LawNews - Issue 17

THIS WEEK’S ARTICLES

Issue 17 4 Jun 2021

Slack cybersecurity = high litigation risk for lawyers p1

How our new overseas investment regime will work p3

Halifax decision: firstever trans-tasman court hearing p5

LawNews adls.org.nz

CYBERSECURITY/LITIGATION/PRIVACY

Slack cybersecurity poses big risk for law firms

By Diana Clement

In the wake of the ongoing Waikato DHB cybersecurity debacle, law firms failing to get their security systems in order face not only reputational damage but also litigation risk.

Photo by Kinga Krzeminska / Getty Images

Cyberattacks are becoming more sophisticated and law firms should consider themselves prime targets, say lawyers who specialise in the technology space.

Last month hackers took down the Waikato DHB’s telephone and computer systems and copied confidential patient data, which was then leaked to the media.

Law firms handle client monies, information and data, which can be valuable to cyber criminals, says ADLS Technology & Law committee member, James Ting-Edwards. Building trust and maintaining confidentiality is at the core of the work that lawyers do.

Law firms should consider themselves prime targets for hackers

Arguing “we did our best” doesn’t cut it.

“Unfortunately, in a crisis the first person to get sued is the lawyer,” Ting-Edwards says.

Technology lawyer Rick Shera, of Lowndes Jordan, says not only could law firms face litigation risk but also expensive privacy claims in the event of a hack.

“I do think that if a law firm failed to take simple steps and, for example, got caught out in a business email compromise [where] altered trust account details sent to a client from the firm’s hacked email system led to payment of settlement funds to a hacker, it would quite possibly be liable now that there has been so much publicity.

“Whether a ransomware attack that causes a client’s transaction to be delayed, for example, would fall into the same category, I don’t know.”

Even if clients can’t sue their law firm, the

The weakest link in a law firm’s IT system could be a single staff member who has lax password hygiene or likes to click on email links Human Rights Review Tribunal can award up to $350,000 per claimant in a class action for privacy breaches resulting from a hack. The awards are compensatory, according to actual harm suffered, says Privacy Commissioner John Edwards. The

largest award to date is $168,000.

Edwards is not expecting to see multiple clients receive $350,000 each in the event of a breach. “If [however] a like group of clients had been affected by the same leak, they might get an award of $5,000 or $10,000 each.” That could add up across a client database of, say, 60 to 70 files, he says.

Since 1 December last year, when the Privacy Act 2020 came into force, law firms have been subject to mandatory reporting of serious privacy breaches to the Privacy Commission. Under the new law, almost any breach of a law firm’s systems would trigger notification obligations, given the confidentiality of the information they hold, Shera says.

Continued on page 2

CYBERSECURITY/LITIGATION/PRIVACY

Slack cybersecurity poses big risk for law firms Continued from page 1 If they fail to report, law firms can be fined $10,000.

The Privacy Commissioner is also empowered to issue compliance notices requiring organisations to take an action, or stop taking an action, to comply with the Privacy Act. The Waikato DHB attack offers a timely reminder to all businesses, including law firms, to get their house in order, Edwards says. Private information held by law firms isn’t all that different to that held

by DHBs. The type of information held on law firms’ servers can be quite damaging to clients. It’s not just sensitive areas such as family law, says Fintech New Zealand general manager James Brown.

“Do your clients want details of mergers and acquisitions in the public domain?”

And it’s not merely academic. Edwards dealt with a case in 2020 where a law firm lost all its computers and servers. “They had a backup but it was in the same office and the thief stole that as well,” he says.

No complaints were laid by clients in that instance.

Along with the Privacy Act, law firms have professional conduct responsibilities in relation to clients, says Ting-Edwards. Breaches could lead to action through the Law Society Standards Committee. “Then there are general fiduciary obligations, which could result in litigation.”

Firms should also be aware that if their security practices are not up to scratch and a resulting loss of, or interference with, data causes damage to a client, then they may be in breach of their confidentiality obligations under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, and be liable in negligence, Shera says. Reputational damage for a firm that has not taken appropriate steps to keep client

James Ting-Edwards

Rick Shera

Fintech NZ estimates only 6% of New Zealand companies have adequate protection against cyberattacks

Law firms must pay close attention to guidance from the New Zealand Law Society and, more widely, from CERT NZ as to what security practices they should implement, Shera says. This includes keeping systems patched and up to date and having good firewall security, strong password policy, two-factor authentication (particularly for remote access) and steps to raise staff awareness, especially around email phishing and whaling.

information confidential would also be significant.

Firms should also make sure their insurance extends to cybersecurity breaches and that it covers information stored in the cloud – for example, Microsoft365, Google and Dropbox.

Fintech NZ estimates only 6% of New Zealand companies have adequate protection against cyber attacks. But what might “adequate protection” look like for law firms?

Firms should consider having their systems penetration tested regularly to see if they have any Continued on page 4

LawNews is changing If everything goes to plan, today’s issue will be the last edition of LawNews in its current format.

At 6.30 next Friday morning, a new-look LawNews will be waiting in your inbox. All your favourite writers and thought leaders will still be there but they’ll now look very different.

What you’ll see is the first step by ADLS to transition LawNews from its current newsletter format into an elegant and sophisticated legal news magazine.

You asked us to make LawNews easier to navigate – and we’ve listened. Most importantly, we’ve redesigned the publication without sacrificing the quality of our editorial. And there are many more exciting developments to come over the course of this year.

LawNews

Editor: Jenni McManus

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz

2

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 17 | 4 Jun 2021

OVERSEAS INVESTMENT

How the new overseas investment rules will work

By Tessa Baker

into (currently, advertising must take place only before ​such an acquisition is completed).

The comprehensive rewrite of the Overseas Investment Act is now complete with the passing on 24 May of the second piece of amending legislation (Amendment Act). Many of the provisions will come into force on 5 July.

On 7 June, the Covid notification regime, always intended to be temporary, will be replaced with a permanent call-in power, extending protection to strategically important businesses that would not otherwise require consent – for example, those involving the acquisition by overseas interests of military technology or critical national infrastructure.

The rules apply to corporate transactions that might involve farm land and could prove to have a significant impact on the timing for entry into such transactions.

But the Act provides for an exemption from the farmland advertising rules, which may be applied for independent of – or in advance of – a purchase application. Currently, decisions on farmland advertising are made only when a proposed acquisition is being assessed for consent, creating a considerable risk to all parties.

Tessa Baker

Transactions entered into before 7 June must still comply with the Covid notification regime.

The Amendment Act concludes a broad reform exercise launched by Treasury in April 2019. Covid-19 interrupted that work last year, resulting in certain legislative amendments being accelerated and others being left to the Amendment Act.

happens now.

From the start of the reform process, we believed Treasury’s analysis of the flaws in the framework was spot on. While many of those have been resolved, there are in our view some missed opportunities which might have delivered some useful, and still outstanding, improvements.

Changes to the benefits assessment will likely commence within six to 12 months.

We expect it will be several years before there is the political appetite to consider further significant reforms.

That said, many overseas investors will benefit from the recent changes. In particular, the Amendment Act will simplify the benefits test assessment and allow for investors to be approved ahead of an application for a specific transaction.

We outline the key changes from the Amendment Act below.

Benefits assessment Investments into sensitive land are currently assessed against 21 ‘benefit to New Zealand’ factors, several of which are evaluated against a hypothetical scenario of what might occur without the overseas investment.

This is a welcome unwinding of the decision in the Crafar farms case. Benefits will also be assessed on a proportionate basis relative to the nature of the investment being made.

We expect it will be several years before there is the political appetite to consider further significant reforms

Lease terms The Amendment Act extends from three years to 10 years, including renewals, the threshold at which an overseas investor taking a lease over sensitive land, except for residential land, must obtain Overseas Investment Office (OIO) consent.

In most cases, this requires investors to demonstrate benefits over and above what a hypothetical, well-funded New Zealander might have done with the investment.

However, as an anti-avoidance mechanism, calculation of that 10-year period must also take into account previous interests held by the overseas person, including any periodic tenancies between lease terms to calculate total lease term.

The benefits will be refined down to seven broader factors. Benefits resulting from a proposed acquisition will be assessed against the existing state of affairs at the time the transaction was entered into, rather than against an hypothesis, as

Farm land The Amendment Act introduces a new requirement that all investments in farm land must be advertised in New Zealand before any agreement to sell to an overseas person is entered

Changes to the farmland advertising rules will likely commence within six months.

Incremental investments Currently, overseas investors are required to obtain consent for any increase in ownership or control of sensitive assets (on an existing 25%+ stake), subject to a shareholder creep class exemption.

The Amendment Act removes the requirement to obtain consent unless the incremental increase results in a 50%, 75% or 100% ownership or control threshold being met or exceeded, or is an investment in a different class of securities.

Overseas investors will therefore have more freedom to execute minor increases in shareholdings without triggering a consent requirement.

Investor test Currently, an overseas investor must meet the investor test (by reference to a set of statutory character and capability factors) each time it applies for consent. The Amendment Act provides that once the test has been met, subsequent consent processes will consider only changes that have occurred. This will be beneficial to repeat investors.

The Amendment Act also allows investors to be pre-screened against the investor test factors under a standalone application. The utility of this process – which could, in theory, benefit investors participating in bid processes who are new to the New Zealand market – will depend on the cost and timeframe that apply, both of which are currently unknown.

Other Some other notable changes in the Amendment Act are: reducing the scope of the automatic application of the national interest test to consent processes, recognising that the existing framework has led to an over-capture of transactions that posed no national interest concerns; Continued on page 10 3

Continued from pages 1, 2 weaknesses.

Small law firms may feel they’re not big enough to become targets. But organised hacking groups often find it easier to force a smaller organisation to pay up a few thousand dollars than to persuade larger businesses such as a DHB or NZX to pay millions. So they spread their attacks widely, looking for any weaknesses they can exploit, says Brown.

Citing IBM data, he says companies take 197 days to identify, and 69 days to contain, a breach. That means once hackers have found a vulnerability and gained access to a system, they have time to drill down and steal money or data and generally do damage.

Covid-19 forced many law firms and other organisations to digitise at speed. Not all have the time or abilities to deal with the associated cyber risk, Ting-Edwards says. “We've had to make that move very quickly and we haven't necessarily all put the time into assessing the risks and making sure we're managing them consciously and how to do that.”

Brown cites the case of a Las Vegas casino that was hacked through a bluetooth-enabled fish tank thermometer Ting-Edwards says because the business of legal practice takes up a lot of partners’ time, it doesn’t leave much bandwidth to consider potential security risks and to implement the policies and systems to manage them. Standard software products from the likes of Microsoft, Google and Apple may not address some of the extra considerations specific to law firms’ security. And, for smaller firms in particular, engaging security experts might be beyond their means.

The issues are larger than individual law firms, he says, and could cause reputational damage right across the sector.

“If we were to see an [attack on] the scale of this Waikato DHB incident affecting a law firm, that might reasonably cause the public in New Zealand to wonder if their information is safe [with any law firm]. I think there are some systems issues for the profession as a whole and a risk of people losing trust in the profession.”

Security is a team sport and in a small market such as New Zealand it might be appropriate to look at ways of sharing the load across the sector, rather than asking individual law firms to do it for themselves, he says.

“The [ADLS] Law & Technology committee is 4

John Edwards

James Brown

discussing the potential for some briefings on cybersecurity risks and what they mean for the legal profession. But it would be useful to have some guidance from the New Zealand Law Society as the professional body for the legal profession, and potentially the regulator, that would be addressing some of the implications of an incident like this.”

A single email attachment is believed to have been the weak link that allowed the Waikato DHB breach

Edwards, however, doesn’t believe law firms should wait. “I wouldn't be holding off and waiting for the law society to roll out some solution. A generic cybersecurity suite of protections is unlikely to work for every firm. They should have their protection anyway.

“The obligation is certainly not new,” he says. “It has been on the books since 1993.” Law firms need to take advice on vulnerabilities in their systems to ensure they're applying security patches and making sure they're backing up, off-premises.

Policies aren’t enough. Avoiding cyberattacks starts with good systems, good online hygiene and staff training.

It can be remarkably simple for hackers to gain access to systems. The weakest link in a law firm’s IT system could be a single staff member who has lax password hygiene or likes to click on email links.

A single email attachment is believed to have been the weak link that allowed the Waikato DHB breach.

Firms should educate staff members not to use the same passwords on the company systems as they do for their private social media and other online activities.

Be really aware of the hardware attached to your systems, says Brown. He cites the case of a Las Vegas casino that was hacked through a bluetooth-enabled fish tank thermometer.

Smaller law firms without in-house experts should consider the guidance from CERT NZ, says Ting-Edwards. CERT NZ is a government agency, providing practical guidance on cybersecurity.

Cybersecurity and privacy policies are increasingly related. Law firms can reduce the risks of privacy breaches by asking themselves:

if they have a clear picture of how the firm handles personal information. If not, undertake a privacy audit;

if they have appropriate consents and opt-ins in place to process the personal information of clients;

what happens to personal information disclosed or transferred offshore and what safeguards they need to ensure the protection of that information; who the designated Privacy Officer is;

if they have a privacy-by-design approach to the implementation of new technologies and systems; and

where there is a higher authority, do they report regularly on privacy matters?

It’s also important to have data breach response plans in place and to update contractual templates and training materials to comply with the Privacy Act and to take out appropriate cyber insurance to cover for the potential costs involved in managing and responding to a cyber incident.

But be aware that you might not be able to rely on insurance if you haven’t covered the basics, Shera says. Even if cyber insurance has been added, insurers would look to decline cover, even if within the policy, if a firm had not taken reasonable steps to protect itself.

Also see link below for on-demand accesss to Cybersecurity: Prosecutor or Prey – Your Choice

LawNews Issue 17 | 4 Jun 2021

INSOLVENCY LAW

NZ-Oz courts co-operate in Halifax verdict

By Bridie McKinnon & Luke Kibblewhite

In a first for New Zealand, the High Court has released its judgment in Re Halifax NZ Limited (In liq) [2021] NZHC 113 after a contemporaneous sitting of the High Court of New Zealand and Federal Court of Australia.

The proceedings involved applications for directions in relation to the liquidation of Halifax New Zealand Ltd (Halifax NZ) and Halifax Investment Services Pty Ltd (Halifax Australia).

The proceedings in the New Zealand and Australian courts were heard together, with Australian counsel appearing physically before the Federal Court’s Justice Brigitte Markovich and by VMR (virtual meeting room) in New Zealand before Justice Geoffrey Venning and vice versa for New Zealand counsel.

Bridie McKinnon

Luke Kibblewhite

to speak to the interests of particular classes of creditors.

no trading in those shares took place. Because no money from the deficient mixed fund was used to acquire the shares, their interest was severable.

The courts issued simultaneous decisions and agreed on the issues raised in the proceedings, but arrived at their respective decisions separately, applying their respective laws.

Deficient mixed fund As at 31 July 2020, there was a shortfall of just over A$53 million between the amount that should have been held on trust for Halifax's clients and the value of assets actually held on trust.

The facts Halifax Australia and Halifax NZ provided investment-broking services and a trading platform where customers could trade in securities. Halifax AU held an Australian Financial Services Licence while Halifax NZ was a licensed derivatives issuer and an introducing agent to Halifax Australia.

Most of the respondents characterised the combined assets of Halifax NZ and Halifax Australia as a deficient mixed fund, but several investor groups made claims to specific assets. One respondent group, the Whitehead interests, argued that its holdings were separately identifiable and traceable.

Halifax's clients could trade in investments on a regulated stock exchange or in OTC (overthe-counter) financial products not listed on a regulated stock exchange.

The court found that, as a matter of fact, this was not the case. Client funds were comingled through the various accounts operated by Halifax NZ and Australia. The origin of the funds used to purchase a particular client's investments could not be identified by reference to the platform on which that client traded, and the Whitehead interests’ shares were purchased using funds that passed through a tainted pool of funds.

Halifax Australia and NZ were required to hold client funds on trust in accordance with the Corporations Act 2001, Financial Markets Conduct Act, Financial Advisers Act and pursuant to contract.

Nonetheless, evidence of the two companies' financial dealings demonstrated that there had been significant mixing of Halifax NZ funds and Halifax Australia funds across the various accounts maintained by the two companies, and client funds had not been directly allocated to particular investments.

Instead, Halifax NZ and Australia allocated funds in bulk to the various trading platforms according to the amount of money necessary to satisfy investments on those platforms from time to time.

Halifax Australia was placed in administration on 23 November 2018 and into liquidation on 20 March 2019. Halifax NZ followed soon after.

The concurrent applications were filed to deal with how to distribute the proceeds to investors, given the shortfall and the intermingling of funds. Representative counsel were appointed

Severing investments With the exception of category 4 investors, who were arguing that all clients ought to share in the deficiency, the challenge for each of the representative investor classes was to satisfy the court that their particular investment was severable from the mixed fund and they were therefore not subject to the common misfortune of sharing in the deficient mixed fund.

For the most part, the court found that investors ought to share pari passu in any distribution because they had invested through a deficient mixed fund.

Two categories of investor could demonstrate that their investments were severable from the mixed fund:

Category 3 shareholders transferred their shares direct from another stockbroker and

Category 5 investors either transferred shares or purchased shares before Halifax NZ's funds were mixed with the deficient Australian fund. For those who could identify that the relevant purchase took place before the mixing of funds on 1 July 2013, their interest was also severable.

Following the reasoning of Clifford J in Priest v Ross Asset Management Ltd, Justice Venning considered that a trust could be declared over the investments of those investors in Category 3, notwithstanding they were in a fungible pool of assets and some of those assets within the pool belonging to other investors might have been purchased from the deficient mixed fund.

The important point was that the Category 3 clients' shares were purchased separately, and did not use funds from the deficient mixed funds.

Takeaways This case is important as it represents the first case to be heard concurrently in New Zealand and Australia, although both courts reached their own independent decisions.

Justice Venning recorded at [9]: "All parties agreed that the Federal Court and the HCNZ could discuss issues during deliberations. Markovic J and I have settled and are agreed on the principal issues raised in the two sets of proceedings. But the ultimate decision in each proceeding and the reasons for decision in relation to those issues are each court’s own."

It demonstrates the willingness on the part of the New Zealand and Australian courts to adopt a collaborative approach to dealing with complex cross-border insolvencies.

Bridie McKinnon is a special counsel and Luke Kibblewhite is a solicitor at Buddle Findlay 5

NEWLY SUITED COMMITTEE/LAW FIRMS

How to wind down your workload for parental leave QUESTION Dear Newly Suited I have been working at a firm in the city for a few years and I am due to go on maternity leave for six months.

As in most firms, work is hectic and I have no idea how to wind down my workload and prepare for going on leave.

I have a final meeting with the partner in my team before I go but I am not sure what is discussed at these meetings and what to expect while I am on leave. Can you help? #nervous-to-be-mum

Everyone is unique and we manage our workloads differently but one thing we all found useful was files notes – and lots of them!

We recommend including the following categories in your file notes:

ANSWER Hello # nervous-to-be-mum The Newly Suited committee is made up of several parents so we know exactly how you feel and what you are going through. You are not alone and hopefully our tips can help ease any concerns you have.

Your files Winding up files before going on maternity or parental leave can be difficult, especially while you are still working on them. We all want to ensure that whoever is managing our files in our absence knows exactly what is going on, where we have left off and what to do next.

Everyone is unique and we manage our workloads differently but one thing we all found useful was files notes - and lots of them!

Try to set aside an hour several times a week before you leave to dictate or type notes for each file. Do not be afraid to add as much detail as you like, the more the merrier (meaning fewer phone calls while you are away).

What the file is about, with contact details for the parties and their lawyers;

What has happened so far, with key dates and events; and

What the next steps are and what needs to be done. Do not forget deadline and court dates – it might be a good idea to assign calendar reminders.

Contact your supervising partner to see who will be managing your workload and, if possible, organise a time to sit down with him or her prior to going on leave to run through how you have left everything.

Give that person the opportunity to ask questions.

Your meeting You already have a lot going on so a meeting with your supervising partner is a fantastic opportunity to sit down and discuss how involved with work you would like to be while on leave and to avoid any unknowns.

Each firm will have different protocols for assisting staff who are on leave and it is a good idea to

familiarise yourself with these before the meeting.

We at the committee were surprised to learn before we went on leave that: sick leave continues to accrue whilst you are away;

CPD is pro-rated. Double-check with the law society on how many hours you will need to complete before you go on leave;

you should ask your firm how your annual leave is managed. It is more complicated than we thought; and

some firms will be happy for you to continue to attend events and will have policies on keeping in-touch days. Again, we recommend checking these in advance or asking your supervising partner.

At your meeting, do not be afraid to discuss performance reviews and your entitlement to pay increases if you will be away when the reviews take place. Many firms will continue to include you in these discussions as you are valuable member of the team.

Remember that going on leave does not mean you are any less involved in the firm and your files.

You can remain as involved as you like during this time but make sure you set your own (realistic) boundaries. There is nothing worse than overcommitting and finding yourself in a panic when you cannot meet deadlines that your team are relying on.

We know all too well that going on leave is not a break so try not to worry too much. Everything will fall into place.

We wish you all the best and congratulations on your new bundle of joy.

NEW BOOK

Burrows and Carter Statute Law in New Zealand, 6th edition Author: Ross Carter One of the most cited books by the judiciary, Burrows and Carter provides the understanding and know-how to win statutory interpretation arguments.

Key developments since the last edition was published include case law changes, the Legislation Act 2019 (Part 2 of which re-enacts, with updating and reforms, the Interpretation

6

Act 1999), changes to the law on secondary legislation and to parliamentary procedure, duallanguage Acts in English and te reo Māori, greater recognition in law of tikanga Māori and proposed amendments to the New Zealand Bill of Rights Act 1990 (for example, amendments related to declarations of inconsistency).

Price: $156.52 plus GST* Price for ADLS members: $140.86 plus GST* (* + Postage and packaging)

To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

LawNews Issue 17 | 4 Jun 2021

Collegiality Events Inaugural Annual Breakfasts with the Rt Hon Dame Helen Winkelmann Wellington Thursday 8 July | 7.15 am - 8.30 am InterContinental Wellington | 2 Grey Street Christchurch Thursday 19 August | 7.15 am - 8.30 am The George | 50 Park Terrace

23 Jun

Northland Lawyers’ Lunch The Quay

30 Jun

New Lynn Lawyers’ Lunch Bodrum Kitchen

9 29 Jun Jul

Retirement Dinner for Dr Hodge

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

E events@adls.org.nz

W adls.org.nz/collegiality

7

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

Featured CPD Leading in Law Workshop – Leading Yourself — FINAL NOTICE This distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best-practice, 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 missing out.

Feedback from other sessions: •

• •

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

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

Tony is excellent whilst he encourages debate and engagement it is his course and his content, and he is brilliant at conveying that content.

 Workshop CPD 4 hrs

 Thu, 10 Jun 9am – 1.15pm

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

Learning outcomes: • • • •

Gain an understanding of contemporary, real-world leadership.

Experience authentic personal growth.

Build your knowledge of a range of leadership techniques and tools, and how to use them.

Garner practical leadership development actions to implement during and after the programme.

Remedies: Expectation Damages & Damages for Misrepresentations In Person | Live Stream

 Seminar

The first in a two-part series on Remedies, this seminar discusses expectation damages, and damages for claims of misrepresentation under the Fair Trading Act, the Contract and Commercial Law Act and in tort.

CPD 1.5 hrs

Learning outcomes: • •

• • • • •

• • •

Receive a general overview of expectation damages and understand the terminology.

Refresh your knowledge on the usual remedies in contract (damages, specific performance and injunction) and learn about other rules or remedies available in exceptional circumstances.

Learn about choice of remedy: choice of kind or measure.

Learn about the rule in Hadley v Baxendale and the rule against double recovery.

Learn about expectation damages in different circumstances.

Learn more about the limits to expectation damages, the extent of award, date of assessment, and mitigation.

Receive a brief overview of the elements of a claim for misrepresentation under the Fair Trading Act, the Contract and Commercial Law Act and in tort.

Learn about the different measures of damages for each claim and the key differences between them.

Understand the discretionary nature of remedies.

Learn about recent case law in the area.

BI Insurance and COVID The UK Supreme Court and the NSW Court of Appeal have recently ruled on the application of BI policies to losses caused by COVID-19. In this webinar, we explore the scope of the two decisions, and consider the potential implications for New Zealand (where exclusions for pandemics such as COVID-19 are common).

Both overseas decisions address a number of fundamental principles relating to BI claims, including policy interpretation, causation, and trends clauses. The webinar is therefore relevant not only in respect of claims for COVID-19, but is also relevant more generally to all BI claims.

Learning outcomes: • Learn about the rulings from the UK Supreme Court and the NSW Court of Appeal about BI cover for COVID-19.

• Gains insights into the key principles arising from the cases as they relate to COVID-19 claims and to BI claims more generally.

• Understand the implications of the decisions for New Zealand.

The Technological Future of Legal Practice The impacts of COVID-19 have been far-reaching and multifaceted for the entire legal sector. One of the most pronounced consequences has been the forced mass adoption of technology by legal professionals, firms and courts alike. While the nascent field of law and technology experienced rapid growth prior to 2020, the COVID-19 pandemic has catapulted the field to prominence. Across all aspects of the legal sector, technology use is ubiquitous and there is no better time to take stock of the changes and what is yet to come. Matt Bartlett from the New Zealand Centre for ICT Law will provide case studies and insights about legal technologies across both New Zealand and international jurisdictions. These technologies range from straightforward transitions to the online space, like e-filing, to disruptive tech like AI-powered chatbots and algorithmic dispute resolution platforms. These technologies are beginning to reshape key tenets of legal practice.

Learning outcomes: •

•

•

8

Understanding the impact of COVID-19 on the legal sector in terms of rapid adoption of technology, from video-conferencing to online dispute resolution.

Discover the trends in law and technology in overseas jurisdictions around the world, and analyse the potential implications for New Zealand legal professionals.

Learn more about the near and long-term consequences of new technologies for legal practice and young lawyers in particular.

Livestream

 Tue, 15 Jun 4pm – 5.30pm

 Presenters Suzanne Robertson QC, Barrister, Bankside Chambers Peter Wright, Barrister, Shortland Chambers

 Webinar CPD 1 hr

 Thu, 17 Jun 12pm – 1pm

 Presenters David Friar, Partner, Bell Gully Sam Hiebendaal, Senior Associate, Bell Gully

 Webinar CPD 1.5 hrs

 Tue, 22 Jun 12pm – 1.30pm

 Presenter Matt Bartlett, Research Fellow, Faculty of Law, University of Auckland and New Zealand Centre for ICT Law

LawNews Issue 17 | 4 Jun 2021

CPD in Brief Name Suppression: Privacy, Reputation and Fair Trial In Person | Live Stream Name suppression – or its removal – has recently been in the spotlight in some newsworthy cases. With suppression come interrelated and countervailing interests. On the one hand, clients wish to protect their reputation and privacy, their right to a fair trial and due process. On the other hand, an open system of justice demands that the public is entitled to know what occurs in our courts and proceeds on the principle that members of the public should be trusted to reach their own informed views cognisant of the presumption of innocence. With reference to recent case law both in New Zealand and overseas, the presenters will address the statutory and tortious framework, strategic considerations and the unenviable balancing act required.

Presenters: Bruce Gray QC; Rachael Reed QC

 Seminar Livestream CPD 1.75 hrs

 Tue, 22 Jun 4pm – 6pm

The AML/CFT Workshop 2021 (Auckland)

 Workshop

Another year under the belt and first audits are tucked away. But it’s not the time to become complacent. A compliant programme requires ongoing review and updating and it is especially important to address any issues raised in your audit and to keep up to date with supervisor expectations and legislative changes. This year’s workshops will continue to focus on issues that practitioners have raised, as well as developments in the law and NZ regime, including: meeting obligations in relation to politically exposed persons (PEPs); drilling down to the beneficial owner; transaction and activity monitoring; updated regulations and review of legislation; FATF Mutual Evaluation and what it means for reporting entities; recent warnings and prosecutions and supervisor powers. Numbers strictly limited. Register now to avoid disappointment.

Facilitator: Fiona Hall, Barrister and Solicitor

CPD 2 hrs

Auckland Unitary Plan: Past, Present and Future – The guide for non-specialists

 Seminar

In Person | Live Stream Through personal or professional experience, many non-specialist practitioners will know a little bit about the Auckland Unitary Plan but perhaps not enough to understand its impact for their clients nor how to engage with Auckland Council and work with the plan. This session will provide an update for general practitioners and non-specialists on where the AUP is at – where we’ve got to and what’s ahead.

Presenters: Phill Reid, Auckland-wide Planning Manager, Plans and Places, Chief Planning Office, Auckland Council; Corina Faesenkloet, Principal Solicitor, Legal Services – Regulatory & Enforcement, Auckland Council; Stephanie Harris, Joint Managing Partner, Glaister Ennor Chair: His Honour Judge Kirkpatrick, Principal Environment Judge

 Wed, 23 Jun 2pm – 4pm

Livestream CPD 1.5 hrs

 Thu, 24 Jun 4pm – 5.30pm

Expert Evidence on Memory: When to Use It and Why In Person | Live Stream

 Seminar

A case can turn on memory – so having an understanding of how it works, the science available, and when to engage an expert, are vital. Presented by counsel in Peter Ellis' and other relevant ‘memory’ cases, and an expert witness whose research on memory has been used overseas in police and judicial education programmes and as scientific evidence, this seminar will help you develop your understanding of this complex and key area so you’re better informed and thus better placed to make decisions for you and your client.

Presenters: Rob Harrison, Barrister, Inangahua Chambers; Dr Rachel Zajac, Expert witness and Professor of Psychology, University of Otago | Te Whare Wānanga o Otāgo Chair: His Honour Judge David Sharp

CPD 2 hrs

Livestream

 Tue, 29 Jun 4.30pm – 6.45pm

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.

Legal Executive Packages 2021

Top Up your CPD with ADLS before 30 June 2021 Visit adls.org.nz for more information.

9

Continued from page 3

amending the permanent call-in regime, which will replace the temporary notification regime, to better target transactions that could pose a risk to New Zealand’s national security; making permanent the changes to the treatment of listed issuers;

LawNews

making permanent the removal of certain categories of sensitive land that is currently caught only because it adjoins low-level reserves; and

Get your message in front of 5500 legal professionals.

adding an ability to require by regulation that consent applications include prescribed information for tax purposes.

Booking deadline is 12pm Thursday, 6 working days prior to publication date.

On the horizon Although the Amendment Act brings the reform process to a formal conclusion, there remain several important developments on the horizon.

Email Darrell.Denney@adls.org.nz or call 021 936 858 to book your advertisement.

A revised set of regulations is being prepared which will introduce layers of detail underpinning some of the recent changes – for example, provisions relating to statutory timeframes, farm land advertising and tax information.

We understand there is no intention to run any drafting or technical design workshops or to release an exposure draft of the regulations before introduction. This is unfortunate as these processes have proved effective in the past at reducing the risk of unintended consequences.

The OIO’s fee review remains ongoing. The proposed fee structure released in February shows fees for some complex consent applications more than doubling or trebling from current levels.

The streamlined forestry regime, introduced in 2018, is being reviewed by Treasury. This is not a “first principles” review interrogating the policy rationale for the regime. Rather it considers whether the regime is achieving its original policy intent.

Tessa Baker is a partner at Chapman Tripp

Chancery Chambers office for rent

Recognised industry experts. Serving legal documents for over 30 years.

Fast, professional, nationwide process serving for solicitors and government agencies.

P: (09) 302-2476 E: team@docuserve.co.nz W:www.docuserve.co.nz

Lawyer – Minimum 5-6 Years’ PQE – Katikati Are you a lawyer with 5+ Years of experience as a general practitioner seeking a partnership in the next 2 years? Do you have a background in property, relationship property, trust, commercial and estate law?

Anderson Law is a well-established small law firm specialising in property law with room for growth in other areas looking for someone to join our friendly team. Walk into a great longterm client base ready for you to get started.

If this sounds like the job for you, please forward your application by email to neil@andersonlawoffice.co.nz

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

Wills

An office is available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

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.

The office is 33.71sqm and is located on the third floor of the O’Connell Street side of the building.

Alison Margaret INGHAM, Late of Cosy Cottages Motel Rotorua, 67 Whittaker Road, Rotorua, aged 61 (died 07’12’19)

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

Shouping LIANG, Late of 627 East Coast Road, Browns Bay, Auckland, married, housewife, aged 57 (died 13’05’16)

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

10

Davesh MAHRAJ, Late of 3 Goldfinch Rise, Unsworth Heights, Albany, Auckland, aged 36 (died 05’05’21) Taylor Teira RAMEKA, Late of 24 Beatrice Avenue, Glenfield, Auckland, retired, aged 73 (died 19’07’09)

LawNews Issue 17 | 4 Jun 2021

BARRISTERS CHAMBERS There is currently a room available in well appointed, fully serviced, central city Chambers. Vulcan Chambers was established in 1982 and occupies 2 levels in a heritage building in Vulcan Lane.

This would suit someone with an established practice who wishes to join a long-standing Chambers. Or someone wishing to build on their existing practice with the added opportunity to work on significant criminal trials.

Vulcan Chambers offers a collegial environment with senior members of the Criminal Bar and experienced staff.

For more information please contact Andrew Speed Phone (09) 379 8330 or email speed.law@xtra.co.nz

NEW TITLE: Land Registration and Title

Security in the Digital Age –

New Horizons for Torrens (Routledge, 2020)

EDITORS: David Grinlinton and Rod Thomas This book examines the modernisation and automation of Torrens land registration, with a particular focus on the reforms implemented by the New Zealand Land Transfer Act 2017. It includes contributions from leading experts – including practitioners, judges and academics from New Zealand, Australia and other relevant jurisdictions. In reviewing the book, Dr Don McMorland has written: “this is a valuable book of almost 400 pages which should be in every law library of the courts, the law society and the universities, and in the libraries of every set of barristers’ chambers” ADLS members price $294.26 Price: Hardback $376.80; E-book$66.59 More information here

Running an Effective Jury Trial Saturday 18 September | 7 CPD hours

Jury trials require a specific set of advocacy skills.

Aptitude in preparation and presentation is key.

Our esteemed panel of experts will guide you through the process.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

11

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

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

Privacy Kōrero Tuesday 27 July | 12.00pm - 1.30pm With a heightened interest in privacy in the Covid world, and following the informative and pragmatic Privacy 2020 seminar, this session will address topical issues for 2021: collection of and requests for personal information; employment issues; mandatory reporting; and dealing with complaints.

T 09 303 5278

12

E cpd@adls.org.nz

W adls.org.nz/cpd