LawNews - Issue 3

THIS WEEK’S ARTICLES

Issue 3 19 Feb 2021

Uber driver is a contractor, court rules p1

The tricky business of fixing the RMA p3

Covid and BI insurance: a glimmer of hope p5

LawNews adls.org.nz

EMPLOYMENT LAW

Court rules Uber driver is a contractor, not an employee

By Jenni McManus

A long-awaited decision on the employment status of an Auckland Uber driver has held that he is an independent contractor, not an employee, of the global ridesharing business.

Photo by LPETTET/Getty Images

Atapattu (“Shane”) Arachchige was seeking a declaration from the Employment Court that he was an employee of Rasier NZ Ltd, the local unit of Uber BV. Only with employee status could he file a personal grievance claim against Uber which terminated his contract in June 2019 after a passenger complaint. Arachchige says Uber gave him no details about the complaint; nor was he given the opportunity to respond. Uber simply deactivated him from its app, ending his four-year association with the business.

The employment status of Uber drivers is being tested in several foreign courts

In ruling he was an independent contractor Judge Joanna Holden was careful to distinguish Arachchige’s case from an earlier decision involving courier driver Mika Leota (Leota v Parcel Express) where Chief Employment Court Judge Christina Inglis found Leota was an employee. Nor will Judge Holden’s decision necessarily apply to all 6500 Uber drivers in New Zealand.

“The inquiry is intensely fact-specific and deals only with Mr Arachchige’s situation,” she said. But barrister and employment law specialist Catherine Stewart says in certain circumstances, it will have precedent value.

“I would imagine most Uber drivers have fairly similar factual scenarios and if they do have similar fact scenarios, this is a very persuasive case,” she says. “It’s likely there are arrangements for Uber drivers that are the same or similar [to those of Arachchige]. If that’s the case, this will be an important precedent.”

Similarly, Chief Judge Inglis made it clear her decision in Leota should not be taken as a blueprint for the courier sector and did not mean all

I would imagine most Uber drivers have fairly similar factual scenarios and if they do have similar fact scenarios, this is a very persuasive case courier drivers in New Zealand were employees. “It makes a declaration of Mr Leota’s status only,” she said. But, as Leota’s lawyer Garry Pollak said at the time, it’s a “salutary reminder that simply because a worker is labelled an independent contractor does not mean they actually are”. Read more Stewart concurs. In making these decisions, no longer do the courts look simply at the wording

of the contract.

The relevant law is s 6 of the Employment Relations Act 2000 which deals with the meaning of the word “employee”. While a lay person might think signing a contract is the end of the matter, the question of whether a person is an employee or an independent contractor depends also on the way that contract is being performed and what the intentions of the parties were, Stewart says This wasn’t always the case. Twenty years ago, if a contract stated you were an employee or an independent contractor, “that was pretty much the end of it”. But the label is no longer determinative.

“And I think that’s a good thing,” Stewart says.

“Otherwise, it enables people to put their own labels on it and avoid their obligations as an employer.”

The leading case on the interpretation of s 6 is the Supreme Court’s decision in Bryson v Three Foot Continued on page 2

EMPLOYMENT LAW

Court rules Uber driver is a contractor, not an employee Continued from page 1 Six (no 2) which spells out the matters that need to be taken into account in determining the true nature of the relationship. The court looks first at the terms of the contract and secondly at the way it is operating in practice.

“That’s where Leota is so different [from Arachchige],” Stewart says. “The agreement said Leota was an independent contractor but pretty much everything else was pointing to him being an employee.”

The facts Before becoming an Uber driver, Arachchige drove for Alert Taxis for five years under a franchise agreement. At Alert, he considered himself to be in business on his own account.

He said driving for Uber was similar but there were important differences. For example, he paid a monthly franchise fee to Alert Taxis, giving him the right to use its brand and signage on his vehicle.

He developed a regular clientele who paid him direct for his services and he had some flexibility about how much he charged them.

To Arachchige, the key difference between driving for Alert and Uber was his inability to develop a personal relationship with his Uber customers and to negotiate a fee. He was also unable to share in the profits of the ride-share business.

Against that, Uber argued that Arachchige had signed a service agreement which clearly denoted him to be an independent contractor. He had autonomy and control about when, where and how he worked and could also work for local competitors such as Zoomy, Ola and Didi. He was in control of his own vehicle and other equipment and was responsible for his own tax.

In Uber’s view, it is simply an app, connecting riders with drivers who are willing to transport them. It operates a billing system and takes commissions.

And while Arachchige’s work was integral to its business, Uber says it lacked control over the way it was done.

As the Employment Court saw it, the key issue was whether Arachchige was in business on his own account or working for someone else’s business.

“I don’t think that you could say in a million years that an Uber driver is conducting an independent

business,” says Pollak, who is also acting for Arachchige.

Stewart disagrees. When she applies the 12 guidelines laid out by Chief Judge Inglis in Leota, they strongly suggest Arachchige was an independent contractor. Using those same indicia, Pollak says he can make an equally compelling argument that he is an employee. “But are these tests even relevant to the gig economy?” he asks.

The question of whether a person is an employee or an independent contractor depends also on the way that contract is being performed and what the intentions of the parties were Global battle New Zealand isn’t the only jurisdiction grappling with the status of Uber drivers. Cases have been filed in France, Australia, Canada and the United States. As Arachchige was being heard in December last year, the UK Supreme Court was hearing an appeal by Uber which was contesting a ruling that its drivers were “workers”.

No other jurisdiction has the equivalent of New Zealand’s s 6. But the UK has a third category of status – the dependent contractor – where workers are entitled to statutory protections such as the minimum wage, rest breaks and annual leave, and health and safety laws but cannot challenge the termination of their contract unless discrimination is alleged.

Closer to home, in 2017 the Australian Fair Work Commission in Kaseris v Rasier Pacific VOF produced a summary of the relevant factors that had to be taken into consideration and found Uber drivers were not employees. It noted Uber had no legal obligation to Kaseris, apart from providing access to its app and remitting fares

LawNews

Editor: Jenni McManus

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

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

2

and passenger cancellation fees. The commission said the fundamental elements of an employment relationship simply did not exist.

Judge Holden found that the services agreement Arachchige signed with Uber was not an employment agreement. Apart from Uber’s basic licensing requirements, it was up to Arachchige to decide what vehicle he used, when he would carry out the services and where he would do so.

“None of this is consistent with an employment agreement,” she said. “It can be contrasted with the situation in Leota and Southern Taxis where the drivers worked as directed.”

While he could not build a customer base, Arachchige could make other business decisions, the judge said. Specifically, he could improve his profitability by choosing to work at times of peak demand and could decide what vehicle, phone and insurer he used. And he could reduce costs by sharing the vehicle with another driver.

Judge Holden did not buy Uber’s characterisation of itself as a technology business. She said it would be “artificial” not to describe it as a passenger transport operation in the wider sense. The drivers were integral to its operations as without them it didn’t have a business. Nevertheless, Uber had little control over the way its drivers did their jobs.

“While there are some aspects of the relationship between Uber and Mr Arachchige that may point to employment, the intent of the parties throughout their relationship was that Mr Arachchige would operate his own business in the manner and at times he wished,” she said. “The agreement between [the parties] reflected the parties’ intention and the parties acted in accordance with the agreement.”

Pollak says his client decided not to seek leave to appeal. It was primarily an access-to-justice issue, he said. Arachchige was on legal aid and the risk of a costs award against him, which could be as much as $100,000, was too big a hurdle.

Pollak says he considers the judgment was incorrect and “does not stand up logically” with the Leota decision. “It is likely that in every jurisdiction this year (already in France) Uber drivers will ultimately be determined to be employees, but not here….Sometimes boldness is required rather than adherence to old-fashioned notions.

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 3 | 19 Feb 2021

RESOURCE MANAGEMENT LAW

Reforming the RMA: a delicate and tricky business

By Diana Clement

Environment minister David Parker has announced that the Resource Management Act 1991 (RMA) will be scrapped and replaced with three new pieces of legislation: the Natural and Built Environments Act (NBE), Strategic Planning Act and the Climate Change Adaptation Act. Does this signal a brave new world? Drafting the perfect replacement for the RMA is a monumental task but the government has promised to do it within its current term.

Our law has evolved from a modest piece of legislation – the brainchild of former Deputy Prime Minister Sir Geoffrey Palmer – which was the envy of by the world to a behemoth bogged down in bureaucracy.

Over the years it has been amended to the point where it’s time to repeal it and start again. An exposure draft of the NBE will be released to a select committee in May. In 2020 the independent Resource Management Review Panel chaired by retired Court of Appeal judge Tony Randerson QC considered whether the RMA should be scrapped or if amendments that had proved unworkable could be pared back into coherent legislation, says Berry Simons partner Helen Andrews, convenor of the ADLS’ Environment & Resource Management Law Committee “The panel decided, and probably rightly, that it’s past of the point of no return, that it’s too hard to try to make those adjustments to salvage the Act itself.”

That doesn’t mean wholesale abandonment of the best bits of the RMA and starting from ground zero, says Andrews. Expect to see the more usable provisions of the existing Act appearing in similar guise in the new legislation.

That includes the RMA’s sections 5 to 8, containing the Act’s purpose, principles, matters of national importance and treaty provisions. “That’s really the engine room or the key lodestar as it has been described by the Environment Court,” she says.

In its submission the ADLS committee will focus on the wording, rather than policy because of the many varying views of the committee membership, encompassing private practice, in-house counsel, community and academic perspectives.

“Obviously we’re not there to advocate on behalf of a particular policy position. So, what we do in our submissions is comment on the workability of the proposals that have been put forward [and] how they might integrate with other legislation,” Andrews says.

Helen Andrews

Dr Grant Hewison

The focus on the housing crisis in the current reform could be a real mistake when what really matters is the climate crisis

Housing or climate?

The RMA is often viewed as the cure for the housing crisis, yet amending the RMA didn’t fix it in the past. Amendments didn’t work and weren’t given sufficient time to bed in, says Andrews. The lesson, however, may not have been learned.

The one area of unanimity, she says, is agreement that the RMA does need to be reformed. “The RMA has got too unwieldy. Too incoherent. The amendments weren’t always needed and they haven’t always been well targeted.” Even when they worked, they were amended yet again.

“We’re trying to address the housing crisis by reforming the RMA. It’s kind of like nonsense. You have a tax problem not a land-use problem.”

It’s a tall order to replace the RMA without those three new Acts piling up even higher than the existing pile of paper that comprises the current legislation, says John Tookey, professor at AUT’s School of Future Environments.

The tricky part for drafting shorter legislation will be finding the appropriate balance between the various priorities that need to be addressed by the legislation.

Although the engine room will be recognisable, inevitably with any new legislation there will be elements that will need to be tested in the courts.

It’s notable that the RMA is one of the most singular pieces of legislation that encapsulates the principles of the Treaty of Waitangi, Tookey says.

One of the key issues, says committee member Dr Grant Hewison, director of Grant Hewison & Associates, is that the new legislation must be clear about the role of local government in the Tiriti/ Crown partnership. The three new statutes must also ensure multiple institutions can quickly and easily implement what was intended.

The focus on the housing crisis in the current reform could be a real mistake, says Hewison, when what really matters is the climate crisis. “From what I can see [climate] is being treated as an add-on,” he says.

Without focusing on climate change we might be simply rearranging the deck chairs on the Titanic, Hewison says. “Although that will bring some better outcomes at the margins, it isn’t what we need or the government actually thinks it will get out of this process.

“If the RMA isn’t going to change much in terms of its core provision, then the outcomes are not going to be too different from what we’ve got now.”

Another big issue could be the large range of stakeholders to consider within an ambitious timeframe, says Tookey. “There will be individuals who are going to view this as a direct assault on their ability to have an input into the land use in Aotearoa, New Zealand,” he says.

At the same time, says Hewison, we have a very different style of government now than in the first –past-the-post days when the RMA was first drafted. This could make it harder to push legislation through.

“The government now under MMP has a majority and can force through legislation if it wants to. You have a much wider range of stakeholders and you Continued on page 9 3

CONSTITUTIONAL LAW

The Queen’s gambit: how Her Majesty wields influence on legislation

By Anne Twomey

We all know the Queen can’t refuse assent to a bill just because she doesn’t like it. But can she secretly get a law changed, in her personal interest, before it is even introduced into parliament?

The answer is yes, and we finally have documentary evidence to prove it.

Due to secrecy laws, it is extremely hard to find documentary evidence of the Queen’s exercise of influence. In the United Kingdom, government documents that “relate to” communications with the sovereign or the next two persons in line to the throne, as well as palace officials acting on their behalf, are subject to an absolute exemption from release under freedom of information or by government archives.

This exemption lasts until at least five years after the death of the relevant member of the royal family, meaning we cannot access British government documents about the Queen’s political role, including in relation to Australia and New Zealand.

New documents But The Guardian has managed to expose a chink in this armour of secrecy.

In the UK’s National Archives, it discovered documents from 1973 showing the Queen’s personal solicitor lobbied public servants to change a proposed law so it would not allow companies, or the public, to learn of the Queen’s shareholdings in Britain. The gambit succeeded and the draft bill was changed to suit her wishes. It is a rare insight into what goes on behind the scenes.

The procedure involved is known as “queen’s consent”. This is different from “royal assent,” which occurs after a bill has been passed by both houses of parliament. “Queen’s consent” happens at a much earlier stage, usually well before a bill is introduced to Parliament.

Queen’s consent is required where a bill would affect the governmental powers formally vested in the Queen (such as powers to enter into treaties, declare war, dissolve parliament or grant mercy), matters directly affecting the monarchy (such as succession to the Crown, royal marriages and royal titles) and the property and revenue interests of the Queen and her heir held by the Duchy of Lancaster and the Duchy of Cornwall.

Curiously, it also seems to extend to bills affecting the privately held property and financial interests of the Queen, although there does not appear to be a clear rationale for this.

Any proposed bill that would affect these royal interests must be sent to the Queen and her private solicitors at least two weeks before its parliamentary introduction. The solicitors then advise on the potential impact of the bill before the Queen grants her consent. A bill cannot proceed through Parliament without such consent. This became an issue during the battle over Brexit.

Ministerial advice The palace has consistently stated the Queen acts on ministerial advice in granting or refusing Queen’s consent. While this may be so, there would be no point in her paying for advice from her personal solicitors unless she intended 4

Photo by WPA Pool/Getty Images

There is a myth the queen never involves herself in political matters. In public view, all she does is act on ministerial advice, signing her name or initials where required. But she has always done more than this. She exercises extensive soft power by influencing government policy and bills before they are introduced to Parliament. Her power is exercised behind closed doors and is more potent because of it.

Chinks exposed in the armour of secrecy

to exercise her soft power to persuade the government to make changes to a bill when it suited her to do so.

One would imagine this would ordinarily happen through a quiet word during the Queen’s weekly audience with the prime minister. No records are kept of such meetings, which remain strictly confidential. Any instructions to make changes to a proposed bill would come from the prime minister before it was introduced to Parliament and could not be traced back to the Queen.

The documents uncovered by The Guardian, however, show an alternative, more direct exercise of power. In 1973, the Queen’s personal solicitor met with public servants to ask them to change a proposed companies bill to ensure the Queen’s shareholdings were not exposed.

What is interesting is that public servants agreed to the meeting and tried to work out ways to accommodate the Queen’s wishes before even seeking ministerial approval. There seemed to be an expectation that public servants should meet her wishes. Moreover, there seemed to be no shock or surprise her solicitors should intervene in this way.

This was because such intervention by the Queen’s solicitor was not a one-off.

In a further article, The Guardian has also revealed three more instances of pressure being imposed by the Queen’s solicitor or the palace to secure changes to proposed laws before they were passed.

Differing understandings In 2014, a British parliamentary committee concluded it had “no evidence to suggest that legislation is ever altered as part of the consent process”. This goes to show how effective the secrecy provisions have been in keeping the public and backbench politicians in the dark about how the constitutional system actually works. Yet ministers seem to know better.

Read more: Coronavirus: how Europe’s monarchs stepped up as their nations faced the crisis In 2012, then British Attorney-General, Dominic Grieve, issued a certificate denying access to letters by Prince Charles that lobbied ministers. Grieve asserted lobbying ministers and “urging views upon them” formed part of Continued on page 8

LawNews Issue 3 | 19 Feb 2021

​I NSURANCE LAW

A glimmer of hope for Covid-impacted businesses

By David Friar & Sam Hiebendaal

The UK Supreme Court handed down a judgment earlier this month on whether business interruption policies in the UK cover losses attributable to Covid-19.

The court differed in some respects from the English High Court judgment in the same case, and also overturned a controversial decision on causation, which has application to insurance policies more generally.

We give a brief overview of the Supreme Court’s decision and consider the implications for the New Zealand insurance market.

The decision The English Financial Conduct Authority (FCA) brought a test case last year on behalf of insureds against several insurers in relation to the cover provided by business interruption (BI) policies following the Covid-19 pandemic: Financial Conduct Authority v Arch Insurance (UK) Ltd [2020] EWHC 2448 (Comm).

The FCA largely succeeded in the High Court, after which the FCA and insurers made a leapfrog appeal to the UK Supreme Court. The Supreme Court has also decided the case in favour of the FCA: Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1.

The Supreme Court considered the following issues.

Is there cover under a standard BI insuring clause?

The standard insuring clause in a BI policy covers only interruption to a business that is caused by material damage, such as damage to buildings or other assets.

In the case of a disease like Covid-19, there is no material damage. This typically means interruption caused by the virus will not be covered under standard policy wording and an insured will need to look to extensions under the policy.

Both the Supreme Court and High Court confirmed the usual position and turned to consider policies containing specific extensions to cover.

Accordingly, insureds in New Zealand will need to carefully review their BI extensions in order to assess whether they may have cover.

Does an extension apply?

Some BI policies in New Zealand cover interruption caused by actions of a public authority that lead to the closure of a business or an inability to access business premises. For example, one of the clauses considered in the FCA case indemnified the insured for losses resulting from “prevention of access to the premises due to the actions or advice of a government or local authority due to

David Friar

Sam Hiebendaal

If an insured had such cover prior to the outbreak, they may potentially have cover for interruptions caused by Covid-19 or a lockdown an emergency which is likely to endanger life or property”.

Less commonly, policies may also contain an extension for interruption caused by the insured’s inability to access its business premises as a result of disease (or, in special cases, interruption due to the disease itself). Again, the FCA case provides an example of specific cover resulting from “any human infectious or human contagious disease … an outbreak of which the local authority has stipulated shall be notified to them manifested by any person whilst in the premises or within a twenty five (25) mile radius of it”.

Specific disease cover was not common in New Zealand. However, if an insured had such cover prior to the outbreak, they may potentially have cover for interruptions caused by Covid-19 or a lockdown.

Whether there is cover under a prevention of access or disease extension will depend on the particular terms of the clause at issue. The English High Court and UK Supreme Court provided guidance as to the meaning of terms commonly used in such clauses, including “manifest”, “occurrence”, “prevention”, “restrictions imposed”, and “inability to use”.

The High Court and Supreme Court generally held that there was cover for Covid-19 under the relevant extensions.

If an extension applies, is cover excluded?

In New Zealand, many BI policies contain exclusions for pandemics and human disease notifiable under the Health Act 1956 (such as Covid-19). Where an extension is providing cover, and an exclusion excluding cover, it will be necessary to see whether the two clauses can be reconciled.

In many cases, the policy will expressly provide that the exclusion prevails in the event of a conflict. In several policies we have reviewed, the Health Act exclusion has taken precedence over extensions that would otherwise potentially provide cover.

In some cases, however, the policy might be less clear. Once again, we can take an illustrative clause from the FCA case, in this instance from a policy that provided cover under an extension for interruption caused by the occurrence of a notifiable disease within 25 miles of the premises.

There was a general exclusion that provided:​“The insurance by this policy does not cover any loss or damage due to … epidemic and disease or due to any limitation or prevention of the use of objects because of hazards to health. … All other terms and conditions of this policy shall be unaltered and especially the exclusions shall not be superseded by this clause.”

The Supreme Court held that this general Continued on page 6 5

Continued from page 5 exclusion for epidemics and disease could not be interpreted to cut down more specific cover for disease than had been provided by an extension. It ruled that an ordinary policyholder would naturally assume that a general exclusion at the end of a lengthy policy document would not limit the cover provided by the extension.

What loss was caused by the insure​d risk?

BI policies typically cover only business interruption caused by material damage to property. In a controversial previous case known as the Orient-Express, the English High Court considered whether a hotel’s decreased patronage had been caused by material damage resulting from Hurricane Katrina. The High Court held that the critical question was whether those BI losses would not have been suffered “but for” the physical damage to the hotel.

The court had ruled that the losses were not covered because Hurricane Katrina had caused widespread damage to the surrounding area, leading to that area being closed to the public.

It therefore concluded there would have been decreased patronage even if the hotel had not been damaged, and so there was no causative link between the material damage to the hotel and the decreased patronage.

In the FCA case, however, the Supreme Court decided that the Orient-Express was wrong. It rejected the “but for” analysis and ruled that if a loss is caused by both an insured risk and a noninsured risk, that loss will be recoverable unless the

Where an extension is providing cover, and an exclusion excluding cover, it will be necessary to see whether the two clauses can be reconciled

This is a significant ruling and applies to all insurance policies, not only BI policies. We expect the UK Supreme Court decision to be highly persuasive to a New Zealand court considering the same issue.

If there is cov​er, how should the loss be quantified?

BI policies commonly include “trends clauses”, requiring loss to be assessed by reference to the difference between (for example) the revenue earned by the business in the real world (that is, taking account of losses caused by the insured risk) and how the insured’s business would have performed in a hypothetical, counterfactual world in which the insured risk did not occur, while also taking account of business trends occurring prior to the occurrence of the insured risk.

This can sometimes be easier said than done. For example, under a policy providing cover for loss of access due to actions of the government following Covid-19, should the counterfactual be:

a world in which the government never imposed a lockdown, but Covid-19 was still present in the country and causing lower demand and having other, wider impacts (leading to a lower recovery); or

a world in which there was no outbreak of Covid-19 at all (leading to a higher recovery)?

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The High Court tended to view that, on the policy wordings it considered, the insured risk was a composite of the elements leading to the interruption, not only (for example) the relevant government action. This meant the court generally considered the appropriate counterfactual to be one where there was no Covid-19 at all.

The Supreme Court agreed with that result but on a different basis. It held that the purpose of trends clauses is to arrive at the results that would be achieved but for the insured risk and any circumstances arising out of the same underlying cause. The counterfactual therefore had to exclude all effects connected to Covid-19.

David Friar is a partner and Sam Hibendaal is a senior associate at Bell Gully

Notice of ADLS Annual General Meeting 2021

NEW BOOK

6

non-insured risk is expressly excluded from cover.

The Annual General Meeting (AGM) of members of Auckland District Law Society Incorporated will be held on Thursday 4 March 2021, at 5.30pm at the offices of Link Market Services, Level 11, Deloitte Centre, 80 Queen Street, Auckland.

AGM business Annual report on ADLS Inc (will be available on the ADLS website prior to the AGM) Confirmation of President and council members for 2021 Approval of 2020 AGM minutes Appointment of auditors Notices of motion General business Online participation Members and proxy holders entitled to attend and vote at the AGM will be able to attend the AGM in person or participate in the AGM virtually via an online platform provided by Link Market Services.

Members will be sent the link to the meeting and a member number prior to the AGM to enable online participation.

LawNews Issue 3 | 19 Feb 2021

PROPERTY LAW

Guarantors or covenantors: what’s in a name?

By Jonathan Flaws

ADLS created the term loan agreement to record the loan terms to be secured by a mortgage instrument. The term loan agreement plus the mortgage instrument together replicated the old paper mortgage. At the time, solicitor’s nominee companies were still in play and many solicitors were used to referring to the non-mortgagor as a covenantor. The use of this term is now redundant.

When Polonius counselled his son Laertes to “neither a borrower nor a lender be”, he was referring to participants in a credit contract.

Polonius could have added ‘guarantor’ or ‘covenantor’ to the list but it’s unlikely his son would have understood the purpose of these participants or the distinction between them.

The provisions in the term loan agreement general terms that referred to the covenantor now refer to the guarantor and the definition of the word ‘you’ refers to anyone (other than the lender) signing the agreement, however described.

Not surprising, for it took an appeal to the Supreme Court in the case of Brougham v Reagan [2020] NZSC 118 to explain the purpose of these participants in a contract drafted on the ADLS term loan agreement form.

The case is a timely reminder that an ADLS WebForms document is offered as a template to assist lawyers in drafting legal documents. It is for the lawyer preparing the document to ensure the form is appropriate for the circumstances and amended to reflect the commercial terms of the transaction being documented.

In the Brougham case, each of the two directors of a company originally agreed to guarantee one half of a $50,000 loan used to purchase a business.

Both signed as directors of the borrower but only one also signed the agreement as guarantor.

The form was not amended to limit the guarantors’ liability to one half of the loan amount each.

It deleted the reference to ‘covenantor’ and contained the usual condition precedent that prior to the advance the guarantor would also enter into a deed of guarantee and indemnity. The condition precedent was not satisfied but the loan advance proceeded.

The lender unsuccessfully pursued the sole signing guarantor. The Supreme Court decided that signing the loan agreement without also signing the deed of guarantee and indemnity did not comply with s 27(2) of the Property Law Act 2007.

This section requires a guarantee to be in writing.

Being named and signing a form that does not contain an operative guarantee clause does not constitute a guarantee in writing.

The general terms in the loan agreement contained the usual simple guarantor wording but applied the wording only to the covenantor. Crossing out the word ‘covenantor’ on the front page of the form meant the clause in the general terms didn’t apply to this specific agreement.

Without understanding the difference between a ‘covenantor’ and a ‘guarantor’ this might be confusing.

For some time (ie, since the Brougham decision in the High Court was published), the ADLS term loan form has not provided for a ‘covenantor’ so the

If the person signing the agreement as guarantor in the Brougham case had signed the current version, the Supreme Court is more likely to have found a guarantee in writing in terms of s 27(2) of the Property Law Act 2007.

Jonathan Flaws

case may have been decided differently if the new form had been used.

The term loan agreement was developed after electronic registration of mortgages became mandatory. Previously, parties to a paper mortgage could include a person who was not an owner of the property charged. Originally, a fixed sum mortgage contained both the loan and the security terms. Then lawyers began using a combination of an all-obligations mortgage to provide security and a loan agreement to provide the terms of a loan.

It is for the lawyer preparing the document to ensure it is appropriate for the circumstances

A person signing a paper mortgage who was not the owner of the land could not be referred to as a mortgagor and therefore was referenced as a ‘covenantor’. A covenantor did not grant the mortgage security but agreed to borrow and repay the loan secured by the mortgage.

With the advent of electronic registration, only an owner of the land was required to sign the client A & I and therefore became the only party to the mortgage instrument. To provide for the equivalent of a covenantor in the paper environment, the

But not all guarantees are created equal and it has become customary for a lender to require a separate deed of guarantee and indemnity to be signed by a guarantor. This creates an independent contract of indemnity that remains intact between the lender and the guarantor even if the loan agreement fails and the borrower is not bound.

Under a simple guarantee, the guarantor is surety for the borrower’s debt and if the borrower is released, so too is the guarantor.

The inclusion of a condition precedent requiring a deed of guarantee and indemnity allows the lender to require both types of guarantee.

A benefit of using ADLS WebForms is that many are subject to legal interpretation. If this identifies an area that the Documents and Precedents Committee believes can be improved, the form is amended. The agreement for sale and purchase of real estate has been amended over time following judicial interpretation of its terms.

ADLS’ Documents & Precedents Committee will review the issues raised by the Brougham case and consider whether amendment of the term loan agreement is necessary.

In this case, the person signing as a guarantor continues to be bound by the guarantee clause in the general conditions which does not contain the indemnity. It doesn’t contain the indemnity because it is still open for the lender not to require one and for the lender’s lawyer to ensure the term loan agreement reflects what has been agreed.

Jonathan Flaws is a director at Sanderson Weir and a member of ADLS’ Documents & Precedents committee For more on guarantees and the Supreme Court’s decision in Brougham, register for ADLS’ seminar A Guide to Guarantees, presented by Michael Harper (partner, Chapman Tripp) and Michael Lenihan (barrister sole) on 11 March 2021.

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Continued from page 4 Prince Charles’ preparation for kingship as he “would have a right (and indeed arguably a duty) to make [such representations] as monarch”. If this is so, the Queen plays a far more politically active role than is publicly known in the UK, Australia and New Zealand.

not yet been asked to give her approval to New Zealand Style and Titles Bill. It is … something that she would welcome in principle but her approval must be sought both to introduction of Bill and exact wording of proposed new Style and Title.”

Relevance to Australia and New Zealand While the Queen has little involvement anymore in Australian or New Zealand affairs, occasionally legislation is passed that will affect her. In such cases, the palace insists consent must first be granted, even though there is no formal parliamentary procedure, as in the UK.

The Queen’s magic In practice, the Queen’s role in relation to her realms, such as Australia and New Zealand, largely now involves the appointment and removal of the Governor-General and other ceremonial or symbolic acts. In performing these, she acts on ministerial advice.

One example was the 1986 passage of the Australia Acts, which were identical British and Australian Acts that cut off residual constitutional links between the UK and Australia.

But she maintains a degree of control through a system that requires “informal” advice be given first, with formal advice only being given once the informal advice is approved.

Read more: ‘Palace letters’ show the Queen did not advise, or encourage, Kerr to sack Whitlam government

This means the Queen can always say she has not rejected the formal advice of her ministers in the realms, even though she may have rejected informal advice or at least negotiated changes to it before it is formally given.

One of the sections provided for the Queen to be advised directly by state premiers in relation to state matters. The Queen objected. Her private secretary expressed the concern that she might be subject to “outlandish advice”.

To secure the Queen’s consent to the introduction of the bill, extensive negotiations were undertaken. Amendments were made to the form of the section and a convention on how it would operate was agreed. Even then, the Queen gave consent only after all Australian governments insisted upon it.

A New Zealand example concerned a proposed change in 1973 to the Queen’s royal style and titles with respect to New Zealand. The government wanted the Queen to assent in person to the legislation when she visited New Zealand.

Her private secretary replied by telex: “As far as I can discover The Queen has

As with Queen’s consent, the power of influence is exercised at an early stage, in confidence, so that no formal or public act of refusal is ever seen.

Like the best of magicians, the Queen’s magic is keeping the real action out of public view while maintaining the appearance of doing nothing. These latest documents, like the recently released Kerr-palace letters, indicate there is much behind the scenes that has not yet been revealed.

Anne Twomey is a Professor of Constitutional Law at the University of Sydney.

The above was first published in The Conversation and is republished with permission

Youth Advocates Conference Friday 26 February | 4 CPD hours In Person & Live Stream

This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom.

Click here to view the full brochure

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LawNews Issue 3 | 19 Feb 2021

Continued from page 3 have a much more delicate consensus-building process.”

issues,” Andrews says.

“Otherwise, some council officers in particular will simply say, ‘well, yes, we’ve got all these concepts and principles that we’re familiar with. This is basically RMA 2.0 and so I can continue operating and approaching things as I was’. Whatever we can do to try and avoid that and convince them it’s a brave new world and that approach has to change.

Under the previous coalition, reforming the RMA might have been impossible, which may have given the government confidence to make the move now.

Enforcing bureaucracy Not all of the issues with the RMA sit in the legislation.

“If not, I can certainly say that in 10, 15, 20 years’ time people are going to be having exactly the same conversation around the NBE and why that failed to achieve the outcomes as intended.”

Councils and their staff have at times been the roadblocks to the efficient operation of the RMA. Resourcing, capacity and cultural issues need to be addressed, says Andrews. Too often, she adds, councils held tightly to ownership of their plans.

“Certainly we hear the view from the council that the council plan is the council’s plan, and it wants to retain ownership of its plan and have it written how the council wants it written.” Suggestions for improvements weren’t always well received.

One of the key issues Andrews sees in the current regime is the focus by council officers on “adverse effects”. Hence the recommendation from the Randerson report that there needs to be a change from a simple focus on adverse effects to achieving outcomes.

“Having that change spelled out in black and white could well make a difference. To ensure that it does [happen] it has to be backed up by a review of what else needs to be done to address implementation

John Tookey

Expect to see the more usable provisions of the existing Act appearing in similar guise in the new legislation

Tookey also sees issues from within councils. He points out that many bureaucrats working with the RMA started their careers under the Act and may well finish them under it, and may be invested in the existing system. “You have to change the cultural approach to doing business.”

Drafting the legislation isn’t the hard part, he says.

And the issue is bigger than simply changing the culture in councils.

“You are going to have to spend an awful lot of time and effort re-educating folks and re rethinking what takes place. Simplifying legislation, then trusting that legalisation to a bunch of bureaucrats whose role is enforcing bureaucracy. I’m not necessarily convinced.”

Read more here and here

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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 Your Legal Business: Practice Management in the Cloud: A Practical Demonstration — FINAL NOTICE 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 real-life 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.

Learning outcomes: • • • •

Gain a clearer picture of what operating in the Cloud means.

Develop a better understanding of how you can get up and running in the Cloud.

Become apprised of how systems can be customised for your firm, needs and budget.

Benefit from real-life insights into the experience of entering the Cloud – the advantages and the limitations.

Social Media in the Workplace: Manage Your Risk — FINAL NOTICE In person | Live Stream Social media is part and parcel of our modern-day lives. Advances in technology mean that social media is always at our fingertips and it can often blur the boundaries between our work and personal lives. While many businesses have sought to harness the power of social media to enhance their brand and benefit their business, it is well known that social media also presents wide ranging risks in the workplace. For businesses, risks include reducing productivity, exposure to claims for vicarious liability, potential privacy issues, risks to confidential information, IP, and business reputation. While for employees, improper use of social media can lead to disciplinary action and even dismissal. These and other risks and issues associated with social media use in the workplace will be covered in this seminar in the context of recent case law.

Learning outcomes: • • • • • •

Become familiar with the recent case law in the area and the principles applied by the courts.

Learn about the risks and issues associated with social media use in a pre-employment context.

Receive guidance on using social media as a tool in workplace investigations and disciplinary proceedings.

Become familiar with the post-employment issues that can arise.

Learn about the jurisdictional and privacy issues.

Receive tips on how to manage social media risk.

Property Law Half-Day Conference 2021 — FINAL NOTICE 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

Youth Advocates Conference — FINAL NOTICE In person | Live Stream The Youth Justice System in New Zealand has always been pioneering, and following amendments to the Oranga Tamariki Act in July 2019 practitioners in the Youth Justice 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. The Youth Court is a specialist jurisdiction, requiring Youth Advocates to have special characteristics in order to be appointed, and special skills to do their work in addition to their legal skills. 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. Learning outcomes 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

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.

Learning outcomes Presenters: Marie Dyhrberg QC, President, ADLS; Emma Priest, Barrister; Ish Jayanandan, Barrister; Lucy Smith, Barrister

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Livestream CPD 1.5 hrs

 Mon, 22 Feb 4pm – 5.30pm

 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

 Seminar

Livestream

CPD 2 hrs

 Thu, 23 Feb 4pm – 5.30pm

 Presenters Mere King, Senior Solicitor, Buddle Findlay Laura Chapman, Senior Solicitor, Kiely Thompson Caisley

 Conference Livestream CPD 4 hrs

 Thu, 25 Feb 12.30pm – 5.pm

 Chair Bryce Town, Partner, Morrison Kent

 Conference Livestream CPD 4 hrs

 Fri, 26 Feb 10am – 2.30pm

 Presenter/Chair His Honour Judge FitzGerald

 Seminar

Livestream

CPD 2 hrs

 Tue, 2 Mar 4pm – 6.15pm

 Chairs His Honour Judge Bergseng Her Honour Judge Aitken

LawNews Issue 3 | 19 Feb 2021

CPD in Brief Financial Service Providers – Compulsory Registration Law Updated

 Webinar

Law governing the controversial Financial Service Providers Register (FSPR) has been substantially updated. The updated law comes into force on 15 March 2021. A wide range of financial service providers (FSPs) are required to register on the FSPR including lenders, financial advice providers, custodians and licensed FSPs. Under the updated law some FSPs are no longer required (or permitted) to register, and some off-shore FSPs with NZ customers are required to register for the first time.

Presenter: Simon Papa, Director, Cygnus Law

CPD 1.25 hrs

Personal Effectiveness Workshop

 Workshop

What are your goals for this year? Are you performing at your peak? Is there room for improvement in your work methods?

Returning for 2021, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant. Places are limited. Register now to avoid missing out.

Feedback from previous workshops include the following comments: • “Very clear, precise, entertaining” • “Best presentation I have attended in a long time” • “Great style and presence. Very useful and enjoyable morning” • “Will learn to implement some very useful practices” • “Very Interesting and lots of useful tips and habits” • “Covered a range of topics valued to the industry” Presenter: Tony Gardner, Managing Director, Archetype Leadership + Teams

 Wed, 3 Mar 12pm – 1.15pm

CPD 4 hrs

 Thu, 4 Mar 9am – 1.15pm

The Art of Communication — Be a Powerful Advocate

 Workshop

As Spandau Ballet put it, “Communication let me down.” How often have you thought that you could, or should, have slowed down when addressing a room, used more eye contact, or come across as more confident? 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 – 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; Isabel Fish, Director, Producer and Educator

CPD 3 hrs

Trusts Act Changes & New Disclosure Rules – Is it Worth Keeping your Trust Going?

 Seminar

In person | Live Stream For months now lawyers (and accountants) have been trying to get to grips with the new Trusts Act. Many trusts have already been wound up. Now trustees will be faced with onerous new tax disclosure obligations at the end of the tax year commencing 1 April for the period from 1 April 2021. Is it all getting too hard? Should clients be advised to wind their trusts up before 31 March? What other options are available?

Presenters: Bill Patterson, Partner, Patterson Hopkins; Denham Martin, Lawyer, Denham Martin Tax Law Presenter & Chair: Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited

 Sat, 6 Mar 9am – 12.15pm

Livestream

CPD 2 hrs

 Mon, 8 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

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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.

Social Media in the Workplace: Manage Your Risk Tuesday 23 February | Seminar & Live Stream | 2 CPD hours Visit adls.org.nz for more information.

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LawNews Get your message in front of 5500 legal professionals.

Booking deadline is close of business on the Friday prior to publication date.

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

Tony Horrocks is available for locum and part-time consultancy work (flexible as to location).

Many years’ experience, both as a sole practitioner and as a partner in a small law firm, in general practice, with particular expertise in trusts, estate administration, and business law.

Contact me by email: anthonycharleshorrocks@gmail.com or on mobile: 021 754312.

Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

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.

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.

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

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

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

Partnership or pre-partnership Opportunity 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

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

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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.

Wayne John COFFMAN, Late of 10 Red Hills Road, Massey, Auckland, married, telecommunications manager, aged 52 (died 22’01’21) Kim Ryland HARRIS, Late of Mission Bay, Auckland, sales manager, aged 61 (died between 06’09’20 and 07’09’20) David John LAWRENCE, Late of 265 Opara Road Oue, Hokianga, permanently separated from marriage, garden landscaper, aged 51 (died 11’12’20) Atareta Nicole POANANGA, Late of Hamilton, previously resided at Gisborne, lawyer, aged 67 (died 29’04’20) Alfred Peter SMITH, Late of 4/68 Rangitoto Road, Papatoetoe, Auckland 1050, retired, aged 78 (died 05’02’21)

LawNews Issue 3 | 19 Feb 2021

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

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

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

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

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.

We currently have one large office (62sqm) suitable for a small team and one smaller office (18sqm) for an individual barrister on offer.

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

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 Applications close 28 February 2021.

A full overview and job description can be viewed here.

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

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

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

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

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; • is compatible and personable with staff and clients (a people person); • wants and merits quick partnership appointment; and • has the personality and community-mindedness/involvement to attract new work as the town grows.

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

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

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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: • 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

detail and operate in a collaborative team environment

• Be able to work in a Paperlite office and manage an electronic file

using Infinity Software

We offer: • 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.

KING LEGAL – BIRKENHEAD

Senior General Practice Solicitor – 8+PQE – Ownership Opportunity Competitive salary – 5 weeks’ leave – attractive, spacious offices – support/mentoring • Property at all levels • Trusts • Estates/Wills/Estate Planning/Asset Protection • PRA experience an advantage 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.

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.

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.

Applications to: nkk.recruitment@gmail.com

No Agencies please

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.

It will be of value to all those practising in the area of property law.

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