LawNews - Issue 39

THIS WEEK’S ARTICLES

Issue 39 6 Nov 2020

Long overdue: the demise of the RMA p1

How to enforce a guarantee p3

Is there a lawyer in the House?

Pages 4 & 5

LawNews adls.org.nz

ENVIRONMENTAL LAW

What our top lawyers think about axing the RMA

By Rod Vaughan

Three decades ago, the Resource Management Act 1991 (RMA) was seen as ground-breaking legislation designed to strike a balance between economic development and environmental sustainability.

Photo by Jason Oxenham/Getty Images

It replaced a plethora of more than 54 separate pieces of environmental and planning legislation.

But despite the best of intentions, the RMA evolved into a bureaucratic nightmare that stymied development all over New Zealand and was blamed for everything from the housing crisis to climate change.

In the run-up to the election, National Party leader Judith Collins promised to repeal the RMA and replace it with two pieces of legislation: an Environmental Standards Act and an Urban Planning and Development Act, with work beginning in the first 100 days if she were elected prime minister. A few days later, Prime Minister Jacinda Ardern said Labour too would axe and replace the RMA. The government’s decision has largely been welcomed by many of the country’s top environmental lawyers, albeit with some reservations.

To assess their thinking, LawNews asked five key questions of some of the best in the business: Allison Arthur-Young of Russell McVeagh, Andrew Beatson of Bell Gully, Helen Andrews of Berry Simons Environmental Law and Grant Hewison of Grant Hewison and Associates.

In the first of a two-part series, Andrew Beatson and Allison Arthur-Young give their verdict on the changes and what they might achieve.

How will the RMA be best remembered and is its demise well overdue?

Andrew Beatson It will perhaps be best remembered as being

New Zealand suffers from decades-long under-investment in infrastructure

Some of the biggest shortcomings with the RMA-based system arise from the ongoing tension between enabling urban development, including infrastructure, and protecting the environment. This tension is unlikely to be resolved by the new framework

the perennial scapegoat for central and local government failure to deliver sustainable environmental outcomes and adequate urban land supply.

There is broad consensus that its demise is well overdue.

Allison Arthur-Young I think the RMA should be remembered for being a cutting-edge piece of legislation ahead of its time – a single Act which had at its heart “sustainable management” and genuine public participation.

The RMA is blamed for all kinds of things, but in my view the Act shouldn’t wear all the criticism it does.

New Zealand’s short election cycle, decadeslong under-investment in infrastructure, an under-resourced local government sector and a Continued on page 2

ENVIRONMENTAL LAW

What our top lawyers think about axing the RMA Continued from page 1 hesitancy by many New Zealanders to face up to issues around environmental bottom lines, the relationship of Māori to resource use and climate resilience and adaptation are much more the areas which need a hard look, in my view.

What are your biggest beefs with it?

Allison Arthur-Young I don’t think the RMA is fundamentally broken but if I could ‘fix’ three things about the Act and its implementation they would be:

Timeframes which actually mean something.

The Act has a range of stated timeframes which councils and participants are supposed to abide by, but which can easily be put on hold or extended. I’d like to see consequences applied when someone doesn’t stick to the Act’s stated timeframes for, say, processing a consent as this can end up unfairly adding to the costs and delay for the applicant.

Conservatism in plan-making. I’d like to see councils look for more ways of plan-making to enable growth and change, and to think more critically about which activities genuinely need to be classed as discretionary or non-complying, which means a more onerous consenting process. Plenty of projects do not need the level of notification, information requirements or hurdles that are currently there for them in many plans.

Too much information. On the projects we work on, we have seen a huge increase in requests for further information, more reports, papers, information, assessments and so on. Much of it is unnecessary, doesn’t improve decision making and just adds to the cost and time for a project.

Andrew Beatson

Allison Arthur-Young

The proposed framework will at least force the key players responsible for infrastructure delivery to the negotiating table and shine a light on where the true constraints on delivery sit

Andrew Beatson Its ever-increasing complexity, both in its form and the expectations of those responsible for its administration.

The high cost of compliance with RMA processes.

The uncertainty of outcomes for participants.

The RMA presents as a large grey area: there is plenty of scope for repetitive arguments and inconsistent outcomes.

The length of time it can take to navigate the myriad RMA processes.

The politicisation of the Act’s implementation that contributed to its failure to deliver on its promise.

LawNews

Editor: Jenni McManus

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

Publisher: ADLS

The lack of meaningful central government direction to guide resolution of the tensions

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

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that inevitably arise as human activity interacts both with other activities and the natural environment.

Did the RMA achieve anything meaningful?

Allison Arthur-Young Yes. The RMA has embedded a way of thinking about development and the environment which puts the local community and councils at its heart.

The regional and district planning regime set up by the RMA is a stakeholder- and community-led process which acknowledges that decisions about what goes where, and what should be protected, are predominantly for local districts to determine.

The RMA was also set up to make it easy for members of the public to participate in and access many planning processes. It isn’t perfect, but it has been meaningful.

And it has fundamentally shaped the way we think about property rights and environmental rights. Planning under the RMA means most New Zealanders accept there are good public policy reasons for placing controls over the use of private property.

Continued on page 6

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LawNews Issue 39 | 6 Nov 2020

CONTRACT LAW

Get it in writing: how to enforce guarantees

By Sophie East and Savannah Feyter

​​ recent Supreme Court decision A has affirmed the strict procedural requirements applying to guarantees, shutting down a softer approach signalled by the Court of Appeal.

The judgment in Brougham v Regan [2020] NZSC 118 emphasises the importance of ensuring the terms of a guarantee are clearly recorded in writing and signed by all the intended guarantors.

The case concerned the enforceability of a guarantee, said to have been given by Bryce Brougham to the trustees of the Winchester Trust.

Brougham and his ex-partner, Rachael Dey, were the directors of a company that borrowed $50,000 from the trustees. ​ The terms of the loan were recorded in a written agreement. Two features of the loan agreement were particularly important. First, anyone named as a guarantor was required to sign a deed of guarantee and indemnity, as a pre-condition to any advance being made under the agreement.

Second, both the front page and the execution page of the agreement identified both Brougham and Dey as directors and, separately, guarantors under the loan. While Dey signed only as a director, Brougham signed the loan agreement as both a director and guarantor.

Sophie East

Savannah Feyter

In writi​​ng Section 27(2) of the Property Law Act 2007 requires that a “contract of guarantee” must be recorded in writing and signed by the guarantor.

The first issue the Supreme Court considered was whether the loan agreement, which Brougham had signed in his capacity as guarantor, met these requirements.

were a “contract of guarantee” that was recorded in writing, then it should be unenforceable because only one of the named guarantors had signed it.

The court held that merely signing a document as a guarantor did not make the document a “contract of guarantee” for the purposes of s 27(2). To be a “contract of guarantee”, a document must include an agreement by the guarantor to answer for the debt, default or liability of a third person.

The loan was conditional upon the provision of a signed deed of guarantee, which neither Brougham n​or Dey provided. Nevertheless, the trustees advanced the money to the company on the day the loan was signed. Shortly afterwards, the relationship between Brougham and Dey ended and the company stopped making repayments under the loan.

The loan agreement between the company and the trustees did not include any clause to that effect.

In fact, the terms of the loan made it clear that those obligations would be imposed by a separate contract – the deed of guarantee and indemnity that was never signed. In the absence of that document, Brougham could not be held liable as a guarantor.​

The trustees took steps to enforce the guarantee against Brougham.​

Named guarantors Brougham also argued that if the loan agreement

The Supreme Court agreed. Where a contract of guarantee demonstrates, on its face, that the guarantee is intended to be given jointly by several guarantors, then the guarantee will be valid only if all the named guarantors have signed. This presumption can, however, be displaced by clear words in the contract of guarantee.​ Equitable estoppel and specific performance The Supreme Court considered two further arguments raised by the trustees.

First, they argued that Brougham was effectively prevented (estopped) from relying on s 27(2) of the Property Law Act to evade his obligations as a guarantor. The trustees claimed they had loaned money to the company in reliance upon Brougham’s guarantee and it was unconscionable for him to now abandon that promise. The Supreme Court rejected this argument, which would have undermined the purpose of the protections in Continued on page 10

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POLITICS

Election 2020: is there a lawyer in the House?

By Diana Clement

Our new Parliament has been touted as the most diverse this country has ever seen, with record numbers of women and members of the rainbow community and multiple ethnicities preparing to take their seats in the House.

And when it comes to education and training, lawyers now comprise one of the largest professional groups in Parliament, with a slew of newbie lawyer-MPs winging their way to Wellington.

The number of lawyers in politics often induces eye-rolls from the public and even from other lawyers. But many of the new MPs, along with several lawyer-candidates who didn’t get across the line, think their legal training will stand them in good stead.

The Opportunities Party (TOP) deputy leader, Shai Navot, didn’t make the cut, is a former litigator and Crown prosecutor who believes that every party should have a decent number of lawyers in its fold.

Labour will have more than three times as many in Parliament than National, in part due to its higher number of seats. New Upper Harbour MP Vanushi Walters says another reason is the social justice ethos of Labour.

“Part of it is when you are a lawyer working on the ground in areas like employment, or consumer law, tenancy, or the justice sector you have a closer connection to things like access to justice and you see the way laws play out in people’s lives.”

Whether successful or otherwise, the legal candidates had multiple reasons for standing for Parliament.

Natural progression Like many Labour MPs, Helen White has a strong sense of social justice and says she’s a “big supporter” of unions. She specialised in employment law and regularly appeared before the Employment Relations Authority and the Employment Court.

“I didn’t get into my area of practice by accident,” says White, who lost her bid for the Auckland Central electorate but scraped into Parliament on the list. “I chose it because it was political. There is a real connection between work and people being empowered.”

Going into politics was a natural progression.

She had been writing articles on subjects that concerned her and watching an increase in homelessness and other issues on her back doorstep in Auckland central. “It was almost as if we were accepting that was okay,” she says.

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Helen White

Barbara Edmonds

Being 48th on the Labour Party list, White wasn’t certain on election night whether she would be winding up her practice and packing her bags for Wellington. “A lot of people got in below me on the list because of landslides. So, I wasn’t sure. I couldn’t afford to give away my practice because I didn’t know where I would land.”

Zealand’s issues and avoiding polarising political battles.

Once it became clear that she was a list MP, White sent her remaining files to other lawyers.

“It certainly doesn’t come naturally to a lawyer to leave a client halfway through, but I see the new role as one I have to throw myself into as soon as possible and with as much focus as possible.”

Like almost all new back-bench MPs, White is taking a pay cut. The irony is that during the campaign she was accused of standing for Parliament for the money.

“One of the things [political commentator] Matthew Hooten said was I was doing it for the money, which was a laughable comment. One of the real luxuries I have had [as a barrister] is a decent income.

Lawyers earn pretty well.”

White didn’t bill a single cent in the two months leading up to the election but couldn’t wind down her practice until she was sure she’d been successful. There will be a washup. Nonetheless, campaigning was expensive for the single mother of three who has what she describes as a large mortgage.

Focus on outcomes Some candidates stand for Parliament even though they know they won’t win the seat and/or are extremely unlikely to be high enough on the list to make the cut. They are now dusting off their gowns and preparing to return to the office.

Navot was one such candidate. She gave up work for nine months to campaign, knowing her chances of winning the North Shore seat were very low. She believed, however that TOP was the only party talking about the real underlying drivers of New

“I really am [passionate],” she says. “I believe completely in what TOP’s policies stand for [and] its approach. Its entire approach is so focused on outcomes and solutions and it doesn’t care if the road to get there is a typical right or a typical left road.

“I also got very impatient waiting for establishment parties to stop focusing on symptoms and tinkering with issues rather than solving them head-on.”

Nine months of campaigning with next to no income hasn’t been easy. She was in a fortunate position to have a partner to support her, although she earned a stipend for the last few months of the election.

Now the election is over, she is actively seeking a position as a litigator. “I want to try new areas of law I haven’t done before. It will be in litigation.” She will continue volunteering for the party in the future.

Warming the seat Not all candidates give up their day jobs. Schnauer & Co’s Nick Kearney has stood for ACT more than once, knowing that he wouldn’t win. “I follow politics, and enjoy the debates, and so if I can contribute, even in a very small way each three years, I will do so.”

Whenever ACT puts the feelers out, Kearney puts his hand up so “at the very least at the public meetings, there is a bum warming the seat”.

He stands because he believes strongly in the philosophies of ACT – small government and personal liberties and freedoms – to fill the gaps, and as a civic duty.

“Every opportunity I can try and convince a few people these are better than the alternatives, I will take.”

Continued on page 5

LawNews Issue 39 | 6 Nov 2020

Camilla Belich

Joseph Mooney

Vanushi Walters

Continued from page 4

Like almost all the lawyers heading to Wellington to be back bench MPs, White is taking a pay cut.

The irony is that during the campaign she was accused of standing for Parliament for the money

Her background in human rights law and working in community law meant she had always been focused on holding governments to account.

One problem that arises occasionally, Kearney says, is clients thinking he’s deserting them and going off to Parliament. “Once I explain that I’m about 198th on the list and standing in a seat that National has won since 1957 or so, they seem to understand.”

Standing also keeps Kearney abreast of the leading parties’ policy in his area of property, which is often a political hot potato.

Stars aligned New Mana electorate MP Barbara Edmonds didn’t plan to stand this year. Edmonds, a specialist tax lawyer, had always said “no” when asked to stand at previous elections.

The mother of eight school-age children (five of whom were born when she was at law school) has fought for change in Porirua for decades and has a lot on her plate. Having worked at Parliament as an advisor, she understood the workload of MPs. The stars aligned this election when previous incumbent and fellow Labour Party member, Kris Faafoi, resigned and, around the same time, one of Edmonds’ fellow iwi board members died suddenly.

“It was at the tangi I thought ‘life is too short’. She decided to stand for Parliament.

Struggle street New National MP for Southland, Joseph Mooney, is another who hadn’t planned to enter politics in 2020.

“I didn’t think I’d be running any time soon,” he says.

“My law career was going really well and I have had to work very hard to get where I have got. I am a senior trial lawyer with a very good practice in the central Otago Queenstown region.”

When incumbent MP Hamish Walker resigned in disgrace earlier this year, an opening appeared for Mooney. “The National Party needed a candidate.

I talked to my wife and decided to throw my hat in the ring.” Mooney likes helping people and says he can be more effective doing that as an MP. National might not appear the obvious choice for Mooney, who had a zero-privilege childhood, dropped out of school without university entrance and worked initially as a builder’s labourer.

Someone with Mooney’s background would

typically gravitate left, not right.

In practice, he took legal aid cases. “It’s not as financially lucrative as other areas of the law but I found it very professionally fulfilling. It’s a very challenging role. You try to help people in a very tough space.”

Mooney’s takeaways from a struggle-street upbringing marred by joblessness and hunger and from working in the law were to look after businesses to make sure people have jobs. He is a fan of reward for achievement.

Not all lawyers wind down their practices when entering Parliament. Mooney, however, feels that constitutionally it wouldn’t be proper to be working in the legislative branch and also appearing before the judiciary. As a result, he suspended his practice as soon as he was nominated and has arranged for all his clients to be represented by other lawyers.

Like most of the other new lawyers on the back benches, Mooney doesn’t mind taking a pay cut. “I really am attracted to that sense of public service.

I have other things in my life like being a ‘volly’ fire fighter and an army reservist and other things. I get the most value out of feeling of service to my community. You can’t put a price on that.”

Mooney believes his legal training and experience will be a bonus in Parliament. His courtroom background makes him an obvious advocate.

Human rights lens Vanushi Walters, the new member for Upper Harbour, had never expected to become an MP.

Towards the end of a difficult nine-year stint in community law under a National government, Walters crossed paths with the current prime minister who was early in her career. “This lovely back bencher called Jacinda Ardern used to come in and meet with us once a year. She had such a strong sense of values, incredible intellect and very [good] knowledge of the issues facing tamariki and rangitahi.”

When Ardern took over the Labour leadership Walters was nearing the end of the time she felt she could add value to youth law and decided to get involved in policy work for Labour as a volunteer. She was soon elected as a multicultural representative on Labour’s policy council. When Covid hit, Walters felt by becoming an MP she could bring a human rights lens to some of the difficult decisions the country faced.

Fair for workers Another lawyer who believes her legal training will be a bonus is Labour list MP Camilla Belich.

She looks forward to the opportunity to act as a lawmaker and provide positive change.

Belich became involved in student politics and was co-president of the New Zealand University Students’ Association. As a lawyer she has won acclaim for her role in a high-profile case in the Court of Justice of the European Union about safe working hours.

Back in New Zealand after her OE, Belich worked on employment discrimination cases. Her most recent role was in-house for the Public Service Association.

It’s this work history that drove Belich’s interest in politics. “In my role as a lawyer, I have often worked on cases which attempted to have the law interpreted in a way I feel is fairer for working people,” she says. “Those are the cases [that] have been most satisfying.”

Belich has two primary-aged children and is expecting another baby next year. She’s grateful to Ardern and other MPs with young children for showing it is possible to be a mother and an MP.

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Continued from pages 1, 2 but I am not confident they will address all the shortcomings of the current system.

Andrew Beatson It has left a strong positive legacy of broad understanding of the need for integrated management of natural and built environments.

It has also upskilled a range of talented and committed practitioners who understand the need to achieve sustainable and thoughtful outcomes and know how to engage both in regulatory processes and with stakeholders to achieve those outcomes.

The framework, if adopted, should result in better national and regional direction as to how critical issues are to be addressed. When this direction is provided, while it can bring competing tensions into sharp focus, it ultimately saves money and reduces uncertainty.

Why has it taken so long to get rid of it?

Allison Arthur-Young It is a large and complex Act dealing with large and complex issues. The structures and processes set up under the RMA are woven into many different aspects of environmental management.

District plans are a good example of this as these are where most people interact with the RMA and those plans provide the decision-making rules for resource consents for land-use activities There are more than 50 district plans in New Zealand, all drafted according to the requirements of the RMA. Get rid of the RMA and you may need to challenge and potentially rewrite 50 district plans.

A full-scale review will be complex and political.

The Act governs such matters as water use, allocation of resources and the development and protection of land.

All New Zealanders – rightly – have a real interest in these issues and decisions about them have significant financial, environmental and cultural implications.

Andrew Beatson The RMA replaced or amended more than 50 laws when it was formed. It is a complex and farreaching piece of legislation that has become very entrenched.

People have invested, and continue to invest, enormous amounts of energy, money and time into RMA processes. In addition, RMA reform is a massive undertaking: there are significant capacity constraints that mean wholesale reform is not straightforward.

It has been far easier, particularly with the lack of cross-party consensus as to the issues and desired outcomes of reform, for the political parties to tinker with the Act in the relatively short time available to them in any given term.

The RMA Review Panel proposes three new pieces of legislation: a Natural and Built Environments Act, a Strategic Planning Act and a Managed Retreat and Climate Change Adaption Act. What is your take on these proposals? Do they fully address the shortcomings of the RMA? Allison Arthur-Young The panel has done an impressive job in leaning into some of the challenges New Zealand faces when thinking about resource use and protection in the 21st century. The proposed suite of 6

The RMA has changed the way we think about property

New Zealand’s short election cycle, decadeslong under-investment in infrastructure, an under-resourced local government sector and a hesitancy by many New Zealanders to face up to issues around environmental bottom lines, the relationship of Māori to resource use and climate resilience and adaptation are much more the areas which need a hard look

legislation will certainly generate a significant amount of commentary and feedback.

My concern is that the proposals rely on a lot of front-end work in developing almost ‘perfect’ spatial, regional and district plans with a high level of national direction, and resolution of very complex issues around resource allocation.

This is going to be expensive, time-consuming, litigious and political. The proposals go some way towards tackling issues around resource use,

However, some of the biggest shortcomings with the RMA-based system arise from the ongoing tension between enabling urban development, including infrastructure, and protecting the environment. This tension is unlikely to be resolved by the new framework.

There has been, and continues to be, significant under-spend in infrastructure when you compare the amount of money that’s available with what is required to both upgrade declining assets and provide new infrastructure to address the need for additional land supply shortage and achieve quality urban and environmental outcomes.

Unsurprisingly, the RMA is used to match the rate of land supply with infrastructure funding and priorities. No regulatory framework can, on its own, overcome this problem. The proposed framework will at least force the key players responsible for infrastructure delivery to the negotiating table and shine a light on where the true constraints on delivery sit.

Another shortcoming associated with the RMA is the capacity and willingness of central and local government to produce and then implement an appropriate regulatory framework to deliver meaningful outcomes. Introducing such a framework often brings fundamental tensions to the fore, results in winners and losers and can become polarising and political.

The proposed reform program is a significant undertaking and I also question whether central and local government have sufficient capacity to deliver this program as it is intended, within the recommended timeframes, while also attending to business as usual.

Decisions about which outcomes are to be prioritised over others can be politically charged in the absence of broad consensus. Aspects of the new framework may become the ground for an ongoing game of political football as central government adjusts national direction, sending ripples (or shockwaves depending on the severity of the change) through the planning system until the next election cycle.

Unsurprisingly, the RMA is used to match the rate of land supply with infrastructure funding and priorities. No regulatory framework can, on its own, overcome this problem

Photo by Phil Walter/Getty Images

Andrew Beatson The proposals are thoughtful and well-balanced.

If implemented, they should provide a robust and integrated framework that will enable us to deliver meaningful positive outcomes.

LawNews Issue 39 | 6 Nov 2020

ADLS EVENTS

Tauranga lawyers’ lunch ADLS hosted its last lunch for 2020 in Tauranga on Wednesday 28 October. Practitioners enjoyed lunch and the opportunity to make new acquaintances at The Tauranga Club, with its spectacular water views.

Special thanks to the lunch’s sponsor, MAS, and congratulations to Charlotta Harpur the winner of the ‘txt to win’ draw.

Marie Dyhrberg QC, ADLS President

Tayla Yim-Loy, Alan Liddell, Anna Ferguson and Simran Singh

Amelia Nolan, Lucy Nolan and James Hakaria

Carly Christie and Tyler Buckley

James Moran and Chad Wallace

Christchurch Sundowner Thursday 26 November 2020 | 5.30 pm - 8.30 pm Fiddlesticks Restaurant & Bar Corner of Worcester Boulevard & Montreal Street Learn more

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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 Fairness in the Consumer and Commercial Sphere: An Update — FINAL NOTICE In recent times, we have heard a lot about being kind. In relation to consumer and commercial law, fairness may be kindness’ cousin. How does this translate to the consumer and commercial sphere? In this seminar, the presenters will provide an update and refresher on key areas which affect or will affect some consumer and commercial relationships, such as fair trading, (un)fair contract terms, and (un)conscionability.

Learning outcomes: • In respect of fair trading, receive an update on recent case law.

• In respect of unfair contract terms and unconscionability, become familiar with the proposed legislation and become updated on recent case law.

• Gain insights into the current areas of focus for the Commerce Commission.

Who should attend: Commercial lawyers and general practitioners who do some commercial work.

Livestream CPD 1.5 hrs

 Mon, 9 Nov 4pm – 5.30pm

 Presenter Tania Goatley, Partner, Bell Gully Anne Callinan, Partner, Simpson Grierson Dot Benson, Credit Deputy General Counsel, Commerce Commission

 Chair Steve Dukeson, Principal, Dukesons Business Law

Are you Trust Fit? – Varying, Resettlements, Winding Up and Mediation — FINAL NOTICE The new Trusts Act and continuing developments in relationship property laws have led many clients to reconsider existing trust structures, and either look to update old trust deeds, or to take the opportunity to substantially restructure, resettle or simply wind-up existing trusts. This seminar will examine the processes which can be adopted to vary, resettle or wind-up a trust and the issues that can arise from those processes.

The seminar will also look at the Trusts Act from a mediation perspective and will cover the specific ADR provisions in the Act, as well as how trustees’ costs are likely to be treated on compromise.

Learning outcomes: • Understand better the ability to vary, restructure or wind up a trust including common fetters on powers of variation included in trust deeds and the risk that extensive variations to a trust deed can result in a deemed resettlement, with consequential issues including tax issues.

• Learn more about beneficiary considerations upon a resettlement and the extent to which a beneficiary may have rights to prevent or influence a proposed resettlement and what steps trustees can take to protect themselves in difficult situations.

• Gain insights into the specific ADR provisions in the Act, as well as how trustees’ costs are likely to be treated on compromise.

Who should attend: All lawyers who act as independent trustees and all practitioners who advise trustees on their duties and obligations.

Livestream CPD 2 hrs

 Tue, 10 Nov 4pm – 6pm

 Presenter Jarrod Walker, Partner, Chapman Tripp Carole Smith, Barrister, FortyEight Shortland Barristers

 Chair Bill Patterson, Partner, Patterson Hopkins

Advising Company Directors: The Implications of the Supreme Court’s Decision in Debut Homes

 Webinar

The Supreme Court’s recent decision in Debut Homes is the first from the Court addressing the scope of directors’ duties when nearing insolvency, including the duty of loyalty and the duty not to engage in reckless trading. This webinar will consider the practical implications of the decision for directors and their advisors.

 Mon, 16 Nov

Learning outcomes: • Uncover the risk profile for directors trading in uncertain conditions.

• Ascertain when directors need to consider the interests of creditors.

• Determine when directors must engage in an insolvency or restructuring process, and when they must stop trading altogether.

• Gain insights into the potential scope of directors’ personal liability, and into whether D&O insurance will cover that liability.

Who should attend: Company and commercial lawyers; litigators; insolvency lawyers; and general practitioners who do this sort of work. Directors and officers, financial advisors, liquidators and others with an interest in the implications of the decision would also benefit from attending.

Corporate Restructuring: Navigating Covid-19 The broader economic impact of Covid-19 is yet to be felt by the wider economy. This session will provide an overview of the restructuring tools available to corporates, so you are aware of options should your clients call seeking advice to manage risk or distress. It will also touch on relief for directors and businesses and early warning signs to look for.

Learning outcomes: • At a high-level, learn about protections for directors and companies put in place in response to Covid-19.

• Learn how to identify early warning signs, so that you can offer a broader “trusted advisor” service, rather than just addressing the immediate issue.

• Be aware of the various corporate restructuring tools, including informal restructuring, business debt hibernation, creditors’ compromise, voluntary administration, receivership and liquidation.

• Gain an understanding of when and why each tool is applicable, with reference to real examples.

Who should attend: This session is intended as an overview for corporate, commercial and general practitioners who would like to gain an awareness of corporate restructuring options to better serve their clients.

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CPD 1.25 hrs 4pm – 5.15pm

 Presenters David Friar, Partner, Bell Gully Tim Fitzgerald, Partner, Bell Gully

 Webinar CPD 1.25 hrs

 Tue, 17 Nov 4pm – 5.15pm

 Presenters Conor McElhinney, Partner, McGrathNicol Laura O’Gorman, Barrister, Bankside Chambers

LawNews Issue 39 | 6 Nov 2020

CPD in Brief Family Law Conference 2020 In person | Live Stream This conference will cover how to run a Relationship Property case from go to whoa.

With a focus on the different stages you’ll have to navigate, the presenters will guide you through the various issues you will have to consider.

Presenters: Brian Carter, Barrister, Bastion Chambers; Alissa Bell, Partner, McVeagh Fleming; Sarah Bush, Partner, Inder Lynch Lawyers; Inger Blackford, Barrister, Trinity Chambers Chair: Lynda Kearns, Barrister, Bastion Chambers

Leading in Law Workshop – Leading Others

 Conference Livestream CPD 7 hrs

 Wed, 18 Nov 9am – 5pm

 Workshop

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.

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

 Thu, 19 Nov

ADLS/SCA (NZ) Unit Titles/Bodies Corporate Half-Day Conference 2020 – EARLY BIRD OFFER ENDS 8 NOVEMBER

 Conference Livestream

In person | Live Stream Once again, the half-day conference will be packed with a great selection of pertinent and practical topics relating to Unit Titles and Bodies Corporate, presented by experienced lawyers, property managers and other professionals.

Early Bird offer available for bookings made before 8 November 2020.

Presenters: Thomas Gibbons; Joanna Pidgeon; Ian Jespersen; Liza Fry-Irvine; Andrew Hough; Vicki Toan; Wendy Baker; Julie McLean; Paula Beaton; Adriana Radich; Anita Reinecke; Charlotte Muggeridge; Kathryn Clark; Ben Thomson Chair: Thomas Gibbons

CPD 4 hrs 9am – 1.15pm

CPD 4 hrs

 Thu, 19 Nov 12.30pm – 5pm

Preparing Client-Focused Opinions

 Webinar

Preparing an opinion is an essential part of being a lawyer, but doing it well is another matter. This webinar will provide practical insights on how to deliver a client-focused opinion – ensuring you provide effective advice and maximise client service. It is aimed at anyone at junior to intermediate level, including in-house counsel, who is required to write opinions. Those more senior might find it useful as a refresher.

Presenters: Siobhan Cervin, Barrister, Mills Lane Chambers; Rachel O’Brien, Head of Privacy & Data Ethics, BNZ

CPD 1 hr

Confronting the Workplace Bully: Psychology & Law

 Webinar

Are you the subject of bullying and/or harassment in the legal workplace? Do you know someone who is, and would like to offer your support? Or are you simply interested to know more about how to deal with bullying and harassment from a psychological, legal, and regulatory perspective? This webinar will equip attendees with strategies to deal with and support victims of bullying and harassment in the legal profession. This webinar is offered free of charge for members.

Presenters: Sara Chatwin, Psychologist, MindWorks; Paul Collins, Barrister, Shortland Chambers

 Tue, 24 Nov 1pm – 2pm

CPD 1 hr

 Wed, 25 Nov 12pm – 1pm

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.

Advising Company Directors: The Implications of the Supreme Court’s Decision in Debut Homes Monday 16 November | Webinar | 1.25 CPD hours Visit adls.org.nz for more information.

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Continued from page 3 s 27(2). Estoppel would be relevant only if Brougham had affirmed the guarantee in some other way, other than by signing the defective loan document.

Second, the trustees argued that Brougham should be ordered (by way of specific performance) to sign a deed of guarantee and indemnity, as contemplated by the terms of the loan.

The Supreme Court rejected this argument. There was nothing in the terms of the loan that required Brougham to sign a deed of guarantee. Rather, the loan was said to be conditional on this being done. However, the trustees had waived that pre-condition when they made the advance.

Wording is key ​ It is clear from the terms of the loan agreement, and from the evidence of the parties, that Brougham was intended to be a guarantor of the company’s loan obligations to the trustees.

Unfortunately for the trustees, however, that intention was defeated by inadequate documentation. In this respect, the outcome of the case is one of form over substance. However, in contrast to the Court of Appeal, the Supreme Court considered this result to be appropriate in light of the consumer protection purposes of s 27(2).​ The case reinforces the need for lenders, landlords and anyone else seeking a guarantee to ensure the terms of the guarantee are clearly recorded in a separate contract and that all the named guarantors have signed.

It is also an important reminder that the wording of contractual obligations is key. If a guarantee is required, then this should be clearly noted as a term of the principal agreement and not only as a condition precedent to that agreement, which risks an inadvertent waiver if the parties proceed without it. ​ Sophie East is a partner at Bell Gully and Savannah Feyter is a solicitor at the same firm

SOUTH AUCKLAND LAW PRACTICE FOR SALE A highly profitable boutique law practice with a large and longstanding client base offers the potential for both lifestyle and success for a general practitioner. Situated in the South Auckland area, this is a unique opportunity to walk into a solid and ever-expanding profitable base of private and small to medium business clients.

The practice has a substantial conveyancing, commercial, trusts and estates clientele with room to expand into civil litigation and family law. The possibilities are endless for an ambitious general practitioner.

Very flexible arrangements are available for transition to the new ownership.

Expressions of interest c/- Matthew Pasley, Keegan Alexander, Lawyers Auckland, mpasley@keegan.co.nz

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

WILL INQUIRIES LawNews PLEASE JOIN US FOR A LUNCH TO CELEBRATE

years OF ADMISSION TO THE BAR

When 12.00pm, Friday 18 December 2020 Venue The Wintergarden Northern Club 19 Princes Street Auckland Payment details $150pp – Partners welcome Please make payment to 06-0101-0011219-00, Reference: 201024942 RSVP to ross.patterson@minterellison.co.nz

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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 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.

Ranjula GIRI, Late of 14 Orchard Road, Browns Bay, Auckland, retired, aged 62 (died 28’09’20)

LawNews Issue 39 | 6 Nov 2020

Office to Lease Due to my impending retirement, my offices will be available to lease from 1 April 2021, subject to notice of renewal being given to the landlord before 31 December 2020.

Superb location in High Street, close to Shortland Street. Two large offices, meeting room, reception area, file storage area, kitchenette and bathroom.

Ideal for a sole practitioner or barrister.

Architect-designed fitout, complete with all desks, furniture, filing cabinets, shelving and other office equipment.

Contact me for further details: Peter Nolan phn@peternolan.co.nz, (09) 307 6935 or 021 608 955

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 range from $150 – $300 per week plus gst. No long-term commitment required.

ROOM AVAILABLE Vulcan Building Chambers has a spacious room in the historic Vulcan Buildings in Vulcan Lane available to a barrister wishing to share reasonably priced facilities with six other collegial barristers.

Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, networked printing and photocopying and VOIP phone system. The chambers have a dedicated and capable office manager.

Please email: eden@vulcanbuilding.co.nz or phone 09 300 1253

OFFICE FOR RENT ALBANY Have an office with the best view of the North Shore District Court. Wait for your client’s arrival at court while you look down from your deck.

• 50 square metres of your own private lockable office space.

• 65 square metres of shared space with professional services company.

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

• Includes boardroom, kitchenette, bathroom, break-out area and deck.

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

• Signage rights and two carparks.

Senior Solicitor/Senior Associate with Partnership Opportunity We are seeking a motivated individual with 5-6+ years’ PQE to join our busy practice.

The role is full time, Monday to Friday from 8.30am to 5.00pm starting immediately.

Experience in trust work (including good knowledge around the new Act), estate work, commercial transactions (including leasing) and conveyancing are essential.

In addition, strong communication skills, the ability to give practical advice and work independently are keys to success in this role. Succession partnership opportunities may be offered to the right candidate as the firm is currently in the phase of succession planning and looking for a change in partnership in the next 12-18 months.

You will be provided with your own office and will be welcomed by a friendly and supportive team working in the heart of Cambridge.

If you are looking for your next career opportunity with scope to grow and independence, please send your CV and covering letter to sabrina@cambridgelaw.co.nz

by Friday, 20 November 2020.

Call Gavin on 021503665 or email admin@rms.nz

CAREER OPPORTUNITY TAKAPUNA BEACH AUCKLAND Morton Tee Limited is an established firm based in Takapuna Auckland with a settled client base offering a variety of interesting work.

An exciting opportunity exists for a Property Solicitor ideally with 4-5 years’ PQE to work in our general practice and supervise our residential conveyancing team.

Senior property/relationship property lawyer

The role will suit someone seeking greater autonomy and prospects of advancement together with a better work life balance including the benefits a Takapuna beach-based practice provides.

• Management of property law team, relationship property, trusts, wills and estates.

Confidential applications and expressions of interest should be directed to:

• Established busy central city law firm. One principal, one senior lawyer, two junior lawyers, supporting law clerks. Up-to-date systems.

Cristine Tee ctee@mortontee.co.nz P O Box 33133 Takapuna 0740 Auckland.

• Firm expertise in Public Works Act compensation claims, charities law.

• Partnership and practice acquisition opportunity.

Contact; Warwick Wright, RAINEY COLLINS WRIGHT LAWYERS Mob: +64 27 294 4102, Email: wwright@rainey.co.nz

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General practice –

Auckland Law Practice for Sale

the good life on your terms

This is an opportunity of a Lifetime for a person with the right experience.

We are looking for a senior general practitioner, interested in succession in the short to medium term, to lead our office in a beautiful part of Auckland’s North Shore. Experience essential.

A general practice established for over 50 years is for sale in Auckland.

The practice has 6 plus lawyers and support staff. It has a broad client base. It is available for sale on very reasonable terms due to the health issues of one of our principals.

You can:

The practice focuses on property work, trusts, estates, wills, and family law. It would suit a lawyer (or perhaps two) with experience as general practitioners. A successful purchaser would need to have 10 years’ plus experience and a desire to manage and run their own business.

• Draw on the mentoring and support of the soon-to- retire Principal while you decide if it’s for you

It may well suit a larger firm as a suburban branch office.

This practice is one of the best suburban practices in Auckland. The principal is willing to remain with the new owners for a period (to be agreed) to assist with the transitioning of the client base.

• Determine the direction of this profitable practice

• Set your hours, working style and practice areas.

The business was built by its Principal to support rather than thwart a busy family life. Our clients are downto-earth and so are we. We specialise in conveyancing, relationship property and estates, but our work is hugely varied.

This is a rare chance to jump into the driver’s seat of a thriving practice ready for new leadership. Shape your own work culture. Set your own path.

All enquiries in the first instance to advertiser@adls.org.nz marked “Auckland Law Practice for Sale”

Please reply in confidence with a CV to: advertiser@adls.org.nz quoting reference SGP10

Are you Trust Fit? – Varying, Resettlements, Winding Up and Mediation Tuesday 10 November | 2 CPD hours The new Trusts Act and continuing developments in relationship property laws have led many clients to reconsider existing trust structures, and either look to update old trust deeds, or to take the opportunity to substantially restructure, resettle or simply wind-up existing trusts.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz