LawNews - Issue 8

THIS WEEK’S ARTICLES

Issue 8 26 Mar 2021

How justice is being radically reformed p1

Staying safe when advising on trusts p3

Would you know price-fixing if you saw it? P5

LawNews adls.org.nz

THE COURTS

How justice is being radically reformed

By Jenni McManus

New Zealand’s courts are moving apace towards remote hearings – at least in the civil jurisdiction – and electronic document-filing and payments are now a reality in the senior courts. But lawyers have been warned that a fully digitised court system is still a long way off.

That was one of the messages Chief Justice Dame Helen Winkelmann gave attendees at an ADLS breakfast in Auckland last week where she updated the profession on her priorities and work program for the next 12 months and beyond.

While the demands of Covid-19 had demonstrated that “real and lasting improvement in our justice system is possible” and that “achieving change does not inevitably require spending large amounts of money”, delivering justice digitally, it seems, will be expensive.

In a nutshell, “full digitisation of the courts awaits a significant investment”, Justice Winkelmann said.

But plenty had been achieved in the past 12 months to create resilience in the court system, partly in terms of collaboration and relationshipbuilding but also in the critical area of operational flexibility.

For example, digital payments and document-filing would, only 12 months ago, have seemed like a delusion, she said. This will soon be extended to the district courts. “And, no doubt, the increased use of remote hearings will become part of our business-as-usual where appropriate.”

But the Ministry of Justice is burdened with an antiquated IT system, meaning the roll-out of an electronic filing and payments system in the District Courts would not be universal, Justice Winkelmann said.

Her speech – at the first in what will become

Chief Justice Dame Helen Winkelmann

If this profession is to have long-term relevance, that it’s actually serving the part of society that is not just the top end of town, then it will have to find a way to increase its client base to provide access to justice not just to those who can afford $350 hourly rates an annual ADLS breakfast event with the Chief Justice – covered four major work areas: building resilience in the justice system (which will include addressing challenges in the criminal jurisdiction), facilitating access to justice, connecting the courts to the community and ramping up the commitment to diversity within the judiciary and the profession.

Within those four areas, her theme was ‘change’ and the need for all parts of the justice system, including the profession, to work collaboratively to effect the changes needed in the court system.

“Change is not something the judiciary can achieve Continued on page 2

THE COURTS

How justice is being radically reformed Continued from page 1

“New Zealand is fortunate in its judiciary. It’s made up of people who work hard to learn about their community so they can serve it in all its diversity.

on its own,” she said. “It will require judiciary to work with all parts of the justice system and I see the profession as playing an absolutely critical part in that.”

“I would like to see the appointments that are made in the next five years continuing and accelerating the work that’s already gone into building a diverse judiciary….

‘Blow them up’ The country’s law schools came in for special scrutiny. Asked during question time how the law schools might fit into her plans, Justice Winkelmann said their approach to teaching should be ‘blown up and reconstructed’. It was the most significant structural issue the legal profession faced, she said. “[The system] keeps children from diverse backgrounds out of the law. The figures that are coming out are shocking in terms of the prospects of someone from a low-decile school making their way through law and into the profession,” she said. “There are structural things that could be done. Because we start measuring children in our universities and law school from the moment that they enter university, they’re given no chance to adjust to learning, to equalise.

“I also have a question about whether the focus of some of the teaching is right – whether there isn’t more need for practical engagement because lawyers really are caregivers. We may not think of ourselves as that, but we surely are caregivers, especially those in the criminal jurisdiction and family jurisdiction [dealing with] people with shredded, broken lives and we need to understand the impact and the engagement of the services we provide on their lives.

“So yes, I’d blow the law schools up and redesign.”

These are strongly-held beliefs: the Chief Justice in her Dame Silvia Cartwright address in October 2019 spoke of the need for diversity in the judiciary.

The court system risked losing public confidence unless it reflected the communities within which judges worked, she said at the time.

The issue is still top of mind, she said last week.

Between now and the end of 2026, 27 senior court appointments need to be made. During the same period, the Attorney-General will make a further 56 District Court appointments.

The judiciary is recruited from the profession which, as Justice Winkelmann said in her

“I believe judicial leadership has a role to play in encouraging people from a diverse range of backgrounds and a diverse range of legal experience to see judicial appointment as a legitimate career aspiration for themselves…. We need to tell the story of diversity that already exists within our bench and also the story of what it takes to be a good judge. How intellect is important – knowledge, certainly, but so too is humility, empathy and knowledge of the community.”

Prison incapacitates but does little to address the causes of crime

Cartwright address, was likely to be made up of those from the most affluent homes. Studies of intakes showed only one in 100 entrants into New Zealand’s elite universities came from the most deprived homes. Further data from six universities revealed 60% of 16,000 students accepted into law, medicine and engineering in the previous five years came from the richest one-third of homes and only 6% from the poorest. And high-decile schools received four times the number of entrylevel scholarships when compared with low-decile schools.

“Financial assistance is going overwhelmingly to students from high-decile schools.” As head of the judiciary, Justice Winkelmann said she was concerned at the implications for judicial appointments. If the law schools were overwhelmingly made up of those from the most affluent schools, then so too would be the profession from which judges are appointed.

She took up the theme again last week. “Each judicial appointment is important because judges wield public power, and the decisions they make have a profound impact on the lives they touch.

LawNews

Editor: Jenni McManus

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

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

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The Heads of Bench have formed a committee, chaired by Chief Employment Court Judge Christina Inglis and tasked to take steps towards promoting a diversity within the judiciary.

District Court reform Allied to the diversity issue is the change taking place in the District Court where 95% of New Zealand’s justice is dispensed.

Justice Winkelmann has publicly thrown her weight behind the work initiated by Chief District Court Judge Heemi Taumaunu last year with his Te Ao Mārama (the world of light) program which will mainstream across the entire District Court system some of the best practices of New Zealand’s 13 therapeutic courts.

These courts, including the Rangatahi courts and the Alcohol and Other Drug Treatment (AODT) courts, with their emphasis on dealing with the root causes of offending, have been centres of excellence, Justice Winkelmann said, “but the proliferation of therapeutic courts is not the answer, nor can it continue”.

The model has proved we can introduce simple practices to improve the quality of caring for those who come before the courts, both victim and offender, she said, and through those same simple processes we can improve the outcome by working to address the drivers of crime.

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 8 | 26 Mar 2021

TRUST LAW

Advising clients on setting up trusts: a cautionary tale

By Anthony Grant

In 1994, Alexander Mason was given advice by an accountant on setting up a family trust. The process was repeated in 2013 when a second trust was created.

Mason says the advice was negligent. He says he made it clear that he needed to retain control of his financial affairs and was advised he and his wife, Wendy, would always have control of the trust as they would be the settlors, they would be trustees and they would have the power to appoint trustees.

Things didn’t turn out as planned.

Wendy Mason developed dementia and a High Court judge removed her as a trustee.

Alexander Mason, too, was removed. Fitzgerald J said he had a fundamental lack of understanding of the role and duties of a trustee and believed he was entitled to do “whatever he likes with trust assets”. She said, “a person who does not accept or believe in the very concept of the trust of which they are a trustee is the antithesis of who ought to be a trustee”.

That was not Mason’s only disqualifying characteristic. He also held a “deep hostility” towards his co-trustees and two of the beneficiaries. With these deficiencies, he was unable to discharge his duties in a fair and impartial manner and he had to go.

Having been dismissed as a trustee, Mason turned on the accountant, Paul Dodd. He said Dodd had not advised him properly of the possibility that he and his wife might be removed as trustees and he has sued the accountant in negligence.

Anthony Grant

With a belief that the accountant has no defence to his claim, Mason applied for summary judgment but Justice Sarah Katz dismissed the application so the case will have to go to trial (see Mason v Dodd [2020] NZHC 1508).

The primary purpose of the new Act is to inform and educate trustees about their obligations, to reduce the level of ignorance and mismanagement that has characterised so many New Zealand family trusts

This case illustrates the need for lawyers and accountants who advise clients on the formation of trusts to exercise care in what they say.

Mason may fail at trial in his claims against Dodd but the process of being sued will have taken a significant toll on the accountant’s time, possibly his health, and it will almost certainly have cost him money.

The case points to the need for lawyers and accountants to state some obvious facts to people who are planning to set up a trust.

A moment’s thought should cause a client to realise that a person whose mind has been destroyed by dementia is not capable of making decisions that will be upheld by a court. Even so, it would be wise to tell a prospective settlor that a court can remove a trustee with dementia.

Of much greater importance, the Trusts Act 2019 imposes various duties on people who “advise on the creation” of a trust and who “prepare the terms of a trust”. If an advisor recommends that the settlor should “modify or exclude” any of the default duties that are set out in the Act, the advisor “must take reasonable steps to ensure that the initial settlor is aware of the meaning and effect of the modification or exclusion” as per s 39(2).

Similarly, if a person who is paid to advise on creating a trust or to prepare the terms of the trust recommends that the settlor should include a liability exclusion clause or an indemnity clause, the advisor has a statutory duty in s 43(2) to “take reasonable steps to ensure that the settlor is aware of the meaning and effect of the clause”.

The Trusts Act has been deliberately drafted as a kind of instruction manual for trustees to educate them about the duties with which they must comply.

Although the Act doesn’t impose an express obligation on an advisor to inform

a settlor and trustees of their duties, it would not be surprising if a court should at some time rule that an advisor should inform settlors and trustees of the various statutory duties that are set out in the Act. In practice, it would be wise for an advisor to provide each trustee with a copy of ss 1-73 of the Act and to keep a record on the advisor’s file of the fact that each trustee was given those sections and advised on them.

The new Act has been drafted in such a way that its primary purpose is to inform and educate trustees about their obligations, to reduce the level of ignorance and mismanagement that has characterised so many New Zealand family trusts.

Mason v Dodd is a reminder to all trust advisors of the ease with which claims can be made against them by dissatisfied clients – a risk which has increased considerably with the statutory obligations imposed on trust advisors in ss 39 and 43 of the Trusts Act 2019.

Anthony Grant is an Auckland barrister specialising in trusts and estates law. He is a presenter at the Cradle to GraveTM Conference 3

Continued from pages 1, 2 “But they serve only a small part of the cohort of people coming into the criminal justice system.

This is literally postcode justice in operation.”

Photo by Christopher Whitehead/Getty Images

This is because those entering the court system receive inconsistent treatment based on where they are arrested. “Whilst we can tolerate that inconsistency in the short-term because it’s justified while we test and improve the model of therapeutic justice, its continuance past that therapeutic phase is fundamentally inconsistent with the rule of law.”

The Te Ao Mārama model is communityconnected and will ensure the court has the information it needs to act justly, she said.

“It calls upon the community’s resources to support and rehabilitate the offender and support the victim …. It will have implications for every aspect of the criminal justice system and will even impact upon the courthouses we build.”

There is a “considerable building program” in the wings, Justice Winkelmann said, with the Ministry of Justice working with iwi “and we are reimaging courthouses as places of community justice where the community services that are needed to really address offending are given space alongside the courtroom”.

While prison incapacitated people, it did little, if anything, to address the causes of crime. It also caused intergenerational harm, with the children of prisoners seven times more likely than other children to spend time behind bars themselves.

This was a conservative estimate, she said: others put the number at 10 times more likely.

“Speaking personally, I don’t see prisons being abolished because there is a legitimate incapacitation aspect to our criminal justice system, but we have to be more realistic about the impact of imprisoning people. You could ask any person in Corrections and they would accept that imprisonment makes a long-term criminal pathway more likely for many people. So, it’s something we need to have a very serious national debate about.”

Alongside the roll-out of the Te Ao Marama model, which will take some time, an extensive review is underway to simplify and improve the criminal process in the District Court.

Auckland and Manukau, in particular, are experiencing a workload crisis. The number of active jury trials has increased by 79% in the past four years – an explosion of cases that’s not related to the pandemic as numbers were ballooning long before then, though Covid-19 did make matters worse.

Justice Winkelmann said her own research suggested a number of causes for the higher rates of election, including the creation of new offences such as strangulation and money laundering.

Civil jurisdiction In a bid to improve access to justice, the Rules Committee last year began a once-ina-generation review of the High Court Rules.

This included a consultation process with the 4

Imprisonment makes a long-term criminal pathway more likely for many people

Full digitisation of the courts awaits a significant investment

will bring together ministry representatives, the judiciary, the profession and community groups.

The committee has also engaged Professor Bridgette Toy-Cronin from the University of Otago, whose research includes access-to-justice issues.

profession and the community.

Cost is obviously one of the key barriers and here the profession must play its part, the Chief Justice said.

Justice Winkelmann said there was a very high level of engagement and the feedback overall supported a significant change to the High Court’s presumptive procedural model.

In the District Court, serious concerns were raised about the inadequacy of judicial and registry resources in the civil justice area.

“The Chief District Court Judge and I are satisfied that this assessment in relation to the District Court is correct, having done further research, and that this is the result of the growing demand in the criminal justice jurisdiction,” she said. “Work is already underway to address a reallocation of resources.”

The Rules Committee is likely to release a further consultation document in the next quarter, setting out its recommendations.

“I expect those recommendations to be significant, both for the High Court and the District Court, and I’d like to see the profession engage with this document because I do see it as a once-in-ageneration opportunity to effect a change in the accessibility of the courts.”

In other moves, an access-to-justice committee has been formed – a joint initiative of the Chief Justice and Andrew Kibblewhite, the Secretary for Justice – with the aim of better aligning and coordinating the work of the institutions and community-led access-to-justice initiatives. It

“If this profession is to have long-term relevance, that it’s actually serving the part of society that is not just the top end of town, then it is going to have to find a way to increase its client base to provide access to justice not just to those who can afford $350 (which is a cheap rate, I’m told) hourly rates.”

Connecting the community An ongoing theme is to bring the communities into the courthouse.

The newly-formed Open Justice Committee, chaired by Justice Mark Cooper, is a cross-court body aimed at facilitating access to, and understanding of, the work of the courts.

To that end, the ministry has agreed to fund the introduction of live-streaming of court hearings and there will be consultation with the profession about other initiatives which may include publishing cases on appeal and the parties’ submissions to the Courts of New Zealand website to accompany live-streaming.

The Supreme Court also plans to sit occasionally in Auckland and Christchurch so the public can see the court in operation and also to create engagement with Auckland and Canterbury law schools, the Chief Justice said. The first such sitting will be in November in the Auckland High Court.

For photos see page 7

LawNews Issue 8 | 26 Mar 2021

COMPETITION LAW

Price fixing: we know it when we see it?

By Gary Hughes

by Hamilton real estate companies (and two individuals) who met with rivals to determine an industry approach to cope with TradeMe radically increasing fees for listings on its website.

My first article in this series noted the categories of defined cartel conduct: price fixing, market allocation and output restriction including bid-rigging. This week, we take a closer look at price fixing, the most well-known form of conduct. Or is it?

In agreeing to on-charge the new cost to their vendor customers and not absorb it, the parties were to some extent controlling the price eventually paid for listings/advertising. That was so, even if the TradeMe fee of $159+GST was a tiny part of the overall real estate fee. Although a small component, it was not insignificant in competition terms. Beyond mere mathematical calculation, it had the effect of interfering with the competitive process that should otherwise have applied.

To some, price fixing has an old-fashioned image of covert deals done in smoky rooms to deliberately stitch up pricing to customers. Fairly blatant, even if secretive and hard to detect. Some lawyers may think it so obvious that “we knew it when we see it”.

The trouble is that beyond those hard-core, blatant agreements, the law actually extends a long way into provisions that impact pricing in more subtle ways. This can mean unexpected or merely ancillary restraints, well short of covert cartels, can still affect pricing in one of the forbidden ways and end up being treated as cartel conduct.

Surprisingly broad terms Under s 30A(2) of the Commerce Act, price fixing means a provision with purpose, effect, or likely effect of “as between the parties to a contract, arrangement, or understanding, fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining of:

the price for goods or services that may be supplied/acquired by the parties; or

any discount, allowance, rebate, or credit in relation to goods or services…” in both cases, where at least two parties are in competition with each other.

Gary Hughes

Nuts and bolts The law focuses on any provision in an agreement, or part of an understanding, that amounts to price fixing. That clause or provision is deemed automatically illegal, regardless of whether the rest of the contract is fine or even has pro-competitive features. Joint ventures or commercial contracts often have ancillary clauses relating to price, even if not the core part of the agreement.

It is important to recognise some subtle but serious ways in which the core concept of price fixing is widened by the statutory language.

Characterisation as a cartel provision can be avoided if an exemption clearly applies (ie, deemed not to be cartel conduct) or if the parties go to the commission in advance, seeking clearance for that provision.

First, it is not just setting actual prices, but other things that “provide for” such setting.

Pricing formulas, times and implementation process for intended price rises, algorithms and price-matching clauses. Even key input price components in contracts may tend to maintain/ stabilise a general level of pricing. Depending on the facts, these can all come under scrutiny.

“Contracts, arrangements or understandings” in the language of the Act include not just formal or written contracts, but oral or informal understandings between competitors (ie, a “nod and a wink”). Email evidence is a frequent source of material to infer an understanding has been reached.

Second, the notion of ‘price’ is broader than headline price and includes any discount, allowance, rebate or credit – essentially any key aspect of pricing decision-making. The Commerce Commission’s lengthy series of cases against major airlines up to 2013 was for jointly agreeing to impose (and then update, in concert) fuel and other ancillary cargo surcharges, not base freight rates.

Further, the phrase “controlling or maintaining” extends beyond direct setting/fixing of pricing.

Engaging in the cartel conduct is directly prohibited, regardless of whether it harms competition. It is said to be a per se breach, unlike the general test in s 27 of the Act for agreements intending or resulting in a substantial lessening of competition.

Key NZ case The most recent cartel prosecutions involved real estate agency house-listing markets. The Supreme Court in Lodge Real Estate v Commerce Commission [2020] NZSC 25 upheld breaches

Australian example In 2016, the High Court of Australia decided that the Flight Centre travel agency had breached equivalent price-fixing provisions in their law. It was selling international air tickets as agent of airlines, but also in competition with those airlines which sold direct to customers. Flight Centre tried to stop airlines undercutting it by cheaper prices they offered to customers direct via internet bookings.

Despite Flight Centre not being an airline, Australia’s highest court agreed it was in competition broadly with airlines to sell international air travel tickets to travellers. It had been in litigation with the regulator since 2012 and a $A12.5 million penalty was eventually imposed in 2018.

Key risk areas Various commercial contracts, distribution agreements, collaborative mechanisms and business sale agreements include clauses potentially falling into the ancillary restraints area.

Those enthusiastically adding restrictive clauses, most-favoured-nation or price-parity clauses or price-matching or notification duties to a mundane commercial contract risk becoming accidental cartelists.

Leaving aside the collaborative conduct exemption, two other useful exceptions might ameliorate the broad sweep of price fixing:

vertical supply contracts, where supplies to a customer or intermediary are then resold in competition with the original provider; and

joint buying or promotion agreements, when competing buyers arrange to purchase collectively on terms they might struggle to negotiate on their own (typically, small buyers without bargaining power).

Gary Hughes, barrister at Akarana Chambers, specialises in regulatory investigations and cases, especially involving Commerce Commission, FMA, SFO, Police FIU and AML/ CFT supervisors Next week: market allocation 5

ADLS EVENTS

Hamilton lawyers’ lunch A lively group of practitioners joined ADLS at Alma Restaurant for lunch on Wednesday 10 March.

Many thanks to MAS for its sponsorship of this event.

Rodney Lewis and Shelley Turner

Natalie Whitelock and Hayley Roberts

Zac Kneebone, Emma Gradden, Tyler-Rose Keatley and Akeem Iyanda

Erin Anderson, Tom Jarman, Simon Middlemess and Sophie Newman

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Jessica Gilby-Todd and Pervinder Kaur

LawNews Issue 8 | 26 Mar 2021

Judge David Harvey, Rick Shera and Julie-Anne Kincade QC

Raynor Asher QC, Chief Justice Dame Helen Winkelmann and Justice Simon Moore

ADLS EVENTS

ADLS breakfast with the Chief Justice A large crowd gathered at the Northern Club early on the morning of Thursday 18 March for the first of what are to become annual breakfasts with Chief Justice Dame Helen Winkelmann (see also page 1).

ADLS President Marie Dyhrberg QC and Jo Wickliffe

Kimberley Knox and Hayley Coles

Andrew Gilchrist and Katherine von Biel

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Senior property / general role & Intermediate private client role Top-performing law firm seeks two new team members: (1) senior property / general lawyer with partnership aspirations; and (2) intermediate private client lawyer • Senior property / general lawyer (6+ years’ PQE) – partnership opportunity in two years •

Civil appeals seminar available on demand ADLS’ recent seminar on Being Effective in a Civil Appeal took registrants through various aspects of this vast topic, including planning, submissions and strategy.

The audience (in person and livestream) was treated to some war stories from experienced presenters Jim Farmer QC and Jane Standage and from the Chair, Raynor Asher QC. A substantial paper accompanied the seminar, providing a great reference tool for attendees in respect of future appeals.

The seminar is available On Demand, and the paper can be purchased from the ADLS bookstore.

Intermediate private client lawyer (3+ years’ PQE)

My client is a top-performing law firm seeking a senior property / general lawyer with partnership aspirations over the next two years. This is a new role to help manage the firm’s growth and partnership succession.

One of the partners is planning to retire over time, so a rare opportunity exists for an ambitious and capable lawyer to join the firm as a senior associate and work towards partnership. You do not need to bring a client base, as this well-established firm has a substantial client base which requires the right person to help manage it.

This role has a property focus but requires general practice experience. The work is interesting and varied, including commercial and residential property transactions of all types, construction contracts, wills & trusts, estate administration, relationship property and commercial work of all types. You do not need to be an expert in all areas, but your experience and expertise will be primarily in property law, with good private client experience.

A role also exists for an intermediate private client lawyer. This role includes wills & trusts, powers of attorney, relationship property and assisting other staff from time to time on other matters, such as residential conveyancing. You do not need to have experience in all areas, as training and support is available.

COVID has taught many lawyers what my client already knows well – you do not need to work in a city office to do quality work for great clients and have a successful career. My client is a suburban Auckland firm with an outstanding client base and a loyal and capable team of partners, lawyers, legal executives, and support staff.

If you are interested in either role, please email me your CV and any initial questions you may have to sam.bassett@markhams.co.nz

No more cheques The Ministry of Justice has advised that from 31 May it will no longer process or accept payment by cheque.

This follows moves by its bank, Westpac, to cease accepting cheques in June.

Read more here and here

NEW BOOK

Roth’s Companion to the Privacy Act 2020 Authors: Paul Roth and Blair Stewart This timely new title is an all-in-one resource explaining the key concepts, processes and obligations under the Privacy Act 2020. It aims to assist in understanding and providing informed advice on the changes to privacy law.

The Privacy Act 2020 repeals and alters the Privacy Act 1993 in many key respects.

In particular, the legislation introduces significant new obligations and liabilities for agencies, including a tougher enforcement regime. This text is drawn from the authoritative publication Privacy Law and Practice.

Those working with privacy law and policy on a day-to-day basis should become acquainted with the new Act immediately, making Roth’s Companion to the Privacy Act 2020 an invaluable resource.

This book includes commentary on:

the Privacy Act’s new preliminary provisions, including its purpose and broader coverage, as well as new definitions; the amended and expanded information privacy principles; the significant changes to the Privacy Act’s complaints processes; the new mandatory privacy breach notification obligations;

the Privacy Commissioner’s new powers to issue access directions and compliance notices; and the new offences under the Act and higher fines.

Price: $173.91 plus GST* Price for ADLS members: $156.52 plus GST* (* + Postage and packaging) 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.

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LawNews Issue 8 | 26 Mar 2021

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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 A View from the Family Court Bench — FINAL NOTICE 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.

 Seminar

Livestream

CPD 2 hrs

 Tue, 30 Mar

Learning outcomes:

4pm – 6.15pm

In respect of the Family Court: • Become privy to what the Judge has (and does not have) in front of them, both in terms of the file and technological resources, and when they get to see the file relative to the matter being in court.

• Benefit from attaining a better understanding of what happens in the process, from the filing of proceedings to when you appear in court.

• Delve into the interface and liaison between the registry and judiciary.

• Gain valuable insights into what’s important (and what’s not) from a Judge’s perspective, and what they desire from lawyers including conduct and etiquette; pleadings, memoranda and submissions; familiarity with the law; knowledge of their case and its theory; and appropriate consideration of settlement matters.

Chair: Brian Carter, Barrister, Bastion Chambers

 Presenters His Honour Judge de Jong His Honour Judge Burns Her Honour Judge von Keisenberg Aloema Futialo, Applications Management Team Justine Ng Lam, Case Management Team

Encumbrance Instruments and Covenants in Gross – what’s the issue and where do we go from here?

 Webinar

Encumbrance instruments are a confused beast, relying on technical conveyancing rules to enable personal covenants (that is covenants that are incapable of running with the land) to be made binding in perpetuity on landowners and their successors in title. Used as a device in this way, encumbrance instruments undermine core principles of real property law, creating problems in terms of sustainable land tenure in New Zealand.

Despite recommendations for their abolishment, the Land Transfer Bill was altered prior to enactment to retain the prior use of encumbrance instruments, but with covenants in gross still being introduced.

 Wed, 14 Apr

Learning outcomes: • Understand why the common law has always insisted that personal covenants cannot “run the land”, binding successors in title.

• Understand how the use of encumbrance instruments as a device is not mirrored by comparable overseas common law jurisdictions.

• Appreciate the inconsistencies and weaknesses in the Menere judgments, and why the result in each is unsustainable.

• Understand the benefits of imposing covenants in gross under appropriate provisions in the Property Law Act 2007, enacted by the Land Transfer Act 2017.

• Consideration of further case law illuminating these problems, including the Court of Appeal judgment in Spark New Zealand Trading Ltd v Clearspan Property Assets Ltd [2018] NZCA 248 and the recent Supreme Court judgment in Synlait Milk Ltd v NZIPL [2020] NZSC 157.

Leading Your Career — Exclusively for Women Lawyers with 6+ years’ PQE Take charge of your career and realise your underlying potential. This practical, interactive one-day workshop, led by one of New Zealand’s top female lawyers and one of New Zealand’s top leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career. Places are limited. Register now to avoid missing out. CPD hours: 7 hours onsite (excluding breaks) plus 1 hour’s preparatory work and completion of an online assessment.

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Covid-19 Vaccination – Q&A for Employers The New Zealand government has released its plan for rolling out COVID-19 Vaccinations to the NZ population.

Vaccinations are an important measure for controlling and preventing the spread of COVID-19, and will therefore need to be a part of employment policies and health and safety risk management plans throughout NZ businesses. This raises various considerations. Join us for a facilitated panel discussion on COVID Vaccination and the workplace during which experts will discuss these issues from an employment law, health and safety and union perspective and provide insights as to how to tackle them. The panel will answer FAQs around vaccination.

Learning outcomes: •

•

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Find out more about employment and human rights law issues and options for shaping your workplace strategy regarding vaccination, including whether vaccination can be mandatory in the workplace.

Learn more about the PCBUs duty to eliminate or minimise health and safety risks, key considerations in managing the risk of workplace transmission, and questions about the management of people who are vaccinated and those that are not.

CPD 1.25 hrs 12pm – 1.15pm

 Presenters Rod Thomas, Barrister, Author and Associate Professor in Law at AUT University Thomas Gibbons, Principal, Thomas Gibbons Law

 Workshop CPD 8 hrs

 Thu, 15 Apr 8.45am – 5pm

 Facilitators Miriam Dean QC Liz Riversdale, Catapult

 Webinar CPD 1 hr

 Fri, 16 Apr 12pm – 1pm

 Presenters Alison Maelzer, Partner Hesketh Henry Myriam Mitchell, Partner Copeland Ashcroft

 Chair Kate Ashcroft, Partner Copeland Ashcroft

LawNews Issue 8 | 26 Mar 2021

CPD in Brief Cradle to Grave™ Conference 2021

 Conference

Christchurch | Auckland For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is back again in 2021. With leading presenters on a great range of pertinent and interesting topics, it promises to be another outstanding event.

Early Bird offer available for bookings made by 17 April 2021.

Topics: Keynote Address: Problems in Succession Law and Options for Reform; Memoranda of Wishes; Section 182 Family Proceedings Act: Are the floodgates still open?; Conveyancing Pot Pourri; Family Property Disputes: The Best Route to Resolution; Trust Information Requests and Trustee Decision-making: Practical Suggestions from a Litigator’s Perspective; Focus on Trustees: Beneficiaries’ Rights to Information & Beddoe Orders; Spotlight on the Role of Attorney: EPAs – A Practical Focus; Trust Accounting; Trust Issues for Migrants to New Zealand Presenters: Nicola Peart, Professor Emerita; Helen McQueen, Deputy President, Te Aka, Matua o te Ture | Law Commission; Anthony Grant, Barrister, Paladin Chambers; Amanda Bradley, Partner, Duncan Cotterill; Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited; Brian Carter, Barrister, Bastion Chambers; Andrew Steele, Barrister, Princes Chambers; Richard Thompson, Barrister, Vulcan Building Chambers; Chris Kelly, Consultant, Greg Kelly Law (Christchurch); Greg Kelly, Partner, Greg Kelly Law (Auckland); Theresa Donnelly, Legal Services Manager, Perpetual Guardian; Mary Joy Simpson, Partner, Hesketh Henry; Sam Bassett, Director, Moore Markhams Chartered Accountants; Denham Martin, Lawyer, Denham Martin Tax Law. Chair: Bill Patterson, Partner, Patterson Hopkins

CPD 7 hrs

Current Contractual Issues: Pre-contractual Misrepresentation

 Mon, 3 May Christchurch 8.50am – 5.10pm

 Wed, 5 May Auckland 8.50am – 5.10pm

Livestream

This next seminar in the series will address the framework for analysing pre-contractual misrepresentation; what constitutes misrepresentation; the primacy of the written agreement and the judicial mindset; s 50 of the Contract and Commercial Law Act and “no representations” clauses; the significance of legal advice; and relief.

Presenters: Stephen Hunter QC, Shortland Chambers; Mike French, Director Law Undergraduate Programmes, Auckland University of Technology

 Tue, 4 May

Love Thy Neighbour? A guide to navigating common neighbour disputes

 Seminar

In person | Live Stream Disputes between neighbours can escalate quickly and disproportionately. On occasion, tensions build until one neighbour explodes, like one who took a chainsaw to his neighbour’s fence. Often however, disputes make their way through our courts and tribunals, with some culminating in lengthy and costly litigation (such as in the case of Aitchison v Walmsley where a dispute over a play-fort led to 4 years of litigation). Knowing how to navigate and best resolve these often heated disputes may be beneficial to all lawyers advising clients in the area. This seminar provides a guide to navigating common neighbour disputes, in the context of recent and interesting case law, and will focus on covenants, cross-leases, rights of way, boundaries and actionable nuisances.

Presenters: Andrew Peat, Barrister; David Broadmore, Partner Buddle Findlay; Mitch Singh, Partner, Glaister Ennor; Wi Pere Mita, Manager Māori Legal Services, Community Law South Auckland Chair: Geoff Hardy, Partner, Martelli McKegg

CPD 1.5 hrs 4pm – 5.30pm

Livestream

CPD 2 hrs

 Tue, 11 May 4pm – 6.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

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

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

Terms and conditions apply.

A View from the Family Court Bench Tuesday 30 March | Seminar | 2 CPD hours Visit adls.org.nz for more information.

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Offices Available

Barrister Wanted

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 ranges 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

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

WILL INQUIRIES LawNews Nigel L Faigan, Solicitor, announces that from 1 June 2021, he will be moving his office to 41 Awarua Crescent, Orakei, Auckland.

The following contact details remain the same: Telephone: 09 307 1242 / Fax: 09 307 1246 Email: nigelfaigan@xtra.co.nz PO Box 2597, Auckland 1140 / DX CP24138

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

Chancery Chambers offices for rent

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.

Donald Mathew LEONARD (aka Don), late of Blenheim, retired (died on 22’02’21) Raymond Edward NEVILLE, late of 59 Oriel Avenue, West Harbour, Auckland, aged 77 (died 19’12’20) Leah NOONAN, Late of 247 Alec Craig Way, Gulf Harbour, Auckland, aged 42 (died 05’02’21) Karen Elizabeth OTENE, Late of Netherlands Avenue, Kelston, Auckland, beneficiary, aged 61 (died 04’02’21)

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.

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.

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

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Ian James PORTER, Late of 79 Puahue Road, RD 5, Te Awamutu, 3875, married, retired psychiatric nurse, aged 63 (died 11’11’20) Maureen Dorothy POULTON, Late of Auckland, widow, retired, aged 83 (died 14’04’16) Paramjit SINGH, Late of Papatoetoe, Auckland, aged 61 (died 24’01’21) Norman WONG, Late of 68 Beaver Road East, Pokeno, Auckland, married, market gardener, aged 71 (died 27’10’20)

LawNews Issue 8 | 26 Mar 2021

TM

Cradle to Grave Conference 2021 7 CPD hours

The interface between trust, property and family law Christchurch 3 May

Auckland 5 May Proudly sponsored by

Prices:

Members $500 + GST | Non-members $610 + GST Early Bird offer available for bookings made by 17 April 2021.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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

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

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Bookstore A convenient, one-stop-shop for all your legal resources Visit the ADLS online Bookstore to purchase from our broad selection of texts covering a wide range of practice areas, including the latest legal titles from major publishers. Resources also include, legislation, seminar papers and legal forms. See: adls.org.nz/bookstore ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

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The ADLS Bookstore couriers nationwide.

Alternatively, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD