NEWS Jul 22, 2022 Issue 24
Inside ■ EMPLOYMENT
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■ COMMITTEES
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Did the High Court miss the mark on
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GARDNERHOPKINS?
Contents 03-04 OPINION MISCONDUCT HARASSMENT
James Gardner-Hopkins: what the High Court got right and what it got wrong
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
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Courts and the govt ponder the thorny issue of worker classification
Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz
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Jul 22, 2022 Issue 24
LEGAL PROFESSION/OPINION
The Gardner-Hopkins appeal: the legal profession still remains relatively safe for sexual predators Referring to the practitioner’s living costs of $144,000 a year after tax, the High Court left intact the tribunal’s decision declining to view Gardner-Hopkins’ financial position as a mitigating factor. ‘A budget at that level does not suggest dire circumstances.’ Ana Lenard In February’s edition of LawNews I wrote about what the Lawyers and Conveyancers Disciplinary Tribunal got wrong in its penalty decision relating to James Gardner-Hopkins’ case and why a two-year suspension was insufficient. The background to the case and the relevant facts are set out in that article, and in James Gardner-Hopkins penalty decision [2022] NZLJ 79. The Standards Committee appealed the tribunal’s penalty decision, and the judgment was released on Wednesday. Although increasing Gardner-Hopkins’ suspension period to three years, the High Court unfortunately did not agree with the Standards Committee that strike-off was merited. The court missed an opportunity to send a strong message about sexual misconduct in the legal workplace.
What the High Court got right One of the criticisms of the tribunal’s penalty decision was the failure to understand that even short episodes of sexual misconduct can have profound consequences. The High Court accepted that the brevity of sexual misconduct does “little to mitigate its seriousness”. The court also strongly rejected the practitioner’s argument that the consensual nature of one of the incidents was relevant. The High Court correctly concluded that GardnerHopkins “breached the duty of care and trust owed to [the woman] as a young employee of his firm”. He acted in an “entirely inappropriate” way and “should have appreciated the considerable power imbalance”.
Ana Lenard
In my opinion, GardnerHopkins should have been struck off. He is not currently fit and proper
Another critique of the penalty decision was that it exhibited too much sympathy for Gardner-Hopkins vis-à-vis the women and that it incorrectly categorised career and financial consequences as mitigating factors. The court agreed with the Standards Committee that the tribunal erred when it categorised financial and professional consequences suffered by Gardner-Hopkins as mitigating factors. As the High Court rightly concluded, “[t]he fact that Mr Gardner-Hopkins was required to resign from the Russell McVeagh partnership, and lost connection with the profession, was an inevitable consequence of his actions”. Such negative consequences are not factors that will be considered in mitigation in disciplinary proceedings, the primary purpose of which is protection. Referring to the practitioner’s living costs of $144,000 a year after tax, the High Court left intact the tribunal’s decision declining to view Gardner-Hopkins’ financial position as a mitigating factor: “[a] budget at that level does not suggest dire circumstances”. Importantly, the court held that financial position is not a mitigating factor in lawyers’ disciplinary proceedings. The High Court agreed with the tribunal that a recent Standards Committee case addressing similar conduct was wrongly decided. But the court rightly went a step further than the tribunal and disregarded it. The court also disregarded the Daniels and Horsley cases which were determinative comparators in the tribunal’s penalty
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Continued from page 03 decision. “There has been a profound societal change in attitude towards sexual harassment over the last decade and that shift in perception is important when considering penalty in light of the need to maintain the confidence of the public in the legal profession.” Concluding that Gardner-Hopkins’ misconduct was serious and “is wholly unacceptable in the legal profession”, the court – in agreement with the tribunal – adopted strike-off as the starting point. The court also agreed with the Standards Committee’s submission that strike-off should not be reserved for the worst possible case. “[T]here may be variations or different examples of serious misconduct, all of which could require a very serious sanction, be it strike-off or the maximum period of suspension”.
