LawNews Issue - 27

THIS WEEK’S ARTICLES

Issue 27 14 Aug 2020

Getting your civil judgment enforced p1

Joanna Pidgeon reflects on her father, Colin Pidgeon QC p3

Tips and tricks for your first law job p11

LawNews adls.org.nz

CIVIL LITIGATION

How to get civil judgments and other debts enforced

By Diana Clement

You’ve been to trial and you’ve won your case. But short of calling in the knee-cappers, how do you and your client enforce the court’s judgment? Expect a sigh when asking lawyers how they get defendants to pay up.

“In the end it depends on what assets they have,” says Joanna Pidgeon, a partner at Pidgeon Law and past president of ADLS. “It’s something you take into account before you even file proceedings.”

If your judgment is against a company, the fastest and easiest way to enforce it is a statutory demand, under s 289 of the Companies Act. “If they don’t pay within three weeks, you can commence liquidation proceedings. That is like a death sentence for the company,” says Steele, who is convenor of ADLS’ Civil Litigation Committee.

There are other avenues to attack companies, but nothing beats a statutory demand. “If they have any assets, the directors will be very concerned about reading that document. It will force them to come to the table.”

The power of the threat Going in like Wyatt Earp and starting shooting isn’t always the best method, says Steele. You may not actually want to bankrupt the individual or put the company into liquidation. “You have to be careful not to kill the golden goose by bankrupting it.”

Sometimes just the threat of bankruptcy or liquidation is better than actual doing it, Steele says. “When you want to get money out of people, you normally go for the toughest approach.

Bankrupting them, or liquidation, is not your goal because it doesn’t often produce money.

© Chudtsankov | Dreamstime.com

The client doesn’t do it to line the lawyer’s pocket, adds Martelli McKegg partner Andrew Steele. “If [the unsuccessful party] is all trusted up, then a judgment is pointless. It happens all the time.”

The Wyatt Earp approach to debt recovery is probably not the best way to go

You have to be careful not to kill the golden goose by bankrupting it “If anyone thinks that company needs saving, they will negotiate with you. It’s the same for individuals.

Bankruptcy against you is a serious threat. It lasts for three years. It will ruin your chances of getting credit from the bank. It will impede your being a director of a company. If you try to do those things on the sly and get caught, you can end up in jail. It’s pretty serious. Very draconian.”

Often that threat will lead to the person or company beginning to pay the debt by instalments.

“There is no point in crippling them financially. But if you can get paid off over time, it is better than bankrupting them and getting nothing.”

No money If the defendant doesn’t appear to have the money to pay, you can apply for an order for examination in the High Court or District Court. “Then the registrar can springboard off that and make various other applications to grab those assets,” Steele says.

A warrant to seize enables a bailiff to take and sell property belonging to the debtor. If the debtor has no obvious assets but has a job or a benefit, attachment orders can be placed against their income.

Continued on page 2

CIVIL LITIGATION

How to get civil judgments and other debts enforced

Joanna Pidgeon

Andrew Steele

Emma Butcher

Continued from page 1

Going in like Wyatt Earp and starting shooting isn’t always the best method

There are many different scenarios but typically the plaintiff might be better to wait for the first or second liquidator’s report to determine if there are any funds to pursue. “A lot of the time the company won’t have anything worth pursuing, relative to the costs involved in recovery. If there are assets, the recovery can be more straightforward.

they can be arrested, Steele says. “If you can satisfy a District Court judge that someone is leaving the country without paying their creditors, you can have them arrested and kept in court until their assets are secured to meet those debts.” Steele has defended a client in that situation.

“It is more common that there won’t be anything for them or very little, and unfortunately it falls to those creditors who have the financial means to pursue matters, to explore the more challenging ways to get money out of a company. That might involve, for example, a claim via the directors. The cost of legal fees, and the unknowns about likely recovery, can make that option unattractive.”

You can’t, however, get blood out of a stone.

Pidgeon cites a client who had advanced money to a company secured by a GSA (general services agreement) with a personal guarantee from the director. The business failed.

The guarantor had substantial assets held in trusts, including several properties in desirable Auckland suburbs. Summary judgment was granted in the client’s favour, but the director was adjudicated bankrupt the morning of the judgment, Pidgeon says. The guarantor chose bankruptcy rather than arranging for his trusts to advance funds to repay the debt.

Divestment and trusts Sometimes defendants straight-out attempt to hide their assets. “Everyone has heard of bankrupts who hid all their personal assets in a garage or a container to avoid the Official Assignee,” says Steele. “Unless there is a record of something you own, you can hide it.”

It’s not unusual, he says, for defendants who see the writing on the wall to think, “Oh well, I’ll set up a trust and transfer assets into it”.

Divestments made within two years [of a judgment] can be overturned by the Official Assignee. And the Official Assignee can call up loans related to that divestment.

If the person makes moves to skip the country,

System faults It’s not a perfect system, says Steele. “The Official Assignee’s staff are underpaid, overworked and overwhelmed. If you expect them to be like Sherlock Holmes in hunting down the assets in one of the thousands of bankruptcies they have to deal with, you can think again. It’s not going to happen.”

Steele argues that the trust issue is something legislators need to look at. “They have looked at it to a degree by the avoidance of gifting in the Insolvency Act and the ability to set aside property transfers in the Property Law Act, but I don’t think it goes far enough.”

Unsecured creditors Angela Hansen, a partner at Heimsath Alexander, says it becomes even more difficult for unsecured creditors to recover after a liquidation.

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The gravy train Anyone who follows the Employment Relations Authority (ERA) and Employment Court or reads newspapers will see what look like fabulous awards made against employers. But do the hard-done-by workers ever see the money?

ERA decisions usually result in payment, says Emma Butcher, partner at LangtonHudsonButcher.

“Employers in the ERA know it isn’t going to cost the applicant a lot to get a compliance order and that could be accompanied by a stiff penalty for non-compliance. There is a fast-track mechanism in place to punish employers who do not comply with a determination.”

Continued on page 4

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OBITUARY

Former ADLS President Colin Pidgeon QC dies Former ADLS President Joanna Pidgeon reflects on the career of her father, Colin Pidgeon QC, who died this week at the age of 81. Colin was ADLS President from 1985 to 1986.

Colin Pidgeon was born in Wanganui on 19 March 1939, the son of a railway stationmaster.

After an itinerant childhood following his father’s railway postings, he attended Auckland Grammar and Auckland University, being the first person in his family to attend university. He was inspired to become a lawyer by reading a biography on barrister FE Smith, the 1st Earl of Birkenhead.

At that time, law degrees were part-time with lectures early in the morning and late in the evenings and students were encouraged to work in between those hours.

Colin didn’t know where to get a job at first but his uncle knew a solicitor at Hesketh & Richmond (founded in 1860) who took Colin in as a law clerk for £4 a week.

In 1957, Colin began his master’s in law. His thesis was centred on the Occupiers’ Liability Act, and Professor Davis encouraged him to have it published as a book.

He originally worked in general practice and then began to specialise in litigation and was appointed a partner at Hesketh & Richmond.

He went to the independent bar in 1983, was ADLS President from 1985 to 1986, was appointed a QC in 1985 and was Vice President of NZLS. In 1990, Colin was awarded a commemoration medal for services to the law during the 150th anniversary of the signing of the Treaty of Waitangi. He became the senior Queen’s Counsel before ill health forced his retirement.

He was married to Judith and had six children – David, Joanna, Philippa, Richard, Sarah and Virginia (four of whom have completed law degrees) and has eight grandchildren and four step-grandchildren. Colin has always been very proud of his family’s academic, sporting and cultural achievements, with two daughters furthering ballet careers in Europe.

He has acted in a wide range of cases from the Milan Brych and Winebox inquiries to electoral challenges and cases for parties across the political spectrum. He also acted for the family

Judith and Colin Pidgeon, late 1990s

He was always a friend to lawyers, kind, encouraging and helping them with disciplinary matters and defending judges when subject to inappropriate criticism

of 17-year-old courier driver Halatau Naitoko, accidentally shot dead by police on the Northwestern motorway in Auckland in November 2009 during an armed standoff with another man.

Colin assisted both the Anglican and Presbyterian churches in many matters. He was always concerned about work/life balance for lawyers and about access to justice, taking on many pro bono or legal aid matters. He also appeared in court in Fiji, dealing with cases where lawyers faced political persecution. He was always a friend to lawyers, kind, encouraging and helping them with disciplinary matters and defending judges when subject to inappropriate criticism.

Judith and Colin Pidgeon, 2007

Colin, Judith and Joanna Pidgeon, 2019

Colin was frequently asked by the Family Court to assist in difficult cases relating to mental health and was frequently involved in arbitrations and mediations, becoming a Fellow of the Arbitrators’ and Mediators’ Institute.

Colin suffered a heart attack at age 48 which impacted on his health and later suffered from diabetes and malignant melanomas in his foot, leading to multiple surgeries. His defibrillator revived him many times.

With a third of his heart dead and his heart operating at 24% of function, he continued to practise law for another 30 years. Colin will be a greatly missed by his family, friends, clients and the profession.

Due to Covid-19 restrictions, funeral details have yet to be finalised.

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Continued from pages 1, 2 Employment Court judgments can be more difficult for individual litigants to enforce, says Butcher, especially if they are out of work and without the funds to pursue the matter.

The judgments are enforced typically through the District or High Court in the same way as other civil judgments. “The extra money it takes to enforce the judgment is sometimes out of reach,” Butcher says.

Many plaintiffs can’t afford $300-plus an hour plus gst to employ a lawyer. So, they will sometimes seek support from third-party organisations such as unions, or workers advocates, or collections agencies.

One such workers’ advocate is Nathan Santesso, a non-practising lawyer. He says migrant workers in particular have difficulty enforcing judgments. In fact he hasn’t seen a case at the ERA level where the migrant’s employer has ever paid up voluntarily.

Santesso uses a range of tactics to get settlements. That might involve diplomacy or he might employ a mediator. Even where the employer goes overseas, Santesso continues to pursue them.

He may serve documents on relatives here in New Zealand if he doesn’t have a forwarding address or by email if the authority in question accepts that as a means of substituted service.

“I did have a case in the authority [ERA] where the guy left and went to Africa. I think he will want to come back to New Zealand. That is why he moved his family here. He wants a normal life and doesn’t want to have this following him around.”

Another tactic may be to wave Employment New Zealand’s stand-down report at an errant employer.

The list of non-compliant employers is maintained by the Labour Inspectorate. Employers on the list are barred from employing migrant labour.

ERA decisions can be enforced in the District Court if the employer won’t pay. Santesso took a less-common route when he encouraged Filipino bakery worker Josue Domingo to escalate his dispute to the Employment Court after the defendants Meng Suon and Ngan Heng (t/a Town

and Country Food) took no steps to comply with the ERA’s compliance order to pay $8,000.

Santesso filed in the Employment Court for a breach of a compliance order, seeking a fine. The idea was to scare the employer with the thread of

The Official Assignee’s staff are underpaid, overworked and overwhelmed. If you expect them to be like Sherlock Holmes in hunting down the assets in one of the thousands of bankruptcies they have to deal with, you can think again. It’s not going to happen property seizure.

Section 140(6) of the Employment Relations Act 2000 empowers the court to impose a range of sanctions: a fine, sequestration and/ or imprisonment in the case of a breach of compliance order. The more frightening penalties in the Employment Court worked on the employer in Domingo’s case.

Santesso may also encourage his clients to go after the employer’s personal assets. Prior to the employment law shake-up of 2016, companies were often liquidated by their directors to avoid the payments, says Santesso.

In Brahmbhatt​, Gediya​, Singh and Dhamija​v NZ Clean Master 2013 Limited the company was

ordered to pay a penalty of $20,000. Its director Huumika Kohli was hit personally with a $10,000 penalty under s 134(2) of the Act for aiding and abetting breaches of the applicants’ employment agreements.

Residential tenancies Tenancy Tribunal orders can be especially hard for landlords to enforce. “Typically, you have to enforce [the order] for about 90% of the time,” says Cody Knight, a director of C.I.A. Collections, a company used by many landlords.

The most common method of enforcement is by way of attachment order, says Knight. That enables an employer or Work & Income to transfer money from the debtor’s wages or benefit to the landlord.

Another option, as with all civil debts, is garnishee proceedings to collect the money from the tenant.

Often, however, landlords are paid off at $5 a week and if the former tenant loses his or her job or moves on or off a benefit, the process stops.

Calling the Mongrel Mob Lawyers need to be careful about not going too far in enforcing judgment. Calling in the Mongrel Mob is generally not an option.

“As lawyers, we are really obliged to refer only to proper methods available to enforce judgments,” says Steele. “We are supposed to uphold the rule of law. I know that sounds quaint and rather sugary-sweet. But the reality is if you don’t, the rule of law starts to unravel and it becomes like the Wild West.”

He adds: “Another common thing you see, and younger lawyers do it when they are a bit naïve, is threaten disclosure of something unsavoury such as not paying tax or cheating the benefits system, in order to coerce the person who owes them money to pay up.

“Lawyers sometimes fall into that trap. But it’s blackmail and it’s no better than sending the Mongrel Mob around, to be honest.”

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LawNews Issue 27 | 14 Aug 2020

TRUST LAW

New tax rules for beneficiaries as settlors

By Vicki Ammundsen

This means beneficiaries could become liable for income tax in the limited circumstances that apply under s HC 29 if there is no resident trustee.

Beneficiary current accounts represent an amount owing to beneficiaries of a trust.

As noted in the officials’ report that accompanied the introduction of the minor beneficiary rule:

While these circumstances will not commonly arise, more relevant for many beneficiaries will be that their status as settlor will need to be taken into consideration when calculating family scheme income for Working for Families tax credits and student loan repayments. This is because trust income will be taken into consideration for these purposes where a beneficiary is a settlor of a trust for income tax purposes.

The purpose of the proposed minor beneficiary rule is to limit the ability of some families to gain a tax advantage by meeting expenses of the children through the use of a trust.

A further amendment to s HC 27(6) has been introduced by the Taxation (Annual Rates for 2020–21, Feasibility Expenditure, and Remedial Matters) Bill.

Parents generally meet the expenses of their children from their after-tax income. However, by settling income-earning assets on a trust and distributing the income to the children, these expenses can be met from income taxed at the marginal tax rates of the children.

This will introduce a new section HC 27(2)(bb) to clarify that a beneficiary who is owed money by a trust will always become a settlor if he or she does not meet the requirements of subsection (6) – ie, a beneficiary owed more than $25,000 on which interest has not been paid at the prescribed rate or market rate.

Prior to the introduction of the minor beneficiary rule it was not uncommon to pay income to a minor beneficiary so trustees could take advantage of a minor beneficiary’s lower tax rate.

Thus, where the parents’ marginal tax rate is 33% or 39% and that of the children is 19.5%, income that would otherwise be taxable to the parents at the higher rate becomes taxable to the children at the lower rate.

Whilst this income is legally that of the child, it is unlikely in these cases that the children are actually determining how the funds are spent. In fact, the income distribution is likely to take the form of payment of school fees or expenses, rather than a cash distribution.

The limitation of the rule to minors under 16 years recognises that above that age it is increasingly likely that beneficiary income is not, in fact, used to meet family expenses.

For example, Inland Revenue records show that in the 1999 income year, about 3000 children under the age of six received beneficiary income exceeding $21 million in total.

This is an average of $7,000 income for each child under the age of six and excludes interest and dividend income distributed by trusts.

Subsequently payments to minors were less attractive from a tax perspective. However, that does not mean existing current accounts were

Vicki Ammundsen

By way of background, this is how it is set out in the commentary on the bill:

necessarily paid out, or that current accounts do not arise for other reasons.

Where beneficiaries (whether minors or adults) have current accounts, these need to be assessed in light of disclosure obligations under the Trusts Act 2019 as many trustees confront the presumption that will apply from 30 January 2021 when it comes to giving basic trust information to beneficiaries.

More grounded in the present is the recent amendment to s HC 27(6) of the Income Tax Act (Who is a settlor?).

This provides that a beneficiary who has a current account will be a settlor of a trust for tax purposes if the amount of the beneficiary’s current account is more than $25,000 and the trustee is not paying interest on the amount at a rate equal to the prescribed rate of interest (the FBT rate) or the market rate, which will likely be less than the prescribed rate.

It was always intended that beneficiaries owed more than $25,000 on which interest has not been paid would become settlors of the trust. However, a beneficiary owed more than $25,000 on which interest has not been paid may not become a settlor if they do not have sufficient knowledge of the amount they are owed or how it is being used by the trustee.

While the Commissioner of Inland Revenue can determine the amount owed to a beneficiary and whether interest is being paid, it can be difficult for the commissioner to ascertain the beneficiary’s level of knowledge.

Therefore, the bill proposes to amend the definition of a settlor so that a beneficiary owed more than $25,000 by the trustee on which adequate interest has not been paid, is deemed to be a settlor of a trust, regardless of their level of knowledge.

Vicki Ammundsen is the director of Vicki Ammundsen Trust Law. The assistance of barrister John Hart with this article is acknowledged

Own this space Get your product or service in front of nearly 6000 lawyers, judges, politicians and academics who subscribe to LawNews each 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

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ADLS committee convenor

Fletcher Pilditch: The changing of the guard Fletcher Pilditch is retiring as convenor of the ADLS Health and Safety Law Committee, handing over the reins to committee member Brett Harris.

As part of our series on ADLS committee convenors, Brenda Newth spoke with Fletcher about his work with the committee prior to the Covid-19 lockdown.

Where do you work, what’s your role?

I am a barrister at Richmond Chambers, a collection of barristers with a range of specialities.

Where did you study?

Victoria, University of Wellington where I completed a BA/LLB. How long have you been a member of ADLS? I joined ADLS when I became a member of the independent bar in 2014 and was working in Auckland. Prior to that I had been working in other parts of New Zealand.

How long have you been involved with ADLS committees and which committees have you worked with?

I became involved with committee work in the lead-up to the introduction of the Health and Safety at Work Act, around 2015.

With the new legislation, its importance and potential impact, ADLS had considered supporting this practice area with a committee and I came on board as the convener of the Health and Safety Law committee.

Why is committee work important?

From my perspective, two main reasons. CLE – continuing legal education – especially for a new piece of legislation.

And being able to contribute to educate on the implications of the legislation while it is bedding in is important. It’s more about education than advising on policy change at this stage, although this will change as the legislation gets more longevity.

We were formed around a new piece of legislation and educating members is our focus for now. I imagine our committee will have a big role to play in any future policy changes, just like other ADLS committees.

How do ADLS committees make a difference?

By keeping the membership up-to-date and informed, and through ongoing dialogue with the judiciary.

In particular we have had some influence with the Chief District Court Judge on how cases are dealt with by the court. That has been very productive.

Fletcher Pilditch

Good health and safety practice is all about creating a culture of health and safety rather than just box-ticking practitioners because it is broader than that. It has far-reaching implications.

What would you say to anyone thinking of becoming involved in an ADLS committee?

I’d encourage them to do it. Committee work is an opportunity to contribute to the profession, and to work alongside great lawyers and practitioners.

It’s an excellent way of staying informed and keeping your thinking up-to-date.

You also develop relationships with people you can go to for advice and, of course, it is an excellent way to network in your practice area.

What’s the biggest issue facing your practice area at the moment? And how does that affect lawyers and their clients?

The biggest issue is the legislation itself, the shift it represents and the consequences of failing to comply.

It’s a law with much broader application and far-reaching consequences. Our role is to help clients to navigate it, to proactively manage health and safety and to help them when things go wrong.

Health and safety law cases can be complex so we are advising on how they can be managed through the court system.

A lot of businesses have stepped up and embraced health and safety but with such a spread of business sizes in New Zealand, their responses have all been different.

Since we started that dialogue, and with our assistance, the court has developed a triage system that identifies the level of complexity and, therefore, the amount of time that should be allowed for the case.

Good health and safety practice is all about creating a culture of health and safety rather than just box-ticking. Cultural change takes time. It’s a much deeper issue and is a work in progress.

That’s a big change and means complex cases get the time they need to be heard properly and fairly.

There continue to be workplace incidents, despite the passing of this legislation.

What’s been the most notable achievement or biggest focus of your committee in the past few years? Why was that important?

It’s all related to the new legislation. This is important because it’s a vehicle for training.

What’s the best-kept secret about ADLS? The sausage rolls, for sure!

We’ve tried to make sure our CLE is not directed just at health and safety 6

To find out more about ADLS committees, contact Melissa Fini: e: melissa.fini@adls.org.nz

LawNews Issue 27 | 14 Aug 2020

ADLS EVENTS

South Auckland lawyers’ lunch ADLS has resumed its Auckland lunch series – first stop in South Auckland on Tuesday 4 August, where a great turnout of local practitioners enjoyed lunch on MELBA Manukau’s sunny patio.

See our website, or email events@adls.org.nz, for upcoming lunches in your area.

Special mention to the lunch’s sponsor Officemax: thank you for your ongoing support.

Krishneel Prasad, Amrita Maan, Ann Siriett and David Matthews

Rachel Peeters and Brooke Glasgow

Grant Cawley and Anna Fuiava

Correction In last week’s LawNews, a photo from the Hamilton lawyers’ lunch of Jamelle Keatley was miscaptioned as Tyler-Rose Keatley. We regret the error and apologies to both.

Richard Lyttelton, Gael Goulter, Petrina Siliva and Melissa Johnston

Rotorua Lawyers’ Lunch Thursday 10 September 2020 | 12.30 pm - 2.00 pm The Regent Room | 1191 Pukaki Street | Rotorua Meet and network with practitioners in your area

Learn more

Proudly sponsored by

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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 Climate Change Series (2): Key Considerations for Property and Resource Management Lawyers — FINAL NOTICE In this session the presenters look at how climate change is affecting property investment decisions, the management of real estate assets and how tenant needs are changing. This will be followed by an analysis of the recent changes to the Resource Management Act, which will now allow the effects on climate change to be taken into account in land development, consenting and planning decisions. The property and resource management strains will be woven together by assessing how climate change, at a practical level, is affecting property values and how the Resource Management Act has to date grappled with matters such as sea level rise.

Learning outcomes: •

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Gain an appreciation of the speed with which climate risk is changing, and how this impacts legal and financial considerations.

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Get to grips with changes to the Resource Management Act 1991, which now require greater consideration of climate change. Understand how this can affect planning and consenting requirements for clients and their assets.

More Teams for Lawyers — FINAL NOTICE This session will cover how legal professionals can collaborate through the Teams and Channels features of Microsoft Teams and how they can share files and content. The session will also cover how to add additional apps into Teams and make some suggestions around which apps might be useful in a Legal Office.

Learning outcomes: • Understand the role that Microsoft Teams can play in your workday beyond voice calls and meetings.

• Learn the difference between using Chat and Teams/Channels.

• Manage who has access to Teams and Channels – invite, add and remove users.

• Invite external collaborators to Teams and Channels.

• Share files and collaborate on documents.

• Search – and find stuff.

• Add additional tabs into Teams and learn about their benefits.

• Learn how to add further apps into Teams, and which ones might benefit a Legal Office.

As an added bonus, you will receive a free 20-minute video on a beginner’s guide to using MS Teams.

Climate Change Series (3): Key Considerations for Corporate & Commercial and Banking & Finance Lawyers With an eye on where climate change or emissions trading scheme (ETS) issues might arise, or where sustainable finance can play a role, the third session of this series will focus on what corporate & commercial lawyers, and banking & finance lawyers need to know about carbon law matters. The presenters will provide an overview of the ETS, and will provide insights around which types of clients may be affected by the ETS and wider carbon issues, and how they may be impacted. The session will also include consideration of infrastructure and the role of sustainable finance in helping to capitalise the transition towards a net zero position. Relatable case studies will assist attendees to recognise where climate change-related input is required.

Learning outcomes: •

• •

•

•

•

•

Consolidate your understanding of the emission trading scheme (ETS): what it is, who it affects, and how it’s changing.

Become aware of where climate change or ETS issues might arise for your clients.

Benefit from case studies on a range of industries, which will highlight the climate change input (issues and risks) in relation to common corporate transactions.

In respect of commercial agreements/arrangements, become apprised of the nature and flavour of advice required, such as the passing-on of carbon liabilities and carbon costs.

Become aware of what sustainable finance is and its role in capitalising the transition towards a net zero carbon economy.

Become aware of the legal considerations to take into account when assisting your clients with sustainable finance matters.

Gain insights into what’s ahead, and what that means for advising clients, as we move towards net zero.

Openings and Closings in Criminal Trials

Livestream CPD 1.5 hrs

 Mon, 17 Aug 4pm – 5.30pm

 Presenters Sarah Blackmore, Special Counsel, Russell McVeagh Patrick Senior, Senior Solicitor, Russell McVeagh Belinda Storey, Managing Director, Climate Sigma

 Chair Elise Markwick, Partner, Martelli McKegg

 Webinar CPD 1 hr

 Wed, 19 Aug 12pm – 1pm

 Presenter Carlene O’Meagher

Livestream CPD 1.5 hrs

 Mon, 24 Aug 4pm – 5.30pm

 Presenters Simon Watt, Partner, Bell Gully Kate Redgewell, Consultant, Bell Gully Joanna Silver, Head of Sustainable Finance, Corporate & Institutional Banking, Westpac

Livestream

In Person | Livestream Focusing on effective preparation and presentation of opening and closing addresses from both a prosecution and defence perspective, this seminar will also cover content, structure, applicable principles, and best-practice approach.

 Seminar

Learning outcomes:

4pm – 6.15pm

• • •

 Presenters

Receive guidance on how to effectively prepare and present an opening statement.

Gain valuable pointers on how to effectively prepare and present a closing statement.

Learn more about the content and structure of openings and closings.

CPD 2 hrs

 Tue, 25 Aug Marie Dyhrberg QC Aaron Perkins QC

 Chair The Honourable Justice Moore 8

LawNews Issue 27 | 14 Aug 2020

CPD in Brief Contempt and Recusal: New Legislation, Old Saws

Livestream

In Person | Livestream Covering two topics of importance for all litigators, this seminar will provide a refresher and updater on contempt of court and judicial recusal.

When the Contempt of Court Act 2019 comes into force on 26 August, familiarity with it will be desirable for all litigators, particularly those who practise in Criminal law. The potential for contempt – and the need for lawyers to deal with potential contempt issues – will increase.

In a country the size of Aotearoa, the need for judicial recusal would seem to be great – but proper procedures and various guidelines exist, and the threshold for recusal is high. When is – and isn’t – applying for recusal appropriate?

Presenter: Robert Stewart, Barrister, Shortland Chambers Chair & Commentator: The Honourable Kit Toogood QC

Future Fit Workshop

As we find ourselves adjusting to the new normal after Lockdown, we are being ever more stretched to meet the expectations of our organizations, customers, and to keep our teams engaged.

Being Future Fit has evolved as a new paradigm, designed to help you and your team move from a state of panic to thriving.

Attendees will also have post Workshop access to Jumpshift’s Adeption Platform to further support their learning and achievement of their goals.

Numbers are strictly limited so book now.

Facilitator: Jimmy Burroughes, Leadership Sounding Board and Coach, Jumpshift

The Art of Communication – Be a Powerful Advocate How often have you heard that communication is key? And how often have you thought (to your or your client’s chagrin and possibly disadvantage) that you should have slowed down when making an address, used more eye contact, and/or come across as more confident? Led by an experienced advocate (and media spokesperson) and an accomplished teacher/director, this workshop will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak.

This workshop sold out in 2018 and 2019 – register now to avoid missing out. Feedback from the previous sessions included the following comments: • “Interesting, lively workshop – well presented.”

• “Great anecdotes, relevant stories and examples.”

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

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

Climate Change Series (4): Dispute Resolution Trends and Insights

 Seminar CPD 1.5 hrs

 Thu, 27 Aug 4pm – 5.30pm

 Workshop CPD 2 hrs

 Wed, 2 Sep 10am – 12.15pm

 Workshop CPD 3 hrs

 Sat, 5 Sep 9am – 12.15pm

Livestream

This fourth session in the series will provide an overview of trends and insights in domestic and international climate change dispute resolution. Presenters Jenny Cooper QC, Daniel Kalderimis and Nicola Swan will cover international and domestic climate change-related litigation and arbitration brought to date against governments and corporate entities, including claims in judicial review, tort, corporate and commercial law, and Treaty-based and indigenous rights; regulatory actions and investigations regarding climate change; and climate change-related commercial and investor-state arbitration.

Presenters: Jenny Cooper QC; Daniel Kalderimis, Partner, Chapman Tripp; Nicola Swan, Senior Associate, Chapman Tripp

CPD 1.5 hrs

 Mon, 7 Sep 4pm – 5.30pm

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.

Contempt and Recusal: New Legislation, Old Saws Thursday 27 August | 4:00 pm - 5.30 pm | 1.5 CPD hours Visit adls.org.nz for more information.

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T H E H I GH S & L O WS O F CA N NA B IS L AW R E FOR M A P a ne l Dis cu ssion

Join us for a panel discussion on cannabis law reform in New Zealand in light of the Cannabis Referendum in the General Election 2020. Refreshments will follow the event.

OUR SPEAKERS Associate Professor Khylee Quince Auckland University of Technology, NZ Drug Foundation

James Farmer QC Queen's Counsel, Barrister, Academic

Dr Marta Rychert SHORE & Whariki Research Centre, Massey University

Associate Professor Chris Wilkins SHORE & Whariki Research Centre, Massey University

Moderator : Professor Mark Henaghan University of Auckland

Date Time Venue

Thursday, 20th August 6:30-8:30pm Lecture Theatre 401-401 (University of Auckland, Engineering Building, 20 Symonds Street)

RSVP to our Facebook Event or to access@equaljusticeproject.co.nz

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LawNews Issue 27 | 14 Aug 2020

ADLS COMMITTEES

Tips and tricks for your first year in practice QUESTION Dear Newly Suited Committee I am due to be admitted later this year and have a graduate position secured with a city firm. I have not previously worked in a law firm and am a little anxious about starting work as I am not sure what to expect.

What is life as a newly-suited lawyer like during the first few years? Is there anything I should be aware of or be prepared for?

© Lhfgraphics | Dreamstime.com

#notwantingtoputafootwrong

ANSWER Dear #notwantingtoputafootwrong Congratulations on your upcoming admission into the legal profession and for securing a graduate role. Transitioning from study to any form of employment can be daunting, especially in the legal sector.

Here at the Newly Suited Committee, we are in our first 10 years of practice and we all have our share of fond memories and stories of stressful times during our first few years.

Hopefully the lessons we have learnt will help you to prepare you for what is to come.

Be prepared to work hard: You will put in more hours during your first year than you anticipate. It may sometimes feel overwhelming and you may have to sacrifice your social life to get the job done. But this is part and parcel of being a solicitor and meeting your clients’ deadlines.

There may be days when you feel you are rushing around like a headless chicken and that is perfectly normal. If you are prepared, plan your days, and seek help from your peers and partners it will all fall into place.

Embrace technology: Technology has given us an advantage over previous generations of practitioners. To us, it is part of everyday life and can assist you immensely in your working day. Use your dictaphone (if applicable), Microsoft Teams, Zoom and your laptop. It will enable you to work from home (if you can) and have full access to your firm’s database.

with your services and informed about their files. Try to be responsive and flexible and if there is something you cannot help with or you feel out of your depth, seek assistance from your supervisor. As a junior lawyer it is perfectly okay to admit to a client that you do not know the answer or that you’ll need to complete some research or consult a senior colleague before giving an answer, rather than rushing to give “off the cuff” advice. If you manage your clients’ expectations by setting out the next action steps and timing, this will go a long way to making your clients feel well looked after.

Work will be stressful at times: Life in a law firm is stressful and at times unpredictable. Always remember if things get tough, take a break. Go for a walk, get some fresh air, or talk to someone in the office if things are getting too much.

Learn to use your firm’s time recording software and the many other tools that can help speed up tasks, such as discovery software.

Law is an exciting and challenging profession and stress can sometimes be the outcome of tight deadlines and a busy work environment. However, constant and overwhelming stress is not normal – you should always feel safe and supported in your workplace.

Be prepared to think outside of the box: Your firm may ask you to think of new and innovative ideas and to think on your feet. Do not be afraid to take a risk and make suggestions. A new and refreshing uptake on problems is just what a firm is looking for and even if you aren’t right, it is a great learning curve to have open conversations with your peers.

If you are feeling overwhelmed, claustrophobic, or alone, or these are compounded by bullying and other issues, there is always someone to help you even if it is not in your firm. Reach out to friends, family, or take advantage of anonymous employee assistance programs (EAPs). You can even speak to us as a newly suited committee.

Accept that things will go wrong: Not everything will go perfectly to plan. Your planned day could fall completely on its head the minute you walk through the door and you may have to put your current workload to one side.

Your PC might have a meltdown or the submissions you are working on did not save properly.

It is inevitable that things will go wrong but the main lesson to learn is to confront a problem head on and deal with it quickly. If it went wrong for a reason, change direction and try something else. Don’t be afraid to tell your supervisor if something has gone wrong. He or she has been in the same position and will be more than happy to help you overcome any challenges.

Keep your clients happy: It is always important to keep your clients happy

Enjoy it!

You have worked hard and earnt the right to be here. It may be a big change for you to step into this role, but you deserve it.

Spend some time getting to know your peers as they will be a valuable lifeline and enjoy the fact that you have chosen a great career path that is not only rewarding but can lead to many exciting avenues.

We recommend signing up to our Microsoft Teams group for newly suited practitioners (please email committee.feedback@adls.org.nz if you would like to sign up). It is a platform for practitioners to chat or help one another out when we are in a muddle. Finally look at our previous articles (on Teams and the ADLS website) for more useful tips and tricks for your first few years in practice. We wish you all the best from the Newly Suited Committee.

Amanda South, on behalf of the Newly Suited Committee

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CPD UPCOMING EVENT

How to lead law firms in a hi-tech market

By Tony Gardner

Leading people in law is a unique, complex challenge. The demands on the time of partners – client development, casework, contributing to firm leadership, managing and leading direct reports, and family – are extensive.

Combined with the billable hours imperative and the traditional command-and-control nature of law firm leadership, it is no surprise that the default, some say entrenched, leadership culture of law firms is hard to change, even for law leaders who want to.

Because practising law is based on subject-matter expertise and reducing risk, its leaders tend to keep a close eye on the work of their people and correct it when necessary. The financial rewards of partnership magnify the sense of need, and justification, law leaders feel in “making sure the work is right”.

Law firms are particularly prone to a self-fulfilling trap of leadership – the inherent logic of a person being promoted. Most leaders are promoted to leadership roles because of their subject matter expertise or competence in their field. The inherent message is that their knowledge and way of doing things is right.

As a result, they (often unconsciously) assume their way is the best way and adopt a commandand-control leadership style to ensure their people do things in a way they believe to be right. Law, with much at stake when things go wrong, is a prime context for this leadership mistake.

But leadership based on oversight and control is at odds with contemporary best-practice, where empowering and developing people are increasingly the focus.

As law heads into new, disrupting, digital territory (Law 3.0), and younger lawyers with different

workplace needs and wants (eg, compensation assessment transparency) join the sector, law leaders face a real leadership challenge.

So, what skills do law leaders need to get this balance of traditional law firm quality control and the requirements of modern, disrupted workplaces right?

New-style leaders Law 3.0 is about strategic leadership. How will law firms change their business models to profitably supply legal services in the technology-driven ways that companies will wish to buy?

Its relevance to leading people lies in understanding the type of leadership that will help people best deliver Law 3.0 business models.

Law 3.0 leadership is about change. This focus around law leadership is vital because 70% of organisational change projects fail (McKinsey, 2015). Often this is not because of technical issues like implementing technology but because of adaptive, people-based, challenges. Leadership is a vital part of overcoming these.

The trend for specialist senior professionals, experts in areas such as finance and marketing, to join law firms in leadership roles shows growing recognition and a maturing of attitudes in management and leadership.

And just as more non-lawyers are entering the leadership roles of law firms, more attention is being paid to leadership and its development.

Leadership development is happening organically.

It cannot be stopped as leaders learn in the school of reality. But it is a largely random and unplanned pathway to high-performing leadership.

High-quality, proactive leadership development leverages and enhances an executive’s real-world leadership development by using it as raw material in a proactive, planned program. When real-world challenges and successes are framed in evidencebased insights and tools, the result, for willing-tolearn leaders, is profound gains in leadership skills, confidence and effectiveness.

The development of executive leadership in any discipline is in two directions: horizontally and vertically. Horizontal development refers to adding competencies and skills. Vertical development advances the mindsets and mental capabilities of a leader.

The importance of vertical development is underestimated. Few leadership skills are effective without confidence, belief, empathy, vulnerability and resilience.

What steps could you take to advance leadership in your firm?

ADLS is offering a three-workshop series Leading in Law where participants will build their leadership mindset and learn a range of leadership skills, from understanding when to manage and when to lead to learning how to effectively delegate and use accountability and feedback to drive performance.

Inclusion and empowerment Outside law, leadership is changing quickly. It’s about inclusive, empowering, high-trust leadership that prioritises the development of talent. This

More information here

Tuesday 22 September 2020 | 12.30 pm - 2.00 pm Dux Central | 6 Poplar Street | Christchurch Meet and network with practitioners in your area

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Can leadership best-practice from outside law be applied in law? Yes. Some aspects may differ but the profession could gain much from bringing in widespread leadership learning.

These are some of the leadership challenges in law.

There are more. But, as with any change, looking outside a system can provide rich insights and ideas on how to change it. Law can look beyond itself to leadership across sectors and society to find direction on how to best evolve.

Christchurch Lawyers’ Lunch

Learn more

requires leaders to be authentic, empathetic, transparent and supportive.

Proudly sponsored by

Tony Gardner is managing director at Archetype Leadership + Teams

LawNews Issue 27 | 14 Aug 2020

WILL INQUIRIES LawNews

OFFICES AVAILABLE

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.

Glennis Lorraine BOX, Late of Napier / Hastings, aged 77 (died 06’07’20) Dianhe CHEN, Late of Shanghai, China, married, retired, aged 76 (died 20’02’17) Juilene Frances LOVELL, Late of 12B Maybelle Place, Kelston, Auckland, retired, aged 71 (died 10’07’20) Gunvant MORAR, late of 56 Symonds Street, Onehunga, Auckland, aged 23 (died 07’10’79)

Durham West Chambers, Auckland CBD Durham West Chambers has three offices available for immediate occupation. The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm, with a shared waiting area.

There are two shared meeting rooms and a communal kitchen area. Telephones, internet connection, printing and secretarial services are available. Some furniture is also available.

The cost is $280, $210 or $140 plus GST per week plus overheads (around $120 or $75 per month) depending on size (19 sq metres, 12 sq metres and 10 sq metres).

No long-term commitment is required.

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

William Matthew Joseph QUIN, Late of 159A Queen Street, North Dunedin, never married, student, aged 20 (died 04’07’20)

Contact: Shane Hussey for further details. shane@hco.co.nz

Joana Leah SALISBURY, Late of 22 Church Street, Dargaville, single, online retail, aged 43 (died 26’06’20) Sharon Elizabeth SUTHERLAND, Late of 18A Collings Drive, Lucas Heights, Auckland, security systems consultant, aged 49 (died 30’04’18)

tel. (09) 300 5481

The Art of Communication — Be a Powerful Advocate (Auckland workshop) Saturday 5 September | 3 CPD hours Presenters: Marie Dyhrberg QC; Isabel Fish, Director, Producer and Educator This workshop, led by an experienced advocate and an accomplished teacher/ director, will arm you with the skills for developing the art of communication for your role as an advocate This workshop sold out in 2018 and 2019 register now to avoid missing out.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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MANUKAU PRACTICE FOR SALE A long-established South Auckland general practice with substantial conveyancing, estates and trusts clientele is available for purchase.

An opportunity for an existing firm wanting to add depth to its client base – or ambitious general practitioner with an eye to the future. The time-consuming work of building a substantial client base has been done. Act now and reap the rewards of a steady and increasing stream of varied, well-paying work flowing from a solid and expanding base of private and small business clients.

Very flexible arrangements available for transition to new ownership.

Expressions of interest to:

advertising@adls.org.nz quoting ref: MLN08

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

OUR INSOLVENCY ISSPECIALITY! Litigation support and expert and impartial advice on: » Restructures

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CHARTERED ACCOUNTANTS | INSOLVENCY & LITIGATION

ADLS committee membership applications 2020 – 2022 ADLS has a proud history of contributing to the law and the legal profession through its members and their participation in ADLS committees.

ADLS has committees in the following key areas: Civil Litigation

Members of its 17 committees are volunteers who carry out a wide range of activities in their specialist areas. Committee members draft submissions to Parliament, meet with representatives from government departments and the courts and contribute to continuing professional development (CPD) programs and LawNews articles.

Continuing Professional Development

Committee appointments will be for a two-year term aligned with the ADLS financial year, from October 2020 to September 2022. Successful applicants appointed by the ADLS Council will be notified in mid-late September, with committee meetings re-commencing in October.

Documents & Precedents

Committee appointments cannot be confirmed unless the applicant is a member of ADLS. Applicants must therefore be, or intend to become, an ADLS member. (For ADLS membership information and to join please here.)

Courthouse Liaison Criminal Law Employment Law Environment & Resource Management Law Family Law Health and Safety Law

ADLS encourages applications from members throughout New Zealand. Committee members can attend meetings in person or via video conferencing.

Immigration & Refugee Law

Applications for membership on the committees listed alongside are now open. Aspiring committee members, as well as existing members wishing to remain on their current committee, should apply online here by 5pm 31 August 2020.

Mental Health & Disability Law

For further information, including committee guidelines and overview, please visit the committees’ page at www.adls.org.nz. Questions can be emailed to: committee.secretary@adls.org.nz

Property Disputes

Members’ Special Fund Newly Suited Property Law Technology & Law Trust Law

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