris explains that Meredith Connell’s brand is important but that it comes from the people that work for the firm and the culture within. However, brand management will be a vital ingredient in the firm’s decisionmaking as it evolves, he says. “Marketing itself isn’t more important because if you have a bad reputation and unsatisfied clients, no amount of adverts in the paper will help you with that. “However, keeping up with technology and the changing face of how busy people select their service providers and communicate with each other are.” LT

LEGAL MARKETING

Effective marketing: getting your networking game face on BY HANNAH GRANT Marketing comes in different forms depending on desired reach and breadth of budget. If you are a small- to medium-sized firm you may not have adequate resources to create a marketing storm or even a casual breeze for that matter. Many smaller firms do not even see the point of a marketing campaign and are content with encouraging their partners and staff to get out and about in the community and being an effective business pulling “face” for the firm. Being engaged with the community is important for all law firms but it is especially appropriate for those who are situated provincially. This was a common thread of importance stated by all smaller law firms LawTalk spoke to across the country. Catherine Matthews, of Webster Malcolm & Kilpatrick in Warkworth, explains that theirs is a long-standing firm in a small community and word of mouth is their biggest and most successful marketing tool. “We don’t spend a lot of money on marketing but the biggest thing we do is the participation of our people in community activities, such as Rotary, rugby clubs and being involved with women’s refuge,” she says.

retaining valuable business and acquiring new business. This is why many firms have decided to join larger networks such as Lawlink and NZ LAW Ltd to share ideas, resources and business processes. Members of the organisations benefit from enhanced buying power, access to best practice and to a broader network of experts. An asserted benefit of membership is enabling medium and smaller firms to assist their clients by replicating the cordiality and the sharing of ideas and expertise that exists in larger law firms, but still be able to retain client confidentiality and their own independence. “Membership of Lawlink is brilliant for the access it gives us to a huge range of precedents and resource materials. I think it’s great marketing-wise to be seen as associated with other reputable firms and have access to networking that enables the ability to share knowledge and resources,” says Ms Matthews. Lawlink General Manager Carol Patton says that they generally only have one Lawlink firm per geographic area, which gives firms a competitive advantage within their region.

In smaller communities, marketing operates on a slighter level where, it seems, the essence of local “campaigns” is about getting your presence known primarily through face-to-face interaction.

“We have a fantastic precedent collection which we invest substantially in to keep it up to date. Even large firms struggle to keep their precedents up to date, and this is a great advantage for our members”

“We belong to the local business associations and support local fundraising to get our name out there. We also try and keep good relationships with service providers, real estate agents and accountants, and often get referrals by them and from clients.

Regional firms, in particular, see their membership of Lawlink as a great marketing tool because it shows credibility, Ms Patton explains. Lawlink provides a series of client booklets that firms would not be able to produce on their own, and these are valued by member firms and their clients.

“We are currently looking at the potential of social media, but the number one thing is the presence of partners and solicitors in the community,” says Ms Matthews. Lack of capital for marketing purposes can mean some firms could be at a disadvantage when it comes to

“It links them in with some of the larger firms in the main areas. It also means that they have the expertise of over 450 lawyers in the group to call upon. “We have management and technology meetings which are great for sharing

management and marketing ideas. We also have a young practitioners’ group and a new initiatives group who swap thoughts on marketing, management, professional development and whatever else,” she says. NZ LAW Executive Officer Alan Hay says that the ability to get together and informally share information and knowledge is invaluable and works to make a firm’s brand more trustworthy. “It also helps being a member in a tendering process to show that you are part of a larger organisation and have a wider skill base. “A lot of the things we do would be cost prohibitive for small firms to do, so to be part of a larger group firms can share in that,” he says. NZ LAW Ltd produces newsletters that go out to members who then send them on to their clients, co-branded as per the individual firm. Mark Kennedy, General Manager at Breaden McCardle Chubb in Paraparaumu, says that these newsletters are a great help in the marketing department and he always sends them out to his clients both in hard copy and online. “The online forum NZ LAW provides where you can ask questions is also very handy. It means you can access as wide a range of lawyers that you would have if you were working in a large law firm.” Breaden McCardle Chubb also sponsors exhibitions at Mahara Art Gallery in Waikanae and the odd golf tournament. “Marketing is very important, but specific/topical marketing is more where we are at. Our biggest marketing is having our partners get out in the community and networking. “Partners are the window to the organisation and also who bring in the majority of the work.” Mr Kennedy says they do some target advertising when/if something relevant to their work happens. They have a comprehensive website and are looking into establishing a Facebook presence. LT

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LEGAL MARKETING

Barristers to enter self-promotion era BY RACHAEL BRECKON After much discussion, debate, and analysis over the impact advertising legal services could have on the integrity of the profession, November 1984 saw the Law Society decide practitioners could enter the marketing realm. For most barristers, this meant annually forking out for an advertisement in the Yellow Pages and continuing on their way. Bring the clock forward to 2012. Changes to the legal aid system and technological advances occurring faster than the geeks can keep up with mean marketing is increasingly necessary in the scramble to secure clients. “Barristers traditionally haven’t been very proactive in marketing, so it’s a new avenue for them at the moment,” New Zealand Bar Association Executive Director Melissa Perkin says. “The problem [with the changes to the legal aid system] is going to be that the work level isn’t going to change but the amount people getting paid is going to change. “The pie is no bigger, but the way that it is sliced up is going to be different. That means it is going to be a challenging time for some people because some of them will be quite reliant on what they are getting paid for legal aid at the moment. “So effectively barristers are in competition with barristers and solicitors, so it is a case of being known. Those that are better at marketing are likely to do better than those that aren’t.” The lack of barristers marketing their services can be a hindrance for small town solicitors, according to one country solicitor, who spoke frankly but anonymously to LawTalk about the frustration that lack of communication from barristers creates for his rural practice. “A lot of people overlook smaller firms. Some small firms have very, very longstanding wealthy clients,” he says. “They might just require someone to appear for them for a son who has got himself into a spot of minor bother. “I don’t think barristers, particularly in

LAWTALK 794 / 27 APRIL 2012

smaller towns and cities, do anything at all to market themselves, or make smaller practices aware of their speciality and the terms for which they will work. “This creates a real problem for small town lawyers. The law is increasingly specialised and problems are more complicated and the days of practitioners being able to resolve problems between themselves on a ‘without prejudice’, collegial basis seem to have gone.” One solution the solicitor offered regional barristers was to write letters to all the solicitors in the area and let them know who you are and the services you offer. This idea was reiterated by Auckland barrister and former New Zealand Law Society Vice-President Andrew Gilchrist, and applies to bigger city practitioners also. When initially establishing himself as a barrister, Mr Gilchrist went through the law list in Auckland and wrote to every single three-partner or less firm. “You send out a lot of letters, but you only need to get two or three of them to reply,” he says. “You just need to say ‘I am here; I am available’. I was able to say I was a former partner in one of the bigger firms.” Mr Gilchrist maintains the importance of providing an excellent service. “I think the best marketing strategy that anyone can have, and I know it sounds trite, is to do a very good job,” he says. “There is no point in having lots of campaigns and getting thousands of people through the door if you stuff up every job. You lose them very quickly.” Peter Churchman, barrister from commercially-focused Wellington chambers Barristers.Comm, says that while they don’t have a sophisticated marketing strategy, their chambers builds on brand association. “So people know Barristers.Comm chambers are commercial barristers and if they have a problem that’s genuinely commercial then we are the

people that should be able to help.” “There’s marketing and there’s marketing,” Mr Churchman explains. “Do we take ads that say: ‘Come to Peter Churchman for all your employment law advice and your civil litigation’? The answer – absolutely not and in my personal view that is not where barristers should be. “But a lot of marketing is indirect. In the sense that if you get rung up and asked to do a speech at a conference you might think, oh no, this is the last thing I need to do, I am so busy, but then you think, that is one way to keep a personal profile and chambers profile out there.” LT Marketing tips for barristers • Be listed on the NZ Bar Association “find a barrister” website. • Write articles for legal magazines. • Take advertisements in legal magazines letting solicitors know your specialisation. • Take advertisements in your local papers letting your community know your specialisation. • Write directly to firms in your region advising them of your specialisation. • Do seminars and public speaking and courses for continuing legal education. • Be front of mind and up-to-date. • Do a good job. • Take networking opportunities. • Have a good website with FAQs. • Write newsletters. • Be involved in the legal community; eg, Law Society committees. • Be involved in the community you are specialised in; eg, technology, family groups. • Be involved in the wider professional community you are specialised in; eg, technology, family groups. • Be involved in the general community actively or via sponsorship; eg, local sports clubs.

SECTION NEWS FAMILY LAW SECTION

NEW ZEALAND LAW SOCIETY

NZLS EST 1869

The Family Law Section (FLS) has been in dialogue with the Principal Family Court Judge to resolve an unintended conflict between the Court’s Practice Note requirement to advocate the child’s views, and the NZLS guidelines requirement to advocate for the welfare and best interests of a child, informed by that child’s views. Seventy lawyers have joined the NZLS Panel of Mediators as family specialist members since its launch on 3 November 2011. The Executive Committee intends to meet FLS members in selected regions during May and June to discuss anticipated changes to the legal aid system, including new provider contracts and fixed fees for family legal aid. The FLS is looking forward to hosting a formal dinner to welcome Judge Lindsay to the Family Court bench in Northland on 18 May. Volume 13, issue 4 of Family Advocate and issue 2 of The Family Way (quarterly Auckland FLS newsletter) have recently been published.

CLANZ IN-HOUSE LAWYERS NZLS EST 1869

CLANZ, the New Zealand Law Society’s section for in-house lawyers, co-hosted the very successful Walking the Talk halfday women lawyers’ conference (with the NZLS Wellington Branch Women in Law Committee, New Zealand Bar Association and Wellington Women Lawyers’ Association) on International Women’s Day, 8 March. Leading women lawyer presenters included the Justice Minister Judith Collins and NZLS Executive Director, Christine Grice. 330 delegates attended (well exceeding the event target of 150) and feedback on the conference was strongly positive. CLANZ has confirmed Kensington Swan as a new valued partner, focused exclusively in the key areas of dispute resolution and employment. The section’s 25th annual conference will be held in Queenstown 10-11 May. The conference, The Essential Elements of In-House, has a distinct focus on science and innovation. Sir Ray Avery will be replacing the late Professor Sir Paul Callaghan as opening keynote speaker. Other prominent speakers include Miranda Harcourt, Cabinet Secretary Rebecca Kitteridge and Australian futurist Richard Neville.

on a trans-Tasman editorial team to create a modified Benchmarking report focused on in-house best practice. CLANZ is a founding member of In-House Counsel Worldwide (ICW), an international co-operative of in-house counsel associations, from which CLANZ will look to deliver value to its members from the global in-house counsel network.

PROPERTY LAW SECTION NEW ZEALAND LAW SOCIETY

NZLS EST 1869

The Property Law Section (PLS) contributed to Law Commission’s review of trust law in New Zealand: 5th Issues Paper – Court Jurisdiction, Trading Trusts and Other Matters (jointly with FLS, through the Trust Law Review Working Party). The PLS has been in discussions with REINZ about implications of Real Estate Agents Disciplinary Tribunal decision, which places a duty on licensees to advise prospective purchasers on title issues. The PLS prepared the NZLS submission to the Real Estate Agents Authority, recommending an amendment to the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 to clarify the legal position. A PLS Executive Committee meeting was held in Palmerston North on 22 March and PLS representatives attended a workshop at Land Information New Zealand (LINZ) on 6 March. A review of the LINZ fee model was discussed, as were proposed processing/operational improvements. The review of the NZLS e-dealing and Property Transactions Practice Guidelines is almost complete and a consensus with drafters of ADLSi/REINZ Agreement for Sale & Purchase on guidelines relating to payment has been achieved. PLS member consultation closed on 30 March, and drafting on Part 2 is also nearing completion. Volume 12, issue 3 of The Property Lawyer has now been published. LT

The expert in professional liability The expert in and discipline professional liability and discipline

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CLANZ is working with its Australian counterpart ACLA

LAWTALK 794 / 27 APRIL 2012

THE BOOKSHELF LOCAL AUTHORITIES LAW IN NEW ZEALAND By Kenneth Palmer Reviewed by Sharron Wooler* Weighing in at 1236 pages, this is a worthy successor to Palmer’s seminal 1993 text Local Government Law in New Zealand and ably meets its purpose of recognising the growth in local government legislation and case law in the intervening 18 years. Few, if any, aspects of laws applying to local government are untouched. It is a useful and extensive resource that would adequately answer the daily questions arising for general lawyers, council officers, elected members, parliamentarians and general interest groups. It is readable, remarkable in its breadth, and well-referenced. For those unfamiliar with general legal principles there are brief introductions covering contract, tort and administrative law, mostly in an essay and case analysis format familiar to textbook readers, with ample and apparently accurate (those that I checked) footnoting and analysis. The author has brought the law up to 1 November 2011, and I could not find any notable oversights or omissions in statute, case law or coverage within that period. Pains have been taken to provide the Auckland upheaval with its own chapter recognising recent reforms, which are the most significant for Auckland since 1963. It gives context to the controversies and successes prior to the concerns about the workability of local government there, and is a helpful chapter for those who have not been involved in the changes. Chapter 23 is noteworthy in providing both the history and theory of local authorities; from the 19th Century foundations through the many financial, structural and philosophical reforms. The book is not a political work, but in its careful scholarship and over-riding theory that understanding must inform

LAWTALK 794 / 27 APRIL 2012

democratic decision-making, it provides an elegant yet unspoken critique. There is a separate chapter on Māori and Local Government, as well as good coverage of Māori issues within other chapters (such as Local Authorities Structure and Purpose). As is common in the book, there is a brief purpose statement to the chapter. It then proceeds, via a clear chapter contents page, to cover off various areas including representation, rating, resource management, heritage, transport, language, and customary interests. It ends with an overview that references the changes since Palmer wrote on that topic in 1988, encompassing the multiplicity of “references and provisions honouring and implementing the principles of the Treaty of Waitangi” that are now to be found in this area of law. Topics such as employment, reserves, conservation, contracting and tendering, liquor licensing, dog control and the like, sit alongside careful chapters on resource management planning decision-making and consenting processes. These latter chapters again are relevant, accurate and wellreferenced, demonstrating the author’s long-standing and sound overview of the area. The specialist reader will want to go further, as will those seeking specific legal advice, but there is much of use even to this sector of the reading audience. It is a thoughtful book that would repay delving into the various chapters just to widen the viewpoint of those in specialist practice. A vital chapter entitled “Fire Services and Civil Defence” provides comprehensive entry points to guide the reader through the various powers, players and provisions in this lesser known area. It ends with reference to the situation in Canterbury, including the powers of CERA and other legislative interventions. The few oddities found in indexing point more towards the conceptual organisation of the book than to omissions or inaccuracy: for example – “LGOIMA” [Local Government

Official Information and Meetings Act 1987] is not in the index under “L” but “official information” under “O” will get you there and LGOIMA is listed in the table of statutes. Yet other statutes are listed in the index as well as the table. The one possible limitation of this work is that it comes out just as major reforms to local government are being announced that have the potential to make various entries and perhaps whole chapters obsolete within a very short timeframe. The government paper “Better local government” released on 19 March 2012 is aimed at “refocusing” the role of local government, benchmarking income and expenditure, giving new powers in relation to employment, elected members, intervention in council affairs, reorganisation proposals, allocation of regulatory matters, infrastructure costing and development contributions policy review. Given the range of matters being reviewed, some sections of the book will require updating in 2013 or shortly thereafter. That said, the 1993 version weathered similar changes while remaining a useful reference work on both principles and legislation in the 18 years before this version. Perhaps the author could produce an e-book companion volume to ensure its ongoing currency and contribution to local authority law. LOCAL AUTHORITIES LAW IN NEW ZEALAND by Kenneth Palmer, Thomson Reuters, March 2012, 978-0-864727-33-6, 1236 pages, $236 (GST and p&h excl). Available in paperback. *Sharron Wooler is an associate specialising in resource management, local government and public law at Cooney Lees Morgan in Tauranga, representing and advising local authorities there. Before this she worked with private and public sector development clients in practice in Auckland. She has been research counsel to the Environment Court and tutored and lectured at the Auckland University Law School. LT

THE BOOKSHELF FINANCIAL ADVISERS’ HANDBOOK

•

By Frank Chan Reviewed by John Buick-Constable and Natan Karon* Financial advisers have been in the gun (and in the courts) in recent years, following the collapse of finance companies and other investments before and during the global financial crisis. As a result, the law relating to financial advice has undergone a revolution. Seldom has a sector experienced more profound change in such a short time in this country. Capitalising on this, Frank Chan has produced the Financial Advisers’ Handbook – a book “intended as a practical guide for those persons affected by the regime established by the Financial Advisers Act 2008 and the Financial Service Providers (Registration and Dispute Resolution) Act 2008”.

The remainder of the book reproduces, in full, relevant legislation and the standard conditions for authorised financial advisers and qualifying financial entities (including explanatory notes) published by the Financial Markets Authority (FMA). There is also an appendix listing useful websites. The book does suffer, at times, from over-simplification. This is a product of its direct, practical, non-technical style. But it means various statements are made that lack appropriate caveats or references or are otherwise somewhat misleading. This can be seen in a number of places throughout the book. For example: •

The book does not set out to be a comprehensive treatise on its subject matter; rather, it aims to be a guide for: •

•

those seeking to become either financial advisers or providers of other financial services, whether they are existing offshore businesses or start-ups wishing to establish a presence in New Zealand; and ongoing compliance purposes under the regime.

Broadly, the book achieves these aims (although we discuss some reservations below). It has the merits of being both relatively short and written in a helpful and accessible style, using practical examples from the author’s own legal experience – all of which should assist readers in understanding the subject matter.

•

The first part of the book is divided into five chapters: •

The first chapter provides a brief introduction and contains a series of diagrams designed to help readers work their way through the regime.

•

The second chapter outlines the development of the regime.

•

The third and fourth chapters, respectively, outline details of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 and the Financial Advisers Act 2008.

The fifth chapter provides a series of screen captures showing the process for registration on the Financial Service Providers Register.

•

On page 5, Figure 1.3 attempts to summarise the Financial Advisers Act 2008 in a simple flow diagram. Unfortunately, the answers it gives are not necessarily the right answers in all circumstances. For example, if you answer “yes” to “Do I give financial advice ... to clients in New Zealand ...?”, then it says that “You must ... register on FSPR”. Except that you may not have to (where you are, for example, an overseas-based adviser dealing only with wholesale clients). If you answer “yes” to “Do I provide financial adviser services in relation to category 1 products?”, then it says that “You must be a QFE adviser or AFA. Obtain approval from FMA”. But that’s only true if the advice is personalised and given to a retail client. It’s not true for class advice or advice to wholesale clients. On page 12, the book says “an Australian-based financial adviser entity that provides financial services to New Zealand clients, but does not have a place of business in New Zealand, would not be required to register on the FSPR”. While this is true, it would be helpful to point out here that overseas-based financial adviser entities generally may only advise wholesale clients and not retail clients, although Australian financial advisers have the benefit of an exemption in certain circumstances (this exemption is briefly discussed elsewhere in the book). On page 48, the section on “brokers” has a nine line

paragraph on brokers’ disclosure requirements, but does not mention that no disclosure requirements in fact exist because no regulations have been promulgated (or, we understand, are currently intended). Examples of this nature may appear to be pointy-headed quibbles, but they do reflect practical points and the book is intended to be a “practical guide”. More practically, then, some of the legislation found towards the end of the book is only very briefly mentioned in the chapters. As a result, readers who have made it past the chapters will find themselves confronted by certain regulations largely for the first time with little guidance from those chapters as to their purpose, operation or impact under the regime. Similarly, the obligations of particular categories of financial service providers are only cursorily referred to in the book. For example, the obligations of authorised financial advisers under the Code of Professional Conduct for Authorised Financial Advisers are only briefly referred to and not discussed, yet the code actually sets out the minimum standards of competence, knowledge, skill, ethical behaviour and client care that is expected of such advisers. (The code is, however, included as an appendix to the book). The book also does not touch on a number of areas relevant to financial advisers and financial service providers – such as the inclusion of certain authorised financial advisers as reporting entities under the new anti-money laundering regime, and the proposed levy to fund FMA. Nor does it refer to the important 2011 decision of Armitage v Church which, although based on the law before the new legislation, is likely to be important in interpreting the new requirements to act with care, diligence and skill. None of these matters are fatal, but they do limit the overall usefulness of the book for readers who are seeking more than an introduction to the regime. Moreover, the book already suffers from unfortunate timing. It is current to December 2011, but this area of law is relatively new with guidance and commentary still being released from time to time by FMA which are not covered in the book – for example, the Guidance Note on Code Standard 6. The Financial Markets Conduct Bill has also been introduced into Parliament and, in its current form, will alter the operation of the regime and limit the ongoing relevance of the

LAWTALK 794 / 27 APRIL 2012

THE BOOKSHELF book in relation to certain discretionary investment management services. The Financial Advisers’ Handbook may not set the world alight, but (notwithstanding its flaws) Mr Chan has made a commendable effort in adding to the sparse body of work on this new and developing regime. The book is certainly suitable, and much needed, for readers looking for a plain English introduction to the financial advisers’ regime, but we would not recommend that readers rely solely on the chapters for compliance purposes. FINANCIAL ADVISERS’ HANDBOOK by Frank Chan, LexisNexis, December 2011, 9781-927183-05-2, 318 pages, $79.35 (GST incl, p&h excl). Available in e-book and paperback. *John Buick-Constable is a senior associate with Minter Ellison Rudd Watts, specialising in corporate and securities law, and Natan Karon is a solicitor with Minter Ellison Rudd Watts, specialising in financial services regulation. LT SALE OF LAND, 3RD EDITION By Don McMorland Reviewed by Linda Fox* Don McMorland’s 660-page Sale of Land was described to me as the new “Friday afternoon bible”, but would it hold the answers to those curly problems we property lawyers encounter on Friday afternoons, when the moving truck is revving to depart but we’re still negotiating over settlement? Will hazy recollections from Prof McMorland’s lectures be readily checked by quickly accessing his published work? Writing a learned review of his learned work (even if I was presumptuous enough to think I could) doesn’t seem to me to be of much use. What I would like to know is, faced with a conveyancing issue (Friday afternoons or otherwise) would I find a resolution by delving into these 660 pages? The best way to test anything is to try it. Here are the three situations that occurred recently in my practice which I thought I’d test it on: (1) Does the vendor’s solicitor have a right to insist on a Deed of Nomination from the purchaser (LINZ do not require the vendor’s lawyer to do more than hold

LAWTALK 794 / 27 APRIL 2012

“evidence” of a nomination, retained with the A&I form? The vendor’s lawyer’s argument? He needed to know who to sue, if that became necessary. I believed the Deed of Nomination does nothing for the vendor, but allows the purchaser and the nominee an opportunity to record their respective rights against each other − but the vendor’s lawyer was insistent. The index led me to paragraph “3.03 Nominees”. The history is traversed in sufficient detail but with clarity. We know the named purchaser remains contractually liable, even after the nomination is made. The author also notes that the ADLS Agreement form puts the original signatory’s liability beyond doubt (although it cannot change the contractual situation). So I conclude I’m correct and the vendor’s solicitor will not achieve anything by insisting on a formal Deed of Nomination, as his client can sue the original purchaser in any event. Thanks, Prof, I can argue my point with confidence. (2) Clients bought a new holiday home and the vendor agreed to take their present holiday home in part payment. Both parties thought an Agreement for Sale and Purchase of the more valuable property being purchased would suffice, with reference to part payment by transfer of my clients’ present holiday home. I disagreed and managed to convince my clients their interests would not be protected with one agreement only. My legal exec wanted assistance with drafting an effective clause to express the parties’ intentions in these agreements. The index lists “Exchange of properties, interdependence of contracts, 11.02”. In this paragraph I find reference to an exchange of properties and interpretation of, or the manner in which, the intention that the two Agreements for Sale and Purchase being interdependent can be expressed. It tells me the agreements can be expressed as “conditional on the settlement of each other” but these are not true contingent conditions and therefore neither contract is void or able to be avoided for failure to settle the other, merely “the party not in default is not obliged to settle either contract until both are able to be settled.”

Of course this is not a Friday afternoon question, needing sorting long before settlement day but the book has supplied confirmation of my approach without going so far as to provide positive advice as to how best to express the intention to exchange properties. This is not a “draftspersons’ handbook”. But implying the “conditional” approach is flawed; what better expression is recommended? Is the implication that expressing the intention without actually making the two “conditional on each other” sufficient? (3) My clients, at my suggestion, requisition for the removal of a paper road from the title to the property they are purchasing, recognising that although everyone involved knew the “road” was historical (read: obsolete) and in practical terms no longer of any effect, it would need to be removed before development of the property and better at the vendor’s expense than theirs. Was it requisitionable? I certainly believed so but suggested my legal exec check the book for a greater understanding – truly requisitionable title defects not being an everyday occurrence. It would be my legal exec who would explain the situation to our purchaser clients, lead them through the process of its removal and explain they were better off requisitioning although settlement would be delayed.

Again, the index led us to relevant commentary, 9.09 providing examples of requisitionable defects and gave us the confirmation we needed that requisition was available as a course of action. Conclusion – no this text, worthy though it most certainly is, will not be a “Friday afternoon bible”. It is not a practical “how to solve a dispute at settlement time” sort of book. Sale of Land is a reference book explaining the underlying law on the sale and purchase of land, with reference wherever relevant to how the ADLS/ REINZ Agreement for Sale and Purchase differs or changes that basic law, making it to some extent practical. It also includes reference to recent legislative changes – for example, the Unit Titles Act 2010 and its regulations. However, it is not a practical guide and will likely not resolve those questions that arise on Friday afternoons – unless

BRANCH NEWS WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY

NZLS EST 1869

Unlike other beauty competitions, the Miss India New Zealand competition is more focused around fashion without swimwear and underwear components. This opens the competition up to “most of us kiwi girls” who aren’t a size six, she says. Ms Singh moved to New Zealand at six months old and grew up in Rotorua before moving to Hamilton to study law at Waikato University. After completing her LLB, she was “fortunate” to get a job at Bogers Scott Shortland Lawyers, where she has specialised in employment law. In the future she would like to become an established employment lawyer and eventually obtain a doctorate in law. The TV series Both Worlds is due to appear on TV3 in June or July.

NELSON NEW ZEALAND LAW SOCIETY NZLS EST 1869

Waikato lawyer moves between worlds It’s not surprising Waikato Bay of Plenty lawyer Anamika Singh can fluidly move between the worlds of employment law and performance.

New Nelson branch President Family lawyer Michelle Duggan has been elected the Law Society’s Nelson branch President.

Ms Singh’s ability to adapt has been integral to her life as an Indian migrant to New Zealand.

After practising in Wellington for 15 years, largely in the area of family law, Michelle moved to Nelson in 2005. Michelle continues to work as a sole practitioner.

Her bi-cultural identity highlighted through her participation in the Miss India New Zealand competition will be showcased in an up-and-coming TV3 series on immigrant kiwis called Both Worlds.

Her previous work history includes working for a firm in Lower Hutt before teaching professional studies at IPLS. Michelle is a Child Support Review Officer and a member of the Mental Health Review Tribunal. Before

by assistance with interpretation of the agreement’s terms. It will of course give practitioners a deeper understanding of the law, which in itself will always assist when trying to resolve essentially practical problems requiring negotiated solutions occuring on a Friday, in the most advantageous manner for clients.

on all aspects of the subject. It will be cited in court by lawyers for the parties, expert witnesses and judges, be relied upon by drafters when more unusual or challenging situations occur and is an excellent resource for newer members of the profession looking to ensure the basis of their understanding of the law is correct – not to mention, of course, students of land law.

The third edition of Sale of Land provides authoritative commentary

“taking her turn” as President of the Nelson branch, Michelle was the VicePresident. Being President will mean she will be kept up-to-date on Law Society issues as well as the myriad of issues facing, in particular, lawyers doing legal aid work. Another goal is to foster more active participation in the activities of the Nelson branch and encourage greater collegiality within the membership.

WHANGANUI NEW ZEALAND LAW SOCIETY NZLS EST 1869

New Whanganui branch President After years serving on the Whanganui branch Council, Kathryn Crooks has moved up the ladder to become the President. Ms Crooks also serves on the Lawyers Standards Committee and is the Family Law Section’s regional representative for the area. After being admitted in the early 1980s, her work history includes practising in a large Wellington firm, a small Rotorua-based firm and Whanganui. Her main focus was property and commercial litigation until 1996 when she began to focus on family and mental health law. Ms Crooks is currently a partner at Armstrong Barton Lawyers in Whanganui. During her term as Law Society President, she would like to increase the region’s practitioner involvement in Law Society events, both professional and social. LT SALE OF LAND, 3RD EDITION by Don McMorland, Cathcart Trust, August 2011, 978-0-473189-39-6, 673 pages, $185 (GST and p&h incl). Available in paperback. *Linda Fox is a partner of Carson Fox Legal and a member of the Law Society’s Property Law Section executive. LT

LAWTALK 794 / 27 APRIL 2012

Online registration and payment can be made at www.lawyerseducation.co.nz

Programme

Presenters

Content

Where

When

Workings of the Property Law Act – four years on

Associate Professor David Grinlinton Peter Nolan

Presenters will review the now four years’ worth of case law and academic writing to consider how the Hamilton 2007 Act is performing and will examine how the standard ADLS forms have adapted to cover issues Auckland raised under the PLA. They will focus on real property aspects. All experience levels should attend. Live videoconference

30 Apr 1 May 1 May

Judicial Review

Francis Cooke QC

You can effectively use judicial review proceedings as a useful means of challenging decisions made by a range of public, private and voluntary organisations. If you operate in the public law area or advise decision-makers, this programme offers you a practical approach to the principles and processes of judicial review.

Wellington Wellington Auckland

1 May 3 May (Full) 15 May

Lawyer as Negotiator

Jane Chart

Building on participants’ own experience, this one and a half day workshop provides hands-on practice and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. It uses cutting edge research to examine different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.

Auckland Christchurch Wellington 2 Auckland 2

1-2 May (Full) 29-30 May 30-31 Oct 7-8 Nov

Mediation Masterclass with Prof Laurence Boulle

Professor Laurence Boulle

Practitioner, academic and teacher Laurence Boulle needs no introduction to mediators. We are indeed Wellington fortunate to have someone with his international reputation willing to hold masterclass workshops for Auckland us. Numbers are strictly limited.

2 May (Full) 4 May (Full)

Education Law Intensive

Chair: Patrick Walsh

Given the size of the school sector and its increasingly litigious nature, practitioners should add this day Auckland to their calendar. This intensive will help all practitioners who assist boards of trustees, principals, and Wellington parents in resolving, what can be complex, legal issues such as employment disputes, suspensions and exclusions, negligence, search and seizure, family law, harassment, cyber bullying and responding to complaints to the Ombudsman and Privacy Commissioner.

2 May 7 May

PPPR Act in Action

Annette Gray Judge Ullrich QC

The Protection of Property and Personal Rights Act applies to people who are not fully able to manage Your their own affairs due to age-related conditions, or some disability. This webinar will cover the high computer points of a “how to” guide for anyone who undertakes PPPR Act work (for parties, or as counsel for Webinar the subject person) and provides advice about care and property planning for clients with older or incapacitated family members.

4 May

Mediation for Lawyers – Part B – Family Law 2012

Virginia Goldblatt Denise Evans

For those with recent approved prior mediation training, including our Part A course. This programme will give an opportunity to practise mediation skills in the family law area and then to be assessed on them. Strictly limited numbers with pre-course work required.

Auckland

4-6 May (Full)

Competition Law

John Land Tom Weston QC

Competition law is a specialised and complex area and it can be quite difficult to keep up-to-date with. This seminar will alert you to the dos and don’ts when dealing with a Commerce Commission investigation. It will look at the impact of the Commerce Act on a range of issues, the current proposal for cartel criminalisation and remedies for breaches of the Act.

Christchurch Wellington Auckland

7 May 8 May 9 May

Construction Contract Issues for Non-litigators

Carolyn Culliney Howard Thompson

The Construction Contracts Act, now in its 10th year, is generally working well, although some issues have arisen that are a cause for concern. This seminar will identify these issues and their implications. It will also consider what legislative matters you should be aware of when drafting a contract.

Dunedin Christchurch Wellington Auckland Tauranga

21 May 22 May 23 May 28 May 29 May

Death and the Law Intensive

Chair: Prof Nicola Peart

Most of us have a good deal of time to prepare for the inevitable – our death. Yet, too often the Wellington preparation has been inadequate and problems arise post death that can create family rifts, be costly Auckland and emotionally draining. This intensive will look at steps needed to minimize the risk of conﬂict and uncertainty post death – dealing with incapacity; testamentary advice and drafting; issues relating to the body, the validity of wills, and claims against estates.

24 May 25 May

Insurance Law

Lindsay Lloyd Paul Michalik

The catastrophic happenings of 2011 were a wake-up call and made us realise how it is easy to be wise after the event. Things we perhaps should have contemplated, and taken into account, hadn’t been. If you have any dealings with commercial purchases or leases, bodies corporate, residential purchases or businesses you need to be aware of the pitfalls so that you can give your clients comprehensive insurance advice. This seminar will take a practical look at insurance; what it is, and the many issues that can arise, especially in relation to property.

Christchurch Wellington Auckland Live videoconference

29 May 30 May 31 May 31 May

Search & Surveillance

Michael Heron Dale La Hood

The Search and Surveillance Act 2011 brought major reform to search and surveillance powers and has subsequently had further amendments. This seminar will discuss the impact of the key changes – what are the new powers, how are they assessed, how can they be used? A live two hour webinar will be held for smaller centres.

Dunedin Christchurch Wellington Hamilton Auckland Webinar

5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 11 Jun

Lending and Securities – changes to consumer and commercial credit laws

Sarah Simmers Stuart Walker

Credit law and lending practices have come under scrutiny as a consequence of the global financial crisis, third-tier lenders practices and recent litigation involving lenders. The government has proposed amendments to the Credit Contracts and Consumer Finance Act 2003 to protect consumers including introducing new responsible lending requirements. The presenters will summarise and offer their perspectives on these changes. A live two hour webinar will be held for smaller centres.

Christchurch Dunedin Hamilton Auckland Wellington Webinar

5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 13Jun

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012

Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email cle@lawyerseducation.co.nz or contact CLE information, tel 0800 333 111.

Programme

Presenters

Content

Where

When

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Succession Planning for Rural Practitioners

Tim Black Frazer Weir

Property Law Conference

Chair: Andrew Logan

Presenters will discuss how practitioners who advise agricultural families can help guide clients through a thoughtfully managed process of communication, planning and good structuring to a fair and successful outcome, acceptable to all family members and avoiding unnecessary accounting and legal costs.

Your computer

The biennial 2012 Property Law Conference will be held on Monday 18 and Tuesday 19 June at the Pullman (formerly the Hyatt) in Auckland. The chair is long-time PLS Executive member Andrew Logan of Mortlock McCormick Law, Christchurch. With nine plenary sessions, two lots of breakout sessions and a stellar line-up of presenters this is an event not to be missed.

Auckland

8 Jun

Webinar

18-19 Jun

Corporate Chair: Governance Intensive Justice Paul Heath

Corporate Governance is one of the major themes in the courts at present with many corporate governance Wellington issues arising out of recent finance company collapses. The issues are both civil and criminal, and there are Auckland a lot of lessons to be learnt. This intensive will take a close look at the issues highlighted by recent cases.

21 Jun 22 Jun

Expert Witness Programme

Director: Terry Stapleton

This two-day day programme follows the tried and tested teaching methods pioneered by the prestigious Wellington United States National Institute for Trial Advocacy (NITA). There are the same learning-by-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. This course concentrates on working with expert witnesses. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.

21-22 Jun

Stepping Up – Foundation for practising on own account

Director: John Mackintosh

The new national course Stepping Up replaces the various local Flying Start courses. All lawyers wishing Christchurch 19-21 Jul to practise on their own account whether alone, in partnership, in an incorporated practice or as a barrister, Auckland 2 6-8 Sep will be required to complete the course. Wellington 8-10 Nov Developed with the support of the NZLF.

Litigation Skills

Director: Jonathan Krebs Deputy Director: Janine Bonifant

This highly regarded residential week-long course is open to applicants with at least three years’ Christchurch 19-25 Aug litigation experience. Based upon the National Institute for Trial Advocacy (NITA) teaching method, selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. Applications close 22 June 2012

Trust Account Administrator

John Hicks Steve Lewis David Littlefair

How do you keep a trust account in good order? This training is for new trust accounting staff, legal executives, legal secretaries and office managers. NB: Numbers are limited so be sure to register early.

Christchurch 15 May (Full) Nelson 17 May Invercargill 22 May

Trust Account Supervisor Training Programme

Mark Anderson, John Hicks or David Littlefair. And David Chapman, Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments. Make sure you register in time to do the preparatory work before the assessment day as listed on the right.

Hamilton Wellington Auckland Christchurch

TRUST ACCOUNT TRAINING PROGRAMMES

11 Jul 12 Sep 14 Nov 21 Nov

ENTRY LEVEL PROGRAMMES

Developed with the support of the Law Foundation Introduction to Family Law Advocacy and Practice

Judge John Adams Usha Patel

This limited-number workshop is designed for practitioners in their first two or three years of family law Auckland 3-4 May (Full) practice. It works through the sort of case that will be likely to be encountered at this stage of one’s career. Christchurch 23-24 May

Introduction to Company Law

Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong

This is a practical two-day workshop for practitioners in their first three years’ of practice with small, medium or large firms. It will cover issues such as acquiring a business, funding, governance, distributions, expansion, shareholder disputes, financial problems and the sale of shares. Participants will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.

Duty Solicitor Training Programme

Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day).

Auckland Gisborne Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

Christchurch 3-4 May Auckland 14-15 May Wellington 28-29 May

11 May, 22 Jun, 23 Jun 11 May, 22 Jun (in Akl), 23 Jun (in Akl) 1 Jun, 20 Jul, 21 Jul 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 13 Jul, 31 Aug, 1 Sep 13 Jul, 31 Aug (in Dun) 1 Sep (In Dun) 3 Aug, 14 Sep, 15 Sep 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 21 Sep, 26 Oct, 27 Oct 21 Sep, 26 Oct (in Man), 27 Oct (in Man)

Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz

CONTINUING YOUR PROFESSIONAL DEVELOPMENT Corporate Governance Over recent years, the topic of corporate governance has assumed some importance. Following the finance company collapses that occurred from around 2008, a number of questions have arisen about the standard of governance exhibited by boards of various companies. Some of the failings have led to directors being convicted of criminal offences, and to terms of imprisonment being imposed on a few. It is also likely that much civil litigation will arise out of the corporate failures of that time. It is a good time to reflect on aspects of corporate governance and refresh memories on basic principles, including the responsibilities and duties of directors, the board’s relationship with senior management, the skills that directors must possess to perform their duties adequately, the diversity of experience that a balanced board may need, the way in which risk management should be addressed and the proper role of regulatory authorities. The Corporate Governance Intensive will be held in Wellington on 21 June and Auckland on 22 June, with presentations from experienced and knowledgeable practitioners who bring different perspectives to the above issues. Find out more at www. lawyerseducation.co.nz/shop/ Intensives+2012/Corporate+Gove rnance+Intensive+2012.html. For registration enquiries, freephone 0800 333 111. LT

Consumer Credit Law − proposed changes The Ministry of Consumer Affairs has released an exposure draft of a bill to amend the Credit Contracts and Consumer Finance Act 2003 (“CCCFA”). The bill would make comprehensive changes to consumer credit law. The seminar, Lending and Securities − changes to consumer and commercial credit laws, to take place in June, will look at all of these proposed changes, including home loans, hire purchase agreements, personal loans, credit cards, personal overdrafts and store cards. The seminar will be held in Christchurch on 5 June, Dunedin on 6 June, Hamilton on 11 June, Auckland on 12 June and Wellington on 13 June, with a webinar for smaller centres on 13 June. The main change is the introduction of eight lender responsibility principles for creditors to comply with. These include a requirement to make inquiries about a borrower’s financial circumstances; to be satisfied a borrower can be reasonably expected to repay their loan without substantial hardship; and to consider the appropriateness of a loan, having regard to the borrower’s circumstances, requirements and objectives. It is intended that a Responsible Lending Code will be developed to elaborate on the lender responsibility principles and to offer guidance to creditors on implementing the principles.

JUSTITIA Providing professional indemnity and specialist insurance products to the legal profession Visit our website www.justitia.co.nz for further information and application forms or contact:

Mr John Martin, Aon New Zealand

 (04) 819 4000 • fax (04) 819 4106 email john.martin@aon.co.nz

LAWTALK 794 / 27 APRIL 2012

Changes are also proposed to the disclosure requirements for consumer credit contracts. Disclosure would need to be made sooner (before the contract is made, rather than the existing law which allows disclosure to be made up to five working days after the contract is signed) and the information which must be disclosed would be extended. The cooling-off period for debtors to cancel their loans would be extended from three to five working days. Creditors would also need to make their standard terms and information about their interest charges and fees publicly available. A Ministry of Consumer Affairs review in April 2011 identified that 35% of third-tier lenders were not registered under the Financial Service Providers (Registration and Dispute Resolution) Act 2008. The draft bill proposes addressing this by preventing creditors from charging interest or fees if they have failed to register. The hardship relief provisions in the CCCFA would be also amended, including relaxing the rule that a debtor cannot make a hardship application if they are in default. In addition there are timeframes for creditors to make decisions on hardship applications. Other proposed changes include limiting the ability to charge default interest under consumer credit contracts, changes to the CCCFA’s unreasonable fees provisions and setting out a list of factors a court must have regard to when considering whether a credit contract is oppressive. All will be covered in the seminar. Find out more at www.lawyerseducation. co.nz/shop/Seminars+2012/ Lending+and+Securities+-+chang es+to+consumer+and+commercia l+credit+laws.html. For registration enquiries, freephone 0800 333 111. The exposure draft bill is available on the Ministry of Consumer Affairs’ website: www.consumeraffairs. govt.nz/legislation-policy/policydevelopment/credit-review. Submissions on the draft bill are due on 11 May. LT

Foundation backs worldbeating mooting team SUPPORTING INDEPENDENT LEGAL THINKING

Lynda Hagen

Law Foundation support was key to a New Zealand team reaching the top four at the world’s premier moot court contest. The Auckland University Law School team reached the semi-finals of the Jessup Moot Competition held in Washington DC in late March. The Jessup is the largest and most prestigious mooting event contested anywhere. This year more than 600 teams from 80 countries were whittled down to 115 teams who battled it out in the international rounds in Washington. Auckland’s fantastic achievement has only been matched once before by a New Zealand representative team – the Otago University team also made the Jessup semi-finals in 2002. The Law Foundation funded travel costs for the four-person team and two coaches. Auckland University Law School Dean Dr Andrew Stockley said this support was critical to the team’s success. “The New Zealand Law Foundation provides the vast bulk of the funding. All the law schools are incredibly grateful to the Foundation – we simply couldn’t do it without their support. “It means the team can focus on the actual mooting rather than worrying about funding,” Dr Stockley said. Auckland’s four-person team of Benedict Tompkins, Mark Tushingham, Matt Beattie and Namita Singh was narrowly beaten by New York’s Columbia University in a split decision. Columbia went on to lose to Moscow State University in the final. Teams work extremely hard preparing written memorials (submissions) and practising pleadings, arguing both the applicant and respondent positions in each case. Auckland also won the overall prize for the best written submission, along with the runner-up award for combined applicant and respondent positions. The Auckland team earned the right to represent New Zealand at the Jessup

Auckland University’s Jessup mooters (from left) Matt Beattie, Benedict Tompkins and Mark Tushingham.

after winning last year’s national interuniversity mooting competition for the fifth year in a row – then the hard work really started. “Obviously the team had to take it to a whole new level,” Dr Stockley said. “They spent a lot of December and January preparing, putting in weeks and weeks of effort.” Jessup teams debate legal issues arising from a simulated international conflict – but some Auckland team members had no prior training in international law, so had to learn from scratch. The team was able to practise with and learn from several senior practitioners and judges, including former Court of Appeal Judge Sir Ted Thomas. Dr Stockley says the preparation and real-life court simulation gained from mooting is “immensely valuable” to young lawyers, at whatever level of competition: “It’s the very best possible practice for the situation of appearing as a lawyer in court.” I can only endorse that. I’ve been assured by many involved in mooting that the funding certainty the Foundation provides, with the prospect of an international trip, helps encourage participation. This means that many law students benefit from improving their advocacy skills, which in turn benefits the wider profession long-term.

Lynda Hagen is the Executive Director of the New Zealand Law Foundation

NZ Law Foundation support for contests • Philip C Jessup International Law Moot Competition, Washington DC − $30,000 annually to cover travel for a four-person team and two coaches. • Brown-Mosten International Client Consultation Competition − $15,000 annually to cover travel for a two-person team and a coach. New Zealand teams have won this competition five times. This year’s national competition winners were the Otago Law School team of Alex Brooke, Rob Clarke and coach Selene Mize. They represented New Zealand at this year’s event in Dublin, Ireland from 18-21 April. • International Negotiation Competition − $15,000 annually to cover travel for a two-person team and a coach. New Zealand teams have won this competition twice. This year’s national competition winners were the Otago Law School team of Josh Pemberton, Tom English and coach Selene Mize. They will represent New Zealand at this year’s event in Queens University, Belfast, Ireland from 3-7 July. • New Zealand Law Foundation National Family Law Moot − $12,000 annually to cover travel and competition costs for teams from all law schools to compete in Dunedin.

LAWTALK 794 / 27 APRIL 2012

OVERSEAS Company law consultations Two major consultations on company law have been launched in Europe recently, the March issue of Brussells Agenda reports. The European Commission has invited stakeholders to participate in a general consultation on the modernisation of company law. The deadline for responses to this consultation is 14 May. The European Commission has also launched a public consultation aimed at identifying appropriate measures to address the current gender imbalances on company boards, as a preliminary to a potential formal legislative proposal. This topic has attracted a significant amount of comment in recent weeks, in particular with regard to the possibility of gender quotas for company boards. This consultation will close on 28 May.

Chop for dead law More than 800 pieces of statutory dead wood from the 1600s and earlier would be scrapped under measures proposed by the two bodies charged with tidying and modernising British legislation, the Law Society Gazette (4 April) reports. Laws identified for repeal include a 1696 act to fund the rebuilding of St Paul’s Cathedral after the Great Fire of 1666, a 1696 turnpike act to repair roads between towns in Surrey and West Sussex and 57 obsolete acts to raise money for the parish poor, including a 1697 act to run a workhouse in Exeter. Two bodies, the Law Commission for England & Wales and the Scottish Law Commission, are expected to put the Statute Law (Repeals) Bill before parliament this summer. It will call for the repeal of 817 whole acts and the part repeal of 50 other acts, and is the largest such bill that the commissions have produced.

Combating torture in Brazil Public defenders across Brazil are to be equipped with the International Bar Association’s Human Rights Institute (IBAHRI) manual Protecting Brazilians against Torture: A Manual for Judges, Prosecutors, Public Defenders and Lawyers. The initiative follows the successful implementation of workshops with a focus on combating torture. The training was conducted in six states of Brazil by the IBAHRI, in partnership with key Brazilian justice institutions, judges, lawyers, prosecutors and public defenders at the end of 2011. There are some 5,000 public defenders in Brazil. To mark the launch of the 5,000 manuals, the Sao Paulo

LAWTALK 794 / 27 APRIL 2012

Public Defender’s Office hosted an international conference on combating torture on 29 and 30 March. International speakers addressed key issues on the role of the public defender in dealing with torture. Also, public defenders exchanged strategies employed to deal with torture cases and their experiences. Proposals for institutional actions outlined at the conclusion of the event include: capacity building workshops for public defenders on international and national standards; the development of specialised human rights units, or ‘nucleos’, within state public defender offices; and the systematic collection of data relating to torture cases.

Hands off passwords Maryland has enacted a bill that prohibits employers demanding job applicants and workers provide personal passwords to social media sites, ABA Journal reports. When the bill was passed in early April, it was understood to be the first such legislation in the United States. Maryland’s lawmakers were almost unanimous in making such information private, in response to reports that a growing number of employers were seeking access to individuals’ personal social media accounts to gather information for job-related decision-making. Similar legislation is being pursued in California and Illinois, and in the United States Congress.

Tax abuse and poverty An international task force comprising leading academics, tax experts, and lawyers has been convened to analyse how illicit financial flows – specifically the proceeds of tax abuse – contribute to poverty and subsequently affect the enforcement of economic, social and cultural rights (ESCR) across the globe. The International Bar Association’s Human Rights Institute (IBAHRI) Task Force on Illicit Flows, Poverty and Human Rights recently held its inaugural plenary meeting in London to discuss the scope of the project, potential outcomes and research priorities. The three key objectives of the IBAHRI Task Force are: 1.

to publish an innovative report containing findings and a set of recommendations on the correlation between tax havens, poverty and human rights;

2. to widely disseminate the report with the aim of elevating the issue of tax evasion and human rights onto global policy agendas, and sustaining discussion thereafter; and 3. to incite multi-level policy changes in the area of tax evasion and ESCR adjudication to help end global poverty. LT

LAWYERS COMPLAINTS SERVICE Seller’s lawyer held responsible for buyer’s lost pre-contract deposits A lawyer (A), acting for the seller in a property sale, was ordered by a Lawyers Standards Committee to compensate the buyer for the loss of two deposits. The buyer had paid the deposits before entering into any binding contract with A’s client. A had then paid the money to the seller. The committee said he had been bound to hold it for the buyer as her trustee or agent.

The facts In January 2007, the buyer paid two deposits of $15,000 each for two lots in a new subdivision. The deposits were accompanied by a “booking application”, which said the money was payable to the trust account of the seller’s lawyer. The application did not include any stakeholder provisions. It said the parties would sign a sale and purchase agreement after the application was accepted. A receipted the deposits into his trust account to the credit of the seller. The following month the seller instructed him to transfer the money to the seller. A asked his client whether a sale and purchase agreement had been signed and was informed that none had. A then paid out the money as instructed. In 2008, the subdivision failed for lack of finance and the buyer lost the two deposits. She complained to the Law Society, claiming compensation. She said that A had been holding the money as a stakeholder and should not have released it to the seller without her authority.

Part-payment or pre-contract deposit? A responded that the deposits were part-payment of the purchase price, and so it was correct to credit them to the seller. Since there were no stakeholder provisions in the booking

application he had not been required to obtain the buyer’s authority before paying over the deposits to his client. The committee disagreed. It said the booking application was not a binding contract between the parties and the deposits could not be seen as part-payment to the seller. They were in fact “pre-contract deposits”, and accordingly the lawyer had been bound to hold them not as a stakeholder or agent for the seller but as trustee or agent for the buyer (see CCH’s New Zealand Conveyancing Law and Practice (7-180), which cites Sorrell v Finch [1977] AC 728 (HL) among other cases). Although A argued that the buyer was not his client, the committee found that he had a duty to hold the money on her behalf until she signed a contract with the seller. The committee noted that the definition of “client” in the trust account regulations includes “any person on whose behalf money is, or securities are, held by the practice” (Lawyers and Conveyancers Act (Trust Account) Regulations 2008, reg 3).

Finding of ‘conduct unbecoming’ Because the events occurred before the Lawyers and Conveyancers Act 2006 came into force in August 2008, the committee had jurisdiction only if the lawyer’s conduct met the higher threshold for disciplinary action under the Law Practitioners Act 1982 (LPA). The committee found this threshold had been met and that A was guilty of unsatisfactory conduct in the form of conduct unbecoming. The committee said that A’s mistake about the legal status of the deposits had had serious consequences for the buyer. It ordered A to pay the complainant $5,000, the maximum compensation available under the LPA. It also ordered him to pay $1,200 costs to the Law Society. LT

Lawyer fined for failing to provide letter of engagement A lawyer has been disciplined for breaching the requirement to provide written terms of engagement in advance. He was fined $500 by a Lawyers Standards Committee after failing to provide a letter of engagement at any point during the 10 months in which he acted for the client. The committee noted that the Conduct and Client Care Rules require lawyers to provide clients in advance with written information about the principal aspects of client service (Rule 3.4), which include:

•

the basis for charging fees, when the fees are to be paid, and whether the lawyer can deduct fees from any funds held in trust for the client;

•

the lawyer’s professional indemnity arrangements;

•

the coverage provided by the Lawyers’ Fidelity Fund, and also if funds held for the client will be used for purposes not covered by the fund; and

•

the lawyer’s processes for handling complaints from clients and information about the Law Society’s complaints service.

Certain other key information must also be provided in writing before any “significant” work is done (Rule 3.5). The committee emphasised the statutory obligation to provide this information and found the lawyer guilty of unsatisfactory conduct for breaching Rule 3.4. As well as imposing a $500 fine, the committee ordered him to pay $150 costs to the Law Society. In reaching its decision, the committee noted that there were no aggravating features and that the client hadn’t been prejudiced. LT

LAWTALK 794 / 27 APRIL 2012

L AW YERS COMPL AINTS SERVICE

Lawyer ordered to take advice on his practice

application for a High Court appeal this had been on the basis that he would then look at the merits of his client’s case. He concluded that any appeal was doomed and so did not certify to the Legal Services Agency that the case was tenable.

A lawyer (B) was ordered by a Lawyers Standards Committee to take advice on managing his practice after a complaint that he had failed to communicate with a client for several months and had not applied for legal aid as instructed.

The committee accepted he could not have certified a tenable case, but it said that B should nevertheless have contacted the LSA about his client’s legal aid.

B admitted failing to answer the client’s texts and emails over a period of two months. This had been while he was absent from his practice for personal reasons, and he accepted he should have advised the client during this time to engage another lawyer. He expressed regret and apologised to the client. B said, however, that when he had completed a legal aid

Registry The following people have applied to the NZLS for certificates or approvals.

Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Canterbury Westland Branch Cheuk Ying LEE (also known as Valerie Cheuk Ying LEE) Nelson Branch Michelle Elizabeth BYCZKOW Waikato Bay of Plenty Branch Hamish Paul McARTHUR Brendan Colin BARRETT

Javin Singh DHAMMI Jennifer Erin SCHLARBAUM Melissa Rosemaree SMARDON Rebecca Jane TERRY Wellington Branch Kit (Vivienne) Ying WONG

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch Megan Elizabeth JENKINS

Quentin John Campbell STRATFORD

Wanganui Branch Raukawa Rangihuia Mamaeroa SIMON

Wellington Branch James Keeley MAHUTACOYLE

The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/

It also noted that these days it was not difficult to maintain contact with clients while away from practice. Because of his failure to communicate with the client and with the LSA, the committee found B guilty of unsatisfactory conduct. In place of a fine, it ordered him to take advice on the management of his practice, at his own expense, from a person named by the committee. It also ordered him to pay $500 costs to the Law Society. LT

Extra training for lawyer who used copied submissions A lawyer (D) was ordered to undergo extensive training after a Lawyers Standards Committee found he had given submissions in court taken from another case with different facts. D had been acting for the appellant in an unsuccessful appeal to the District Court from a decision of the Weathertight Homes Tribunal. The opposing lawyer had pointed out that the appellant’s submissions were more or less copied from those presented at an earlier trial where the facts were quite different. The appeal judge sent the Law Society a copy of his decision and the standards committee investigated. The committee said D’s lengthy response hadn’t adequately explained why he had used the submissions or, if he was unprepared, why he hadn’t asked for an adjournment. It noted he blamed a colleague for preparing the submissions. The committee said D’s conduct fell below the standard expected of a competent litigator. Even if he hadn’t prepared the submissions himself, he had a duty to ensure that any he presented were accurate, complete and not in any way misleading. Under the Conduct and Client Care Rules, lawyers have an absolute duty of honesty to the court and must not mislead or deceive it (Rule 13.1). They must also put all relevant and significant law known to them before the court, whether or not it supported their client’s case (Rule 13.11). The committee found that D had breached both those rules and was guilty of unsatisfactory conduct. It said a fine of $5,000 would have been appropriate, but it decided the money would be better spent on further practical training. It ordered D to attend the NZLS CLE Ltd’s residential week-long litigation skills programme and two additional seminars or programmes for litigation lawyers. He was also directed to report back in writing to the committee afterwards. LT

Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 3 May 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate. Lisa Attrill, Registry Manager Email: lisa.attrill@lawsociety.org.nz, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989

LAWTALK 794 / 27 APRIL 2012

www.facebook.com /mylawsociety

PRACTICE NOTICE WCM LEGAL – Wairarapa WILSON & CO. – Wellington Keith McClure, Mark Hinton, Juliet Cooke, Michael Bale and Kirsten Townsley advise that they are amalgamating their practices with effect from 1 April 2012. The new firm will practise in the Wairarapa (Carterton, Greytown and Featherston) as WCM LEGAL, a division of WCM LEGAL Limited and in Wellington at 7/234 Wakefield Street as Wilson & Co., a division of WCM LEGAL Limited. The Post Office Box numbers, telephone and fax numbers for all offices will remain the same.

PUBLIC NOTICE

Seeking internship Vincent Colombié from France is seeking a five- to six-month internship with a law firm or as in-house counsel. The 24-year-old succeeded in the French bar exam at the end of last year. Before that, he worked as a legal advisor trainee in the international division of Electricité de France. Vincent can be contacted at vincentcolombie.fr@gmail.com. LT

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With over 25 years’ experience working as a court reporter, legal secretary (in almost every aspect of law) and as an audio transcriber, I offer an affordable secretarial and audio transcription service to sole practitioners, or firms experiencing work overload. You simply send me your audio file (in any format as I can convert it); I type it (adhering to your template or formatting requirements) and I then send it back. No job is too large or too small. My rate is $25 plus GST per hour of typing.

Please see www.cairnstranscription.co.nz or Contact: Natalie (Hurndell) Tofilau email me on amanda@cairnstranscription.co.nz. Mob: 021 222 4426 Alternatively, you can contact me on: 04 526 2540 Email: natalie@prototype.net.nz Fearon & Co 56x100 ad_BW.qxd:Layout 1 21/8/09 or09:02 Page 1 027 634 2517.

ENGLISH LAW AGENCY SERVICES WILLS DAVID JAMIESON McNEILL Would any lawyer holding a will for the above-named, late of 71 Rukutai Street, Orakei, Auckland, retired, who died on 27 September 2011, please contact Nikhat Chandra of Johnston Prichard Fee Limited, PO Box 1115, Auckland 1140, ph 09 303 3295, fax 09 307 1283 or email nikhat. chandra@jpf.co.nz.

Gary Mark Loughran Would any lawyer holding a will for the above-named, late of 6 Clunie Avenue, Raumati, Paraparaumu, born on 1 September 1963, wholesale car dealer, who died on 31 March 2012, please contact Sally Harrow of The Law Connection, PO Box 2079, Raumati 5255, DX RP60303, ph 04 299 3192, fax 04 299 7686 or email sally@ lawconnect.co.nz.

DESMOND CHARLES BUCKTHOUGHT Would any lawyer holding a will for the above-named, late of 46 Roslin Street, Tokoroa, who died on or about 19 March 2012, please contact Ron Warne, Hammonds, Solicitors, DX AA23502 or PO Box 16, Dargaville 0340, ph 09 439 7099, fax 09 439 6464 or email hammonds.law@xtra.co.nz.

SOLICITORS Established 1825

Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations

VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: enquiries@fearonlaw.com

LITIGATION

Martin Williams 00 44 (0)1483 540843

mw@fearonlaw.com

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

WILLS SONJA PATRICE WEST Would any lawyer holding a will for the above-named, late of 83 Pukepoto Road, Kaitaia, who died on 17 September 2011, aged 43, please contact Dawsons, PO Box 38143, Howick, Auckland 2145, ph 09 272 0002, fax 09 272 0001 or email lawhelp@dawson-partners. co.nz.

S40 PUBLIC WORKS ACT MARGARET SMITH CUTTLE, HENRY WILLIAMS AND NEIL SHAW Would any lawyer who currently acts for the above-named or is holding a will for the above-named persons who owned land at Forbury, Dunedin, please contact Chris Cochrane, ph 03 363 5068, Darroch Ltd, PO Box 142, Christchurch 8140. Margaret Cuttle died on 21 May 1949. She owned land in Forbury in 1923. It is believed that Neil Shaw was from Melbourne, Australia, at the time he owned land in Dunedin in 1883. Henry Williams owned land in Dunedin in 1939. Information is sought for the purposes of Section 40 of the Public Works Act 1981.

WILLS Valerie Evelyn Zoraida Derrett (nee de Villiers) Would any lawyer holding a will for the above-named, late of Reefton, who died March 1991, please contact Tasha Derrett, 7 Arran Street, Mosgiel, ph 03 484 7305 or email derrett@gmail.com.

EUNICE MARY DIPROSE Would any lawyer holding a will for the above-named, late of Cambridge, but latterly of Province of Latina, Italy, who died 7 February 2012, please contact Lynne Revell, Vosper Law, DX GA 27509, PO Box 489, Cambridge, ph 07 827 6140 or email lynne@vosperlaw.co.nz

LAWTALK 794 / 27 APRIL 2012

Commercial Lawyer, 1-5 yrs’ PQE, Wellington This international top-tier firm are looking for a junior/ intermediate commercial solicitor to join their corporate team. They can offer a market leading salary as well as the opportunity to work on some of the most high-profile, interesting corporate files around. You will have between one and five years’ PQE and have practised corporate/commercial law in another firm or inhouse. This experienced team are happy to take a junior lawyer under their wing and put the time and effort in to offer quality professional development and mentoring. Whether you’re returning home from overseas or looking for a new challenge this firm has a great deal to offer. The firm has a relaxed approach to work/life balance but still offer a high-level of work, training and professional support. Call now for a confidential discussion about this role and your current situation. For further information in strict confidence please contact Ben Traynor or Clare Savali on 04 471 1423 or email admin@nicherecruitment.co.nz Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz

Senior Associate Corporate Department Recognised as New Zealand’s leading commercial law firm, Bell Gully is seeking a Senior Associate with a corporate/commercial law background with ICT experience in procurement and technology projects. Suitable applicants will ideally have 7+ years’ pqe, some of which should have been gained from another leading law firm. You must have considerable knowledge of ICT law, IT businesses and IP. In return, we will provide you with challenging opportunities and a highly attractive remuneration package. Ref: JL29048

Banking & Finance Lawyer You will be reporting to a very personable and highly regarded partner in this top tier firm. Ideal applicants for this role will have a strong academic background, excellent technical legal skills as well as client relationship building skills and a high level of self-motivation. Ref: CW29886 Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732

To apply, please email your CV to wellingtonjobs@momentum.co.nz quoting the reference number. For further information in strict confidence, please contact Jennifer Little or Carla Wellington on 04 499 6161.

www.momentum.co.nz

Liability Claims Solicitor NZI operates through a nationwide network of qualified and experienced brokers. NZI Professional Risks is a specialist end-to-end business unit that provides underwriting and claims services, for professional risk and general liability product lines. After several years of significant profitable growth, we are seeking another Liability Claims Solicitor to join this small team to bolster its claims capability. The role requires a close degree of contact with underwriters, brokers, and external litigation lawyers instructed in the defence of claims against our customers. Attendances at JSCs and mediations will be required. The ideal candidate will have 5 years insurance and/or litigation experience. The role may appeal to a lawyer wishing to shift focus in order to attain an improved work/life balance, or someone returning to the industry after a break. To apply for this job, please go to our job site https://careers.iag.co.nz and enter the job code 13493LT.