What the High Court got wrong Unfortunately, the High Court downgraded the importance of evidence about the toxic and misogynistic culture of the team led by Gardner-Hopkins at Russell McVeagh. Accepting that such a workplace culture is no longer acceptable, the High Court concluded that it ultimately did not “significantly inform the seriousness of the conduct giving rise to the charges”. But it was rightly accepted by the tribunal that this evidence indicated Gardner-Hopkins’ conduct was not totally out of character and was therefore properly treated as an aggravating feature. It is normal and desirable to factor past conduct into an analysis of aggravating factors. Like the tribunal, the High Court accepted Gardner-Hopkins’ submission that he had taken and was continuing to take appropriate steps to address future risk, including his alcohol dependency. But the self-reported evidence at the penalty hearing was that he was still drinking alcohol at the level of Ministry of Health guidelines (being up to 15 standard drinks a week). The High Court also relied on the fact that the incidents were closely connected in time, when Gardner-Hopkins had difficulties in his personal life. The court noted that no further complainants had come forward. “[G]iven the high-profile nature of the proceeding, it is likely they would have done if such incidents had occurred”. This statement contains dangerous assumptions about the choices victims make. There are examples of more victims coming forward with the publicity of certain cases, but this does not necessarily translate into more formal complaints. Victims would have to be willing to be in the public eye for years in a case like this. Those two factors alone would be chilling for people trying to move on with their lives. The court also cited references from a “number of women” who confirmed that the practitioner had “acted appropriately towards them”. Gardner-Hopkins necessarily would have behaved appropriately towards some, even most, women in the workplace over the years: superiors, clients, equals – any women with whom it would be beneficial to be on good terms. 04
A ‘competent’ practitioner who has trouble complying with legal obligations is somewhat of an oxymoron
We do not know who these references are from and how the practitioner was connected to these women. These references do not speak to the specific risk Gardner-Hopkins poses to women in the workplace where there is a power imbalance. The court admitted and relied on fresh evidence from a psychologist who considered Gardner-Hopkins’ motivation to change was now intrinsic, no longer resulting from the pressure of the proceedings. The court also unfortunately discounted the relevance of Gardner-Hopkins’ past conduct (creating a sexualised work environment) to the issue of future risk. Accepting that Gardner-Hopkins took too long to accept responsibility for the incidents, the court ultimately concluded, referring to the apology given at the penalty hearing, that “there is now some insight on Mr Gardner-Hopkins’ part of the impact of his actions on the young women”. As I have previously argued, characterisations such as these are too generous. “Gardner-Hopkins acted with a lack of remorse throughout the proceedings and well past the eleventh hour”. The practitioner’s points on cross-appeal reflecting an ongoing lack of understanding of the nature and gravity of the misconduct. In its analysis of penalty, and echoing the tribunal, the court concluded that “[a]part from the misconduct towards the young women there is no suggestion that Mr Gardner-Hopkins is anything other than a competent practitioner”. Is it right that the two can neatly be cabined in this way? A “competent” practitioner who has trouble complying with legal obligations is somewhat of an oxymoron. Relying, amongst other things, on “absence of any further complaints and his past clear disciplinary record”, the court’s view was that “the risk [of] similar conduct in future has considerably diminished”. This was the significant factor that led to a penalty short of strike off being imposed by the court. As I have previously argued, it is wrong to take into account the lack of further complaints. Complaining is traumatic and unlikely to be worth it absent real consequences. “[N]o complaints simply means none have been lodged, not that there has been no conduct to complain of.”
Conclusion Deftly side-stepping some of the tribunal’s unfortunate analysis, the High Court introduced some unhappy ideas of its own. It is difficult to understand the court’s decision. Having accepted that “Gardner-Hopkins seriously beached the trust that was imposed on him, and his actions undoubtedly affected [the women’s] futures in the law”, and that the incidents have “had a significant effect on each of the victims, why should the practitioner’s future be preserved and protected in the absence of specific and sufficient evidence that he no longer poses a risk to certain women in the legal workplace? In my opinion, Gardner-Hopkins should have been struck off. He is not currently fit and proper. ■ Ana Lenard is a dispute resolution lawyer ■
Jul 22, 2022
Photo: Nazar Abbas Photography / Getty Images
Issue 24
PROPERTY/WEBFORMS
New property agreement forms released ADLS is pleased to announce the following release dates for the ADLS/REINZ Sale and Purchase Agreements: ■ Particulars and Conditions of Sale of Real Estate by Auction – Sixth Edition 2022; released on 28 June 2022 and available now ■ Particulars and Conditions of Sale of Real Estate by Tender – Sixth Edition 2022; released 19 July 2022 and available now ■ Agreement for Sale and Purchase of Real Estate – Eleventh Edition 2022 (2); released 19 July 2022 and available now These revised versions of the auction and tender agreements, sixth edition 2022, contain amendments and formatting changes to align them with the eleventh edition 2022 (2) of the Agreement for Sale and Purchase of Real Estate. On the day of release, a highlighted sample version was made available in WebForms, as a notification on the dashboard. Key changes to the auction and tender agreements, sixth edition 2022, include: ■ Matariki: inclusion of the Matariki public holiday in the working day definition; ■ Bank cheques: provisions to allow for the discontinuance of bank cheques; ■ Tax Purchase Price Allocation (PPA) Rules: new provisions linking to a newly-devised addendum addressing legislative changes to tax purchase price allocation rules; ■ Conveyancing practitioners: amendments to accommodate conveyancing practitioners; ■ Claims for compensation: clarifications added to clauses 11 and 12 for situations where a claimant makes a claim;
■ Limitation of liability: this clause has been amended in view of the Trusts Act 2019;
■ Covid-19/pandemic provisions clause: a new covid-19 and pandemic provisions clause has been included;
■ Warnings and disclaimers: these have been scaled back and moved from the back page to the signing page;
■ Signatory provisions: the acknowledgement and warnings on the signing page have been updated;
■ Reformatting: the document layout has been reformatted in several areas, including the signatory page and back page. The default size of the user-entered text has been increased from 9pt to 11pt; and ■ All references to ‘subclause’ have been changed to ‘clause’. Key changes to the real estate agreement, eleventh edition 2022 (2) include: ■ Matariki: inclusion of the Matariki public holiday in the working day definitions; ■ Deposit: reference to ss 36 and 37 of the Contract and Commercial Law Act 2017 is removed under clause 2.4; ■ Vendor’s warranties and undertakings: Previously, only a right of compensation is created when there is a breach of warranty under clause 7.3(1). The restriction is now removed to allow for a post-settlement claim for damages; and ■ Compensation: clause 10.4 modified to reference clause 10.3. ADLS extends its gratitude and appreciation to the legal experts – in particular, barrister Tim Jones, our lead drafter Thomas Gibbons, our committee and sub-committee members and to those from the real estate industry who have provided their highly valuable input into this review. ■ 05
EMPLOYMENT LAW
Two-pronged bid to resolve row over employee-contractor classification None of the big courier companies wants its model to be tested. And the longer they can preserve this model, the greater their profitability is
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Diana Clement
drivers in question agreed to the settlement. “None of the big courier companies wants its model to be Some of New Zealand’s least-protected workers are stepping tested,” Pollak says. “And the longer they can preserve this model, the greater their profitability is.” Had these cases gone closer to securing the employment protections they have to court, Pollak believes the drivers would have been found to been seeking for the past 30 years. be employees. A series of high-profile cases challenging the application Chief Judge Inglis has said the Leota and Barry cases did of s 6 of the Employment Relations Act 2000 (ERA) has not set precedents; they have been viewed by many lawyers been heard in the Employment Relations Authority and as test cases. Employment Court, highlighted the classification of workers The government has also set its sights such as couriers, Uber drivers and cleaners as contractors, which denies them minimum The idea that on s 6. Its Tripartite Working Group on Better Protections for Contractors reported back rights, says employment lawyer Garry Pollak. cleaners and to the Minister for Workplace Relations At the same time, a tripartite working group couriers in and Safety, Michael Wood, in December of unions, employers, and government has particular run recommending a law change. recommended reform. In the meantime, soThe working group characterised the called “contractors” are awaiting the outcome independent problem as employers using contracting of an Employment Court hearing in Wellington businesses is arrangements to undermine the government’s where a group of Uber drivers and deliverers absurd core labour-market objectives. In particular, has asked to be called employees. “contractors” in industries such as parcel Pollak is not involved in the latest Uber delivery and cleaning enabled employers to case, being brought by E tu Incorporated pay less than minimum wage and at the same and First Union and heard before Chief time burdening workers with risks and compliance costs they Employment Court Judge Christina Inglis last month. But it were ill-equipped to bear. has similarities with two earlier cases that he won. The group noted that these “contractors” had no The first was brought by courier driver Mika Leota, who guaranteed breaks and little ability to take annual or sick asked the court to classify him as an employee. The second leave. involved a builder, Ross Barry, who despite working for just one building company was classified as a contractor. Pollak The tripartite group made eight recommendations: lost another similar case involving an Uber driver, but says the ■ A variation of the legislative definition of “employee” to Wellington appellants made better witnesses. include a contradistinction to someone who is genuinely “I am anticipating or hoping that the court will find that in business on their own account. Uber drivers are employees in New Zealand,” says Pollak. “[If] ■ Constructing more detailed, objective and prescriptive the chief judge does find that they are employees, effectively legislative requirements for worker classification. she will be overruling her colleague Judge Holden in my case ■ Prioritising further policy work and consultation. of two years ago.” ■ Considering how business models could transition away Since the Leota, Barry and first Uber cases, Pollak has from unlawful classification practices. represented a number of courier drivers who have made the same argument about being employees. In each case, the Continued on page 07 courier company has chosen to settle out of court and the
Jul 22, 2022 Issue 24
courts in France, the United Kingdom and the United States. Two weeks ago, the Australian Transport Workers’ Union struck an agreement with Uber Australia to give workers on the platform baseline conditions. The new Labor government ■ Providing guidance and support packages. in Australia is looking at giving the country’s Fair Work ■ Allowing judicial determinations on employment status Commission (FWC) the power to regulate employee-like to cover other workers performing similar work for the forms of work. The FWC is not a court and does not have the same hiring entity under similar contractual terms. same test as s 6. The fact the the drivers’ contracts said they ■ Exploring options that would allow for regulators to were workers holds greater strength in Australia. intervene without relying on an individual complainant In the UK Uber decision, the courts agreed on a middle wanting to pursue the matter. ground between contracting and employment status, called a ■ The definition of “employee” to be aligned across “worker”. But this is not a ideal, Pollak says. employment and tax legislation, allowing for appropriate “The Parliament in the UK was persuaded to create a two-way information sharing between the Inland Revenue semblance of order out of chaos. So, it agreed on a middle Department and the employment regulator. version. And they gave that category of worker many rights Pollak hopes the report will result in change. as if they were employees. But from what I “The proposal to alter s 6 and revert to its have read, it was a cop out. original intention is really a great achievement. The big “You don’t want to be a ‘worker’ in the UK. And it’s interesting to note that Business question You want to be an employee. What it has led New Zealand and the CTU (Council of Trade is whether to is an enormous number of cases of workers Unions) have agreed on it. Nobody’s jumping trying to resist being categorised as workers.” up and down saying it’s a poor effort.” legislation As for New Zealand, the idea that cleaners The big question is whether legislation will will follow and couriers in particular run independent follow and be enacted, especially with the term and be businesses is absurd, Pollak says. of the current government heading towards “There’s one little gem in that Ross Barry an end. enacted case. I called the secretary of the A1 Union The Uber case now before the [as an] expert witness. Either I or the chief Employment Court is likely to strengthen judge asked him the question about how you the argument for law reform. The argument know on a building site who is a contractor is whether the drivers are totally controlled and who isn’t? by the company at all times after they turn on their “He said he has never had any difficulties with that. A app. Although the drivers are classified as independent businesses, Uber controls the relationship with the customers. contractor is someone who has a ute with their name on it. They come on site to do a particular task. They do it and The customer forms the contract with Uber, which then finish and then submit an invoice, which hopefully is paid on looks for a driver. The driver does not know the price or the the 20th of the month. They go from building site to building destination when accepting the ride or delivery. Uber argues site. And they usually have an apprentice with them. That’s that it is a technology company not a transport company and the common sense view [of what makes a contractor]. is in the business of creating efficient markets. It argues that “[Lawyers often argue] the courier has signed this it does not control when and where drivers work but the court contract, it’s his choice or her choice,” Pollak says. “But that also heard that drivers need to adhere to a long list of rules in itself is absurd because there is no other part of our legal and regulations set by Uber. system where somebody can elect to opt in or opt out. It’s like The case turns solely on s 6 of the Employment Relations somebody saying: ‘oh, my client has decided they’re not going Act, which defines the meaning of employee. As with the to pay income tax’. Yeah, well, that would be laughable.” other cases, the court must consider the real nature of the Pollak notes that the “screwed-up business model” of relationship between Uber and its drivers, which has been avoiding employment obligations is in part a construct by described as servility. lawyers. ■ Whoever wins, the case will add to the growing international body of case law involving Uber from appellate
Continued from page 06
A contractor is someone who has a ute with their name on it. They come on site to do a particular task. They do it and finish and then submit an invoice, which hopefully is paid on the 20th of the month
07
INSURANCE
Insurers take tentative steps back into the travel market Andrew Horne As the world opens up, many Kiwis are planning long-overdue overseas getaways. The decreased risks of severe covid-19 infection, thanks in large part to vaccine efficacy and evolving variants, have emboldened many to travel once again. But overseas hospitalisation and associated expenses are not the only way covid-19 can derail travel plans. Testing positive or becoming a household contact of a positive case prior to departure may also create a big dent in travellers’ wallets if their flights and accommodation are non-refundable.
Insurers’ response When travel insurers first became aware of the pandemic, they reacted cautiously by setting dates after which they were not prepared to cover covid-19 related losses, on the basis that travellers who booked holidays after those dates did so knowing of the pandemic. Insurers were understandably nervous of a risk that was difficult to value at first and affected large numbers of travellers, so they imposed broad exclusions for covid-19 losses. As mass vaccination and the prevalence of less harmful variants turn what was once a threat to life and health into a minor inconvenience for most people, insurers have become less concerned about their exposure to substantial medical costs for hospitalisation. They remain concerned, however, about losses that occur when people cannot travel because of government-imposed lockdowns or because they or a travelling companion test positive for covid-19. 08
Some travel insurance policies cover covid-19 expenses only for fully vaccinated travellers
What’s now covered Medical costs Most insurers now provide cover for medical costs incurred as a result of covid-19. Insurers appear to be comfortable that the risk of serious illness resulting in substantial medical bills is now both sufficiently low and predictable to be insurable. Most policies, however, continue to exclude cover for travel to countries on the New Zealand government’s ‘do not travel’ list, reflecting a high risk of COVID-19, where travel is banned and for multi-night cruises (some offer cruise extensions). Most policies do not offer cover where the policy was purchased within a specified period of travel, such as 21 days, to ensure the traveller does not already have covid-19 when they take out the policy and will still be testing positive when they are due to travel. Coverage for medical expenses resulting from covid-19 is normally offered to the usual limits, where limits of $1 million or unlimited cover are not uncommon. Some, however, may still be restrictive.
Insurers remain concerned about losses that occur when people cannot travel because of government-imposed lockdowns or because they or a travelling companion test positive for covid-19
caused by a covid-19 illness or positive test, travel insurance policies are increasingly offering cover for events relating to covid-19 that impact travel plans as well as medical costs. These additional costs include: ■ costs to change travel arrangements if a traveller or another relevant person such as a family member or travelling companion is diagnosed with covid-19 before they leave and travel plans must be cancelled as a result; and ■ costs to change travel arrangements if a traveller or a relevant person is diagnosed with covid-19 while away so the trip is cut short. However, travel insurance typically provides much more limited cover for costs caused by delays and disruptions associated with covid-19 than from other causes. Most travel insurance policies provide coverage of only $5,000 for these costs. For an international holiday requiring cancellation and rescheduling of flights, accommodation and activities, these modest cover limits can easily be exceeded.
For some people Some travel policies provide coverage only if the policyholder or a travelling companion is diagnosed with covid-19 and must alter their travel plans to selfisolate and recover. Under other policies, but not all, being obliged to self-isolate as a household contact will also trigger cover. Importantly, some travel insurance policies cover covid-19 expenses only for fully vaccinated travellers. This requires the policyholder to have
Travel disruption costs While insurers have been more cautious about insuring costs and losses resulting from travel disruption
Continued on page 15
Jul 22, 2022 Issue 24
Briefs Three hats in ring for Crown Solicitor role Three senior MC partners have indicated they’re interested in applying to the Crown Law Office to become the next Crown Solicitor at Auckland. They are Alysha McClintock, Brett Tantrum and Robin McCoubrey. MC says all three have the support of the firm’s partners and its 160 prosecutors. The incumbent, Brian Dickey, who has held the warrant as Crown Solicitor at Auckland for about eight years, said last month he intended stepping down from the role and moving to the independent bar in the summer. The Crown Solicitor oversees the prosecution of serious crime in the Auckland region with the authority of the Attorney-General delegated to the Solicitor-General.
Prominent Fijian lawyer changed with contempt The Attorney-General of Fiji has issued contempt proceedings against controversial Suva lawyer Richard Naidu, claiming one of his social media posts “ridiculed a High Court judge”. The Facebook post in February related to an excerpt from a court judgment with references to the word “injection”. The Attorney-General alleges Naidu’s post read: “Maybe our judges need to shield themselves from all Naidu this vaccination campaigning. I’m pretty sure all the applicant wanted was an became a injunction.” prominent The Attorney-General says the post opponent of “ridiculed the presiding judicial officer and the Fijian judiciary as a whole”. He also the military claimed the post brought the presiding coup in Fiji judge into disrepute, lowered their in December reputation and encouraged Facebook 2006 and was users to post comments that cast aspersions on expatriate judges. arrested and Naidu, who says the claims will be interrogated defended, became a prominent opponent of the military coup in Fiji in December by the new 2006 and was arrested and interrogated by regime the new regime. The Law Council of Australia says it is actively monitoring the proceedings with a view to ensuring Naidu is given a meaningful opportunity to challenge and defend the serious charges that have been levelled against him, including the opportunity to be represented by counsel of his choice. The law council intends to arrange for an independent observer to attend the hearings. ■
Criminal Defence Lawyers Are you passionate about criminal law? Ever thought about a career with the Public Defence Service? The Public Defence Service is looking for experienced lawyers to join our committed and professional teams located in our 10 offices across the country. We are seeking expressions of interest at all levels, from junior lawyers who have at least 12 months’ criminal litigation experience, through to senior lawyers with PAL 3 or PAL 4 approval, or the ability to obtain these levels! The Public Defence Service (PDS) provides high-quality legal advice and representation in a full range of criminal cases. Aimed at helping people access justice, the PDS promotes the values of respect, integrity, service and the delivery of excellent service to its clients. Our 10 offices are located in Auckland City, Manukau, Waitakere, North Shore, Tauranga, Hamilton, Hawke’s Bay, Wellington, Christchurch and Dunedin. Working for the PDS you will find challenge and satisfaction with a varied caseload, supportive colleagues, comprehensive professional development and excellent terms and conditions. If you are interested in joining any of our offices, we want to hear from you. Joining the Ministry of Justice means you will become part of an inclusive organisation that values you and the communities we serve. It’s our promise to ensure our workplace is one where our people feel healthy and safe, supported and able to be themselves at work. We value respect as the foundation for building a positive workplace culture and one where diversity is welcomed and celebrated. Please contact Elaine Hines, Deputy Director, Operations Either via email: Elaine.Hines@PDS.govt.nz or mobile 027 561 1025 Make contact today!
09
FINANCIAL SERVICES
In the wake of Du Val, wholesale investments are in the FMA’s sights Jenni McManus The perils of advertising on mass social media platforms products intended only for a highly targeted group of investors have been highlighted in recent court action between the Financial Markets Authority (FMA) and property developer Du Val Group. Du Val appealed to the High Court over a directions order the FMA made last October, ordering Du Val to withdraw a promotional video from an advertising campaign and remove claims about an investment offering that the FMA considered likely to be deceptive and misleading to potential investors. The court upheld the FMA’s directions order. Du Val’s offering was supposedly targeted at wholesale investors – people or organisations experienced in investing who don’t need the comprehensive level of disclosure that product promoters are required to give retail investors. But its campaign to raise $100 million for a special partnership to fund a property development was run on news sites and social media, meaning its reach included the whole spectrum of wholesale and retail investors. Wholesale investors are defined in law as investment businesses, government agencies, habitual or experienced investors or those with net assets or turnover of at least $5 million in the previous two financial years. These investors are regarded as having enough experience of buying and selling financial products to be able to assess risk for themselves and be able to decide what extra information they need before making decisions. They would also be subscribing for offers where the minimum investment was $750,000. However, as the High Court heard, they are not necessarily sophisticated investors. For example, the 10
These investments are at the edge of our regulatory remit and we want to better understand who is investing in these products and the level of risk for those investors
from Du Val’s advertising included “high security $750,000 they are seeking to invest might be the high return”, “mortgage-backed security”, “providing proceeds of the one-off sale of a business or a farm. investors with a level of certainty The penalties for advertising hard to come by in this market” and wholesale products to retail Its campaign “the best of both worlds in terms of investors can be high and include to raise $100 security and returns”. criminal liability for directors and million for Paul Gregory, FMA director of senior managers, and fines of up to investment management, says the $50,000. a special FMA is happy with the decision. The FMA thought Du Val had partnership to “We welcome this judgment, which crossed the line and breached fund a property recognises that the fair dealing the Financial Markets Conduct provisions of the law are intended Act. “We consider that Du Val’s development to protect all investors from widespread promotion of interests in was run on misleading advertising. Wholesale the Mortgage Fund LP, particularly news sites and offerors should pay close attention through social media, demonstrates social media, to this case and take care how they that an inexperienced audience is market and advertise to prospective exposed to representations made by meaning its investors.” Du Val and enticed into its marketing reach included In one of her first speeches since web,” it said. the whole taking up the role of FMA chief Alongside the breadth of the executive earlier this year, Samantha advertising campaign, the regulator spectrum of Barrass flagged that the wholesale objected to the wording of the wholesale and investment sector would be on her ads, particularly Du Val’s claim that retail investors radar this year. It would be a “deep investors would be charged no fees look”, she told a webinar organised and the comparisons it made with by the Financial Services Council, bank term deposits. and the FMA would publish a report Investing in a property later in the year. development was “inherently risky”, the FMA said. “These investments are at the edge of our And the no-fees claim was misleading as the general regulatory remit and we want to better understand partner in the development was entitled to all the who is investing in these products and the level of risk profits once investors had been paid their 10% return. for those investors,” she said. Effectively, said Justice Ian Gault, that profit was a “We are particularly focused on…. the extent to fee. “Even if it were not strictly a fee, the representation which vulnerable consumers and people who are of no fees would still be misleading because Du Val in practice, retail investors are accessing wholesale earns any and all returns above the fixed return to markets and the harm this may cause them and their investors.” families.” ■ Other claims the FMA ordered to be removed
Jul 22, 2022 Issue 24
Events Featured events
Connecting New Zealand lawyers
Henderson lawyers’ lunch Thursday 11 August 12.30pm – 2pm The Grounds, 8-14 Henderson Valley Road, Henderson, Auckland Sponsored by MAS
Upcoming August
Date to be confirmed | Tauranga lawyers’ lunch
September
Wednesday 28 | Takapuna lawyers’ lunch
Learn more
Soon to be added:
Hawke’s Bay lawyers’ lunch Wednesday 17 August 12.30pm – 2pm East Pier Hotel, 50 Nelson Quay, Ahuriri, Napier, Hawke’s Bay
November | New Plymouth Sundowner November | East Auckland lawyers’ lunch November | Tauranga Sundowner December | Northland lawyers’ lunch
Learn more
Christchurch lawyers’ lunch Wednesday 24 August 12.30pm – 2pm Dux Central, 6 Poplar Street, Christchurch, Canterbury Sponsored by MAS
Photo: Morsa images / Getty Images
Learn more
Wellington express lawyers’ lunch Wednesday 19 October 12.30pm – 2pm Flamingo Joe’s Bar & Eatery, 1/10 Waterloo Quay, Pipitea, Wellington Learn more
Book Here
events@adls.org.nz
adls.org.nz
11
FEATURED CPD
FINAL NOTICE
PROPERTY DATA INSIGHTS
Property rights and data Webinar 1.5 CPD hrs Thursday 28 July 1pm – 2.30pm Presenter David Harvey, retired District Court judge
Possession is said to be nine-tenths of the law, but how does this work with digital data? With reference to key cases from New Zealand and overseas about property rights and data, this webinar will provide insights into this increasingly common and complex area of law.
FIND OUT MORE
The law and the wellbeing of tamariki FRAMEWORK JURISDICTION CHILDREN
Seminar | Livestream 2 CPD hours Thursday 18 August 4pm – 6.15pm Presenters Judge Sharyn Otene; Alison Cleland, senior lecturer, AUT and Anthony Dickson, principal advisor, Oranga Tamariki Chair Judge Emma Parsons
IN PERSON
Providing an understanding of the context and nature of legislation around the care and wellbeing of children, this seminar will help lawyers better comprehend – and perform − their role in this crucial area.
LIVESTREAM
‘Court’ by forensics workshop UNIQUE PRACTICAL CRIME
Workshop 4 CPD hrs Saturday 20 August 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd
During this practical hands-on workshop, you will interact with a forensic practitioner and fingerprint expert in a purpose-built crime centre to learn about the workings of major crime scenes and chain-of-evidence procedures. Very limited spaces available.
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Jul 22, 2022 Issue 24
adls.org.nz/cpd
Drafting complex wills SKILLS PRACTICAL EXCELLENCE
Workshop 3.5 CPD hrs Tuesday 23 August 9am – 12.45pm Facilitators Henry Stokes, general counsel, Perpetual Guardian and Theresa Donnelly, legal services manager, Perpetual Guardian
cpd@adls.org.nz
09 303 5278
Led by two facilitators immersed in wills and asset planning and known for their practical aproach, this workshop will give you the confidence to deliver real value to your clients. Limited spaces available
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Dealing with media INTERVIEWS JOURNALISTS RISK
Webinar 1.5 CPD hrs Tuesday 30 August 4pm – 5.30pm Presenters Jenni McManus, journalist and LawNews editor; Brenda Newth, PR consultant and Samira Taghavi, barrister and practice manager, AM Legal
Have you ever had a microphone shoved in your face when entering or emerging from court? If you were asked for an ‘off the record’ comment, how would you react? What is the effect of an embargo? Chair Marie Dyhrberg QC
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Choosing a business structure
Livestream 2 CPD hrs Wednesday 31 August 4pm – 6pm Presenters Bevan Miles, partner, Chapman Tripp (tax); and Greer Fredricson, special counsel, Chapman Tripp (corporate and commercial)
Knowing your clients’ business needs, coupled with a good understanding of the legal and tax features of common business structures, are key to advising clients on the best structure for their business. This seminar looks at a range of common options.
Chair Andrew Lewis, principal, Andrew Lewis Law
TAX BUSINESS ADVICE
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CPD IN BRIEF
SCA (NZ) Unit titles conference
Leading your career
In Person | Livestream 4 CPD hrs Thursday 8 September 12.30pm – 5pm Presenters and panellists Vicki Toan; Paula Beaton; Julie McLean; Joanna Pidgeon; Christine Cechova; Ben Thomson and Tim Jones
Join us in person or via livestream for this ADLS/SCA (NZ) half-day conference. Hear from a range of experienced and engaging presenters and panellists on key topics including intensification, case law, wellness, and the Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Act.
Wellington workshop 8 CPD hrs Tuesday 13 September 8.45am – 5pm Facilitators Miriam Dean QC and Liz Riversdale, Catapult
This practical, interactive one-day workshop, led by one of New Zealand’s top QCs and one of New Zealand’s senior leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career.
Chairs: Liza Fry-Irvine, director, Liza Fry-Irvine Law and Thomas Gibbons, principal, Thomas Gibbons Law IN PERSON
LIVESTREAM
Places are limited. Register now to avoid missing out.
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New Incorporated Societies Act
Livestream | In Person 2 CPD hrs Tuesday 27 September 4pm – 6.15pm Presenters Mark von Dadelszen, barrister and Joanna Pidgeon, director, Pidgeon Judd
This seminar will provide an update on the new Incorporated Societies Act 2022 and will include practical scenarios from those at the coalface.
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Effectiveness in the ERA
In Person | Livestream 2 CPD hrs Thursday 29 September 4pm – 6.15pm Presenters Vicki Campbell; James Crichton; Anthony Drake and Jenni-Maree Trotman
Practical insights and advice on effectively representing your client in the Employment Relations Authority and tips on the advocacy skills needed to get the best outcome.
IN PERSON
‘Court’ by Forensics Workshop Saturday 20 August | Albany, Auckland | 4 CPD hours Visit adls.org.nz for more information.
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LIVESTREAM
Jul 22, 2022 Issue 24
Continued from page 08
Paying a bit extra for flexible or refundable flights, accommodation or activities can ensure that where plans are delayed or cancelled due to covid-19, any financial loss is kept to a minimum
received an approved vaccine at the specified dosage and consistently with New Zealand government recommendations, including boosters.
To some places Even for the fully vaccinated traveller, cover for covid-19 expenses is not necessarily a given. Most travel insurance policies provide covid-19 benefits only if the policyholder is travelling to a destination with a SafeTravel travel advisory level of 1 or 2 (low to moderate risk). Cover will be denied to destinations with a higher travel advisory level under most policies. This appears to be the case even if the policyholder tests positive before their journey and is unable to travel, so the high-risk nature of the destination would have made no difference.
With the constantly evolving covid-19 landscape, travellers should be prepared and the right travel insurance policy can eliminate or significantly reduce major expenses.
Shop around Worth the hassle?
All travel insurance policies are different. It is important for travellers to shop around to find the deal that provides maximum coverage. For those planning a family holiday, finding a policy with highest possible cover limit will be essential to cover multiple flights and higher accommodation fees.
With travel insurance being limited for covid-19 expenses, some travellers may question its necessity. We strongly recommend that all travellers obtain the most comprehensive travel insurance policy they can afford.
When considering different policies, travellers should check carefully to determine exactly what they cover. They should make sure they understand who will be covered in the event of delayed or cancelled travel and read the exclusions carefully.
Plan carefully Planning holidays in advance increases the time travellers have to research and purchase appropriate travel insurance and ensure they are complying with the requirements for cover. This includes making sure all policyholders meet vaccination requirements. It is also essential to purchase travel insurance well in advance – often at least 21 days before travelling – to ensure covid-19 cover requirements are met. Where possible, paying a bit extra for flexible or refundable flights, accommodation or activities can ensure that where plans are delayed or cancelled due to covid-19, any financial loss is kept to a minimum. Preparation is more important than ever to prevent a financial headache and the stress of being uninsured for a loss and allow travellers to enjoy their travel without worrying about covid-19. ■ Andrew Horne is a partner at MinterEllisonRuddWatts ■
ADLS committee membership applications now open for 2022-2024 ADLS invites you to apply now for a seat on one of our committees and become a part of the legal profession’s proud history of giving back to the law.
ADLS committees ■ AML/CFT ■ Continuing Professional Development ■ Criminal Law ■ Documents & Precedents ■ Employment Law ■ Environment & Resource Management Law ■ Family Law ■ Health & Safety Law
■ ■ ■ ■ ■ ■ ■ ■
Immigration & Refugee Law Members Special Fund Mental Health and Disability Newly Suited Parole Property Disputes Property Law Technology & Law
Click to find out more 15
SOLD
Local Government Law in Aotearoa New Zealand, 2nd edition
Profitable Boutique Law Firm $495,000
SOLD
Highly Profitable Law Firm $410,000
Author Kenneth Palmer Local Government Law in Aotearoa New Zealand is Kenneth Palmer’s fourth treatise on the law relating to local government and local authorities. The previous treatises, published in 1978 and 1993 respectively, were highly regarded in their field, and the first edition of this title was published as Local Authorities Law in New Zealand in 2012. The new edition deals with all aspects of the law affecting local authorities, providing a complete statement and analysis of the current law and changes that have occurred since the previous edition. Price for ADLS members $193.50 plus GST* Price $215.00 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz * + Postage and packaging
Trevor J Shiels QC, FAMINZ (Arb), T.E.P Barrister and Arbitrator I have practised as a barrister based in Dunedin for nearly three decades, having previously been a partner in a general practice firm. I have now also joined Eldon Chambers in Auckland and I am available for instructions nationwide for advice and representation in civil disputes and proceedings, including in particular: • Real property disputes including sales and purchases, leases, caveat proceedings and Property Law Act matters, • Estates and trusts, • Relationship property, • Contractual disputes. I am an experienced arbitrator and a member of the AMINZ Arbitration Panel and I accept appointment as an arbitrator nationwide. Contact details: Website: trevorshiels.co.nz
Email: office@trevorshiels.co.nz Mobile: +64 21 936119
DUNEDIN Ten George Chambers L2, Burns House,10 George Street Dunedin +64 3 477 4030
AUCKLAND Eldon Chambers Level 3, 9 High Street Auckland CBD +64 9 300 7477 Photo courtesy of ODT
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If you are looking for a fresh start and are curious about the value of your business call me today for a confidential discussion. JD Hyslop 021 377 569 jd.hyslop@linkbusiness.co.nz
0800 546 528
LINKBUSINESS.CO.NZ
WILL INQUIRIES 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. LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140
ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726
( 09) 303 5270
EDEN Norman Andrew
MENTZER Mark
• Late of 8 Lowell Place Massey, Auckland • Married • Project manager • Aged 78 years / Died 17’03’22
• Late of 18B Centennial Drive, Whitianga • De facto • Teacher • Aged 63 / Died 23’05’22
LIU Donghan
NICHOLAS Albert Kaitara
• Late of 3 Bosna Place, East Tamaki, Auckland • Married • Retired • Aged 86 years / Died 30’06’22
• Late of Auckland • Aged 72 / Died 27’04’21
All LINK Offices Are Licenced REA08
Are you considering selling your Law Firm in 2022?
NEW TITLE
Jul 22, 2022 Issue 24
3.5 CPD HOURS
The Art of Will Drafting: Complex Wills Workshop Tuesday 23 August | 9am - 12.45pm | Workshop | Rydges, Auckland Led by two facilitators immersed in wills and asset planning and known for their practical aproach, this workshop will give you the confidence to deliver real value to your clients.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
2 CPD HOURS
Being Effective in the Employment Relations Authority Thursday 29 September | 4pm - 6.15pm | In Person, Auckland | Livestream This seminar will provide practical insights and advice on effectively representing your client in the Employment Relations Authority and tips on the advocacy skills necessary to obtain the best outcome for them.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
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