LawNews- Issue 6

THIS WEEK’S ARTICLES

Issue 6 12 Mar 2021

Is our workplace safety law still fit for purpose? p1

Trusts, ex-partners and protecting what’s yours p3

Bullying in law firms: has anything changed? P5

LawNews adls.org.nz

HEALTH & SAFETY LAW

Is our workplace safety law still fit for purpose?

By Rod Vaughan

Despite tragedies such as Pike River and the Whakaari/White Island eruption, when it comes to workplace safety, New Zealand’s track record still isn’t too flash.

On average, between 50 to 60 New Zealanders die each year from work-related injuries and between 600 and 900 from work-related illnesses. And in the wake of the Whakaari/White Island eruption and the subsequent prosecution and court appearances of 13 entities and individuals, the blow-torch has once again been turned on New Zealand’s workplace safety law.

Is the legislation still fit for purpose? Or is our high workplace death and injury rate rooted in the complacent Kiwi ‘she’ll be right’ culture?

Among lawyers and those who operate at the sharp end of workplace safety, opinion is divided.

The unions, for example, have long been calling for more safety inspectors.

But some of the country’s top health and safety experts are adamant that WorkSafe’s prosecution of the Whakaari/White Island defendants is not indicative of flawed legislation that needs an overhaul.

They believe the issues have their genesis in more deep-seated problems that New Zealand has failed to address. Put simply, our high rate of workplace death and injury is the result of poor worker behaviour and risk management, along with the condition and suitability of work equipment.

Bell Gully partner Tim Clarke is in this camp, saying the White Island prosecutions do not mean our current legislation is deficient.

Photo by Fertnig/Getty Images

We have twice as many workplace deaths per capita as Australia where there has been a substantial 30% reduction in worker fatalities in recent years compared to a more modest 20% on this side of the ditch.

A failure of attitude or the law?

It isn’t the law that is broken – it is our health and safety culture “Rather, the case highlights the interpretation, application and enforcement of the law, and that New Zealand continues to suffer from a poor health and safety workplace culture in some areas.”

The Health and Safety at Work Act (HSWA) was introduced after a “perfect storm” of events, Clarke says.

These included the Independent Taskforce on workplace health and safety which reviewed its predecessor legislation, the Royal Commission on the Pike River Coal Mine tragedy and the Royal Commission of Inquiry into Building Failure after the Canterbury Earthquakes.

“It also reflected the fact that New Zealand had an appalling workplace health and safety record, with an injury rate twice as high as Australia, and six times higher than the United Kingdom.”

Clarke says the HSWA is based on Australian health and safety legislation, and there is nothing to suggest that the Australian law is deficient.

“As for the United Kingdom, the primary legislation governing occupational health and safety is now over 40 years old and yet their injury rate is a fraction of New Zealand’s rate. In other words, it isn’t the law that is broken – it is our health and safety culture.”

Clarke isn’t sure why New Zealand has such a poor workplace health and safety record in comparison to Australia and the UK. “Some people have surmised that it’s to do with our ‘number 8 wire’ and ‘she’ll be right’ mentality while others suggest that ACC legislation prohibiting claims for personal injury since the 1970s has meant that we are lax in our approach because of the absence of civil claims.”

Clarke says the HSWA has tried to address these issues by introducing an officer’s ‘due diligence’ duties, and introducing a new, tiered liability regime which increases the penalty levels six-fold.

Continued on page 2

HEALTH & SAFETY LAW

Is our workplace safety law still fit for purpose?

Continued from page 1 “The onus is on officers to provide necessary safety leadership because they are responsible for major decisions that influence health and safety outcomes, the allocation of resources and strategic direction.

“So, there is now some real skin in the game for directors and officers because of their exposure to personal liability through duties that cannot be transferred, delegated or modified, and exposure to fines that cannot be insured or indemnified.”

Clarke says the first two sentencing decisions of officers (CAA v Sarginson, and Maritime NZ v Nino’s Ltd & Basile) have involved officers of small businesses who were directly involved in the respective breaches and who were prosecuted by transport regulators under the HSWA. “[But] because these decisions do not engage in a discussion about due diligence duties, they are no more insightful than those decided under the former health and safety legislation.

“To date we have not seen a significant WorkSafe prosecution of directors or officers highlighting the safety governance of leaders.”

Clarke says it remains to be seen whether the White Island prosecution will improve our understanding of the current health and safety law.

“The case does highlight the tensions that exist between WorkSafe’s role as the health and safety regulator in taking enforcement action, and its obligations to engage with duty holders and educate them about their health and safety responsibilities.

“But while opinions may be swayed by the number of charges, it’s too soon to put a label on WorkSafe’s approach.”

Barrister Catherine Stewart, convenor of the ADLS Employment Law committee, is another health and safety expert who believes the HSWA is a step in the right direction in terms of addressing New Zealand’s poor workplace safety record.

It represents a significant step forward in workplace health and safety law, introducing new responsibilities and massive potential penalties as well as possible imprisonment for breaches of those responsibilities, she says.

“One of the key features of the Act is a new

Tim Clarke

Catherine Stewart

stand-alone duty of due diligence on officers of an organisation, and WorkSafe’s White Island prosecution is the first WorkSafe prosecution for breach of this important duty.

population of workers, for many of whom English is not their first language. What steps are being taken to filter training through to these workers?

“There is a lot that officers can do towards meeting that duty and much of it involves taking a proactive, rather than reactive, stance in asking questions, checking systems, and ensuring understanding of the risks and hazards in the workplace.

“WorkSafe’s prosecution for White Island is likely to be a wake-up call for many officers to consider whether they are really doing enough.”

Stewart believes the Act takes a modern approach to legislation because it focuses on the outcome rather than the prescriptive checklists that can leave gaps.

However, she questions the extent to which the Act is actually being implemented in workplaces around New Zealand.

“For example, one of the themes of the Act is training and worker involvement in workplace health and safety. How seriously is this obligation being taken by New Zealand businesses?

“The majority of New Zealand businesses are small to medium sized, which tend not to have strongly-documented systems. Is this having an effect on their obligations? We also have a diverse

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“And most poignantly, are the obligations being taken seriously in all workplaces including less conventional ones like the adventure tourism industry?”

Like Clarke, Stewart has concerns about New Zealanders’ rather casual attitude to workplace safety.

“New Zealanders are sometimes known as having a ‘she’ll be right’ attitude and I question the extent to which this cultural attitude might be embedded in our workplaces, leaving us wide open to the risk of accidents and injury.”

On a more positive note she welcomes the government’s independent review of the adventure activity regulations.

“I hope this will present an opportunity for learnings that might prevent a tragedy like White Island ever happening again. I would also welcome a greater number of inspectors being trained to monitor levels of risk in the adventure tourism sector.”

These sentiments are shared by Lane Neave managing partner Andrew Shaw who, among other things, specialises in workplace safety issues.

Continued on page 4

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

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

LawNews Issue 6 | 12 Mar 2021

TRUST LAW

Court protects trust assets acquired before marriage

By Anthony Grant

The courts’ most powerful tool for modifying a trust is s 182 of the Family Proceedings Act. Its English equivalent is s 24(1)(c) of the Matrimonial Causes Act 1973. This section gives the courts freedom to modify “nuptial settlements” (in simple terms, “trusts that are created with a specific married couple in mind”) in any way they want.

The section is old – the original formulation was enacted in 1859 – and is, by contemporary standards, archaic in that it applies to couples who were married or in civil unions but not to co-habitees. The Law Commission says the section should be repealed, in part because it doesn’t apply to co-habitees.

Trust assets acquired before a relationship began should not be given to a spouse who made no contribution to their creation It was the subject of a recent Court of Appeal decision in which the President of that Court gave it a refreshingly sensible interpretation: Preston v Preston [2020] NZCA 679. I mean no disrespect to Kós P when I describe his judgment as being “refreshingly sensible” and will explain why I use that term.

The Preston decision almost certainly reflects the broad consensus of trust professionals in New Zealand: that trust assets acquired before a relationship began should not be given to a spouse who made no contribution to their creation.

The courts in England have taken a completely different approach. Take, for example, a famous case involving an impecunious MP – Browne v Browne [1989] 1 FLR, 291. A wife who was the beneficiary of two trusts funded entirely with her mother’s wealth was ordered to pay the husband £175,000.

For that to happen, the trustees would have had to make moneys available to her so she could, in turn, give it to him. When she resisted, the court ordered her to be imprisoned for contempt.

The case went to the Court of Appeal where, in a unanimous judgment to which the Master of the Rolls was a party, the High Court’s decision was upheld.

The pathway the court took to achieve this objective was not s 24(1)(c) of the Matrimonial Causes Act, but the definition of matrimonial property which differs substantially from the definition of what in New Zealand is termed relationship property.

Contrast the Browne case with Preston. After Preston’s first marriage ended, he established a trust, the primary purpose of which was to benefit his children.

Kós P said it was not appropriate for the court to make an order under s 182 in favour of the second wife as the original objects of the trust were the children of Preston’s first marriage: “all the [trust] assets were acquired by Mr Preston well ahead of the relationship” with his second wife and the assets “were vested in the [trust] by Mr Preston before the de facto relationship with Mrs Preston began; and [the assets] were not contributed by... her.” [27] Further, the woman whom he would later meet and marry had made “no material or substantial contribution to sustaining [the trust] assets but had benefitted from them in a not insubstantial manner...”

The gulf between the English Court of Appeal and the New Zealand Court of Appeal – ‘chasm’ would be a better word – can be seen in Butler-Sloss LJ’s statement in Browne:

Anthony Grant

In New Zealand there is a prevailing belief these days that marriage should more appropriately be seen as a transaction

“It is a sad reflection if in these times of much vaunted equality of the sexes a husband should be seen to be acting in some way improperly if he exercises his right to claim a share of a wealthy wife’s money in circumstances in which the law provides for him to be permitted... to make these sorts of applications.”

The difference between the Preston and Browne cases may stem from a differing attitude to marriage. The Browne case may reflect a fading belief that marriage is supposed to endure for life and if it is to be brought to an end prematurely, the court should assume that the poorer party – usually the wife – may deserve financial support for many years following separation.

By contrast, in New Zealand there is a prevailing belief these days that marriage should more appropriately be seen as a transaction. Wealth created when a couple is together is to be divided between them, but wealth created before the relationship begins and after it ends should not. Spousal maintenance should be of a short-term duration and should not endure for years.

There have been so many attacks on trusts by spouses in recent decades, often by innovative and unusual means, that it is refreshing to see a court uphold the integrity of a trust and not allow its assets to be taken by a spouse who had no role in the creation of the trust assets and who simply – and selfishly – wants to be a passive recipient of its wealth.

Anthony Grant is and Auckland barrister who specialising in trusts and estates Anthony is a speaker at the upcoming ADLS Cradle to Grave conference.

For details, please click here 3

Andrew Shaw

Melissa Ansell-Bridges

Michael Wood

Continued from page 2

the implementation of our health and safety laws provide a fence at the top of the cliff and not an ambulance at the bottom.”

“There is a power imbalance in the workplace where all too often the concerns and issues of working people are not heard or taken seriously enough. We want there to be greater consequences for employers who do not ensure everyone is healthy and safe at work.”

Shaw believes there is no need to overhaul the HSWA but is concerned about the resources provided to WorkSafe and whether they are enough to achieve the objectives of the legislation.

In 2019 the government invested $57 million in WorkSafe over four years, raising questions in some quarters about how effectively it will be spent.

“Specifically, does this funding allow for enough education and training as a first step in creating an appropriate health and safety culture in this country, which may go some way to prevent tragedies like the Whakaari/White Island eruption occurring again?” Shaw asks.

“The then Minister for Workplace Relations and Safety, Iain Lees-Galloway, said this funding would help WorkSafe be able ‘to plan for the future using data, intelligence and insights to do predictive modelling and ensure that regulations and actions are targeted, aligned and flexible.’

“So, it appears some of this funding may have gone into research which, if properly targeted, should benefit health and safety into the future. Overall, however, I believe the funding is being effectively spent in terms of preventing workplace deaths, but is this funding enough?”

Shaw says there is not only a need for more health and safety inspectors but there should also be better training so “we have the right people on the job”.

“This training must be not just about investigating an accident in the workplace after it occurs, but also aimed at being preventative, by way of education.”

Shaw says significant amounts of money are needed to educate and train employers and employees about health and safety in the workplace.

That said, there is a limit to the extent of protection offered by health and safety legislation. “An area of concern here is the inherent dangers in the natural world.

“As we have just commemorated the 10-year anniversary of the Christchurch earthquakes, the question has been asked about how far can we expect our health and safety laws to go to protect us in such unique and unpredictable circumstances?

“The Whakaari/White Island eruption is a similar example of nature at its most dangerous with the consequential tragic loss of life and injuries to the survivors.

“It is clear that our current health and safety laws are designed to eliminate, or at least mitigate, risk to people in these circumstances, but this legislative regime has to be considered in line with events arising out of nature.”

Shaw’s call for more health and safety inspectors is echoed by the New Zealand Council of Trade Unions.

NZCTU Secretary Melissa Ansell-Bridges told LawNews, “we absolutely need more health and safety inspectors. They have a crucial role in making workplaces safe.

“Employers need to see that having good health and safety is simply core business. This includes having effective, meaningful and consistent engagement with working people and their unions.

It’s essential that this is embedded. We know that these things work and make a real difference.”

Ansell-Bridges says everyone who goes to work should be confident that they can return home healthy and safe at the end of their working day.

“This includes media coverage (think Meerkats in the workplace on TV ads), but also more WorkSafe-based regular and bespoke industrybased workshops.

“This should be the case regardless of the industry or the work that is being done. The fact that anyone is being killed at work is completely unacceptable.

“I believe we do need a change in mindset where health and safety practices are embedded in the culture of a business. Ultimately, it is better that

“Certainly more work needs to be done, and urgently. Everyone needs to do more, especially employers.

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Workplace Relations and Safety Minister Michael Wood says since the introduction of the HSWA and the creation of WorkSafe, “New Zealand has achieved the target of reducing our fatality rate.”

Our December 2020 results are 30% lower than the 2012 baseline of 2.3 fatal acute injuries per 100,000 fulltime employees, but the rate has flat-lined since 2014-2016, he says.

“There is still a lot more work to do and we’re committed to strengthening regulations to keep people safe at work.”

Wood says to date WorkSafe has received almost $19 million of the $57 million promised in 2019 over the next four years. The money will be used to address several issues.

“These include addressing shortfalls in frontline inspector numbers, including hazardous substances inspectors, training to increase inspector capability in asbestos and regulations, ICT modernisation, staff insurances and new expertise to get traction on mental health harm at work.

“This year I intend to progress work to roll out Workplace Health & Safety representatives to smaller workplaces where no legal obligation to have reps currently applies.”

Wood says he’s also working closely with WorkSafe to make sure it has modern, fit-for-purpose regulatory tools to keep workers safe.

“This is an important next step in the full implementation of the Health and Safety at Work Act and my intention is to make progress in progressing the regulatory programme this year.

We’re committed to keep working to improve New Zealand’s record on workplace safety.

“I do stress that while WorkSafe has a critical role to play, we will only reduce deaths, injuries, and harm in New Zealand workplaces if everyone plays their part at workplaces up and down our country.”

LawNews Issue 6 | 12 Mar 2021

HEALTH AND WELLBEING

Lawyers’ mental health still at risk, union says

By Rod Vaughan

Three years after the New Zealand legal profession was rocked by damning allegations of sexual harassment, bullying and exploitation of junior staff at major law firms, it seems little has changed.

A just-released report by the Aotearoa Legal Workers’ Union (ALWU) suggests the profession is still beset by many of these issues, though women now run many of the country’s largest and most prestigious law firms.

The ALWU canvassed 245 junior legal workers. The respondents revealed high levels of mental distress due to poor working conditions, including a lack of adequate supervision, bullying, unreasonable workloads and long hours.

ALWU Co-President Bridget Sinclair says the results show that serious issues identified by Dame Margaret Bazley’s 2018 review of sexual harassment at Russell McVeagh remain in the profession, despite promises from key players that change would come.

Overall, 74% of respondents said their mental health had suffered as a result of their work with 81% saying they also knew of at least one colleague whose mental health had suffered.

ALWU says 58% of respondents who stated their mental health had suffered disclosed some details.

Common themes were stress, anxiety, burnout, poor or no supervision and a lack of feeling valued.

It says respondents frequently stated they were given an unreasonable workload requiring them to work late to complete tasks. “The prevailing attitude was that overtime was normal, resulting in complaints being ignored,” the report said.

“Bullying by senior staff was frequently mentioned as a cause of poor mental health.”

ALWU says 80% of women reported a higher incidence of their mental health suffering compared to 61% of men. Those working in the private sector reported a higher incidence than those in the public sector.

“In particular, respondents from three large law firms reported extremely high rates of work adversely impacting their colleagues’ mental health, namely Meredith Connell (96%), Bell Gully (92%), and Simpson Grierson (90%).

“ALWU is saddened to see this report reflect the significant issue of mental health in the legal profession. Unfortunately, the data shows that despite increased rhetoric in this area over the last two to three years, not enough is being done to properly combat this important issue in practice.”

Professor Bill Hodge of the University of Auckland

Law School, an employment law specialist with wide experience in workplace investigations, is somewhat ambivalent about the survey.

He agrees with ALWU that its report is “the best snapshot available” of the current situation. “But in the end, it is 245 respondents out of 800 members, about a 30% return,” he says. “And out of how many employee-solicitors? Two thousand at a guess? So, a snapshot, and thus a valuable bit of information, but not definitive or conclusive.”

It is not uncommon for allegations of bullying to arise subsequent to, or in tandem with, issues of competence or performance management

Hodge says he doesn’t disagree with ALWU that some legal employees, particularly juniors, can work long hours under pressure. “I think that is a given, but it is another thing entirely to use loaded terms such as ‘bullying’. There are two sides to every story [and] the suggestion that New Zealand has one of the worst bullying environments in the world is not congruent with common sense.

“A proper definition of bullying will have an objective element (‘unreasonable’) and a subjective element (‘harm’). The difficulty with the subjective element is that some employees in some industries can laugh off and disregard significant banter, and others, by comparison, may be super-sensitive.

“Ironically, it may be that a ‘robust’ culture may mean robust employees, or employees who give as good as they get. It is not uncommon for allegations of bullying to arise subsequent to, or in tandem with, issues of competence or performance management.”

Overall, Hodge says he is surprised by the survey’s finding that some workers at Meredith Connell, Bell Gully and Simpson Grierson experienced extremely high rates of work which affected their mental well-being.

“My gut reaction, based on my years of hearing feedback, is that I am surprised by this. The three firms named have been regarded as good places to work and excellent training grounds for a future legal career.”

So, what do the three firms themselves make of the report and are they concerned at the findings?

Steve Haszard, managing partner of Meredith Connell, says the ALWU’s employment survey is “becoming a really important annual exercise that communicates wellness issues to the industry.

“In the future, we expect its value will only grow as the sample size improves from 2020’s 245 respondents out of the industry’s 15,500 employees, and the underlying survey methodology becomes more visible.

“Although it’s difficult to understand the particular factors behind the reported mental health impacts on staff (as the survey questions unfortunately aren’t published), we know from our own experience there will be a correlation with the challenging criminal prosecution work we undertake for the Crown.

“We are cognisant of this and supporting mental health is at the forefront of our organisational wellbeing thinking. For example, we will become the first professional services firm to achieve WELL v2 certification later this year.”

Bell Gully managing partner Haydn Wong says the survey focuses on issues that concern the legal sector as a whole. “Our own internal surveys, which we run every three to four months, are one of the ways we look to identify the areas of particular concern for our people and our consistently high response rates give us confidence that we have good insight into these concerns.”

Wong says mental health issues are “a particular focus” for his firm. “We provide a number of pathways for people to be heard and to be helped.

In late 2015 we were the first New Zealand law firm to sign up to the Tristan Jepson Memorial Fund (TJMF), now named Minds Count, an Australianbased organisation which focuses on promoting psychological wellbeing in the legal profession.

“To assist with this goal, Minds Count provides guidelines on what aspects workplaces can have in place to promote psychological wellbeing.

“We have applied these principles within the firm.

We undertake regular checks by HR on those where pressure may be a factor and offer firm-wide access to confidential support through our internal peer support network of trained staff members and external EAP providers.

“There is also an option to seek support from other mental health professionals with individuals able to use a professional of their choice to allow for existing relationships.”

Meanwhile, in a statement to LawNews, Simpson Grierson says creating a safe, healthy workplace and prioritising mental health is something it takes very seriously.

Continued on page 6 5

Continued from page 5 “So, it’s concerning to receive feedback that any of our people have reported suffering mental health issues. We want to hear from our people if they or any of their colleagues are experiencing issues and also want them to know that we will move quickly to support them.”

Simpson Grierson says it provides its staff with a safe and healthy workplace, starting with its values, culture and policies.

“We take multiple steps to support our people’s wellbeing, including by encouraging flexible working options, which allow everyone to balance work and personal commitments in a way that works for them.

“We also have a comprehensive wellbeing program which provides regular workshops and seminars.

“All of our people and their immediate family have access to our employee assistance program, and we provide training for our partners and managers on how to identify and manage mental health issues.”

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LawNews Issue 6 | 12 Mar 2021

Collegiality Events Inaugural Annual Breakfast with the Rt Hon Dame Helen Winkelmann * Thursday 18 March | 7.15 am - 8.30 T *am U O D Street, Auckland The Northern Club,S O 19 L Princes **

Tauranga Sundowner Thursday 8 April | 5.30 pm - 7.30 pm Tauranga Club

15 April

Invercargill Sundowner

12 May

Henderson Lawyers’ Lunch

2 Jun

East Auckland Lawyers’ Lunch

For tickets & more information click on this page or contact us T 09 978 3970

E events@adls.org.nz

W adls.org.nz

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

Featured CPD Current Contractual Issues: Force Majeure and Frustration — FINAL NOTICE In person | Live Stream The first in a series, this seminar will explore the topics of force majeure and frustration – looking at the core principles, recent case law and with the impact for contracts that events such as the Covid-19 pandemic have had and will have.

 Seminar

Livestream

CPD 2 hrs

 Thu, 11 Mar

Learning outcomes:

4pm – 6.15pm

This seminar will cover: • The core principles of force majeure clauses and the doctrine of frustration.

• Recent case law developments in New Zealand and England in respect of force majeure and frustration.

• Some of the academic discussion on the ‘multi-factorial’ test for frustration.

• The practical impact events such as Covid-19 have had – and will have – for contracts.

 Presenters Paul David QC, Eldon Chambers Marcus Roberts, Senior Lecturer, Faculty of Law, University of Auckland

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Learning outcomes: • Become familiar with recent case law and the principles applied by the courts in determining whether a restraint of trade clause is valid and enforceable.

• Receive tips for drafting restraint of trade clauses to ensure that they are enforceable and have their desired effect.

• Receive guidance and practical advice on the key remedies available and what to focus on for injunctive relief.

• Consider the enforceability of restraint of trade clauses in the employment context where there has been a breach of an employment agreement; where the employee has been placed on garden leave or where an employee has been made redundant.

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In person | Live Stream You give advice on the law, but the detail will often be in the numbers (the financial statements). The objective of this seminar is to make reading financial statements as easy as reading a book (albeit, a boring book). This seminar provides an introduction to reading financial statements, understanding accounting principles and, more importantly, understanding the story that the financial statements tell. That means working through the income statement (are sales increasing or decreasing? what about the gross margin? are overhead expenses out of control?), understanding the balance sheet (it’s just a list of assets and liabilities at a particular date), and understanding imputation credits and current accounts.

Learning outcomes: • • • •

• • • •

•

•

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Understand the purpose of accounting and its basic principles.

Understand the difference between the financial reporting for a company, trust, and a sole trader.

Understand the income statement and the balance sheet.

Understand the different standards that financial statements are required to be prepared to and when these apply.

Understand quick ways to (improperly) inflate or deflate profits (what to look out for).

Become aware of some red flags and key areas to look out for in financial statements.

Understand a shareholder or beneficiary current account.

Understand retained earnings, the importance of imputation credits and how to avoid the disastrous consequences of losing imputation credits.

Learn more about shareholder exits – how to read the financial statements and advise a shareholder in relation to an exit, what to watch out for, and how to ensure that they get what is owed to them.

Become aware of accounting software packages which clients commonly use and what information you can obtain from the client’s accounting system.

 Thu, 18 Mar 9am – 1.15pm

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

Livestream

CPD 2 hrs

 Thu, 18 Mar 4pm – 6.15pm

 Presenters Shane Hussey, Director and Principal, Hussey & Co. Sian Heppleston, Analyst, Hussey & Co.

LawNews Issue 6 | 12 Mar 2021

CPD in Brief The Art of Communication — Be a Powerful Advocate (Auckland workshop) — FINAL NOTICE

 Workshop

Led by an experienced advocate and an accomplished teacher/director, this workshop will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak.

This workshop sold out in 2018 and 2019 – register now to avoid missing out.

Feedback from the previous sessions included the following comments: • “Interesting, lively workshop – well presented.”

• “Great anecdotes, relevant stories and examples.”

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

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

CPD 3 hrs

Auckland Unitary Plan: Past, Present and Future – The guide for non-specialists

 Seminar

 Sat, 20 Mar 9am – 12.15pm

In person | Live Stream The Auckland Unitary Plan (AUP) is designed to help Auckland meet its economic and housing needs – no small task, particularly in the current economic climate and amid concerns about housing availability. Those managing the AUP must also deal with legislation that takes priority, and processes that carve out parts of the plan. Through personal or professional experience, many non-specialist practitioners will know a little bit about the AUP but perhaps not enough to understand its impact for their clients nor how to engage with Auckland Council and work with the plan. This session will provide an update for general practitioners and non-specialists on where the AUP is at – where we’ve got to and what’s ahead.

Presenters: Phill Reid, Auckland-wide Planning Manager, Plans and Places, Chief Planning Office, Auckland Council; Corina Faesenkloet, Principal Solicitor, Legal Services – Regulatory & Enforcement, Auckland Council; Stephanie Harris, Joint Managing Partner, Glaister Ennor.

Chair: His Honour Judge Kirkpatrick, Principal Environment Judge

Livestream

CPD 1.5 hrs

 Mon, 22 Mar 4pm – 5.30pm

Faces, Traces & Places – Identification Tech and Evidence

Livestream

Forensics never goes away! It’s everywhere and every contact leaves a trace.

In this seminar our expert panel will elaborate on the different types of identification technology and evidence that is available and being used in New Zealand such as: Key DNA case considerations and the review of the CIBS Act; Voice identification evidence – forensic voice comparison and profiling; Fingerprint evidence; and Facial recognition technology and CCTV. Presenters: Dr Anna Sandiford, Director & Expert Witness, The Forensic Group Ltd; Sue Petricevic, Barrister, Vulcan Chambers; Paige McElhinney, Expert Witness, Scientific Consultant, The Forensic Group Ltd; James Ruhfus, Video expert; Tom Coyle, Forensic Insight Presenter & Chair: Dr Viktoria Papp, Academic – Teaching and Administration, University of Canterbury; expert witness, data scientist in identity at MBIE, research associate of the New Zealand Institute of Language, Brain and Behaviour

CPD 2 hrs

A View from the Family Court Bench

 Seminar

 Tue, 23 Mar 4pm – 6pm

In person | Live Stream What do Judges want? And how can you give it to them? Focusing on the Family Court, this session will provide key insights into the workings of the registry and court, and guidance on various ways in which you can do the best job for your client.

Presenters: His Honour Judge de Jong; His Honour Judge Burns; Her Honour Judge von Keisenberg Chair: Brian Carter, Barrister, Bastion Chambers

Livestream

CPD 2 hrs

 Tue, 30 Mar 4pm – 6.15pm

Congratulations to the winner of the CPD Evaluations Prize Draw for February, from Onehunga.

One prize is to be drawn each month – be in with a chance by completing the evaluation at the end of each live ADLS CPD activity.

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.

Cradle to Grave™ Conference 2021 Christchurch | 3 May | 8.50 am - 5.10 pm | Rydges Latimer Auckland | 5 May | 8.50 am - 5.10 pm | Ellerslie Event Centre Visit adls.org.nz for more information.

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This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

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.

Antony Edmund BOYD, also known as Tony BOYD, late of 346 Main Road, Huapai, Auckland, aged 51 (died 08’02’21) Si KWOK, Late of 1/75 Haverstock Road, Sandringham, Auckland, housewife, born in 1932 (exact DOB unknown) (died 29’10’18) Stephen Keiron NAIRN, Late of 16 Lillian Place, Orewa 0931, permanently separated from marriage or civil union, master bricklayer, aged 67 (died on or about 30’11’20) John Mark Baquial PLANAS, Late of 182 Shirley Road, Papatoetoe, Auckland, aged 33 or 34 (died between 30’08’20 and 06’01’21) Alice Vida ROBB, Currently residing at Elmswood Rest Home, 131 Wairakei Road, Bryndwr, Christchurch, previously lived in Papatoetoe, single, retired, aged 95 Suresh VENGETARAMAN, Late of 3 Reno Way, Flat Bush, Manukau, Auckland, aged 42 (died 25’11’20)

Office Furniture for Sale Meeting room table and chairs, desks, office chair, typist chairs, 2-seater leather couch, glass coffee table, file shelving, file cabinets.

Ph: Peter Nolan, 021-608-955 or email phn@peternolan.co.nz

Barrister Wanted A centrally located Chambers has a vacancy for a barrister to share resources with 6 other collegial barristers.

Handily situated in an historic building in Vulcan Lane, you are steps away from major transport links and restaurants and in close proximity to the courts & many of New Zealand’s corporate offices.

As well as a spacious office, other facilities include: a Boardroom, library, kitchen, shower and access to all technology. An onsite Office Manager is also available. Very reasonable rates are on offer to the right candidate.

All enquiries to eden@vulcanbuilding.co.nz / 09 300 1253

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

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, 19 March 2021.

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LawNews Issue 6 | 12 Mar 2021

Chancery Chambers Offices for Rent

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.

Two premium connected offices are available on the third floor of the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

They are available together or as separate units.

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

Key attributes required for this role: • Have experience in dealing with clients and able to manage your

The space comprises a 36.69sqm office facing Freyberg Square and an adjoining 33.71sqm office on the O’Connell Street side of the building.

own files with minimum supervision

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

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

• • • •

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

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

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

No Agencies please

Restraints of Trade Explained Wednesday 17 March | 2 CPD hours

This seminar will examine the use, dispute, and enforcement of restraint of trade clauses in both the commercial and employment contexts and cover franchise agreements, agreements for the sale and purchase of a business/shares and employment agreements.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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UNIVERSITY OF AUCKLAND

Taxing issues in Greg Everard Memorial Moot University of Auckland law student Will Turner has won this year’s Greg Everard Memorial Moot, beating three others in the finals to win best oralist.

The moot problem was based on Frucor v Commissioner of Inland Revenue, which is scheduled to be heard by the Supreme Court in June – specifically, whether a particular financial arrangement was tax avoidance and, if so, whether the appellant was entitled to deduct the expenditure incurred in connection with it.

The four finalists – Hayden Noyce and Will Turner for the appellant, and Christopher McCardle and Kajol Patel for the respondent – had just 15 minutes each, with no right of reply, to present their submissions before judges Sarah Armstrong from Shortland Chambers, Carla Cross from Bellingham Wallace and Professor Michael Littlewood from the University of Auckland Law School.

2021 Greg Everard Memorial Moot winner Will Turner.

L-R: Professor Michael Littlewood, Sarah Armstrong, Hayden Noyce, Will Turner, Kajol Patel, Chris McCardle and Carla Cross.

Both teams skillfully presented their arguments, with numerous questions from the judges.

On announcing law student Will Turner the winner – for the best oralist, and a prize of $2,500 – the judges commented that it had been an impressive and engaging moot, with everyone grappling well with the substantive issues. They also acknowledged that the mooters had handled hard questions from the bench, comprising recognised experts in the field.

An alumnus of Auckland Law School, Everard died in 2002. He was a highly respected commercial litigator. The same year, the Greg Everard Memorial Moot was established to commemorate the significant contribution he made to

the New Zealand legal profession.

The Auckland Law School and the University of Auckland Mooting Society would like to acknowledge and thank the Everard Family for their generous support. They would also like to acknowledge the late Louise Everard and the late Gregory Kay who were both instrumental in establishing the competition in Greg’s memory.

Thanks also to Associate Professor Scott Optican, the judges, and Professor Michael Littlewood for writing the problem.

Current Contractual Issues: Force Majeure and Frustration Monday 15 March | 1.5 CPD hours

This seminar will discuss the recent case law in New Zealand and England in both areas.

The courts’ application of the ‘multifactorial’ test for frustration will be considered. Will force majeure and frustration affect performance of large numbers of contracts?

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd