LawNews - Issue 12

THIS WEEK’S ARTICLES

Issue 12 30 Apr 2021

Lawyers and the MoJ lock horns over ‘toxic’ courtrooms p1

Tighter governance for incorporated societies p3

How changes to succession laws might affect you p7

LawNews adls.org.nz

THE COURTS/HEALTH & SAFETY

Toxic mould closes Pukekohe courtrooms

By Rod Vaughan

Several Auckland lawyers say they are battling debilitating respiratory illnesses after being exposed to toxic mould at the Pukekohe courthouse, with one being hospitalised and unable to work.

Speaking to LawNews on condition of anonymity, these lawyers are highly critical of the Ministry of Justice (MoJ) for what they say is its failure to remove the mould in a timely manner and for not advising everyone working at the courthouse about the problem.

As a result, they say the health and safety of practitioners like themselves has been seriously compromised. Of particular concern is the lawyers’ room at Pukekohe where visible black mould has been a longstanding problem.

“The vinyl wallpaper fell away from the wall about four years ago, exposing visible mould on the back of the wallpaper and on the wall,” one lawyer says.

“This was caused by water ingress in the ceiling, and it was well-known that the roof was leaking.

When it was raining, we had to put buckets in the courtroom to catch the drips. We called it to the attention of the court manager several times. As far as I know, the mould was never tested.”

The lawyer says about two years ago a workman came to the lawyers’ room in full PPE and sprayed the affected surfaces with bleach. He then re-glued the wallpaper to the wall.

The lawyer says an investigation into mould in the Pukekohe courthouse was initiated after the hospitalisation of an MoJ employee, but the lawyers’ room was not included in the schedule of areas to be tested, despite its known history with mould.

“The very brief test eventually carried out in the lawyers’ room was done only because one of the lawyers present asked [the worker] to do it, and

A safe workplace? Controversy erupts over the discovery of toxic black mould in the Pukekohe courthouse

There appears on the face of it to be a lack of independent analysis and investigation. That should have been the driver of the remedial work he had to get permission to extend his tests to include our room.

“A recent test showed the lawyers’ room had by far the highest level of stachybotrys mould in the building.”

According to medical literature, heavy and prolonged exposure to stachybotrys can trigger respiratory, dermatological, eye and constitutional problems.

And research by Dr Dale Bredesen of the University

of California, Los Angeles, also implicates toxic mould in the onset of Type 3 Alzheimer’s disease in some people.

According to his research, Type 3, which is commonly called Inhalational Alzheimer’s Disease, is caused by breathing in poisons which bioaccumulate over time.

Bredesen, who authored the best-selling The End Continued on page 2

THE COURTS/HEALTH & SAFETY

Toxic mould closes Pukekohe courtrooms Continued from page 1

been told to approach the council! There appears on the face of it to be a lack of independent analysis and investigation. That should have been the driver of the remedial work. I also believe the MoJ has failed to take all practicable steps to protect lawyers by not undertaking repairs when the problem was initially discovered.”

of Alzheimer’s, believes respiratory exposure to any mould, not just toxic varieties like stachybotrys, might be capable of causing brain inflammation, cognitive decline and emotional problems.

The lawyers spoken to by LawNews say they were not told about the presence of stachybotrys in the lawyers’ room and discovered it only after a colleague approached the MoJ’s head office.

One of the lawyers first became ill about six months ago and had to be admitted to hospital last month.

“I contacted WorkSafe when we were finally alerted to a mould situation,” one said. “My specific request to WorkSafe was that they should ensure that proper further testing should be carried out in the lawyers’ room, including by taking actual lifts of the mould material.

“Or, that if there was insufficient time to do further testing before work began, then at least to ensure some of the mouldy material was saved for testing.

“I believe one of the other lawyers made the same request to MoJ. I asked for the opportunity to be kept open for the lawyers to engage their own tester and analyst.”

However, the lawyers say they’ve since been told a second round of testing that was supposed to include every room at the courthouse did not, in fact, include the lawyers’ room.

“And the analysis of the second round of tests concludes that there is a very low level of stachybotrys. One has to wonder how that analysis would have changed had the lawyers’ room been included.

“We would really like to know who made the decision to exclude the lawyers’ room from these tests. In our opinion, this was the most egregious failing on the part of the MoJ or whoever made that call.

“Furthermore, we are told that the material from the lawyers’ room has now been disposed of, so we are precluded from getting a better picture of the exact nature of the contamination that we have been exposed to. The lack of information will surely impact on our ability to get the appropriate testing and treatment.”

For its part, the MoJ says it has been proactive in dealing with the issue and is acting appropriately to mitigate the risk (see also page 5).

“I had palpitations, breathing difficulties, nausea, pressure in my throat and ears and nose bleeds, tiredness and sweating with an inability to regulate my body temperature.

Chris Foote

I also believe the MoJ has failed to take all practicable steps to protect lawyers by not undertaking repairs when the problem was initially discovered

“I have been referred to Middlemore [Hospital] for a general investigation and the case is reasonably urgent. I continue to suffer these symptoms. As a result, I have had to take medical leave from my duty roster for a month. I have attended court a couple of times for matters in Pukekohe but have been left breathless afterwards so I have had to get an agent to appear on my behalf.”

The lawyer says she first became aware of the toxic mould issue after receiving an email from the MoJ on 19 March this year, advising lawyers to see their GP if they felt unwell.

And a committee, with two ADLS representatives, has been set up in Auckland to monitor progress.

“I have since then received further information informally through the grapevine but nothing from the ministry directly,” she says. “Whether my medical symptoms relate to the toxic mould is yet to be ascertained. At the time I was hospitalised and when I later saw my doctor, I was not aware of the developments at the courthouse.

The lawyers say WorkSafe declined to get involved on their behalf because it was satisfied that remediation work was being carried out satisfactorily.

“I believe if we are being asked to consult with our medical professionals, they should be provided specific information and the ministry has failed to enable us to do this.

They also contacted Auckland Council’s health enforcement section but were told they needed to go to Regional Public Health.

“Everything I know about this is virtually secondhand, thanks to a colleague who has pushed the ministry and not been afraid to confront

“One of the lawyers had already done that and

Continued on page 4

LawNews

Editor: Jenni McManus

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“I was discharged for further follow-up investigations. An initial blood test has not revealed a heart blockage, but the attending doctor felt the symptoms were too specific to be simply anxietyrelated.

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year. To subscribe, please email reception@adls.org.nz.

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

LawNews Issue 12 | 30 Apr 2021

GOVERNANCE

Tighter governance for incorporated societies In the second of a two-part series on the new Incorporated Societies Bill, Rod Vaughan speaks to three experts in the field: Craig Fisher (a consultant at RSM, an ADLS councillor and an associate of Boardworks), Duncan Cotterill partner Scott Moran and Mark von Dadelszen, a member of the reference group that advised the Law Commission on how the Incorporated Societies Act 1908 might be overhauled What do you see as the most welcome changes in the new legislation and are there any areas that you think still need addressing?

Craig Fisher As a chartered accountant, and especially a former auditor who spent a lot of his interactions with incorporated societies trying to get them to stop being naughty with their accounting and to operate on generally accepted accounting principles, I think the requirement to prepare financial statements in accordance with a generally accepted accounting framework is a big step forward.

This should better protect their members’ funds. The 1908 Act was essentially silent on accounting apart from what could be paraphrased as “keep some records and report to your members once a year.”

To be honest, I don’t see any major holes in this legislation. I see it as largely adding some commonsense good practice requirements to hopefully better protect those involved in incorporated societies, help better ensure their effectiveness and protect the funds held.

Scott Moran By far the most welcome change in my view is the enabling of amalgamations and simplification of the winding-up process.

There are a number of societies in New Zealand that have become uneconomic over time or groups of societies that would be better off as one. We previously had to implement elaborate member and asset transfers to give effect to such restructuring.

This will now be a simpler process through the ability to amalgamate and to wind up with a single

member resolution. It just would have been nice to see it introduced five years ago!

professional help?

Mark von Dadelszen In terms of improving the standards of society governance, I welcome the proposed new Act.

What sort of services do incorporated societies provide at a local and national level in New Zealand and to what extent are they an important part of our social fabric?

However, I am very conscious that the new requirements placed on incorporated societies by the new Act will be onerous for some and may prompt some fundamental reconsideration about societies by their members.

Craig Fisher To answer this question is to seek to understand the not-for-profit sector generally. It is huge and varied and provides significant social, community and environmental cohesion.

Some of the issues likely to be considered include the following:

Business creates a commercial engine for our economy but it is cut-throat and ultimately profit and selfishly motivated. Government provides a frame for business and the community to operate within but it is ultimately a big-brother tax-driven distribution system controlled by a political system.

Why do we have a society, what need is it meeting and is the society fulfilling the wants and needs of its members?

Do we need a society (with voting members) or might some other type of organisation (perhaps a trust) better meet our needs?

Might there be merit in combining forces with some other organisation or organisations providing similar community services, such as forming a combined sports club or combined cultural society?

Do we need to be incorporated? The main benefits of incorporation for most societies are to protect members from most personal liability for the society’s activities and/or to own or lease property.

As per the introduction to the bill, the areas of contribution are enormous and include culture, sport, recreation, education, health, social services, philanthropy, emergency relief, environmental protection, animal protection and religion.

If we choose to remain incorporated, how will we meet the greater reporting and accountability requirements of the new Act? Will the society need to pay or increase committee honoraria or engage some external

Rūnanga and taura also operate as incorporated societies, along with civic and advocacy organisations such as trade unions, business and professional associations, political parties and local

The not-for-profit sector deals with the human aspects of society. It facilitates community good. It picks up the pieces left by the failures of commerce and the state.

Scott Moran Incorporated societies are a critical part of our civil society that make a significant contribution to New Zealanders’ well-being.

Continued on page 6

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Continued from page 2 them. They have graciously shared this. My first impression was that this was a real cop-out on behalf of the ministry which simply did not wish to deal with any further questions on our behalf.”

NZLS, the ADLS and the bar associations so those organisations can use their databases to get out urgent emails to all lawyers.”

Foote says he suspects the matter has been treated merely as a local issue.

The lawyer says she has not heard personally from the MoJ or been offered compensation for medical costs and lost income.

“In my opinion, such siloed thinking has no place in health and safety matters. Many court lawyers travel extensively to various courts in the course of their work and those courts may well be some distance from wherever their legal office might be situated.

“Whether or not my medical situation is related to the toxic mould issue is not the point; the courthouse is not, in my opinion, a safe working environment.

“The lawyers were relocated to a room that itself was questionable. There has been no subsequent testing and clearing of the lawyers’ room and I have no idea whether the mouldy gib board has been replaced.

“Therefore, sick or not, many of us cannot return to work until we know the environment is clean. But how are we ever going to know this if we are not being told anything by the ministry?

Pukekohe is not the only courthouse to have a toxic mould problem.

Some lawyers believe it’s also present in the lawyers’ room at the Papakura courthouse.

“It is stinky, with little or no ventilation, and although a heat pump was installed the air is pretty nasty,” said one.

Chris Foote, convenor of the ADLS Courthouse Liaison Committee, told LawNews he was concerned at the way in which the toxic mould issue has been handled by the MoJ. “The letter from the building consultancy retained

by MoJ (Incodo) to the ministry, dated 13 April 2021, gives a timeline showing Incodo was approached on 25 February to carry out testing work.

“The test results came back on 18 March and provided sufficient justification to close off three areas immediately on health and safety grounds.

“The email from Moana Ieremia (Manager Justice Services – South Auckland Courts & Tribunals)

“All lawyers need to know as soon as possible what health and safety issues there are at any court rather than being excluded from information on the specious ground of not being a local practitioner.

Leaks and flooding in the Papakura District Court

I had palpitations, breathing difficulties, nausea, pressure in my throat and ears and nose bleeds, tiredness and sweating with an inability to regulate my body temperature commendably went out as an advisory the next day, 19 March, but to whom?

“It starts off, ‘Please circulate to your teams/ networks’, but this may have been only to MoJ staff.

“In a health and safety emergency like this, I consider it critical that MoJ immediately advises not only its own staff and the judiciary, but also the

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“If I am right in my thinking, then I hope the events that have unfolded provide an opportunity for MoJ to learn of the need to communicate more widely and to treat all lawyers as stakeholders in the court system, as their health and safety is just as important as [that of] MoJ staff.”

Concerns about toxic mould at Papakura and Pukekohe come only six years after the ministry spent $1.24 million replacing a leaky roof on the Tauranga courthouse.

Despite the repairs, a raft of issues with the courthouse were discovered during an MoJcommissioned investigation in 2016, including the presence of stachybotrys mould. The investigation, which was undertaken by Prendos New Zealand Ltd, concluded that a full reclad was needed to properly fix the building.

“This is the only way to provide any degree of certainty in achieving a dry environment for the structure and ensure the future durability of the building,” it said.

According to The Bay of Plenty Times, the MoJ made the findings of the investigation public only after a complaint to the Ombudsman.

The MoJ subsequently said air quality tests at the courthouse are being conducted monthly to ensure there is no risk to occupants’ health.

See also page 5

LawNews Issue 12 | 30 Apr 2021

THE COURTS/HEALTH & SAFETY

Ministry of Justice responds to mould complaints When did the Ministry of Justice first discover there was a toxic mould problem at the Pukekohe and Papakura courthouses? What was the nature and extent of the problem and what remedial steps were taken?

In respect of Pukekohe, the ministry first became aware that there was an issue on 18 March 2021 when test results were received. These tests were in response to a concern raised on 23 February 2021 by a staff member.

Air quality tests were requested and scheduled for the areas where staff members work. The tests were done during the week of 15 March 2021. While carrying out these tests, the specialist consultant (Incodo) was asked by a lawyer to assess the lawyers’ room. Laboratory results from the Biodet analysis were rung through to Incodo on Thursday 18 March 2021 pending a formal written report.

Biodet recommended that with the high spore reading in the judges’ chambers, these should immediately be closed. Incodo was asked to return to the site the next day to conduct further tests, including more invasive tests within the lawyers’ and interview rooms. Whilst the Biodet report recommended closure of only the judges’ chambers, it said Stachybotrys was considered to be toxigenic and undesirable indoors at these levels although it noted it would be unlikely to result in health issues.

Following further tests on 19 April 2021, the lawyers’ room and interview room 1 were sealed pending results from additional tests. Remediation planning was commenced, and a monitoring regime implemented.

In respect of Papakura, testing was done on 26 March 2021 as a proactive precautionary measure due to a previous leak and the status of Pukekohe. Based on verbal advice from Incodo at the time of testing, three rooms were closed as a precautionary measure pending full test results.

The rooms initially closed were the transcribers’ room and the lawyers’ room, including an internallyaccessed secure interview room.

Pukekohe District Court Date

To whom

Information provided via email

19 March NZ Law Society, ADLS, Crown Law 2021 and several individual lawyers and

stakeholders

Following the discovery of mould in the Pukekohe courthouse, testing has been completed.

19 March NZ Law Society, ADLS, Crown Law 2021 and several individual lawyers and

stakeholders

A copy of the report.

23 March NZ Law Society, ADLS, Crown Law 2021 and several individual lawyers and

stakeholders

A further update was provided and notification that the lawyers’ room, judges’ chambers and an interview room have been closed for health and safety reasons.

The advice was that the levels detected would be unlikely to result in health issues but as a precaution we recommend a visit to their GP.

30 March NZ Law Society 2021

A further update and report were sent. Notification that an email with timeframes for completion of repair work would follow.

31 March NZ Law Society and ADLS 2021

A further update summarising the reports already sent, along with a copy of the final report and a summary of property remedial work.

Further sampling was completed on 9 April and the second secure interview room was closed. The final report received on 12 April 2021 confirmed high readings of mould only in the transcribers’ room.

The report states readings from the lawyers’ room would be unlikely to result in health issues.

These results have been provided to staff and stakeholders and a property remediation strategy is being finalised and procurement of a contractor is underway. Notwithstanding that it is not required, we will also look to provide a copy of our remediation methodology to WorkSafe for its information.

When were lawyers who appear in both courthouses first advised of the problem? What exactly were they told and to what extent were they regularly kept abreast of developments?

The affected lawyers claim the MoJ was in breach of WorkSafe regulations by not being

upfront about the problem when it was first detected, by failing to take remedial action in a timely manner, by not keeping them properly informed about how it was being addressed and by exposing them to health and safety risks. Do you accept the MoJ was in breach of WorkSafe regulations and could and should have done more to protect these lawyers’ health and safety?

The Ministry of Justice sought advice from WorkSafe about the situation in Pukekohe on 22 March 2021. We are not in breach of WorkSafe regulations and the conversation with WorkSafe confirmed our approach to mitigate risk was appropriate. A WorkSafe inspector conducted a visit on 30 March 2021 after a concern was raised. This visit again confirmed the approach to mitigate risk and the remedial work underway was appropriate.

Continued on page 14

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Continued from page 3 interest groups.

volunteers trying to do good’ etc type of rhetoric.

as members.

Mark von Dadelszen There are many different types of incorporated society. Some deliver services to the community that are fundamental to the way we live, work and play, while others meet society’s recreational, cultural and spiritual needs.

However, in my experience much of that will be an immediate reaction to change from people feeling they are already doing it tough, rather than an actual objective analysis of what is in fact changing.

For example, an organisation may have a number of clubs as its members and it may also consider those clubs’ members to be their members through affiliation or otherwise.

There is nothing much in here from my reading [of the bill] that wouldn’t objectively be considered good governance practice for any democraticallyrun type of entity, which incorporated societies are supposed to be.

There are many societies that do not obtain the consent of individuals they consider to be members and to which they may provide services.

Arguably, we would not be a civilised modern society without organisations such as incorporated societies.

I believe most people involved in community activities will belong to several incorporated societies and, from my experience in advising such societies, particularly over the last 20-25 years, I know they contribute to the richness and variety of our country.

Are there any other issues about the new legislation that you would like to comment on?

Craig Fisher Pondering this further, I see this proposed legislation update as largely common sense and very sensible. It follows the very good Law Commission review in that regard.

Undoubtedly, there will be much outcry and public gnashing of teeth from some as ‘unnecessary compliance’, ‘unfair on the sector’, ‘we’re just

Ultimately, many of the changes are specifically designed to assist with the protection, ongoing health and sustainability of incorporated societies.

And given their importance to a well-functioning civil society surely that is a good thing.

Finally, there is a great opportunity for the legal profession to assist incorporated societies make some required changes and hopefully put them on a more sustainable future path, with the ultimate benefit being to society in general and NZ Inc. Scott Moran One practical impact that some societies will need to grapple with is the requirement for every member to consent to being a member. This was always implied but the bill requires actual consent.

While that sounds simple, it is not unusual for some societies to deem certain people or organisations

Members have significantly more rights in the new bill and so a member’s standing to participate in complaint and grievance procedures may be compromised if they have not consented. That will be an interesting issue to follow.

Mark von Dadelszen As someone who has been focusing on providing legal services to incorporated societies for more than two decades, I know the majority of them cannot afford to pay legal fees.

That will be a challenge for many incorporated societies once the new Act is in force, but it also creates a challenge for most lawyers who will, inevitably, be asked for help to bring those society constitutions into line with the new statute.

They will all be fair game when their societies want to re-write their constitutions and review their governance practices to meet the requirements of the new Incorporated Societies Act.

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LawNews Issue 12 | 30 Apr 2021

LAWS OF SUCCESSION

Big changes coming for our laws of succession

By Anthony Grant

One of the most interesting proposals from my perspective is the proposed statutory adoption of anti-avoidance measures that would give the courts power to restore assets to estates.

The Law Commission has published its initial thoughts on the laws concerning succession.

The commission wants to apply these measures to ‘any contracting-out or settlement agreement entered under the new Act that had the effect of defeating a right or claim under the new Act’ (para 9.46.)

Many readers may not be familiar with this term.

The laws of succession refers to laws allowing the living to take assets from the dead.

As the commission has a good record of persuading Parliament to enact its recommendations, readers who are interested in the commission’s suggestions should learn about them since there’s a good prospect that its final recommendations will be approved by Parliament.

I have found it difficult to discern from the report whether the commission proposes to allow assets to be extracted from trusts, but it looks as though this may be a possibility. If so, it will be a development of real significance for trusts.

The commission proposes that the courts would be empowered to make occupation orders, tenancy orders and furniture orders in respect of the assets of the dead. It acknowledges that applications for such orders would delay the distribution of estates, but the commission thinks the potential benefit of such orders outweighs the harm that would be caused by the delays in making them.

The current means by which people can succeed to the assets of a person who has died are:

the Administration Act, which identifies the people who are to take the assets of people who died without making a will;

the Family Protection Act, which permits spouses, some parents, children and grandchildren to make claims against a person’s estate;

the Testamentary Promises legislation, which empowers a living person to enforce the promises of the dead;

the Property (Relationships) Act, which empowers a spouse/co-habitee to make claims against the estate of a dead partner; and

claims of a constructive trust and some other claims in equity.

The commission suggests the different regimes might be rolled collectively into a new Act. Considerable emphasis is placed on the possibility of a separate regime for aspects of Māori succession – a move that is said to be justified by the Treaty of Waitangi which, according to the Waitangi Tribunal, requires the Crown “to allow Māori to manage their own affairs in a way that aligns with their customs and values” (para 2.17.).

Anthony Grant

One of the most interesting proposals is the proposed statutory adoption of antiavoidance measures that would give the courts power to restore assets to estates

If the laws concerning succession are to have any meaningful impact on the community, some anti-avoidance measures will be needed since people are avoiding succession laws at present by alienating assets during their lifetime by making gifts and making settlements on trusts.

I conclude this article with a comment on some Māori elements of the commission’s report. Names of New Zealand, the commission and other bodies are invariably recorded in both Māori and English with the Māori name taking precedence over the English-language name. The report reminds me in part of academic writings in Quebec that are typically fully bilingual in both French and English.

There are extensive references to Māori academic writing and there are proposals to have some separate legal regimes for Māori.

The current president of the Law Commission is former Associate Professor Amokura Kawharu – I assume from the distinguished Kawharu family in Auckland.

The commission would reduce potential claimants under the Family Protection regime to spouses, infant children and children with disabilities.

Parents and grandchildren would no longer have the right to make claims. The term ‘children’ would include ‘accepted children’ and unborn children.

‘Recognition’ awards could also be made for children of all ages.

type could delay the distribution of estates for years.

Claims in equity for compensation for contributions that have added value to an asset (via constructive trusts, estoppels and claims of unjust enrichment etc) might be rolled into a statute and classified as ‘contribution’ claims. The ease with which such claims can be made has made them popular with plaintiffs and it’s foreseeable that claims of this

The current regime for distributing the assets of intestate estates is criticised and a number of replacement regimes are suggested.

The commission would allow property owners to enter into contracting-out agreements in respect of contribution claims and owners of assets would be well advised to enter into agreements with everyone they anticipate might make such claims.

The way in which taonga, a Māori term for ‘treasures’ or heirlooms, might devolve could be given a separate regime for Māori.

In 1967 I studied Māori at Auckland University, mainly under the tuition of Pat Hohepa. At that time, the Māori language and culture were struggling for acceptance in a white community which sought to suppress indigenous aspirations.

Fast forward to 2021 and it’s remarkable to see how confidence in both the language and the culture has flourished.

Anthony Grant is an Auckland barrister specialising in trusts and estates. He is a presenter at the ADLS Cradle to GraveTM conference next week. The keynote address will be on succession, presented by Nicola Peart, Professor Emerita, and Helen McQueen, Deputy President of the Law Commission.

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LAW FIRMS

How to separate disbursements from expenses

By Juliana Vermaak

In our previous article we addressed the practice of open and transparent billing. This week we will look at billing disbursements and expenses.

There is often confusion about the differences between the two and how they should be billed to clients.

Expenses These may be defined as the recovery of a portion of a firm’s office overheads and are recorded as GST-exclusive. Some examples may be for a portion of the telephone and internet charges, photocopying of documents and other expenses incurred specific to the cost of servicing the firm’s clients.

Disbursements These are specific costs incurred with an independent third party on behalf of a client and must be supported by an official invoice, such as LINZ fees, agency fees or couriers’ fees. Disbursements must be separated from expenses. They are charged to the client at cost and may not be inflated and are recorded as GST-inclusive.

When drafting bills, several fundamental errors are often made, such as: how to correctly structure the bills; how to correctly identify the legitimate expenses that may be recovered;

how to distinguish between expenses and disbursements to be included in the bills; and

how to correctly and legitimately recover both expenses and disbursements, as required by the Lawyers and Conveyancers Act (Lawyers: Rules of Conduct and Client Care) 2008 (LCA Rules 2008) (Rules), which may include:

rule 3.4(a) and 3.4A(a) providing advance information of the basis on which fees will be charged;

rule 9 principles of charging; and

rule 11.1 avoiding misleading or deceptive practices.

With billing issues, firms commonly fall into one of two categories: those which erroneously conflate the expenses and disbursements may also be found to inflate disbursements. Both practices fall foul of the rules. Then there are firms fearful of falling foul of the rules which end up leaving significant money on the table by not recovering legitimate costs.

Should your firm fall into either of these two categories, it may be in the firm’s best interests to obtain assistance to correct its billing practices to ensure compliance and/or to maximise the legitimate recovery of expenses.

In the next issue, we will address agency fees.

Juliana Vermaak of Baritone Consulting holds a Masters in Professional Accounting and is an associate member of ACFE. She has served law firms in the Auckland region for the past eight years in a consultative capacity and has contracted as an inspector for NZLS.

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LawNews Issue 12 | 30 Apr 2021 CASE NOTE

Court tests limits of Waitangi Tribunal’s power

Employment Lawyer 5 years’ + PQE

By Sacha Jugum

Treaty of Waitangi Act 1975 – Judicial Review Procedure Act 2016 – Waitangi Tribunal – judicial review challenges to preliminary determination of tribunal – jurisdiction – state-owned enterprises – “resumption” – applicable principles – public policy and procedure – extent of Tribunal powers – statutory interpretation – Parliamentary primacy – natural justice – precedent – tikanga and connection to land – whether breach of Treaty of Waitangi principles – application for judicial review upheld in part, including in relation to the connection to land – the preliminary decision is set aside, and the Waitangi Tribunal is directed to reconsider certain aspects as detailed in the judgment Mercury NZ Limited and Others v The Waitangi Tribunal and Others [2021] NZHC 654 (Cooke J) The Waitangi Tribunal (WT) issued a preliminary decision relating to significant areas of land in the North Island, including areas of land/river that contained a power station and areas of commercial forest.

The economic value of the land and water areas was some $800 million.

The preliminary decision proposed using the power of “resumption”, a legislative change to the Treaty of Waitangi Act 1975 made in 1988/1989, where the tribunal was given the power to order that land previously transferred to state–owned enterprises could be transferred to Māori ownership.

The tribunal’s power of resumption “had hardly ever been exercised” and had “largely been simmering below the surface” of its powers. Its preliminary decision was challenged by Mercury and other parties by way of judicial review.

Applicable principles – extensive discussion of public policy and the status, powers, procedure and function of WT – whether the preliminary decision is judicially reviewable – exercise of discretion – detailed consideration of Mercury’s rights and the application of natural justice to this situation – analysis of, the decision-making process of WT including, in particular, the identity of the iwi that was to receive the lands and rivers, and the extent of that iwi’s connection with the land [as compared to the connection of other iwi who would not receive the land but may have a strong or stronger connection] – “the supreme authority of Parliament to enact laws” – statutory interpretation – timeframe of investigations and impact of that on WT’s preliminary decision – discussion of precedent.

Held: The Waitangi Tribunal’s preliminary decision is judicially reviewable – the applications for judicial review are upheld in part – the appropriate relief to be granted for the judicial review claims that have been upheld involves setting aside the preliminary determination and directing that [WT] reconsider the claims in light of this judgment – for the avoidance of doubt, that does not necessitate [WT] reconsidering and reissuing a preliminary determination – whether it releases a further preliminary determination or proceeds to deal with the claims in another way is a matter for it to determine.

Kiely Thompson Caisley is a specialist boutique employment law firm and one of New Zealand’s leading employment litigation firms. We act for some of New Zealand’s largest companies and regularly appear in the Employment Court, Court of Appeal and Supreme Court.

We have an opportunity in our Auckland office for an intermediate/senior lawyer with proven experience, drive and commitment. If you have the following attributes, then we would love to talk to you: • A passion for employment law.

• A minimum of 5+ years’ post-admission experience in employment law and/or litigation.

• A common-sense and pragmatic approach to problem solving.

• A commitment to delivering outcomes that drive client success.

• Highly developed analytical and problem-solving abilities.

• Ability to work under pressure and meet deadlines.

• Strong communication and relationship skills.

• An excellent work ethic.

• Experience managing complex matters and advice.

• Attention to detail and commitment to quality.

• Proven networking skills within the law/business community.

At Kiely Thompson Caisley we value individuality and diversity, and we offer a supportive, flexible working environment. The successful applicant will receive a highly competitive remuneration package.

Please email your CV, along with your academic transcript and cover letter, in confidence to our Operations Manager, Gina Spooner, spooner@ktc.co.nz.

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Glenn Jones and Stuart Stock

Penny Mander, Claudia Milesi-Humm, Natasha McClure and Jamie Stanton

ADLS EVENTS

Christchurch lawyers’ lunch ADLS visited Christchurch for its annual lunch on Wednesday 14 April. It was wonderful to see a mix of familiar and new faces.

Many thanks to sponsor MAS for its ongoing support of this event.

ADLS Vice-President Tony Herring, Sam Maling and Daniel Chisholm

Courtney Johnson, Samuel Thorp and Elliot Nye

Lorraine Frampton, Benjamin Leggat, Nick McKesscar and Kate Anderson

ADLS members and non-member lawyers who have registered their Airpoints™ details with ADLS can earn Airpoints Dollars™ on all eligible purchases.

Learn more

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LawNews Issue 12 | 30 Apr 2021

Collegiality Events Henderson Lawyers’ Lunch Wednesday 12 May | 12.30 pm - 2.00 pm The Grounds, Henderson Sponsored By

East Auckland Lawyers’ Lunch Wednesday 2 June | 12.30 pm - 2.00 pm Goode Brothers, Botany Sponsored By

18 May

ADLS & SOULS Buddy Evening

3 Jun

Rotorua Sundowner Regent Room

10 Jun

Tauranga Sundowner Tauranga Club

For tickets & more information click on this page or contact us T 09 978 3970

E events@adls.org.nz

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To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

Featured CPD Cradle to Grave™ Conference 2021 — FINAL NOTICE

 Conference

Christchurch | Auckland For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is back again in 2021. With a great range of pertinent and interesting topics brought to you by leading presenters, it promises to be another outstanding event.

CPD 7 hrs

Topics: Keynote Address: Problems in Succession Law and Options for Reform; Memoranda of Wishes; Section 182 Family Proceedings Act: Are the floodgates still open?; Conveyancing Pot Pourri; Family Property Disputes: The Best Route to Resolution; Trust Information Requests and Trustee Decision-making: Practical Suggestions from a Litigator’s Perspective; Focus on Trustees: Beneficiaries’ Rights to Information & Beddoe Orders; Spotlight on the Role of Attorney: EPAs — A Practical Focus; Trust Accounting; Trust Issues for Migrants to New Zealand

 Christchurch, Mon, 3 May 8.50am – 5.10pm

 Auckland, Wed, 5 May 8.50am – 5.10pm

 Chair Bill Patterson, Partner, Patterson Hopkins

Presenters: Nicola Peart, Professor Emerita, Helen McQueen, Deputy President, Te Aka, Matua o te Ture | Law Commission; Anthony Grant, Barrister, Paladin Chambers; Amanda Bradley, Partner, Duncan Cotterill; Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited; Brian Carter, Barrister, Bastion Chambers; Andrew Steele, Barrister, Princes Chambers; Richard Thompson, Barrister, Vulcan Building Chambers; Chris Kelly, Consultant, Greg Kelly Law (Christchurch); Greg Kelly, Partner, Greg Kelly Law (Auckland); Theresa Donnelly, Legal Services Manager, Perpetual Guardian; Mary Joy Simpson, Partner, Hesketh Henry; Sam Bassett, Director, Moore Markhams Chartered Accountants; Denham Martin, Lawyer, Denham Martin Tax Law

Current Contractual Issues: Pre-contractual Misrepresentation — FINAL NOTICE This next seminar in the series will address the framework for analysing pre-contractual misrepresentation; what constitutes misrepresentation; the primacy of the written agreement and the judicial mindset; s 50 of the Contract and Commercial Law Act and “no representations” clauses; the significance of legal advice; and relief.

Learning outcomes: •

• • •

• •

Get to grips with the framework for analysing pre-contractual misrepresentation – the relationship between the law of contract and the law of negligent misstatement.

Receive a refresher on what constitutes mispresentation.

Delve into the primacy of the written agreement and the judicial mindset, including looking at recent caselaw.

Gain a better understanding of s 50 of the Contract and Commercial Law Act 2017 and “no representations” clauses.

With reference to the Bushline case, examine the significance of legal advice.

In respect of relief, revisit the approach under s 35 of the Contract and Commercial Law Act in light of the Court of Appeal’s decision in Southern Response v Dodds.

Love Thy Neighbour? A guide to navigating common neighbour disputes In person | Live Stream Disputes between neighbours can escalate quickly and disproportionately. On occasion, tensions build until one neighbour explodes, like one who took a chainsaw to his neighbour’s fence. Often however, disputes make their way through our courts and tribunals, with some culminating in lengthy and costly litigation (such as in the case of Aitchison v Walmsley where a dispute over a play-fort led to 4 years of litigation). Knowing how to navigate and best resolve these often heated disputes may be beneficial to all lawyers advising clients in the area. This seminar provides a guide to navigating common neighbour disputes, in the context of recent and interesting case law, and will focus on covenants, cross-leases, rights of way, boundaries and actionable nuisances.

Learning outcomes: • Gain a better understanding of the law as it relates to restrictive covenants, cross leases, rights of way, boundaries and actionable nuisances, and become aware of recent and key case law.

• Learn what steps to take, and what remedies are available, where disputes can only be resolved by litigation.

• Learn about practical solutions to consider before disputes become litigious, as well as the alternative dispute resolution mechanisms available, and organisations that can assist your clients manage their problems.

Livestream CPD 1.5 hrs

 Tue, 4 May 4pm – 5.30pm

 Presenters Stephen Hunter QC, Shortland Chambers Mike French, Director Law Undergraduate Programmes, Auckland University of Technology

 Seminar Livestream CPD 2 hrs

 Tue, 11 May 4pm – 6.15pm

 Presenters Andrew Peat, Barrister David Broadmore, Partner, Buddle Findlay Mitch Singh, Partner, Glaister Ennor Wi Pere Mita, Manager Māori Legal Services, Community Law South Auckland

 Chair Geoff Hardy, Partner, Martelli McKegg

Leading in Law – What is Leading? (Workshop 1)

 Workshop

A series of three half-day workshops, this distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership bestpractice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience.

Places are limited – register now to avoid disappointment.

Learning outcomes

CPD 4 hrs

Feedback from previous sessions: •

• •

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Created a good initiative environment with a very good presenter who knew his topic well and was passionate about teaching other to lead.

Thoroughly enjoyable and highly valuable.

This really is a great course and should be encouraged right across the profession and at all levels A+.

 Thu, 13 May 9am – 1.15pm

 Facilitator Tony Gardner, Managing Director, Archetype Leadership + Teams

LawNews Issue 12 | 30 Apr 2021

CPD in Brief The Taxation of Settlements and Awards: What Lawyers Need to Know In person | Live Stream Advocating for clients to achieve the best financial outcome is critical. Whether they receive a court award or settle out of court, in disputes involving money your client will ultimately be concerned with their bottom line. But what happens if they receive an unexpected tax bill and don’t pocket what they were expecting? Alternatively if your client is on the other side of the dispute and paying out, will a tax deduction be available to relieve some of the burden? The objective of this seminar is to familiarise you with key income tax and GST considerations you should keep in mind when negotiating settlements or pleading claims. While your client may not expect you to be a tax expert, you should understand the basic questions to ask, when to ask them, the potential ramifications to you and your client if tax considerations are overlooked, and when to recommend that your client seek specialist tax advice.

Presenters: Katerina Wendt, Barrister, Richmond Chambers; Robert Grignon, Senior Legal Advisor, Chapman Tripp

Debts, Disputes and Retentions: Recent Construction Case Law Deconstructed In person | Live Stream A recent spate of cases has brought into sharp focus a number of issues and key principles of interest and importance to all practitioners advising clients in the building and construction industry. Some of these issues include, inter alia, the validity of payment claims and payment schedules; the scope of an adjudicator’s powers in determining a dispute; letters of intent and the importance of contract formation; and issues surrounding the retentions regime. This seminar will provide a summary of industry-noteworthy cases and key takeaways, and unpack the issues surrounding the retentions regime in the context of recent case law and Government announced changes to the Construction Contracts Act 2002.

Presenters: Geoff Hardy, Partner, Martelli McKegg; Shanti Frater, Partner, Simpson Grierson

Investing vs Speculating (for legal professionals)

 Seminar Livestream CPD 1.5 hrs

 Tue, 18 May 4pm – 5.30pm

 Seminar Livestream CPD 2 hrs

 Wed, 19 May 4pm – 6.15pm

 Seminar

In person | Live Stream Do you wish (or need) to achieve your long-term financial objectives? There is a difference between investing and speculating. Patrick Fogarty is the Client Director at The Private Office, a boutique wealth management business specialising in providing tailored financial planning and investment management for senior members of the legal community.

His evidenced-based talk will highlight key principles that underpin successful investment strategies, and show how understanding these (often simple) ideas can have a huge impact on your ability to create financial independence.

Presenter: Patrick Fogarty, Client Director, The Private Office

 Thu, 20 May

The Art of Communication – Be a Powerful Advocate

 Workshop

As Spandau Ballet put it, “Communication let me down.” How often have you thought that you could, or should, have slowed down when addressing a room, used more eye contact, or come across as more confident? This workshop, led by an experienced advocate and an accomplished teacher/director, will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak.

Places are limited – register now to avoid disappointment.

Feedback from the previous sessions included the following comments: • “Interesting, lively workshop – well presented.”

• “Great anecdotes, relevant stories and examples.”

• “The presentation was relaxed, informative and encouraging.”

Presenters: Marie Dyhrberg QC; Isabel Fish, Director, Producer and Educator

CPD 3 hrs

Livestream CPD 1.5 hrs 4pm – 5.30pm

 Sat, 22 May 9am – 12.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases.

Terms and conditions apply.

The Taxation of Settlements and Awards: What Lawyers Need to Know Tuesday 18 May | Seminar & Live Stream | 1.5 CPD hours Visit adls.org.nz for more information.

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Continued from page 5

Papakura District Court Date

To whom

Information provided via email

9 April 2021

NZ Law Society, ADLS, Crown Law and several individual lawyers

Following the discovery of high mould readings upon testing, the affected rooms were closed as a precautionary measure, including the lawyers’ room and the two interview rooms off the court cells. An individual lawyer also received information directly.

14 April 2021

NZ Law Society, ADLS, Crown Law and several individual lawyers and stakeholders

A copy of the report identifying high readings only in the transcription room was sent.

Papakura does not meet the criteria for a notifiable event. For further information about notifiable criteria see here.

Several lawyers who operate in both courthouses have developed respiratory illnesses, in some cases requiring hospitalisation, which they believe are the result of exposure to the toxic mould. Do you accept that the mould might have triggered their illness and, if so, what support are you providing for them in terms of paying their medical bills and compensating them for lost income?

For both sites, the ministry has advised staff, judicial members, lawyers and other participants potentially exposed to the mould (note, it’s not ‘toxic’) to seek a review from their medical professional, at the ministry’s cost. This proactive

The issues at the Tauranga courthouse in Cameron Road and the resulting works related to roof leaks were primarily in the courtrooms and public waiting areas. Work to replace all the membrane rooves and parapets and the internal gutters was completed in 2015 at an overall cost of $1.24 million.

An air quality monitoring regime was then established, and air quality continues to be monitored monthly to ensure the ministry is providing a safe workplace.

Are any other courthouses or MoJ buildings experiencing problems with toxic mould and, if so, what is the ministry doing about it?

approach was to ensure any potential sickness or illness that may develop due to exposure was captured and treated as soon as possible. To date, we have not received any notification of a person being hospitalised due to respiratory issues that are directly linked to exposure to the mould. We continue to monitor the air quality at the site and provide information and updates to all staff, judicial members and other participants on a regular basis as the remedial works are completed.

There are no other ministry buildings with identified mould issues. However, there are several buildings with weathertightness issues that are remediated as budgetary constraints allow.

The Tauranga courthouse had a major problem with toxic mould in 2015, requiring major remedial work. What was done to make the building safe to work in, was it undertaken in a timely manner, how much did it cost and are you satisfied that there are no longer any health and safety issues there?

Several other sites that have experienced weathertightness issues will be tested as a precautionary measure and this will be done over the next six weeks.

Where we have had buildings with ongoing weathertightness issues and issues of mould are detected, such as Rotorua District Court and Tauranga District Court, the ministry undertakes regular air quality monitoring. To date, no ongoing areas of concern have been identified.

Information supplied by the ministry’s COO, Carl Crafar

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

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The ADLS Bookstore couriers nationwide Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

LawNews Issue 12 | 30 Apr 2021

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and ranges from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Wills Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

Anjali ATTRI, Late of Wellington, previously resided in Auckland and Rotorua, operations analyst, aged 31 (died 08’04’21) Sarah Jane CROOKES, Late of 18 Brian Wood Lane, Karaka, single, social worker, aged 52 (died 28’02’21) Kellie Jane GREER, Late of Tauranga, aged 49 (died 02’04’21)

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

Stuart Keith GRIFFITHS, Late of Auckland, warehouse foreman, aged 65 (died 17’03’21) Jade Reuben Capilli HUTCHINS, single, IT technician, aged 42 (died between 06’12’20 and 13’12’20) Pradeep KUMAR, Late of Papatoetoe, Auckland, aged 62 (died 11’03’21)

Chancery Chambers offices for rent

Keiji KURIMAKI, Late of Nara Pref., Japan, married, retired, aged 87 (died 07’01’18) Ritsuko KURIMAKI, Late of Nara Pref., Japan, widow, retired, aged 84, (died 30’10’19) Jenz Denna MEIRING, Late of 180 Metcalfe Road, Ranui, Auckland, aged 25 (died 14’03’21) Michael Joseph POMARE also known as Michael POMARE, Late of Lawrence Crescent, Manurewa, Auckland, storeman, aged 61 (died 30’11’20) Chandrakant RANCHHODJI, Late of 11 Oaklands Road, Mount Eden, Auckland, aged 83 (died 13’02’21) James ROIAURI, Late of 4/20 Wade Avenue, Onehunga, Auckland, single, sickness beneficiary, aged 45 (died 27’09’18)

Two offices are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

There is a 33.71sqm office on the third floor of the O’Connell Street side of building and a 15.75sqm office on the fifth floor of the Chancery Street side of building.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

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The AML/CFT Workshop 2021 Auckland Wednesday 16 June | 2 CPD hours These workshops enable lawyers and compliance officers to raise ongoing issues and to discuss ways of addressing them with an AML/CFT expert.

Numbers are strictly limited so book now.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Cradle to Grave Conference 2021 7 CPD hours

The interface between trust, property and family law Christchurch 3 May

Auckland 5 May

Proudly sponsored by

Prices:

Members $500 + GST | Non-members $610 + GST

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd