LawNews - Issue 40

THIS WEEK’S ARTICLES

Issue 40 13 Nov 2020

Fixing the RMA p1

AODT model expands into Family Court p3

Key legal challenges for President-elect Joe Biden pages 4 & 5

LawNews adls.org.nz

ENVIRONMENT/RMA

The RMA: bad law or badly implemented?

By Rod Vaughan

Photo by MARTY MELVILLE/AFP via Getty Images

In the final days of the election campaign, the government pledged to scrap and replace the 30-year-old Resource Management Act 1991.

The brainchild of former Prime Minister Sir Geoffrey Palmer, the RMA was hailed as cuttingedge legislation, designed to balance economic and environmental sustainability. But it quickly became a battleground for environmentalists, urban developers, lawyers, councils, politicians and tens of thousands of ordinary citizens.

In the second of a two-part series, LawNews speaks to some of our top environmental lawyers about what reform might look like and why the Act is no longer fit for purpose.

Last week we heard from Allison Arthur-Young from Russell McVeagh and Andrew Beatson from Bell Gully. Read more. This week, Helen Andrews (Berry Simon) and Dr Grant Hewison (Grant Hewison & Associates) say the main problem lien not with the legislation itself but with the incompetence, ‘retience’ and lack of skill and vision of many of those who were charged with implementing it.

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

Grant Hewison In my view, the RMA should be recognised as internationally ground-breaking, as the first genuine attempt to import tikanga Māori in a holistic way into New Zealand’s general law and for taking an integrated approach to environment management and putting sustainability at its core.

I am in the same camp as those who don’t believe its demise is long overdue. Rather, I believe the RMA has suffered from reticence among multiple institutions to implement what the statute intended and that should be addressed.

Helen Andrews Ideally, the RMA should be remembered for

The RMA has become a battleground for urban developers, environmentalists, councils, lawyers and ordinary citizens

being a world-leading, innovative example of progressive environmental regulation at the time it was introduced. Sadly, time has shown that those charged with administering the Act have largely not had the skills or vision required to use the Act to its full potential.

Consequently, its legacy will likely be that it was a handbrake on development and caused the current housing crisis, while also failing to deliver improved environmental outcomes. It is also true that as it currently stands, the RMA is no longer fit for purpose, coherent or workable.

That is because it has been subjected to repeated substantive amendments, many of which were intended to address problems for which the RMA was not responsible.

The amendments therefore served only to increase complexity and delays and, consequently, frustration with the Act rather than improving its processes or addressing the issues the

amendments were intended to address.

What are your biggest beefs with it?

Grant Hewison One beef has been that Māori interests have typically been ‘balanced out’ in RMA decisions, especially as s 8 requires treaty principles only to be taken into account.

There has also been a lack of clarity about the role of local government in the Tiriti-Crown partnership and a reticence on the part of councils to embrace RMA processes for Māori participation.

Another of my beefs has been the failure to address climate change under the RMA. Amendments introduced in 2004 removed the ability of councils to consider greenhouse gas emissions and a national environmental standard was never developed. In addition, I believe the Supreme Court took a narrow approach to these amendments which further precluded councils Continued on page 2

ENVIRONMENT/RMA

The RMA: bad law or badly implemented?

Continued from page 1 from considering greenhouse gases.

Recent amendments to re-introduce these considerations are welcome, but they are minor now in light of the climate emergency and will likely be overwhelmed by the reforms being suggested.

Helen Andrews The number of times it has been substantively amended for no good reason to try and achieve outcomes that the amendments were never going to be able to deliver.

How appallingly bad many local authority staff are at properly understanding the RMA, what rules it requires and implementing those rules in a manner that reflects the Act’s sustainable management purpose.

The predominant ‘environmental gatekeeper’ mentality and concerning lack of competence of many council staff often results in excessive costs and delays for applicants to address or resolve issues well beyond the intended and proper scope of the RMA/sustainable management.

In the worst case, this results in worthy projects being abandoned or proposals being amended in a manner that delivers inferior environmental benefits simply because the council staff consider that is consistent with their incorrect interpretation of the RMA provisions and/or plan provisions.

The lack of proper, effective national direction that has been provided to date in order to guide decision-making under the RMA.

The fact that the RMA is repeatedly criticised for underperforming and stopping development when most often it is not the RMA itself that is the issue but, rather, how it is being implemented.

This means nobody even attempts to identify those who are actually responsible for causing the issues being complained about and to hold them to account. Instead, they can hide behind the rhetoric and criticism that is incorrectly aimed at the Act.

There are no consequences, and applicants have no recourse, when council staff routinely ignore the statutory timeframes in the RMA

Dr Grant Hewison

Helen Andrews

Moving from a predominant western view of ‘we are masters of the environment and it is ours to use at will’ to ‘we must respect the environment for its intrinsic values, as we cannot sustain our own lives if we do not’ was always going to be a marathon, not a sprint. The RMA should be viewed as an important part of helping us make that journey.

and its directive to avoid unreasonable delay.

Did the RMA achieve anything meaningful during its existence?

Grant Hewison By bringing together all statutes governing land, air and water resources, and focusing on the management of the environmental effects of human activities, the RMA introduced a clear, comprehensive and integrated approach to environment management.

It was internationally ground-breaking. At the time no other country managed the land, air and water under a single statute. Since then, many other countries have followed our lead because it was a correct one.

Helen Andrews I think at the very least the RMA has served to raise awareness of environmental issues and increase acceptance that we cannot take a ‘development-at-all-costs’ approach.

I believe that is because the philosophy of integration is fundamentally the correct one. The failure, in my view, comes not from the statute, but from those institutions responsible for putting the original philosophy of the RMA into practice.

Rather, most Kiwis would now agree that we need to protect the environment’s ability to sustain life – including human life – for generations to come.

Helen Andrews This is because it is generally not the RMA that is underperforming and stopping development – but those who are charged with implementing it.

While we might not have come as far as some people might have liked, it is likely things would be far worse had we not had the RMA in place for the past three decades. There has been a significant change in attitudes towards the environment since the 1970s and 1980s, so we have made progress.

So, the RMA (or at least the fundamental principles on which it is based) would not need to be replaced if it has not been inappropriately and clumsily amended several times, to the extent it is now acknowledged as being past the point of no Continued on page 10

LawNews

Editor: Jenni McManus

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

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

Grant Hewison The RMA has been the subject of considerable scrutiny and debate over the past 30 years. This has resulted in numerous amendments but not a move away from the fundamental underlying philosophy of an integrated approach to environmental management.

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.

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LawNews Issue 40 | 13 Nov 2020

TRUST LAW

Can trustees withhold a memorandum of wishes?

By Anthony Grant

documents is not clear.

An important issue facing trustees is the requirement that the new Trusts Act will impose on them to make trust documents available to beneficiaries.

The law on this topic is set out in detail in Breakspear v Ackland [2008] All ER 260. In short, a beneficiary has no automatic entitlement to be given a copy of a memorandum of wishes.

The recent case of Jacomb v Jacomb [2020] NZHC 1764, 21 July 2020, is relevant to two aspects of this exercise. The first involves circumstances which justify withholding documents from a beneficiary.

In the Jacomb case the beneficiary, Veronica Jacomb, was the daughter of two of the trustees.

She had left home at 15, become a drug addict and, it appears, a member of the Mongrel Mob. She had convictions for assault, theft, receiving stolen property, burglary, shoplifting, wilful damage and drug offences. She sued the trustees, wanting copies of what the judge, Cooke J, called “core trust documents”.

Cooke J has withheld them from her, saying she would be likely to use information from them for improper reasons. He said the best interests of the trust and its beneficiaries would be harmed if she were to have them.

Jacomb had previously used information to undermine her parents in their capacity as trustees in an attempt to coerce them into making distributions for her, and her actions had harmed the trust and its beneficiaries.

Anthony Grant

likely that these are the documents the trustees will be asked to provide to beneficiaries – or some beneficiaries, at least – when the Trusts Act comes into force.

Section 51(3) of the Trusts Act 2019 doesn’t speak of “core documents” but of “the basic trust information” which is to be given to beneficiaries.

This is defined to include “a copy of the terms of the trust or trust information.”

The term “trust information” is defined with deliberate imprecision in s 49(a). It includes “any information that it is reasonably necessary for the beneficiary to have to enable the trust to be enforced”. Is a memorandum of wishes “trust information”?

In reaching this decision, Cooke J followed the Supreme Court’s decision in Erceg [2017] 1 NZLR 320. His decision would almost certainly be the same if the Trusts Act were in force.

In the Jacomb case, Cooke J said, “documents concerning the settlor’s wishes can be seen as documents that are rudimentary in order for a beneficiary to understand the nature of the trust and their interest in it.” [16]

A second aspect involves the identification of “core trust documents” that a trustee must provide to a beneficiary. I write about this since it would seem

Although Cooke J has said a memorandum of wishes should be seen by a beneficiary, the entitlement of a beneficiary to see this category of

One of the most recent statements from the Court of Appeal on the availability of a memorandum of wishes was given in Addleman v Lambie Trustee Limited [2019] NZCA 480. Here, the Court of Appeal recorded its apparent approval with the trial judge’s statement that a memorandum of wishes “is often regarded as highly confidential” [25] and, by implication, is not usually to be provided to beneficiaries.

That is not to say that trustees cannot disclose memoranda of wishes when they think it appropriate to do so and, in my experience, they often do.

This is a difficult area of law from a policy point of view. On the one hand, the courts will wish to respect a settlor’s desire for confidentiality, especially if disclosure of a letter of wishes is likely to lead to the destruction of family relationships.

On the other hand, a beneficiary may be unable to challenge a decision of the trustees if an important memorandum, on which the trustees have relied, is withheld from the beneficiary.

Beneficiaries are to be provided with “basic trust information” to give them sufficient information “to enable the trust to be enforced” as per s 49(a)(ii).

But there will be cases where, if a memorandum of wishes is withheld from a beneficiary, it will be impossible to ensure a trust is being managed in ways that comply with a settlor’s intentions. It is obvious the courts will have to resolve this area of law.

Anthony Grant is an Auckland barrister specialising in trusts and estates

COURTS

Therapeutic drug courts expand to cover Family Court Hamilton’s planned Alcohol and Other Drug Treatment (AODT) court is to be expanded to include the Family Court jurisdiction, with the focus on young mothers with addiction issues who have had, or are at risk of having, a child removed from their care.

The change was announced by Chief District Court Judge Heemi Taumaunu on Wednesday as part of his vision to transform the courts under his jurisdiction. The two Hamilton AODT streams – criminal and family – will operate “on separate and discrete tracks”, he said. No legislative change would be required, and offenders would still be held accountable and responsible, and the Sentencing Act 2002 would

continue to apply.

The AODT courts have been operating as pilots in Auckland and Waitakere for some years but only in the criminal jurisdiction. Former Justice Minister Andrew Little announced earlier this year that these courts would become permanent and the model extended beyond Auckland.

The Hamilton move is part of Chief Judge Taumaunu’s plan to make the district courts more accessible and relevant to all New Zealanders under a model he describes as Te Ao Marama.

“This expansion of the AODT court is primarily about the best interests and welfare of children, required by the paramount principle outlined in ss 4A and 5 of the Oranga Tamariki Act 1989,” he said.

“The child’s wellbeing must also sit at the centre of the decision-making that affects them, and their family/whanau, hapu, iwi and community should be recognised.”

Principal Family Court judge, Judge Jacquelyn Moran, said the move was a “significant milestone” for the court which promised to address “the major underlying drivers of serious risk to babies and children”.

“The provision of a treatment option for mothers whose dependency issues have led to the removal of children, or threatened removal, is a big step forward for the Family Court.”

Next week: Chief Judge Taumaunu’s plan for the future of the district courts

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US ELECTION

Biden wins – experts on what it means for race relations, US foreign policy and the Supreme Court Three scholars discuss what a Biden presidency may have in store in three key areas: race, the Supreme Court and foreign policy Photo by Tom Brenner/Getty Images

By Brian Purnell The next four years under a Biden administration will likely see improvements in racial justice. But to many, it will be a low bar to clear: President Donald Trump downplayed racist violence, egged on right-wing extremists and described Black Lives Matter as a “symbol of hate” during his four-year tenure.

Photo by Win McNamee/Getty Images

Racism, policing and Black Lives Matter protests

President-elect Joe Biden

Justice Ruth Bader-Ginsberg

The Biden administration will probably not agree with the court’s future rulings on voting rights, gay rights, religious rights or the rights of noncitizens

The Supreme Court

Indeed, according to polls, most Americans agree that race relations have deteriorated under Trump.

Still, Biden is in some ways an unlikely president to advance a progressive racial agenda. In the 1970s, he opposed busing plans and stymied school desegregation efforts in Delaware, his home state.

And in the mid-1990s he championed a federal crime bill that made incarceration rates for Black people worse. He bungled the hearings that brought Clarence Thomas to the Supreme Court by allowing Republican senators to dismiss Anita Hill’s damning testimony of Thomas’ sexual harassment and by failing to allow other black women to testify.

But that was then.

During the 2020 campaign, President-elect Biden consistently spoke about problems stemming from systemic racism. Many voters will be hoping that his actions over the next four years must match his campaign words.

One area that the Biden administration will surely address is policing and racial justice. The Justice Department can bring accountability to police reform by returning to practices the Obama administration put in place to monitor and reform police departments, such as the use of consent degrees. More difficult reforms require redressing how mass incarceration caused widespread voter disenfranchisement in Black American and Latino communities.

“My administration will incentivise states to automatically restore voting rights for individuals convicted of felonies once they have served their sentences,” Biden told The Washington Post.

The killing of George Floyd earlier this year reinvigorated talk of addressing systemic racial discrimination through fundamental changes in how police departments hold officers accountable for misconduct and excessive force.

It is unclear how far President-elect Biden will walk down this road. But evoking the words of the late civil rights icon and Congressman John Lewis, he 4

at least suggested at the Democratic National Convention that America was ready to do the hard work of “rooting out systemic racism.”

Biden can help address how Americans think about and deal with unexamined racial biases through reversing the previous administration’s executive order banning anti-racism training and workshops. In so doing, Biden can build on psychological research on bias to make American workplaces, schools and government agencies equitable, just places.

Making progress fighting systemic racism will be a slow, uphill battle. A more immediate benefit to communities of colour could come through Biden’s Covid-19 pandemic response. The Trump administration’s failure to stanch the spread of the coronavirus has led to deaths and economic consequences that have disproportionately fallen on racial and ethnic minorities.

On matters of race relations in the US, most Americans would agree that the era of Trump saw the picture worsen. The good news for Biden as president is there is nowhere to go but up.

Brian Purnell is Associate Professor of African Studies at Bowdoin College in Brunswick, Maine.

By Morgan Marietta Despite the fact that American voters have given Democrats control of the presidency, the conservative Supreme Court will continue to rule on the nature and extent of constitutional rights.

These liberties are considered by the court to be “beyond the reach of majorities,” meaning they are intended to be immune from the changing beliefs of the electorate.

However, appointees of Democrats and Republicans tend to have very different views on which rights the Constitution protects and which are left to majority rule.

The dominant judicial philosophy of the conservative majority – originalism – sees rights as powerful but limited. The protection of rights recognised explicitly by the Constitution, such as the freedoms of religion, speech and press and the freedom to bear arms, will likely grow stronger over the next four years. But the protection of expansive rights that the court has found in the phrase “due process of law” in the 14th Amendment, including privacy or reproductive rights, may well contract.

The Biden administration will probably not agree with the court’s future rulings on voting rights, gay rights, religious rights or the rights of noncitizens. Ditto for any rulings on abortion, guns, the death penalty and immigration. But there is little President-elect Biden can do to control the independent judiciary.

Unhappy with what a strong conservative majority on the court may do – including possibly overturning the Affordable Care Act – many Democrats have advocated radical approaches to altering what the court looks like and how it operates, though Biden himself has Continued on page 5

LawNews Issue 40 | 13 Nov 2020

Photo by Caroline Brehman-Pool/Getty Images

Photo by ALEX EDELMAN/AFP via Getty Images

Agreement, which the US officially withdrew from on November 4, and restoring funding to the United Nation’s Intergovernmental Panel on Climate Change.

Justice Amy Coney Barrett

The US Constitution doesn’t specify the number of Supreme Court judges

Many Democrats have advocated radical approaches to altering what the court looks like and how it operates, though Biden himself has not stated a clear position

proposed reforms of the court will be difficult, if not impossible, to pass under a divided Congress.

Continued from page 4 not stated a clear position.

Suggested options include term limits, adding a retirement age, stripping the jurisdiction of the court for specific federal legislation, or increasing the size of the court. This strategy is known historically as court packing.

Ruth Bader Ginsburg opposed expanding the court, saying in 2019 that “if anything would make the court look partisan, it would be … one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

The Constitution does not establish the number of justices on the court, instead leaving that to Congress. The number has been set at nine since the 1800s, but Congress could pass a law expanding the number of justices to 11 or 13, creating two or four new seats.

However, this requires agreement by both houses of Congress.

The Republicans seem likely to maintain a narrow control of the Senate. A 50/50 split is possible, but that won’t be clear until January when Georgia holds two runoff elections. Any of the

This leaves the Biden administration hoping for retirements that would gradually shift the ideological balance of the court.

One of the most likely may be Justice Clarence Thomas, who is 72 and the longest-serving member of the current court. Samuel Alito is 70 and Chief Justice John Roberts is 65. In other professions, that may sound like people soon to retire, but at the Supreme Court that is less likely.

With the other three conservative justices in their 40s or 50s, the Biden administration may be fully at odds with the court for some time to come.

Morgan Marietta is Associate Professor of political studies at the University of Massachusetts Lowell

Foreign policy and defence

By Neta Crawford President-elect Biden has signalled he will do three things to reset the US‘s foreign policy.

First, Biden will change the tone of US foreign relations. The Democratic Party platform called its section on military foreign policy “renewing American leadership” and emphasised diplomacy as a “tool of first resort.”

Biden seems to sincerely believe in diplomacy and is intent on repairing relations with US. allies that have been damaged over the past four years.

Conversely, while Trump was, some say, too friendly with Russian President Vladimir Putin, calling him a “terrific person,” Biden will likely take a harder line with Russia, at least rhetorically.

This change in tone will also likely include rejoining some of the treaties and international agreements that the United States abandoned under the Trump administration. The most important of these include the Paris Climate

If the US is to extend the New START nuclear weapons treaty, the arms control deal with Russia due to expire in February, the incoming Biden administration would likely have to work with the outgoing administration on an extension. Biden has also signalled a willingness to re-join the Iran nuclear deal jettisoned by Trump, if and when the Iranians return to the limits on nuclear infrastructure imposed by the agreement.

Second, in contrast to the large increases in military spending under Trump, President-elect Biden may make modest cuts in the US military budget.

Biden can help address how Americans think about and deal with unexamined racial biases through reversing the previous administration’s executive order banning anti-racism training and workshops Although he has said cuts are not “inevitable” under his presidency, Biden has hinted at a smaller military presence overseas and is likely to change some priorities at the Pentagon by, for instance, emphasising high-tech weapons.

If the Senate – which must ratify any treaties – flips to Democrats’ control, the Biden administration may take more ambitious steps in nuclear arms control by pursuing deeper cuts with Russia and ratifying the Comprehensive Test Ban Treaty.

Third, the Biden administration will likely continue some Bush, Obama and Trump foreign policy priorities. Specifically, while a Biden administration will seek to end the war in Afghanistan, the administration will keep a focus on defeating the Islamic State and al-Qaida.

Biden has said he would reduce the current 5,200 US forces in Afghanistan to 1,5002,000 troops operating in the region in a counterterrorism role. The Biden administration is likely to continue the massive nuclear weapons modernisation and air and naval equipment modernisation programs begun under the Obama administration and accelerated and expanded under Trump, if only because they are popular with members of Congress who see the jobs they provide in their states.

Neta Crawford is a Professor of political science and department chair at Boston University The above was first published in The Conversation and is republished with permission

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COMPANY LAW/INSOLVENCY/ADLS CPD EVENT

What the Debut Homes decision means for directors

By Laura O’Gorman

In dealing with the economic fallout of Covid-19, many directors will be required to assess their company’s financial position and whether it should continue trading.

Photo by Barbara Alper/Getty Images

Viability might depend on the timely use of restructuring tools.

The recent Supreme Court Debut Homes decision (Madsen-Ries v Cooper [2020] NZSC 100) underscores the importance of understanding the full range of options.

Try restructuring your business before calling in the liquidators

This is because the decision contains potentially significant comments that any informal solutions should be consistent with the scheme of the Companies Act 1993 and its formal mechanisms.

In Debut Homes, the Supreme Court examined the scope of director duties under ss 131, 135 and 136 of the Act, and the correct approach under s 301 to determine the quantum of relief for any breaches.

In its reasoning, the Supreme Court suggested a need, under any informal scheme, to ensure the agreement of all creditors, or at least ensure those not consulted are paid in full (see paragraphs [48], [179] and [180]).

In that case, Leonard Wayne Cooper (the sole director) decided to wind down the operations of a property development company but to complete existing developments to achieve profits from those projects, even though a deficit would remain after the wind-down was completed.

There is significant debate about whether these comments were confined to the type of circumstance in Debut Homes (ie, the company was known to be unsalvageable).

The Supreme Court held that:

s 135 does not permit continuing to trade if directors know the company cannot be salvaged (ie, if a shortfall will result), even if some creditors might be better off or the overall deficit is projected to be reduced;

under s 136, it is not legitimate to act to ensure some creditors have a higher return where this is at the expense of incurring new liabilities that will not be paid.

In any event, the earlier the full range of options is considered, the better. All too often, a head-in-the-sand approach leads to avoidable business failure and director liability.

These matters will be discussed in an ADLS webinar Corporate Restructuring: Navigating Covid-19 on 17 November 2020, presented by Conor McElhinney (partner, McGrathNicol) and Laura O’Gorman (barrister, Bankside Chambers). The session will provide an overview of the restructuring tools available to corporates for managing risk or distress.

NEW BOOK

Environmental and Resource Management Law, 7th edition Editor: Derek Nolan QC

Comprehensive coverage of recent legislative changes; and

Environmental and resource management law is a major component of legal practice.

Perfect for practitioners and students

It is also relevant to the work of many other professions, those engaged in industry or working in central or local government and community groups.

Price for non-members: $191.30 plus GST* Price for ADLS members: $172.17 plus GST*

A key factor in the development of the law was the introduction of two pieces of legislation: the Resource Management Act 1991 and the Hazardous Substances and New Organisms Act 1996. Both have been amended frequently since their enactment. Other legislation and central government initiatives continue to affect practice in the field.

(* + Postage and packaging)

Features: Authoritative commentary by leading experts in the field;

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To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

LawNews Issue 40 | 13 Nov 2020

ADLS EVENTS

Dinner with Chief Judge Heemi Taumaunu Tickets sold out weeks in advance for the ADLS dinner with Chief District Court Judge Heemi Taumaunu.

The event, on Friday 6 November, was held at Auckland’s Northern Club Judge Ida Malosi

Chief Justice Dame Helen Winkelmann, Chief District Court Judge Heemi Taumaunu, Ingrid Taumaunu and ADLS President Marie Dyhrberg QC

Chief Coroner Judge Deborah Marshall, Melissa Fini, Rachael Reed QC, Susan Gray and Emma Priest

Jamie-Lee Tuuta, Ingrid Taumaunu and Renee Smith

Justice Simon Moore and Judge Sarah Fleming

Ned Fletcher, Tania Sharkey and Natalie Walker

Associate Judge Roger Bell and Judge Andrea Manuel

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

 Webinar

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

 Mon, 16 Nov

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

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

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

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

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

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

Learning outcomes:

CPD 1.25 hrs 4pm – 5.15pm

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

 Webinar CPD 1.25 hrs

 Tue, 17 Nov 4pm – 5.15pm

 Presenters

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

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

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

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

Who should attend: This session is intended as an overview for corporate, commercial and general practitioners who would like to gain an awareness of corporate restructuring options to better serve their clients. It would also be suitable for directors, management and in-house counsel responsible for compliance.

The session is not intended to expand existing knowledge of lawyers working in corporate restructuring.

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

Family Law Conference 2020 — FINAL NOTICE

 Conference Livestream

In person | Live Stream This conference will cover how to run a Relationship Property case from go to whoa.

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

Who should attend?

Family law practitioners and those who are considering becoming involved in this area of law.

Presenters: Brian Carter; Alissa Bell; Sarah Bush; Inger Blackford Chair: Lynda Kearns

CPD 7 hrs

 Wed, 18 Nov 9am – 5pm

Leading in Law Workshop – Leading Others — FINAL NOTICE

 Workshop

This distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience.

CPD 4 hrs

Learning outcomes: • • • •

Gain an understanding of contemporary, real-world leadership.

Experience authentic personal growth.

Build your knowledge of a range of leadership techniques and tools, and how to use them.

Garner practical leadership development actions to implement during and after the programme.

ADLS/SCA (NZ) Unit Titles/Bodies Corporate Half-Day Conference 2020 — FINAL NOTICE In person | Live Stream Once again, the half-day conference will be packed with a great selection of pertinent and practical topics relating to Unit Titles and Bodies Corporate, presented by experienced lawyers, property managers and other professionals.

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

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 Thu, 19 Nov 9am – 1.15pm

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

 Conference Livestream CPD 4 hrs

 Thu, 19 Nov 12.30pm – 5pm

LawNews Issue 40 | 13 Nov 2020

CPD in Brief Preparing Client-Focused Opinions

 Webinar

Preparing an opinion is an essential part of being a lawyer, but doing it well is another matter. This webinar will provide practical insights on how to deliver a client-focused opinion – ensuring you provide effective advice and maximise client service.

It is aimed at anyone at junior to intermediate level, including in-house counsel, who is required to write opinions. Those more senior might find it useful as a refresher.

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

CPD 1 hr

Confronting the Workplace Bully: Psychology & Law

 Webinar

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

This webinar is offered free of charge for members.

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

Jumping off the page In person | Live Stream The use of extrinsic material in the interpretation of contracts and statutes 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.

Presenter: Gillian Coumbe QC, Barristers at Chancery

Civil Appeals: Being Effective in a Civil Appeal In Person | Live Stream Covering crucial core content and the latest procedural and case law developments, this seminar will provide a roadmap for lawyers involved in bringing and arguing Civil appeals.

Presenters: Jim Farmer QC; Jane Standage, Partner, MinterEllisonRuddWatts Chair: The Honourable Raynor Asher QC

Cross-Examination Workshop Cross-Examination can make or break your case. In this learn-by-doing workshop, you will get to test your cross-examination skills and get individualised feedback from experienced practitioners in the field and members of the judiciary.

Limited places available, register now to secure your spot.

 Tue, 24 Nov 1pm – 2pm

CPD 1 hr

 Wed, 25 Nov 12pm – 1pm

 Seminar

Livestream

CPD 1.5 hrs

 Wed, 25 Nov 4pm – 5.30pm

 Seminar

Livestream

CPD 2 hrs

 Thu, 26 Nov 4pm – 6.15pm

 Workshop CPD 4 hrs

 Sat, 28 Nov 9am – 1.15pm

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.

Corporate Restructuring: Navigating Covid-19 Tuesday 17 November | Webinar | 1.25 CPD hours Visit adls.org.nz for more information.

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Continued from pages 1, 2

MEDIATION Nigel Dunlop Barrister

return. In short, we have had to reach that point to obtain a consensus that the RMA now needs to be repealed.

The RMA Review Panel proposes three new pieces of legislation: A Natural and Built Environments Act, a Strategic Planning Act and a Managed Retreat and Climate Change Adaption Act. What is your take on these proposals? Do they fully address the shortcomings of the RMA? Grant Hewison I am in the camp that prefers an integrated approach to land-use planning and environmental protection. My take is that the philosophy of integration is not the cause of poor outcomes. Land-use and environmental protection and human-built environments are inherently interconnected and should be approached in an integrated way.

Separate frameworks would be inconsistent with te ao Māori, for example, where the environment is not seen as a collection of resources to exploit, nor as a separate entity to protect. Māori emphasise the need for integrated decisionmaking. Finally, developing separate legislation is likely to result in increased complexity and cost anyway, and the reform process will divert our attention from addressing the climate emergency.

Helen Andrews The panel is hugely experienced and has consulted widely. As a result, it fully understands the nature and causes of the RMA’s failings. Its recommendations seek to (and I think, largely will) address those failings to the extent that can be achieved via regulation and statute. That said, the panel has also recognised and accepted that many of the existing system issues are due to implementation, not the RMA itself.

So, it has tried to address implementation as far as possible in its recommendations. However, it has been constrained by the scope of its terms of reference as well as the extent to which matters of implementation can be addressed via legislation. If it is to be effective, the upcoming reform process must also include and directly address those implementation issues.

EXPERTISE & EXPERIENCE Recognised industry experts. Serving legal documents for over 30 years.

Fast, professional, nationwide process serving for solicitors and government agencies.

P: (09) 302-2476 E: team@docuserve.co.nz W:www.docuserve.co.nz

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.

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

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

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

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

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

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

Ideal for a sole practitioner or barrister.

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

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

• Signage rights and two carparks.

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

Call Gavin on 021503665 or email admin@rms.nz

Meeting with Bail Support and Sentencing Ready Teams Monday 23 November | In person & live stream 1 pm - 2 pm | ADLS, Chancery Chambers This is a free event, please contact cpd@adls.org.nz to register

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021 685 910 nigel@nigeldunlop.co.nz www.nigeldunlop.co.nz

LawNews Issue 40 | 13 Nov 2020

Senior property/relationship property lawyer • Property Law, relationship property, trusts, wills and estates team leader.

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

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

A specialist accounting practice is looking to sub-lease furnished offices in the Auckland CBD We are seeking furnished office space in the Auckland CBD of approximately 80m2 to 100m2 with the provision of reception and meeting room facilities (no car parks required). We are flexible in regard to terms of a sub-lease.

If you would like to sub-lease to a reputable accounting practice, please contact: Rowan Chapman 09 215 4764 | rowan@chapmanatkins.co.nz

• Partnership and practice acquisition opportunity.

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

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

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.

Michael VAN BOKHOVEN, Late of 7 Grotto Street, Onehunga, Auckland, single, computer software engineer, aged 48 (died 01’10’20) Emani FAAUMA, Late of 10 Crown Crescent, Otara, Auckland, beneficiary, aged 67 (died 12’07’20)

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

General practice –

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

Stephen Graham GARDNER, Late of 27 Main Road, Maheno, RD 6O, Oamaru, retired, aged 66 (died between 30’09’20 and 22’10’20)

You can:

Teola Inoi HOGAN, Late of 1/9 Marr Road, Manurewa, Auckland, de facto separated, accounts assistant, aged 43 (died 22’07’20)

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

Mata-Aleipata ROPATI, Late of 64 Harmel Road, Glendene, Auckland, aged 73 (died 27’09’20)

• Determine the direction of this profitable practice

• Set your hours, working style and practice areas.

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

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

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

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CAREER OPPORTUNITY TAKAPUNA BEACH AUCKLAND

Auckland Law Practice for Sale This is an opportunity of a Lifetime for a person with the right experience.

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

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

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

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

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

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

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

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

Confidential applications and expressions of interest should be directed to: Cristine Tee ctee@mortontee.co.nz P O Box 33133 Takapuna 0740 Auckland.

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

Family Law Conference Wednesday 18 November | 7CPD hours Available in person & via live stream This conference will cover how to run a Relationship Property case from go to whoa.

• How much is your client entitled to?

• Trusts • Qualifying vs non-qualifying relationships • Pathways to resolution • Disclosure • Valuations • Drafting Agreements • What happens if it all breaks down?

• Being sensible, pragmatic and frank with your client T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz