LawNews - Issue 2

THIS WEEK’S ARTICLES

Issue 2 12 Feb 2021

Fixing the retirement village sector p1

Stewart Dalley: ADLS committee convenor profile p3

The vexed issue of jurisdiction in construction disputes p5

LawNews adls.org.nz

PROPERTY LAW

How to fix the retirement village industry

By Diana Clement

Photo by Colin Anderson Productions pty ltd/Getty Images

In her first big move since taking up the role of Retirement Commissioner in February last year, Jane Wrightson has taken aim at New Zealand’s $17 billion retirement villages industry – and found it wanting.

She is recommending major reforms to the industry’s legislative framework in a 40-page white paper. While she has no power to effect the changes, Wrightson has released the discussion document in her monitoring role to “poke the bear”.

Feedback is invited by 26 February.

The “bear” is an industry that makes its money from ageing residents. Its five biggest listed players have a combined market capitalisation of $14b. The framework under scrutiny involves the Retirement Villages Act 2003, the industry’s Code of Practice (code), the Code of Residents’ Rights (CoRR) and an occupation rights agreement (ORA).

The Act, regulations and both codes are interdependent, which sometimes means residents are not sure of their rights because they don’t understand the relationship between the documents.

Wrightson says her aim is to start a conversation and encourage a framework review by the Ministry for Housing and Urban Development (MHUD).

Fundamental tension The retirement village industry is growing fast.

At its heart, she says, is a tension between big business on one side and increasingly vulnerable individuals on the other.

Wrightson wants the government to take a good look at the framework but knows it will never be high on the agenda.

Most retirement village residents say they’re happy with their choice of lifestyle

A decent complaints system is a relief valve for residents and it’s an independent area where operators’ concerns would be listened to

restricting the charging of weekly fees after a resident vacates a unit;

reviewing the code, including the ORA provisions, with a view to establishing best practice and to better balance operator control and residents’ rights; a clearer and simpler complaints process;

whether changes are required to better support retirement village residents’ welfare;

if consumer protections are strong enough for future trends and investigate whether different models should be encouraged;

The paper recommends a policy review to consider: an improved resale and buyback process for units;

if disclosure documents should be simpler and more accessible; and

the extent to which the presence of care changes the nature of a retirement village from housing to health and whether the definition of a retirement village needs modifying to include a wider range of lifestyle developments.

The report has ruffled feathers in the industry but consumer organisations say it is long overdue.

The operators’ industry body, the Retirement Villages Association (RVA), argues that only minor tweaks to the framework are needed. RVA Continued on page 2

PROPERTY LAW

How to fix the retirement village industry Continued from page 1 executive director John Collyns declined to be interviewed but emailed a statement saying the review contains inaccuracies and the regulatory framework as it stands is “world leading”.

Collyns says there will always be potential for improvements at the margins and the RVA supports minor amendments to the disputes process and disclosure statement regime.

But its counterpart, the Retirement Villages Residents’ Association of New Zealand (RVRANZ), says the white paper has canvassed the issues fairly and accurately, including the “unfair obligations” on many residents to maintain fixtures, fittings and chattels owned by the operator. The organisation wants immediate relief for residents, with interim changes to the code in relation to buyback accrual of deferred management fees once keys are handed back, interest paid to outgoing residents while the unit is vacant and a shared allocation of any capital gain.

Lawyers interviewed by LawNews questioned whether the report raised policy questions rather than strictly legislative issues, with one suggesting education might be the answer.

The business model The business model is usually based on the sale of units to residents under an ORA. Residents pay weekly service fees. When they leave, they get back their original purchase price, minus 20% to 30% in deferred management fees (DMF). It is rare for residents to share in any capital gain.

The retirement villages framework developed to put regulation around the existing business models. It’s a system based on disclosure, not prescription, says Peter Orpin, special counsel corporate at Lane Neave. Orpin is not convinced that moves towards more prescription, as suggested in Wrightson’s paper, would work.

“The big benefit of a prescriptive system is that you can go to the legislation for the answer,” he says. “It’s black and white. From a resident’s point of view, it becomes an enormous paper war because instead of getting a document that that [can] be 10 pages, you’re presented with a document that’s 60 pages.

“To me, some of what’s being suggested in this paper is starting to move too far down that line

Jane Wrightson

John Collyns

towards prescription rather than disclosure.”

capital in limbo.

Happy campers Most retirement village residents are content with their choice of living arrangements and most operators provide good services and care, Wrightson says. Her own father is one of those happy residents.

Wrightson says one issue raised by residents is their belief that village operators might prefer to sell new units or that they have no sense of urgency if the resident or estate is required to continue paying weekly fees (though not all villages require ongoing fees).

The paper notes, however, that problem-solving could be improved and the advice given to intending residents can be confusing, with some not understanding the implications of what they’re signing up for. “They sometimes jump off the diving board like they do when they buy houses,” Wrightson says. “Then they realise there’s no water in the pool.”

“Those are really hard questions,” she says. “And it’s time, I think, to have a conversation about them.”

Some of the more difficult aspects tackled in her report include buyback arrangements when a resident vacates, ongoing payment of weekly fees after the unit is vacated, the complaints system and the inability of the code to be easily varied or reviewed.

Buybacks Operators and residents (or their estates) may have competing demands when it comes to repayment of capital once a resident leaves. Clause 53 of the code requires operators to buy back a unit upon termination of a resident’s ORA at any time before entering a new ORA with a new resident. Units might be refurbished and sold within months but can remain empty for more than a year, leaving the

LawNews

Editor: Jenni McManus

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

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

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Outlined in the paper are alternative options to the existing model for buyback. They include introducing a guaranteed timeframe, interest payable during the vacant period and allocation of any capital gain on sale between the resident (or his/her estate) and the operator.

The paper notes the possibility of action under the Fair Trading Act 1986 or the Consumer Guarantees Act 1993.

Capital gain On the issue of sharing capital gain, Anthony Harper partner Jenny Baldwin says in the past some operators offered complex arrangements for sharing capital gains. And departing residents also faced the risk of capital losses. She believes the current system is simpler.

Compulsory repayment before resale could create liquidity issues for operators, especially smaller or Continued on page 4

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

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

LawNews Issue 2 | 12 Feb 2021

ADLS COMMITTEES

Convenor profile: Stewart Dalley, Immigration & Refugee Law Committee Where do you work, what’s your role?

I am a co-partner at D&S Law. It is a two-partner practice, established at the tail end of 2020. My partner Pooja and I were working together at another firm and decided it was time to set up our own.

Some people might question the decision to establish a new firm specialising in immigration and refugee matters during a global pandemic when there is so much uncertainty, but there’s never a perfect time to do anything.

With Covid-19 and the changes and impacts on our border there has never been a more crucial time to have knowledgeable people dealing with immigration matters. It is a crucial time for our area of the law and it is important to have a good representative voice when talking to ministers and government officials.

Where did you study?

Although born in Scotland, I studied in New Zealand once I had immigrated. I had spent 15 years in the UK as a union rep. I was mediating in the workplace, representing people in disputes with their employers, and negotiating workplace terms and conditions. I guess I got a taste for advocacy.

When my partner was offered a role in New Zealand, I went to university then. It was 2009. I was in my late 30s as a mature student and I treated my studies as a job, spending my days, 9 to 5, at university. I graduated with an LLB (Hons).

Originally, I thought I would be an employment lawyer but I fell into immigration and refugee law with my first job.

What’s been your career to date?

I worked across the UK as an elected union rep within the public service. I also freelanced as a journalist, covering music and arts and culture for the BBC, magazine publishers and broadsheet newspapers.

While I studied, I had done an internship here and there and worked for a barrister in chambers. My immigration and refugee law career began six or seven years ago.

My partner and I were the first same-sex, de facto couple in New Zealand to adopt children My work covers a broad range of immigration and visa matters, immigration appeals challenging decisions by Immigration New Zealand or appeals against deportation from New Zealand to the Immigration and Protection Tribunal, and refugee claims and appeals in my capacity as a legal aid lawyer. I have also appeared in High Court appeals and judicial reviews of decisions of Immigration New Zealand and the Immigration and Protection Tribunal.

I have a second speciality, in the law relating to fertility treatment. My partner and I were the first same-sex, de facto couple in New Zealand to adopt children. We are now proud parents of three great kids. We applied to the Family Court to adopt and were successful.

We had our children via surrogacy. I deal with all of those issues. I have recently been invited to sit on the expert advisory panel to the Law Commission, which is reviewing New Zealand’s surrogacy laws, following the Minister of Justice’s request for a review and recommendations. My hope is that in the end we will have a suite of laws and regulations that reflects and respects the diversity of New Zealand.

How long have you been a member of ADLS? My entire career.

Stewart Dalley

There has never been a more crucial time to have knowledgeable people dealing with immigration matters How long have you been involved with ADLS committees? Which committees have you worked with?

I have been a member of the Immigration and Refugee Law Committee for five years, if not longer, working with the previous convenor Deborah Manning.

When Deborah stepped down from the committee, I was very pleased to be asked to be the convenor.

Why is committee work important?

Committee work is very important and has its place. It ensures we have a collective voice to raise issues and solutions to problems that we are seeing.

At this time, with border closures, travel restrictions and lots of changes in immigration, visa and emergency measures it is vital for us as a committee to advocate strongly. My previous background as a union rep was to advocate for a group, not for myself. My goal for this committee is to expand our consultative capacity, and expand the number of people we talk to and make that engagement more formal.

Do ADLS committees make a difference?

Absolutely, and here’s an example: During 2020, as a Covid-19 initiative, the Immigration and Refugee Law Committee was instrumental in setting up a steering group involving ADLS, NZLS, NZ Association for Migration and Investment and other groups that represent the broader immigration industry to come together to present a cohesive, collective voice when speaking to Immigration New Zealand, so it carries more weight.

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

From my perspective it would have to be responding to an emergency Continued on page 11 3

Continued from pages 1, 2 not-for-profit organisations.

“That could be detrimental to the interests of all the other residents who are still living there,” Baldwin says. “I have in the past acted in relation to a retirement village that needed to be wound up because it had some provisions in its ORAs which required a compulsory buyback and it couldn’t meet those demands. I just don’t want any retirement village to be in that position.”

Weekly fees When residents leave, some operators continue to charge weekly fees until the unit is refurbished and sold which can be months down the track. Some reduce or halve that amount after a set number of months but there is no time limit on how long this half-charge might go on. Many operators such as Ryman Healthcare have taken it upon themselves to stop weekly fees immediately or after a certain period.

Wrightson’s paper recommends a policy review to consider options to restrict the charging of weekly fees after departure by amending clause 54(2) of the code. Some operators argue the ongoing weekly fee is essential for the cashflow of their business and to sustain services for other village residents.

Moving to care Transfers from independent retirement village units to serviced care or care facilities can be especially tricky under the current legal framework, says the commissioner.

When residents move into care they are required to end their existing ORA and sign a new one or a variation. Wrightson’s paper notes that clauses 24 and 25 of the code appear to be drafted to cover shorter-term respite care in the village rather than full-time residential care in a care facility.

“Some residents or their families understand the full impacts of some transfer terms only when their individual circumstances change,” she says. By then, they may have insufficient capital to buy a new unit.”

Jenny Baldwin

Peter Orpin

evidence of an issue.”

“Does our country really need to get more ombudsmen or commissioners? I don’t know,” she says. “I don’t believe that there are sufficient complaints to justify it.”

Care units fall withing the health system so the Code of Health and Disability Services Consumers’ Rights applies.

Complaints Wrightson describes the complaints system as being “all over the shop”.

The RVRANZ says it is onerous, lengthy, stressful and unsuitable for retired people who are seeking a life of peace and harmony, yet [are] keen to have their rights respected. It says many residents are ailing, lack confidence and are keen to please.

“They are not fit to engage in a lengthy and unnecessary battle.”

Residents with formal complaints who don’t get satisfaction from their operator can escalate their complaint to the statutory supervisor, mediation or to a disputes panel, where they could face opposing counsel. Wrightson’s paper notes the process can be adversarial and intimidating.

The disputes panel is rarely used. Residents risk having costs awarded against them, although Baldwin says this has happened only once and the sum was relatively small.

The paper notes there is no standard operator practice for transfers from independent units to care facilities and that ORAs might not be fully compliant with the code. The paper recommend the ORA provisions in respect of transfers to care be reviewed to balance operator control and residents’ rights.

Wrightson, who was previously chief executive of the Broadcasting Standards Authority, a complaints body, says a proper complaints system would avoid lawyers. The answer, she says, would be to appoint an independent complaints body similar to the ombudsmen in banking and insurance.

The interface between retirement village living and care is an area where the industry does need to improve, says Orpin, although he believes this can be done through education. He adds: “I think the industry could help itself by certainly being much more open and honest about how far care will extend in a village.

“A decent complaints system works well both ways. It’s a relief valve for residents, and it’s an independent area where operators’ concerns would be listened to.”

“I’m dealing with it as a live matter at the moment where a resident moved into a village, believing that the level of care was available for increased health needs. When those health needs did increase, [he] was then told by the village, ‘I’m sorry, we don’t deliver that level of care’. They have to move somewhere else. To me, that is 4

Orpin says the answer might be to get statutory supervisors more involved in solving complaints and disputes. If a resident had an issue and the supervisor formed a view that it affected many or all residents, it could help broker a solution. “From my experience, a lot of these issues were helped enormously by simply talking about them.”

Some residents believe statutory supervisors are not independent because they are appointed by the operator. One supervisory company has the lion’s share of the business.

Code of practice The paper recommends a review of the code itself. Under s 90(4) of the Act, the minister can approve a variation to the code. Two such variations have been made, one in response to the Christchurch earthquakes and the second, in 2017, involved amendments to the complaints process in response to a monitoring report by the Commission for Financial Capability (CFFC).

Structural anomalies The white paper also considered structural and drafting anomalies to the legal framework. It notes that the Act, regulations and both codes are interdependent. Operators often duplicate the code’s minimum standards and the CoRR’s provisions as terms in ORAs. The effect is that consumers must draw on a range of sources to understand their rights.

The paper goes on to argue that the documents should be reviewed with a view to simplification.

Baldwin says the complaints process was updated as recently as 2017. The new procedure included several steps to try to resolve complaints and disputes in a less formal manner.

Burke says one area that could benefit from being changed in the Act and regulations is the duplication between the disclosure statement and the ORA, but attempts to work with residents ground to a halt previously. “There was no consensus as to what was important.”

Michelle Burke, Anthony Harper partner and board member of the RVA, says mediation offered by the supervisors at no cost to the resident is similar to an ombudsman-type service, getting all parties to talk to each other in a forum.

Section 33(2) of the Act presents another anomaly for both consumers and agencies. Residents have a right to refer alleged breaches of the CoRR only to listed agencies. The right excludes referrals of alleged breaches of other key documents.

LawNews Issue 2 | 12 Feb 2021

CONSTRUCTION CONTRACTS

What sets jurisdiction in construction disputes?

By Janine Stewart & Mariam Baho

The issue of how an adjudicator’s jurisdiction is set under the Construction Contracts Act 2002 (CCA) has long vexed parties to construction disputes, not least the adjudicators themselves. While it would be helpful to have clear authority on this point, a recent court decision further muddies the waters.

It is commonly understood that a CCA adjudication requires an adjudicator to determine a dispute on the papers. This process is triggered by an adjudication notice, followed closely by an adjudication claim. But which of these documents sets the adjudicator’s jurisdiction? And are the dispute parameters set in stone at the outset?

The recent decision of Alaska Construction + Interiors Auckland Limited v Lahatte & Anor [2020] NZHC 1056 is contrary to previous authority, Spark It Up Limited v Dimac Contractors Limited [2009] BCL 498, and current industry practice.

John Walton of Bankside Chambers explored this issue in his article Is jurisdiction limited by the notice of adjudication? Walton noted that while the claimant does not have carte blanche to depart from the notice, it is clear from s 36 that the notice is superseded by the claim.

The Alaska Construction approach is contrary to current industry practice and leads to further uncertainty about an adjudicator’s jurisdiction

In this article, we advance the approach that jurisdiction is set in the adjudication notice.

What sets jurisdiction?

Several factors in the CCA indicate the adjudicator’s jurisdiction is set in the adjudication notice:

In initiating an adjudication (s 28), the adjudication notice must state the nature and a brief description of the dispute and the parties involved, and where and when the dispute arose. The notice is the starting point of the process that defines the dispute.

Janine Stewart

The provision governing selection of an adjudicator (s 33) states that a request for a person to act as an adjudicator must accompany the notice (s 33(5)(b)). Accordingly, the adjudication notice is the only substantive document presented to a person requested to act as an adjudicator before deciding whether to accept appointment.

The existing dispute in writing (the adjudication claim) is then referred to the adjudicator (s 36).

The role of the adjudication claim is to specify the nature or the grounds of the dispute, thereby crystallising the dispute. It is not an opportunity for the claimant to vary the dispute, changing the adjudicator’s jurisdiction.

The jurisdiction of adjudicators (s 38) is defined in terms of the dispute that has been referred, and the first outline of the dispute is contained in the adjudication notice. It follows that the dispute referred to adjudication – and therefore the jurisdiction of the adjudicator – is set in the adjudication notice, being the first document to identify the dispute.

The Spark It Up decision Prior to Alaska Construction, the Spark It Up decision held the adjudication notice set the adjudicator’s jurisdiction, so long as it complied with the s 28 requirements. Spark It Up followed the line of reasoning in Horizon Investments v Parker Construction Management with a focus on the scope of the dispute, which is first outlined in the adjudication notice.

In Spark It Up, the principal applied for judicial review of the determination. The adjudicator had found in favour of Dimac Contractors Limited (Dimac), relying on invoices which were not the subject of the adjudication notice and came to light only after the claim was filed. Dimac notified

Mariam Baho

Legislative intervention may be required to clarify the question of how jurisdiction is set the adjudicator that it had referred to the wrong invoices in the adjudication notice and, as a result, the adjudicator requested an amended claim (which Dimac then filed).

The court found the adjudicator did not have jurisdiction to base his determination on invoices that did not form the basis of the adjudication notice. The invoices were not within his jurisdiction, as they were not part of the dispute referred to him.

This is consistent with the interpretation that the document defining the dispute, and accordingly jurisdiction, is the adjudication notice.

Impact of Alaska Construction Contrary to Spark It Up, the Alaska Construction decision found the adjudication notice may be superseded by the adjudication claim.

In that case, the head contractor Alaska Construction + Interiors Auckland Limited applied for judicial review of the adjudicator’s determination in favour of subcontractor Lovich Floors Limited.

Alaska argued that the adjudicator had acted beyond the scope of his jurisdiction by basing his decision on a payment claim which was first mentioned by Lovich only in the adjudication claim.

Alaska alleged Lovich unilaterally modified the Continued on page 11 5

ADLS CPD EVENT

ADLS offers specialist youth advocacy training

By Judge Tony FitzGerald

Aotearoa New Zealand’s youth justice system, and the place of the Youth Court within it, is considered one of the most innovative and progressive in the world.

advocates) are specialists who must be found suitable before being appointed to the role, by virtue of their training, experience, personality and understanding of the significance and importance of different cultural perspectives and values. It is challenging but rewarding work.

One prominent feature of the system is the emphasis, wherever possible, on not charging young people and bringing them to court. Instead, the focus is on police-led, community-based alternative action.

Despite those and other unique features of the Youth Court’s work and youth advocate role, until now there have never been any specialist, practical workshops or training provided for lawyers wanting to do this important work, along similar lines to the training provided for those who work as lawyers representing children in the Family Court.

About 80% of young people who come to police attention are dealt with in that way. Those who do come to court are generally facing very serious charges and most have a complex range of issues that need to be addressed in addition to the charges they face.

ADLS is offering the first-ever conference of its kind, aimed at lawyers already working as youth advocates and those wanting to do so in future. It will take a practical, skills-based approach aimed at giving participants a toolbox of skills to use in their work.

Another prominent feature is the Family Group Conference (FGC) which plays a fundamental role in the process. By including victims, the FGC provides the opportunity for a restorative justice approach, even though such a concept would not have been known to the legislature when the Oranga Tamariki Act 1989 was first introduced more than 31 years ago. Similarly, although what we now call solution-focused courts would not have been known to the legislature at the time the Act was first introduced, its provisions have always pointed toward the Youth Court taking a solution-focused approach.

The organisers have brought together a line-up of experienced presenters who will cover a variety of topics crucial to the youth advocate role. That will include a broad overview of the youth justice system, the major challenges the court is facing and how it is responding to those challenges, and the specific issues that are fundamental to best practice.

For these and other reasons, lawyers who work in the Youth Court (youth

The inaugural Youth Advocates Conference will take place at the Ellerslie Event Centre on Friday 26 February from 10am – 2.30pm. You can attend in person or via livestream.

For more information click here.

NEW BOOK

Adams on Criminal Law, 2021 student edition Authors: Jeremy Finn, Debra Wilson and Simon France Adams on Criminal Law has been New Zealand’s most trusted criminal law reference for more than 40 years. The student edition looks at the Crimes Act 1961 and Criminal Procedure Act 2011 and offers practical commentary on key sections.

Its concise writing and easy-to-follow format make the text an ideal resource for practitioners needing a quick reference tool and students studying the Acts.

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

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

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The 2021 edition is generally current to 1 November 2020.

Price: $102.00 plus GST* Price for ADLS members: $91.80 plus GST* To purchase this book please visit adls.org.nz/bookstore or contact the ADLS bookstore by phone: 09 306 5740 or email: thestore@adls.org.nz * + Postage and Packaging

Princes Chambers | Office for Lease Located in one of the oldest character buildings at 3 Princes Street, Auckland Central. Strategically positioned between the High Court and Auckland’s financial and legal precinct.

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Lease includes the use of meeting room, courtyard, and kitchenette.

Please email: richardtan@timbergrow.co.nz or phone 0212768168.

LawNews Issue 2 | 12 Feb 2021

Collegiality Events Auckland Central Lawyers’ Lunch Tuesday 2 March | 12.30 pm - 2.00 pm Pilkingtons

Inaugural Annual Breakfast with the Rt Hon Dame Helen Winkelmann Thursday 18 March | 7.15 am - 8.30 am The Northern Club

10 Mar

24 Feb

Auckland Newly Suited Summer Quiz & Pizza Night

Hamilton Lawyers’ Lunch

Coming Soon -East Auckland Lawyers’ Lunch -Tauranga Sundowner -Christchurch Lawyers’ Lunch -Invercargill Cocktail Function

For tickets & more information click on the images or contact us

T 09 978 3970

E events@adls.org.nz

W adls.org.nz

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

Featured CPD Jumping off the page — FINAL NOTICE In person | Live Stream The late Justice Antonin Scalia (and RBG bestie) once quipped that “the main business of a lawyer is to take the romance, the mystery, the irony and the ambiguity out of everything [s]he touches”. A large part of that exacting business is the task of interpretation. It is the bedrock of our legal work. Many disputes turn on the meaning of a written contract, or of a statute, or both. Lawyers constantly fret: “what on earth do these words mean?”. The answer, often knife-edge, can have enormous consequences. The New Zealand courts have been tightening up their approach to interpretation, re-emphasising the primacy of the text. Judges have admonished parties for excessive reliance on external material that is inadmissible, only remotely relevant, or “singularly unhelpful”. This seminar will explore what may properly be put before the court.

 Seminar

Livestream

CPD 1.5 hrs

 Mon, 15 Feb 4pm – 5.30pm

 Presenter Gillian Coumbe QC, Barristers at Chancery

Learning outcomes: •

•

•

•

Update your understanding of the principles governing the interpretation of written contracts and of statutes, including the most recent case law; In relation to contracts, get practical guidance about what evidence is admissible (or not) under the “factual matrix”, commercial context, prior negotiations, and subsequent conduct; In respect of statutes, hear the latest word on permissible and impermissible extrinsic aids relating to legislative history; Overall, learn how far beyond the written page you should look in giving advice, or in bringing or defending a proceeding involving an issue of interpretation.

Mortgagee Sales: Avoid the Pitfalls — FINAL NOTICE With businesses closing or downsizing, incomes being affected and jobs being lost, it likely won’t be long before the economic turmoil wrought by Covid-19 plays out in an increase in mortgagee sales. These present a special status and rights. Are you prepared for advising and acting? Providing property and litigation perspectives, this webinar will assist you to advise those contemplating, or confronted with, a mortgagee sale.

Learning outcomes:

 Webinar CPD 1.5 hrs

 Tue, 16 Feb 12pm – 1.30pm

 Presenters

In respect of mortgagee sales: • Deepen your knowledge of when the process might be commenced, and what is involved.

• Explore the options that exist, and trends in play.

• Get to grips with the twists and turns the process can take.

• Delve into where challenges to a proposed sale might arise.

• Gain insights into common traps and complications and how to avoid or deal with them.

Nicola Robertson, Director, Sanderson Weir Limited Tony Johnson, Partner, Martelli McKegg

Future Planning: Alternative Mechanisms for Selling the Family/Small Business — FINAL NOTICE

 Webinar

Globally, 80% of businesses are family owned, however only 25 to 30% of these businesses will successfully transfer to the second generation, leaving two-thirds of business owners to find an alternative mechanism to sell their family-owned businesses. This webinar will focus on preparation for sale, compare sale processes, discuss the value of the business, the role of management or joint venture partners and working with advisors.

 Wed, 17 Feb

Learning outcomes: • •

• •

Learn more about the mechanisms for family business succession in a post-COVID environment.

Gain an increased understanding of the role of management or new joint venture partners in release of equity to business owners through the succession process.

Learn more about the changing dynamics around business values.

Gain insights into advising clients on preparation for sale and the various sale processes.

Bully or Client – Where is the Line? — FINAL NOTICE In person | Live Stream There has been considerable recent focus on bullying in the workplace, bullying between professionals and bullying from the bench. But what happens when the unreasonable conduct is being driven by the client?

What are our obligations as employers, and what are our rights in respect of our employees’ and our own engagement with these clients? Do the new Conduct and Client Care Rules provide a solution to these issues?

This session covers lawyers’ legal and ethical obligations in this context, and the best way forward to establish a sustainable legal practice with enduring client relationships.

Learning outcomes: •

• •

•

Understand employers’ obligations when clients engage in bullying or unreasonable behaviour towards their employees.

Learn to identify when client behaviour amounts to bullying (and when it does not).

Gain insights into proposed changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to address unreasonable client behaviour alongside other matters.

Enhance understanding of how to build a sustainable legal practice with enduring client relationships.

CPD 1 hr 12pm – 1pm

 Presenter Tim Howe, Partner, Ocean Partners

 Seminar

Livestream

CPD 1.5 hrs

 Thu, 18 Feb 4pm – 5.30pm

 Presenters Janine Stewart, Partner – Construction, MinterEllisonRuddWatts Gillian Service, Partner, MinterEllison RuddWatts Katie Karpik, Solicitor, MinterEllisonRuddWatts

 Chair Dennis Jenkin, Barrister

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LawNews Issue 2 | 12 Feb 2021

CPD in Brief Your Legal Business: Practice Management in the Cloud: A Practical Demonstration In person | Live Stream Does practising from the beach, bush or mountains sound appealing? Has Covid-19 got you thinking about the need for a robust yet flexible practice management system? Do you know a bit about the Cloud but would like to know more and understand how it could serve you and your practice? Through the use of a practical demonstration and reference to reallife insights, at this seminar you will be able to see and hear how systems can talk to each other, the sort of problems that operating in the Cloud can solve, and what limitations exist.

Presenters: Sumire Tachibana, Senior Manager, William Buck Chartered Accountants and Business Advisors; Martinus Naude, Director, William Buck Chartered Accountants and Business Advisors; Katerina Hatzidakis, Principal, Accessible Law

Property Law Half-Day Conference 2021 In person | Live Stream The Half-Day Conference provides practically-focused sessions on a range of pertinent and interesting property law topics presented by experts in their fields. It will be of value to all those practising in the area of property law.

Topics: Cross Leases, Warranties, Re-instatement of Leases, Sale and Purchase of Commercial Property and Resource Management Law Reform Presenters: Joanna Pidgeon, Partner, Pidgeon Law; Janine Stewart, Partner – Construction, MinterEllisonRuddWatts; Stephen Price, Partner, MinterEllisonRuddWatts; Joanne Ward, Senior Legal Counsel, The Warehouse Group; Brian Jones, Managing Director, Hampton Jones; Kate Storer, Senior Associate, Berry Simons Environmental Law Chair: Bryce Town, Partner, Morrison Kent

Youth Advocates Conference In person | Live Stream NZ’s Youth Justice System has always been pioneering, and following amendments to the Oranga Tamariki Act in July 2019 practitioners in this space have even more tools at their disposal when working with rangatahi. It is a brave, exciting, new world and a time to make the most of what the Act, the Convention and the Treaty offer. This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom.

Topics: The Youth Court, Family group conferences, Arrest, Police procedures and remands and Disposition – sentencing Presenters: Her Honour Judge Otene; Dana George, Barrister and Youth Advocate; Amosa Samuelu, Auckland City Youth Justice Co-ordinator; Maggie Winterstein, Barrister & Youth Advocate; Gary Earley, Barrister; Renee Karena, Barrister & Youth Advocate; Judith Malcolm, Barrister & Youth Advocate. Presenter/Chair: His Honour Judge FitzGerald

Criminal Law Pot Pourri™ In person | Live Stream Join us for our annual Pot Pourri of the topical issues in Criminal Law. A must-attend event covering the following topics: • Guiding principles for s 27 reports.

• The Sexual Violence Bill.

• Name suppression and the impact of social media.

• Parole – lack of available programmes is resulting in parole being denied.

Presenters: Marie Dyhrberg QC, President, ADLS; Emma Priest, Barrister; Ish Jayanandan, Barrister; Lucy Smith, Barrister Chairs: His Honour Judge Bergseng; Her Honour Judge Aitken

 Seminar

Livestream

CPD 1.5 hrs

 Mon, 22 Feb 4pm – 5.30pm

 Conference Livestream CPD 4 hrs

 Thu, 25 Feb 12.30pm – 5pm

 Conference Livestream CPD 4 hrs

 Fri, 26 Feb 10am – 2.30pm

 Seminar

Livestream

CPD 2 hrs

 Tue, 2 Mar 4pm – 6.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

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

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

Terms and conditions apply.

Bully or Client - Where is the Line?

Thursday 18 February | Seminar & Live Stream | 1.5 CPD hours Visit adls.org.nz for more information.

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REUNION

Class of 1970 celebrates 50 years in the law The week before Christmas, 30 lawyers – all alumni of the University of Auckland’s law school – gathered at Auckland’s Northern Club to celebrate 50 years in the profession.

For many in the Class of 1970, who were all admitted to the bar that year, it was the first time they’d met or spoken in years. They acknowledged those who had died since their last reunion (Michael Harte, Keith Goddard, Chum McLeay and John Haigh), and commiserated with those unable to attend because of Covid travel restrictions.

Then they celebrated, reminisced, reflected and wondered where all the years had gone. One alumnus, Judge John Adams, presented a poem, written especially for the event (see page 11).

Guest speaker, former judge, ombudsman and Governor-General Sir Anand Satyanand, was one of them – a member of the Class of 1970. Sir Anand recalled the old Pembridge building on Princes St, which had “seen better days”, where lectures were held, and the old prefab out the back which housed the law library. He recalled that 1970 was “the watershed of much change” in the profession. The old solicitors’ qualifications had been removed and exciting new courses were emerging at law school.

And there was a growing emphasis on fulltime study.

Professor Warren Brookbanks and Professor Ken Palmer

Ross Patterson, former ADLS President Gary Gotlieb and Alex Witten-Hannah

The Class of 1970 and their teachers

Sir Anand also paid tribute to law professors Bernard Brown and Ken Palmer, whose work “was symbolic of a new approach…. with many more women entering the ranks of law school students and much improved emphasis on content in the degree”.

The class was in the fortunate position of having a surplus from the reunion fund and thoughtfully donated that money ($661) to the ADLS Members Special Fund. The convenor of the MSF committee, Paul Collins, said it was a lovely gesture and most gratifying in an era when the MSF is strapped for income.

Click here to access photos from the event

Sir Anand Satyanand

Nigel Harrison, Judge David Harvey, Michael Corry and Michael Becker

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Professor Bernard Brown and Lady Susan Satyanand

Judge John Adams, Elsie Faire and Associate Judge John Faire

LawNews Issue 2 | 12 Feb 2021

Continued from page 3

Caught Caught, within this prismatic arch (neither centenarians nor cemeterians), we semi-centurions of law survive (admittedly) as legal personages.

Our silhouettes still march timelessly from the scholarly shades of Pembridge’s prefabricated law library to that High Supreme Court, extending in lengthening youth as the sun runs west.

Admittedly, enrolled, embroiled, entranced, we linger, enhanced by the common past, dazzled like rainbow trout, remaining on the line, caught – but not yet out.

John Adams

immigration bill in the wake of Covid-19. We appeared at the select committee and our submissions saw clear changes introduced which ensured the powers granted could be used only to benefit migrants.

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

I’d say do it, but for the right reasons, not just as a CV-builder. If you’re passionate and have something to say, get involved.

With border closures, travel restrictions and lots of changes in immigration, visa and emergency measures it is vital for us as a committee to advocate strongly As a young practitioner, I joined this committee. I didn’t know much but I was keen to learn. Our committees need people who are prepared to contribute.

We’re all busy practitioners and everybody [on the committee] benefits when everyone mucks in. We have a couple of places left on the Immigration and Refugee Law Committee so if anyone is interested they are welcome to contact me or Melissa Fini to find out what is involved.

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

Our committee’s main focus during the next couple of years will be responding to the government’s Covid-19-related immigration measures.

We’ll also be working in policy development and trying to get involved early as opposed to being presented with a fait accompli. We also need to ensure lawyers in this specialist area continue and thrive, now more than ever, and we also need to ensure our voices are heard.

The government is interested in hearing from practitioners. A think-tank view is one perspective but the view of lawyers working at the coalface, bringing their experience and highlighting the practical implications, is also important.

What’s the best kept secret about ADLS? There are no secrets.

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

Continued from page 5 dispute by leaving the later payment claim out of the adjudication notice and only later including it in the adjudication claim.

In deciding that jurisdiction is set by the adjudication claim (rather than the notice), the court found that:

the adjudication notice is the document which initiates the adjudication and has no further relevance or significance;

s 36(2) states the document which specifies the nature or grounds of the dispute is the adjudication claim and not the adjudication notice;

the words “to the extent that it remains relevant” in s 36(2)(a) clearly indicate that the adjudication notice may be superseded by the adjudication claim; and

the matters an adjudicator must consider (s 45(c)) do not include a requirement for an adjudicator to consider the adjudication notice.

However, like any statute, the CCA must be read as a whole. The reasoning in Alaska Construction should be tested, as undue focus appears to have been placed on ss 36 and 45 in deciding that jurisdiction is set in the adjudication claim without clear appreciation that the dispute is defined by the adjudication notice in the first instance.

Where to from here?

The CCA contains ambiguous wording and the conflicting case law reflects this. Spark It Up adopts the previously settled view that the dispute that has been referred must be in the adjudication notice. On the other hand, Alaska Construction places more emphasis on the document that “refers” the dispute to the adjudicator rather than the notice which initiates the process and defines the parameters of the dispute.

The Alaska Construction approach is contrary to current industry practice and leads to further uncertainty about an adjudicator’s jurisdiction. This is a frequent point of contention in both the adjudication itself and when opposing the enforcement of determinations.

It is yet to be seen how the courts and adjudicators will deal with this issue and whether Alaska Construction will be applied or overturned. Legislative intervention may be required to clarify the question of how jurisdiction is set.

In the interim, parties should exercise caution and are advised to proceed as though jurisdiction is set in the notice.

Janine Stewart is a partner and Mariam Baho is a solicitor at MinterEllisonRuddWatts Click here for more information on Debts, Disputes and Retentions: Recent Construction Case Law Deconstructed 11

Partnership or pre-partnership Opportunity

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

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

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

Cambridge Law – Senior Associate / Partnership Opportunity We are seeking a motivated individual with a minimum of 5-6+ years’ PQE to join our busy practice. The role is full time, Monday to Friday from 8.30am to 5.00pm starting immediately.

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

In addition, strong communication skills, the ability to give practical advice and work independently are keys to success in this role. The right candidate will need to have a strong focus on partnership as the firm is currently finalising succession plans with one partner looking to retire in the next 12-15 months and move into a role of consultancy to provide a structured and smooth supportive transition in the partnership.

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

Buy a 50% share of an established small but growing city fringe firm specialising in Asset Protection, Commercial and Property work. This is an opportunity for an ambitious Asset Protection, Commercial or Property Lawyer with 7+ years’ PQE. Bring your own clients with you or build on the existing client base and reap the rewards. There is also the opportunity to extend the firm into other practice areas of your choice. Enjoy the work-life balance, collegiality and continuity for clients that comes with an existing partner remaining with the firm – no sole practitioner issues here.

This is a cost-effective option for a lawyer wishing to build their own practice.

Applications welcomed from senior property, commercial and/or private client lawyers or an existing partner wishing to move laterally.

Expressions of interest sought in the first instance by emailing: advertiser@adls.org.nz quoting reference: POP21

PROPERTY/COMMERCIAL LAWYER Palmer Theron is a busy general practice in Karaka. The firm is seeking an experienced property/commercial lawyer with a solid background in property, commercial, trust and estate work. The candidate should have at least 4 years’ post-admission experience and be able to both manage their own files and work in a team environment. The firm operates from new premises in the rapidly expanding suburb of Karaka and there is real potential for the candidate to grow and/or consolidate their own client base.

All applications will be treated in confidence and expressions of interest should be sent to Stephen Palmer (spalmer@palmertheron.co.nz).

If you are looking for your next career opportunity with scope to grow and independence, please send your CV and covering letter to sabrina@cambridgelaw.co.nz by Friday, 12 March 2021.

Senior Lawyer – Trust/Property/Business Role We are looking for a senior lawyer with a minimum of 5 years’ PQE to join our team. This role is to ease the workload of a Director who is moving towards retirement.

This is a great opportunity for an ambitious and dynamic person with a sound understanding of trusts, property and business. The ability to supervise estate work undertaken by another team member would be beneficial.

Key attributes required for this role:

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

• Have experience in dealing with clients and able to manage your

own files with minimum supervision

• Relate well to clients and referrers • Have good time management, interpersonal skills, attention to

Wills

We offer:

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.

detail and operate in a collaborative team environment • Be able to work in a Paperlite office and manage an electronic file using Infinity Software • An innovative firm with a great team environment • An opportunity to be part of one of the eastern suburbs’ largest

• • • •

legal practices Market salary, team monthly and annual bonus schemes Excellent established precedents, systems and technology Free parking and iPhone The excellent training, conferences and benefits that are available to members of NZ LAW legal firms

Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.

No Agencies please

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Patricia Kay LANGFORD, Late of 1 Celina Place, Browns Bay, Auckland 0630, divorced, retired, aged 77 (died 25’12’20) Merita LEMAUAI, Late of Firth Crescent, Otara, Auckland, receptionist, aged 64 (died 20’12’20) Janet Roslyn SHELLEY, Late of 54 O’Donnell Avenue, Mt Roskill, Auckland, widow, home executive, aged 62 (died 13’09’17)

LawNews Issue 2 | 12 Feb 2021

WALTERS LAW

KING LEGAL – BIRKENHEAD

Senior General Practice Solicitor – 8+PQE – Ownership Opportunity

MANGAWHAI OFFICE The Walters Law Mangawhai office opened in 2017 and has grown exponentially since then.

Competitive salary – 5 weeks’ leave – attractive, spacious offices – support/mentoring

Mangawhai is one of the fastest-growing towns in New Zealand and the population is expected to double in the next 10 years.

• Property at all levels • Trusts • Estates/Wills/Estate Planning/Asset Protection • PRA experience an advantage

We are extremely busy, and expect to get busier, as the town grows.

Must have a passion for the law and be a strong and clear/logical communicator. Excellent drafting skills and an appetite for handling contentious contractual and estate issues arising from time to time are essential.

Our well-established client base provides variety and interest. We are not high-volume low-cost operators.

You will be: • an achiever taking a proactive and pragmatic approach to client requirements and objectives; • proud of your efforts and standard of service; • capable of achieving a realistic budget; • highly organised.

We accordingly wish to appoint a senior solicitor to help meet the demand.

The work is varied and interesting, including commercial, property, relationship property; trusts, wills, and estate planning; and dispute resolution.

Mangawhai is a great place to live and work, as is evidenced by the many young people and families moving into town, and there is a wide range of outdoor activities to enjoy. It is also only an hour and a quarter from Auckland if you want a city fix every now and then.

The appointment would suit a senior solicitor with the following attributes: • can hit the ground running and act unsupervised;

You will be expected to assist the principal (sole practitioner) in some admin areas and assist with supervision of F/T staff solicitor and P/T legal executive. Conversely, staff will support you in relevant respects.

• is compatible and personable with staff and clients (a people person);

Applicants looking to acquire the practice within 3-5 years are also welcome to discuss options and the opportunity to help expand the practice in this high-growth catchment.

• has the personality and community-mindedness/involvement to attract new work as the town grows.

Applications to: nkk.recruitment@gmail.com

Please forward applications and CVs to John Walters at jwalters@walterslaw.co.nz.

• wants and merits quick partnership appointment; and

Top Up your CPD with ADLS before 31 March 2021 And receive bonus CPD hours Choose from 13 pre-selected 4-hour CPD On Demand Packages aligned to your area of practice and receive 2 Bonus CPD hours of On Demand to complete at no extra cost (total 6 CPD hours).

Prices: Members $295 + GST Non-members $370 + GST

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Auckland Community Law Centre is looking for a General Manager (lawyer) to lead the organisation through its exciting next phase.

You will be passionate about promoting access to justice and be able to demonstrate your commitment to it. You will have strong legal skills, including established Court and Tribunal experience, and be qualified to practice on your own account (or eligible to complete the qualification).

You will lead a team of 10 staff to deliver high-quality legal services to the community. You will be supported by a capable senior team, and report to an experienced and skilled Board. You will have opportunities to engage with senior members of the profession on the future of access to justice, including the judiciary, regulators, professional associations and policy makers.

This is a rare and special opportunity: the role is varied and dynamic; the organisational culture is warm, supportive, hardworking yet family friendly. This is your opportunity to practice law in a highly rewarding and meaningful way.

To apply for this role please email a short cover letter and CV to: Darryn Aitchison, General Manager, at: recruitment@aclc.org.nz

General Practice Solicitor Move Towards Partnership • Step towards Partnership • Well-established Practice • Plenty of variety and scope to advance your skills Are you keen to move your career ahead? My client is a true general practice. Situated in South Auckland, they work with clients across a range of property, trusts, and business law matters. Rather than being confined to a narrow specialisation, your work will truly reflect the broad nature of instructions that come through the door from real people.

In this next phase of the firm’s development, we are seeking a person who is ambitious to make their mark and to become part of the partnership in due course. There’s plenty of work to get on with and scope to grow. General practice experience is the key, but if you have additional areas of interest, then we’re also keen to hear your thoughts.

If you are intrigued by what you read, please email me with your CV and any initial questions you may have. I’ll send you out our application form for completion which I’d appreciate you completing and returning to me.

Applications close 28 February 2021.

A full overview and job description can be viewed here.

Karen Courtney Business of Law karencourtneynz@gmail.com 027 7296023

Property Law Half-Day Conference 2021 Thursday 25 February | 4 CPD hours* In person & live stream The Half-Day Conference provides practically focused sessions on a range of pertinent and interesting property law topics presented by experts in their fields. *Early Bird bookings made by 8 Feb will receive 2 bonus hours of ADLS CPD On Demand™ to complete at no extra cost (total 6 CPD hours).

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd