LawNews - Issue 20

NEWS Jun 25, 2021 Issue 20

Inside ■ JUDICIAL REVIEW

Charities up the ante on e-scooters P03

■ TRUST LAW

Takeaways from Addleman P05

Judicial review filed to ban e-scooters

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FROM FOOTPATHS

Contents 03 JUDICIAL REVIEW E-SCOOTERS UN CONVENTION

Campaign against e-scooters moves to the courts

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

05 TRUSTEES BENEFICIARIES LEGAL PRIVILEGE

‘Outside the tent’?

More fallout from Addleman

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06-07 TRUSTS LOANS BENEFICIARIES

UK court rules on beneficiary ‘loans’

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02

Jun 25 2021 Issue 20

JUDICIAL REVIEW

Lawsuit filed to ban e-scooters from footpaths They are, in fact, motor vehicles as defined in the Act and as such are prohibited from being driven on the footpath

Rod Vaughan

are a party. In my opinion, that failure was a clear breach of Article 4(1) and Article 3 of the convention.”

The judicial review application has arisen against a backdrop of mounting concern about e-scooter-related injuries that have cost taxpayers almost $15 million in the two years the machines have been on the country’s streets and footpaths.

Between October 2018 and January 2021, ACC received a total of 6284 claims concerning e-scooters, receiving almost 200 in January alone, costing $458,703.

Auckland registered the most injury claims, 2246, at a cost of around $6m, followed by Christchurch, 1873 at a cost of about $3.6m, then Wellington, 659, at a cost of $1.2m.

The most common problems are soft tissue injuries, 2104, followed by laceration/puncture, 1803, and fracture/ dislocation, 501.

Williams’ concerns led him to approach Living Streets Aotearoa which was already contemplating a legal challenge to regulations allowing e-scooters on footpaths and it was then that Wilson Harle became involved.

The firm has a long tradition of taking worthwhile cases on a pro bono basis and partner Chris Browne readily agreed to seek a judicial review of regulations approved by Auckland Council and NZTA allowing e-scooters to be ridden on footpaths.

With input from Williams, who is also offering his services free of charge, the law firm is basing its case on the UNCRPD which New Zealand signed in 2007 and ratified a year later.

A high-powered campaign to banish e-scooters from New Consultation required Zealand footpaths is gathering momentum with Auckland law firm Wilson Harle seeking a judicial review of regulations In essence, the UNCRPD requires signatories to consult with governing their use. the disabled community when making decisions on issues concerning it. It also requires signatories to take appropriate The pro bono proceedings are being brought on behalf of measures to ensure people with disabilities have access on various charities representing the disabled including Living an equal basis with others to the physical Streets Aotearoa and Blind Low Vision environment and transportation.

New Zealand.

There is ample They believe the increasingly In its submissions, Wilson Harle case law where widespread use of e-scooters on footpaths contends that the disabled community had treaties signed in cities like Auckland is a serious threat to a legitimate expectation of consultation by the well-being and safety of pedestrians, Auckland Council and NZTA when making

by New Zealand including the disabled. decisions on issues concerning it. have been Major concerns about their use were “NZTA did not consult with the public successfully first raised by former High Court Judge Sir or the disabled community before issuing relied upon in David Williams QC more than a year ago in a Gazette notice in September 2018 a letter to The New Zealand Herald. declaring e-scooters not to be motor New Zealand Williams, a keen cyclist, complained that vehicles.” courts while he was required to ride on the road After trialling rental e-scooters in 2018 and take his chances with truck and car and 2019, Auckland Council issued licences traffic, motorised scooters were allowed to several operators including Lime, Onzo to use footpaths without any consideration being given to NZ, Wave, Flamingo, Neuron, Beam and Jump, allowing them pedestrian rights and safety. to operate scooters on footpaths.

He later told LawNews that “it is truly astonishing Wilson Harle says the scooters were considered to be that neither local nor central government considered the obligations they owed under the 2006 UN Convention on the Continued on page 04 Rights of Persons with Disabilities (UNCRPD) to which they 03

Continued from page 03

Rider convicted

In 2019 two people died while riding scooters, one as a result of a medical event and the other from head injuries when he wheeled recreational devices but it believes they don’t comply was thrown off one after the front wheel appeared to lock up. with the rules for such devices as they are fitted with primary During the same year, an Auckland woman was hit by a rather than auxiliary motors, providing more than 300W of scooter after stepping off a bus, leaving her with concussion, power. severe bruising to her hip and injuries to her cheek, chin and “They are, in fact, motor vehicles as defined in the Act hand. and as such are prohibited from being driven on the footpath.

“I woke up face down on the road and it was like a dream,” Auckland Council also failed to consult with the disabled she later recounted. “The Lime scooter hit me, and it turned community when licensing e-scooters for use on the footpath. me into a human spear where I ended up flying through “As a result of the UNCRPD, the the air and ending up face down on the disabled community had a legitimate pavement under the bus.” expectation that Auckland Council would The scooter rider, Mitchell McIntyre, In 2019, four consult with them when making the was later convicted of careless or surgeons called licensing decision, but it did not.” inconsiderate use of a vehicle and ordered for people to be Williams told LawNews there was to pay $4000 reparations to her. ample case law where treaties signed by And in March this year a Christchurch banned from New Zealand have been successfully relied man was critically injured after crashing his riding scooters upon in New Zealand courts. “The Law scooter in the car park of a shopping mall. when under Commission report refers to Van Gorkom Alcohol intoxication has also been a the influence v AG [1977] 1 NZLR 535 at 542-543. There, factor in many scooter accidents. In 2019, the court held that reference could be four surgeons called for people to be of alcohol after made to the Universal Declaration of banned from riding scooters when under they found that Human Rights and the Declaration on the influence of alcohol after they found more than 40% Elimination of Discrimination Against that more than 40% of riders who suffered Women when it invalidated discriminatory head injuries had been drinking. of riders who conditions laid down by a minister under The spate of accidents and injuries suffered head subordinate legislation.” does not surprise Living Streets Aotearoa injuries had been spokesman, Dr Chris Teo-Sherrell.

Another case is Teddy v Police [2014] drinking NZCA where it was held at paragraph 33 “Allowing people of all ages to ride that “when there are relevant international powered transport devices and bicycles obligations, it is well established that New on footpaths makes many pedestrians, not Zealand legislation should be interpreted just the elderly or disabled, fearful of being consistently with its international treaty obligations wherever struck, caused to fall or expected to move out of the way,” he possible. says.

“But most important of all is the 2018 decision of the “We have received reports of many pedestrians feeling New Zealand Court of Appeal in Chamberlain v Minister of unsafe in the presence of e-scooters and bicycles on the Health [2018] 2 NZLR 771 where in specific reference to the footpath, some to the extent that they are now fearful of convention the court said at paragraph 31, Legal Framework going out on foot. We are baffled as to why the safety, and for the Funding Decision: feelings of safety, of pedestrians on footpaths has been so compromised.”

“New Zealand is a party to the Convention on the Rights Teo-Sherrell says older people are especially vulnerable. of Persons with Disabilities and its Optional Protocol. Our “For older members of our community, a fall on a footpath interpretation of all relevant legal and policy instruments must account for New Zealand’s international obligations.” can be fatal or result in long-term pain and incapacity and could make them very wary about using footpaths. They don’t Williams says allowing e-scooters and other motorised have to be hit to fall over. Even an e-scooter unexpectedly transport devices and bicycles to operate on footpaths is not only inconsistent with New Zealand’s international obligations coming close to them can be enough for them to lose balance and fall. to promote full inclusion of disabled people and to remove “As our older population increases, creating cities that barriers to them, but will put major obstacles in the way, both are age-friendly will be even more important than it is today. figuratively and literally.

Yet allowing all-ages cycling and riding a wide range of other “Any licences issued will be invalid. The proper course machines on footpaths is going in exactly the opposite is to terminate the existing licences and allow scooters direction.” ■ on roads along with bicycles which are, of course, already allowed on roads.”

See also page 12 04

Sir David Williams QC

Dr Chris Teo-Sherrell

Allowing people of all ages to ride powered transport devices and bicycles on footpaths makes many pedestrians, not just the elderly or disabled, fearful

Jun 25 2021 Issue 20

TRUST LAW

Addleman: ‘much-needed clarity’ on important area of trust law Andrew Steele On 1 June 2021, the Supreme Court gave judgment in Lambie Trustee Limited v Addleman [2021] NZSC 54, settling whether and when trustees must disclose their legal advice to beneficiaries of a trust.

The underlying dispute in Addleman was between two sisters, Prudence Addleman and Annette Jamieson, and a trust whose sole trustee was a company controlled by Jamieson.

The sisters were both beneficiaries of the trust.

Addleman requested information about the trust which, in part, Jamieson resisted.

Jamieson sought legal advice about her sister’s requests, both before and after Addleman issued proceedings seeking orders from the court to oblige Jamieson to make the requested disclosure, including disclosure of the legal advice that had been given to Jamieson.

The wide definition of ‘trust information’ in s 49 of the Act may well include ‘personal information’ of the trustee about the trust or its administration

The ‘joint interest exception’ ceases to apply where the trustees and challenging beneficiary have reached the point where their positions so conflict that the trustees are now taking advice for the purpose of resisting the claims or demands against them

‘dominant purpose’ for the advice was defending the litigation or imminent litigation.

To illustrate: That litigation may be a possibility or even a likelihood at the time advice is taken is unlikely to meet the ‘dominant purpose’ test. And advice sought, even where litigation is contemplated, that is aimed at looking for guidance as to the right course of action (as compared with seeking advice as to how to resist actual or imminent litigation) means the ‘joint interest exception’ will most likely still Key takeaways apply.

The safe approach is probably to ■ Although legal privilege applied to Andrew Steele consider two alternatives: Was the advice the legal advice given to the given before or after litigation was trustees, which would bar any immediately imminent or had outsider from seeing it, there exists a commenced? If it was before, it is likely to be dis ‘joint interest exception’ to the privilege that closable to the beneficiary; if after, it is unlikely to be entitled the beneficiaries to see that advice. The disclosable. underlying reason for this is an assumption that the advice was obtained for the beneficiaries’ ■ Hitherto, it had been argued by some that if the benefit. legal advice was paid for by the trustee out of his or her own money (ie, not from trust ■ But the ‘joint interest exception’ has a limitation. property), then it is ‘personal information’ It ceases to apply where the trustees and belonging to the trustee and not likely to be challenging beneficiary have reached the point subject to court-ordered disclosure. The court where their positions so conflict that the trustees gave weight to this argument, but did not are now taking advice for the purpose of resisting conclusively decide it. Caution is therefore the claims or demands against them. required before a trustee relies on such a course, ■ How does a trustee know when the ‘joint interest believing it will avoid the obligation to disclose the exception’ ceases? The test is whether the

advice to the beneficiary. It also needs to be borne in mind that: a. The judgment addresses the common law rights of disclosure to beneficiaries and not discovery in litigation as between beneficiaries and trustees. b. The judgment was decided on common law principles applying before the Trusts Act 2019 came into force. The wide definition of ‘trust information’ in s 49 of the Act may well include ‘personal information’ of the trustee about the trust or its administration.

This judgment gives much-needed guidance on a particularly unclear but important area of trust jurisprudence.

While the ‘dominant purpose’ test will be wellutilised by trustees and their advisors, I expect many will be sad to let go of the more colloquial test espoused by the High Court in Easton v Guardian Trust [2021] NZHC 519.

Here, the court at para [20] described the test for the loss of the common interest (the equivalent of cessation of the joint interest exception) as being the point reached where the trustee could regard the beneficiary who wishes to sue him or her as ‘outside the tent’. ■ ■ Andrew Steele, a former litigation partner at Martelli McKegg, is an Auckland barrister specialising in civil litigation with an emphasis on trust and estate disputes 05

TRUST LAW

When is a loan really a distribution?

Loans are commonly made without serious consideration as to whether the powers being exercised are administrative or dispositive Jeremy Bell-Connell & Henry Brandts-Giesen

Jeremy Bell-Connell

A recent judgment of the Court of Appeal of England and Wales, Sofer v SwissIndependent Trustees SA [2020] EWCA Civ 699, provides a timely warning to trustees that characterising a payment to beneficiaries as a loan does not conclusively make it so, and that mischaracterising such transactions could place trustees in peril.

The facts The claimant was a beneficiary of a discretionary trust settled in 2006 by a wealthy South African bookmaker and investor, Hyman Sofer. The trust was settled with the assistance of Australian solicitors but was governed by the laws of England and Wales.

The trustee was given the power to lend trust assets to beneficiaries but was prohibited from transferring trust property to the beneficiaries prior to Sofer’s death.

In the decade following the trust’s creation, significant amounts were paid out from the trust to Sofer. Although the payments were recorded as being loans, no provision was made for security, interest, or repayment. Sofer did repay some small amounts but the net amount paid to him from the trust totalled nearly $19.2 million.

The proceedings After Sofer’s death, his son brought a claim against the trustee, alleging the payments were distributions rather than loans and sought orders that the trustee reconstitute the trust fund.

The trust deed, however, contained an exoneration clause excluding any liability on the part of the trustee except where the loss was caused “by acts done or omissions made in personal conscious and fraudulent bad faith”. In addition, the trustee had obtained an indemnity from the son in respect of several of the payments to his father.

The trustee applied to strike out the claim on the basis that the exoneration clause and/or the indemnities provided a complete answer to the claim.

As is commonplace, summary judgment was sought in the alternative. In New Zealand, this is reflected in s 25 of the Trusts Act 2019, which creates the mandatory duty that a trustee 06

must act honestly and in good faith and s 40 which restricts trustee exemption clauses so they cannot limit or exclude a trustee’s liability for any breach of trust arising from the trustee’s dishonesty, wilful misconduct or gross negligence.

The Sofer case considered two issues: ■ whether the payments were made in fraudulent bad faith (ie, dishonestly), meaning the exoneration clause would not protect the trustee from liability; and ■ even if the exoneration clause did not protect the trustee, whether the deed of indemnity entered into by the claimant stops the claim in its tracks.

The High Court ruled in favour of the trustee on both these issues, but the claimant appealed to the Court of Appeal.

Fraudulent bad faith

Henry Brandts-Giesen

The Court of Appeal accepted that these factors gave rise to a sustainable case that the loans to Sofer constituted distributions and the trustee had committed a dishonest breach of trust

The English Court of Appeal confirmed that to show fraudulent bad faith, the claimant was required to evidence dishonest breach of the trust by the trustee.

The duty to act honestly and in good faith is seen, throughout the common law world, as a minimum requirement (ie, the ‘irreducible core’) required of trustees if there is to be a valid trust.

What constitutes dishonesty for the purposes of exclusion clauses in trust instruments has been the subject of some controversy in England and Wales.

In Spencer v Spencer [2013] NZCA 449 the New Zealand Court of Appeal perused the English case law (but not the present case) and concluded that the assessment of a trustee’s honesty comprises both subjective and objective elements.

“A critical first step is to establish what the trustee actually knew about the terms of the trust relevant to the breach…The second step requires an assessment of whether, in the light of what the trustee knew, he or she acted in the way an honest person would in the circumstances. This is to be assessed on an objective basis. A trustee who believes his or her actions or omissions were in the best interests of the beneficiaries will not necessarily be entitled to protection.”

Further refinement has now occurred in England and Wales.

In the present case, the English Court of Appeal confirmed that to establish a dishonest breach of trust by a professional trustee, one of the following grounds must be established: ■ The trustee knew the breach was contrary to the interests of the beneficiaries; or ■ The trustee was recklessly indifferent as to whether the deliberate breach is contrary to the beneficiaries’ interests; or ■ The trustee believed the deliberate breach was not contrary

Continued on page 07

Jun 25 2021 Issue 20

Comment

Continued from page 06

to the interests of the beneficiaries, but such a belief was so unreasonable that, by any objective standard, no reasonable professional trustee could have thought what he or she did or agreed to do was for the benefit of the beneficiaries.

In the absence of a further New Zealand authority, observations made in Sofer v SwissIndependent Trustees SA could be instructive to trustees in New Zealand, especially if the issue is how to characterise a payment to a beneficiary.

A loan or a distribution?

The claimant argued that the amount of the payments to Sofer, which represented the bulk of the trust’s assets, the length of time over which they had been made and that the trustee had not investigated the prospects of the loans being repaid, supported his case that the payments were made as distributions and not loans and accordingly there had been a dishonest breach of trust.

The Court of Appeal accepted that these factors, in their totality, gave rise to a sustainable case that the loans to Sofer constituted distributions and the trustee had committed a dishonest breach of trust.

So, the claimant had a real prospect of establishing that the exoneration clause offered no protection to the trustee. If this cause of action is proven on the merits at a subsequent hearing, then the trustee will be required to reconstitute the trust fund.

Deeds of indemnity In respect of the deeds of indemnity, the Court of Appeal considered it arguable that the indemnity provided to the trustee was not wide enough to indemnify the trustee for the payments if they were not in fact loans but distributions.

In addition, it was arguable that the indemnity was subject to an implied term that negated the indemnity where the trustee acted dishonestly.

A New Zealand court would most likely reach the same result, particularly given that s 41 of Trusts Act 2019 provides that the terms of a trust must not give a trustee any indemnity against the trust property for liability for any breach of trust arising from the trustee’s dishonesty, wilful misconduct, or gross negligence.

Loans are commonly made without serious consideration as to whether the powers being exercised are administrative (generally relating to the management of the trust assets) or dispositive (effecting benefits to the beneficiaries).

Trustees sometimes exercise powers under trusts without really understanding the true nature of the power. It is essential for all trustees to at least understand the difference between a dispositive power (eg, to pay or apply income, or to appoint capital) and an administrative power (eg, make loans, sale/purchase, invest, give security, insure, guarantee, etc).

Sometimes the objective of a fiduciary decision may be to confer benefit on a beneficiary but to achieve this outcome both dispositive and administrative powers must be used.

In a formal sense, powers to (for example) make loans or sell/purchase assets are administrative powers but if the terms are not commercial then, essentially, the fiduciary decision must be predicated on the exercise of a dispositive power in favour of a beneficiary and therefore be subject to all the usual considerations that apply to such fiduciary decisions.

The use of an administrative power to help confer the benefit is merely ancillary to the (more relevant) dispositive power being exercised.

The risk to New Zealand trustees who fail to adhere to this distinction is made abundantly clear by Sofer v SwissIndependent Trustees SA. Prior to making loans to beneficiaries, trustees should consider whether there is any real prospect of the beneficiary repaying a loan, and how the interests of the other beneficiaries would be affected if the loan were made.

If the loan is made despite there being little or no prospect of repayment, that loan could rightly be characterised as a distribution rather than a loan.

Consideration should also be given to whether the loan should bear interest, whether there should be a fixed repayment date and whether any security should be provided. At the very least the parties should consider including a Marshall clause in the loan terms, to offer some form of asset protection.

(This is a provision in loan agreements providing that interest is payable if demanded. See Re Marshall [1965] NZLR 851 (CA).)

Trustees should be able to produce contemporaneous minutes that sufficiently detail their consideration of such matters. A comprehensive paper trail will significantly improve the trustee’s position in the face of allegations of dishonest breach of trust, whereas a lack of paperwork may result in the court making an adverse inference against a trustee. ■ ■ Henry Brandts-Giesen is a partner and Jeremy Bell-Connell is a senior associate at Dentons Kensington Swan

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CASE STUDY

Trust appeal tests limits of Beddoe orders when misconduct alleged In another of the causes of action there was alleged misconduct and a trustee cannot expect a pre-emptive indemnity in that situation

The High Court made limited Beddoe orders allowing the trustees to defend certain of the claims, and certain portions of particular claims. The extent of the orders made is itemised in the Court of Appeal judgment at paragraph [22]; for example, in relation to the application for the recall of McCallum’s probate, the High Court granted a Beddoe order so costs could be met for the provision and their adult daughter who has Sacha Jugum of factual information to the court, and an intellectual disability. The trust submissions on legal principles, but not deed also provided for grandchildren, Appeal against making of partial Beddoe orders for the active defence of the merits of although the couple did not have – applicable principles – procedure – pleading the claim. grandchildren. of claim – jurisdiction – legal history and the The McCallums’ son (and in part, In 2016 McCallum settled a new development of trust case law – Beddoe orders and their daughter) appealed the making trust and various transactions took the history and purpose of such orders – “neutral” of these limited Beddoe orders, arguing place between the 1986 trust, the 2016 versus “passive” trustee approach – categories of that Beddoe orders should be abolished, trust and property held personally by litigation – whether “hostile” litigation – precedent Sacha Jugum that they were contrary to public policy McCallum.

– academic commentary – whether Beddoe orders and that the orders should not have When McCallum passed away in should be abolished in New Zealand [no] – approbeen made in this particular case.

January 2017 and his wife passed away later that year, priateness of orders made – extent of connection The parties who applied for the Beddoe orders various claims were brought against the respective between interests of the trust and orders made did not cross-appeal their limited nature. Applicable trusts/trustees and personal estates/individuals.

– appeal allowed in part and two partial Beddoe principles – extensive discussion of jurisdiction and These claims included orders are reversed. policy arguments, including the ‘hostile’ nature of alleged breach of moral duty These substantive McCallum v McCallum the litigation in this context – detailed canvas of the (Family Protection Act 1955), [2021] NZCA 237 (Kós P, claims are untested history of payment of trustee costs in litigation and claims of invalid resettlement Gilbert and Goddard JJ) but led to certain the supervisory jurisdiction of the court – analysis of of trust assets, alleged knowing the appropriate approach to be taken by the court, the receipt and breach of fiduciary Note: ‘Beddoe orders’ are parties/trustees “functional categories” of trust litigation and reference duties by a trustee and/or directions given by a court applying for Beddoe and review of academic commentary. other persons, an application approving trustees bringing orders, requesting that for removal of trustees, and an or defending proceedings at Held: the appeal is allowed in part. Two of the limited application for recall of probate the cost of the trust. The term trust monies be used Beddoe orders made in relation to two of the legal of Bill McCallum’ s estate on derives from an 1893 English to potentially defend claims should not have been made. the basis that his last will was Court of Appeal decision – Re the claims This is because one of the orders had been made allegedly procured through Beddoe [1893]1 Ch 547 (CA) in relation to a claim against a party in their personal undue influence by a family Bill McCallum was a capacity (so this did not affect the interests of the member. descendant of a Scottish family trust) and in another of the causes of action there These substantive claims are untested but led to who migrated to New Zealand in 1860, establishing a was alleged misconduct and a trustee cannot expect certain parties/trustees applying for Beddoe orders, land estate, homestead and interests in and around a pre-emptive indemnity in that situation (see paras requesting that trust monies be used to potentially coastal Clevedon, South Auckland, in 1886, including 68-69 of the decision) – a separate application to defend the claims and asking the court to determine offshore islands. adduce further evidence is granted – no order for McCallum settled a family trust, including provision whether such a defence of a particular claim was costs. ■ reasonable and proper. for his wife Heather, their ‘vulnerable’ adult son 08

Jun 25 2021 Issue 20

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LawNews

Recruitment

The most notable shortages of candidates are at intermediate to senior level from the three-to-eight years’ experience bracket

adls.org.nz/cpd

Diana Clement

cpd@adls.org.nz

09 303 5278

“When you hire more senior [lawyers] you need a stronger business case.”

That’s not to say more junior and more senior roles aren’t available.” Employers are backfilling roles they chose to leave empty last year, he says.

Who’s hot and who’s not, in legal recruitment? After a year in the doldrums, CoLegal has seen a growth of work across several practice areas this year, the employment market has bounced back. For now, at least.

The legal profession is yet to understand the long-term effects of Covid-19 most notably in commercial and residential property law, construction and on employment. And when it comes to demand, the law, like other sectors, has areas such as resource management, with new Resource Management Act reforms on the way.. Booming property markets have helped drive demand. peaks and troughs. Property law, for example, lost its shine when the global Both Ranchod and Kathryn Cross, of Artemis Executive Recruitment, financial crisis (GFC) began in 2007. have seen demand for in-house lawyers return this year after dropping off in So law firms took fewer recruits into property teams, says Kirsty Spears, 2020. Cross says some are moving from private practice to director of recruitment company McLeod Duminy. The in-house roles earlier in their careers than they might have consequences of those hiring decisions more than a decade Demand for in the past. ago are still being felt. in-house lawyers As well as corporate, commercial and property, demand “That has definitely led to a shortage that has followed has returned is growing for litigation roles, Spears says. With most trials them through the years,” Spears says. In spite of Covid, most firms she works with continued to take on grads “so after dropping off suspended and the courts closed during lockdown, litigation hopefully we won’t see the same sort of gap showing up in a in 2020 and some recruitment took a hit in 2020.

One piece of good news for candidates, although not few years’ time”. are moving from so much for employers, is that the expected flood of Covid The good news in 2021 is that most areas of law are in returnees never materialised, says Spears. private practice demand, after a hiatus last year while employers grappled “It’s been a difficult thing to actually come home,” she with the effects of the pandemic on their businesses. to in-house roles says. What’s more, many among the New Zealand legal Longer term, however, lawyers could well be replaced earlier in their diaspora have stuck out lockdowns and kept their jobs by technology, the UK Law Society’s Future Worlds 2050 careers than they overseas. Of those who have returned, some would have report predicts. The project aims to have ‘raw, frank and honest discussions’ about the future of legal work and says might have in the come back anyway and many have simply slotted back into the firm they left. legal recruitment is at a pivotal point, having peaked in 2016. past “We’ve had a few people carry on working for the firm Among other forecasts, the report predicts the they were working for it remotely,” Spears says. “So, it’s not dissolution of the partnership model by 2023 to 2026, the been as big an impact, or certainly not from what we’ve seen. deskilling of the legal profession from 2026 to 2030 and They’re also the more senior [associate or higher] level people. Generally ‘savage reduction” of full-time legal roles by 2050. With artificial intelligence there isn’t as much of demand for them.”

(AI) taking jobs, the UK Law Society foresees the levels of compensation in On the flip side, hiring isn’t only about demand. Employers need to boost the industry will drop. their desirability if they want to attract top talent. Many staff got a taste for For now, however, New Zealand lawyers are still in hot demand. The most working remotely during lockdown and firms willing to continue offering that notable shortages of candidates are at intermediate to senior level from the three-to-eight years’ experience bracket.

“You see a sweet spot at four to seven years where lawyers can work with Continued on page 11 autonomy,” says Anand Ranchod, managing director at recruiter CoLegal.

10

Jun 25 2021 Issue 20

RECRUITMENT

Continued from page 10

particular, is that more lawyers are leaving the profession this year and more are moving to the provinces for a better lifestyle.

The Bay of Plenty is one of the more popular destinations sort of flexibility are more likely to clinch the hire. It gives for lawyers fleeing the big smoke, Cross employees the ability to manage their day, says. says Ranchod – to pick up the children from Likewise, lawyers could start heading school and, if necessary, complete their work Juniors with one overseas again soon in more ‘normal’ outside ‘regular’ hours. to three years’ numbers. Cross is already seeing a trickle Juniors with one to three years’ experience leaving New Zealand now the vaccine is experience can find work. Graduates, can find work. being rolled out in key markets and the however, could be in for a hard time at bubble with Australia has opened. the end of this year if they haven’t already Graduates, Many young lawyers in London and lined up a job. Demand isn’t what it was however, could elsewhere who didn’t come back might stay pre-Covid because many currently in junior be in for a hard away longer than they would have, she says. roles haven’t moved overseas as might have time at the end of Now that the pubs are reopening, they can happened had the pandemic not hit. enjoy more of the lifestyle they went for, but “Therefore we don’t have the this year if they felt they missed in 2020. opportunities for the graduates coming haven’t already “They can now get out and actually through that we used to have,” Cross says. lined up a job enjoy what they went there to experience in The other trends that could affect the first place,” she says. ■ recruitment generally, and in cities in

Kirsty Spears

Kathryn Cross

PARTNERSHIP OPPORTUNITY – PROPERTY LAWYER • Opportunity to progress to partnership in short timeframe • High-quality small firm • Prime Central Auckland location The firm undertakes high-level work and services a strong client base in the areas of commercial, property and general practice including management of a number of family trusts. The quality of the firm’s legal practice and reputation enables it to attract work very successfully.

The firm has two partners who are very capable lawyers with previous work histories from top firms. They are also congenial personalities who have created a very positive and supportive working environment. Work expectations are reasonable and everyone in the firm “has a life.”

As part of the firm’s succession planning there is the ability for clients to be passed onto the right candidate but you should be able to build up and retain your own client base in time. It would be advantageous for you to already have some of your own clients.

You will have eight plus years’ property and general practice experience and be looking to advance your career to the next level.

The firm’s systems are modern, location and accessibility superb and parking provided.

This is an excellent career opportunity.

For a confidential discussion about this role, please contact: Gerald Lange (09) 358 2121, 027 243 1009 Email: gerald.lange@careerprofessionals.co.nz www.careerprofessionals.co.nz

Are you looking for a role that is all about people?

Do you have 4 + years’ PQE experience?

At The Law Connection, we pride ourselves on best practice legal advice whilst always keeping people at the centre of what we do.

Are you currently working at a senior level but have ambitions to reach new heights?

We are looking for the right person to progress their career and come on a journey with us, with the end goal of becoming a future partner.

If this excites you then you may well be the ONE! Along with simply being a great human being, we are looking for somebody with a wide range of experience that can work across all areas of The Law Connection teams practice.

With a stunning Raumati Beach location, a lunchtime stroll beside the ocean will become part of your everyday!

We are a friendly bunch and support our team to achieve their goals and live their best lives.

Walk in to a great long-term client base ready for you to get started and make a real difference in our clients’ lives – what are you waiting for?

Applications by email to: paula@lawconnect.co.nz

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Continued from page 04

We are looking for a successor to join our Commercial and Property team with an opportunity of short to medium-term partnership prospects where a following is not required.

We have very senior members of our team looking to retire and who would love to hand over their well-established client base. We have been providing legal services in the Gisborne district for more than a century and we have been acting for families, and particularly farmers, for generations. We also complete work in the forestry sector, act for SMEs and for individuals.

The role requires a commercial and property lawyer who can demonstrate leadership skills and will suit a senior-level lawyer looking to join a partnership, or an intermediate to senior-level lawyer who has their eye on partnership.

In addition to leadership skills, building long-term client relationships will also need to form part of your key strengths to be successful in this role. The work will involve a broad range of commercial and property matters as well as other matters like trusts and estates that usually tie in with a commercial and property practice in the regions.

We also have a well-established litigation practice to hand contentious matters to. We have plenty of support staff and modern technology, ensuring you will not get tied up in junior-level work and allowing you to focus on more complex and juicy work.

For someone who might still need a bit of guidance, there will be an experienced partner you can turn to who will support you in your path to become a partner.

We value work/life balance and although we are proud to offer a superb service to our clients, we are not just all about producing fees. You will certainly have the time to enjoy the relaxed Gisborne lifestyle with its sun, surf and social life in the heart of the wine country.

Please forward your letter and CV to Amanda Matthews; amanda.m@woodward-chrisp.co.nz

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E-scooters are banned from roads and footpaths in Singapore and those caught riding them there can face fines of S$2000 and/or jail for up to three months To gauge how regulations governing the use of e-scooters in New Zealand compare to other jurisdictions, Sir David Williams looked at the situation in London, Paris and Singapore.

London Rental e-scooters are barred from pavements while privately-owned e-scooters are illegal.

There is currently a trial allowing rental scooters to be used in certain areas of London on the road.

Several conditions have been placed upon the trial. These include a maximum speed limit of 12.5 mph, scooter lights must be permanently on and users must complete a safety briefing beforehand.

Paris E-scooters are subject to an obligation of civil liability insurance for any damage caused. They are also subject to a speed limit of 20km/h in most areas and 8km/h in areas of heavy pedestrian traffic. Parking is allowed only in designated spaces.

Scooters can use the bus lane or cycling lane providing they follow all other traffic regulations. There are fines of 135 euros for a scooter being operated on the sidewalk and 35 euros for blocking the sidewalk while parked.

Dangerous driving can be punishable by one year in prison and a fine of 15,000 euros. Scooter operators are charged if they fail to uplift scooters that have broken down.

Singapore E-scooters are banned from roads and footpaths and those caught riding them there can face fines of S$2000 and/or jail for up to three months. They are permitted only on dedicated cycling paths.

Scooters must be registered, and riders need to display registration and identification marks on them. Those found riding unregistered scooters can be fined up to S$2000 and/or jailed for up to three months. Repeat offenders can be fined up to S$5000 and/or jailed for up to six months. People under the age of 16 must pass an online theory test before being allowed to ride scooters. ■

Photo: Georgijevic /Getty Images

Experienced Property/Commercial Solicitor

How other jurisdictions treat e-scooter riders

Jun 25 2021 Issue 20

RECRUITMENT

‘

Briefs

Intervention allowed The High Court has given the NZ Bar Association leave to intervene in a case where the outcome will significantly impact the area of legal aid. Fawcett v Legal Services Commissioner is on appeal from a decision by the Legal Aid Tribunal. At issue is whether work administering legal aid files comes within the definition of ‘legal services’ under the Legal Services Act 2011.

It’s a critical point because only the provision of legal services can be funded under the legal aid scheme. The Defence Lawyers’ Association and ADLS have also been given leave to intervene.

Member retires Longstanding ADLS member Tony Ivanson will retire from his firm, Gellert Ivanson, at the end of this month after more than 50 years in practice. Ivanson, who has been an ADLS member since 1969, founded the firm with his late partner, John Gellert, and it will continue with Pearl Butler in the driving seat. Ivanson will continue his to practise as a notary public from his home.

Members honoured

Lawyer with 5+ years’ PQE wanted 50% PARTNERSHIP OPPORTUNITY About us: We are a 2-director firm in Newmarket. Our modern offices are well located near parking and public transport and are an easy walk to the new Westfield Newmarket mall.

The practice specialises in Asset Protection/Estate Planning, Commercial and Property work. Our clients are mostly high net-worth individuals. Many of our clients have business interests. We also administer a large number of Family Trusts.

One director is staying with the firm. The other director is leaving for family reasons.

An existing director staying with the firm ensures continuity for clients.

ADLS President Marie Dyhrberg QC and fellow member and criminal defence barrister Julie-Anne Kincade QC have been named by NZ Lawyer magazine as among the country’s 25 top legal influencers for 2021. Both were noted as standouts in the human rights, advocacy and criminal law category. ADLS member Jacque Lethbridge, a litigation partner at Martelli McKegg, was also among the top 25 and named in the ‘change-maker’ category.

We are looking for a lawyer who is interested in a fast track to partnership and acquiring a half-share of the firm.

Obamacare survives

You have experience in general practice, or you specialise in private client, property or commercial work.

The US Supreme Court struck down a bid by Republicans to rein in the Affordable Care Act (Obamacare) by rejecting arguments that a decision by Congress to cut to $0 the penalty for not having insurance meant the law was invalid. The court found that the plaintiffs (Texas and several other GOP-led states) had no standing to bring the case because they experienced no injury from the $0 penalty. The Republicans have acknowledged that the longer Obamacare remains in place, the harder it will be to dislodge. But they said it would be ‘unrealistic’ to expect a repeal or significant overhaul of the Act without a Republican President and majorities in the Senate and Congress. Had the court ruled in their favour, legal experts say it would likely have spelt the end of free Covid-19 vaccines for Americans. ■

This is an affordable opportunity for an ambitious lawyer to build their own practice while having the support of an existing firm structure and client base.

About you: You are a lawyer with 5+ years’ PQE.

You wish to become a partner in the near future.

You could be an existing partner wishing to move laterally.

You have some clients to bring with you or you would like to build on the existing client base.

You would like to work in a city-fringe location with good access to the CBD. Please email expressions of interest to advertiser@adls.org.nz quoting reference: Partner 0521

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Legal Practice Manager – Wilson McKay This is an exciting opportunity for an experienced Practice Manager to join a boutique law firm in Remuera.

NEW BOOK

Law of Family Protection and Testamentary Promises, 5th edition

We provide a highly professional, yet friendly, environment.

Author: Bill Patterson

Your role

This edition of Law of Family Protection and Testamentary Promises updates and extends this comprehensive text. New matters discussed include a trend for courts to be asked to increase awards in claims brought as “support” or “recognition” claims based on “additional factors”, problems arising with blended families and one family group is, or is perceived to be, preferred over the other, a review of the approach of courts to making percentage awards in cases and a discussion on conflict of interest where administrator beneficiaries are involved.

•

Management of the daily financial transactions (working alongside external accountants) including reconciliation, payments, debt recovery and reporting, plus all aspects of legal compliance;

• Human resources including recruitment, performance management, appraisals, job descriptions and payroll; • Overseeing the firm’s systems, processing and administrative support staff including workflow management; • IT requirements; • Facilities management; • Overseeing compliance for the Anti-money Laundering and Countering Financing of Terrorism legislation.

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

Ideally you’ll be an experienced Practice Manager with a solid track record within a reputable law firm. Preferably, the successful candidate will have working experience of the following software:• Reckon Accounting • IMS MYOB Payroll • Infinity Law The ideal candidate will possess exceptional co-ordination and communication skills in motivating staff and dealing with suppliers, as well as supporting clients. Knowledge and understanding of management systems and compliance/AML would be highly beneficial.

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WILL INQUIRIES 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. LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

In a highly open and consultative work environment, the firm offers the opportunity to become a pivotal part of the practice, working collaboratively with the partners and staff to make this role your own.

DX CP24001, Auckland 1140

Please apply by sending your CV and covering letter to Margaret-AnnMurray@wilsonmckay.co.nz

JONES Mitchel Owen

ZHOU Jiguo

• Late of Auckland • Aged 39 / Died 25’05’21

• Late of Shanghai • Married • Retired • Aged 64 / Died 08’02’21

Fax: (09) 309 3726

( 09) 303 5270

Jun 25 2021 Issue 20

RECRUITMENT

ĀKARANA CHAMBERS | HIGH STREET An additional member is sought to join several experienced barristers and junior barristers in our refurbished, light-filled, contemporary, collegial High Street chambers. On offer is a medium-size office at a highly competitive rate that would suit a range of barristers including a junior barrister.

The modern office amenities include a large meeting room with harbour views, kitchenette, adjacent car-parking building and availability for secretarial and junior barrister support.

Terms negotiable include monthly tenancy.

Please contact: Alex McDonald | alex@amcdonald.co.nz Stuart Ryan | stuart@stuartryan.co.nz www.akaranachambers.co.nz

Lawyer – Minimum 5-6 Years’ PQE – Katikati

General Manager (Lawyer) – Auckland Community Law Centre

Auckland Community Law Centre (ACLC), is looking for an experienced lawyer with management experience for the role of General Manager to lead the organisation through its exciting next phase.

The role requires a mix of management, practice management and technical legal practice experience together with a passion for promoting and delivering access to justice. You will have strong legal skills, including established Court and Tribunal experience, and be qualified to practice on your own account (or eligible to complete the qualification).

The General Manager of ACLC leads a team of 10 staff to deliver high quality legal services to the Tamaki Makaurau Auckland community. You will be supported by a capable senior team, and report to an experienced and skilled Board of lawyers and community reps. You will have opportunities to engage with senior members of the profession on the future of access to justice as well as the judiciary, regulators, professional associations and policy makers.

Are you a lawyer with 5+ years of experience as a general practitioner seeking a partnership in the next 2 years? Do you have a background in property, relationship property, trust, commercial and estate law?

This is a rare and special opportunity: the role is varied and dynamic; the organisational culture is warm, supportive, hardworking yet family friendly. This is your opportunity to work in a role where you can really make a difference not only with the organisation but the Auckland community ACLC serves.

Anderson Law is a well-established small law firm specialising in property law with room for growth in other areas looking for someone to join our friendly team. Walk into a great long-term client base ready for you to get started.

To apply for this role receive a job description please email a short cover letter and CV to: Amelia Campbell at: recruitment@aclc.org.nz Applications close 2 July 2021.

If this sounds like the job for you, please forward your application by email to neil@andersonlawoffice.co.nz

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adls.org.nz/cpd

cpd@adls.org.nz

09 303 5278

FEATURED CPD

FINAL NOTICE

Why use experts for evidence on memory?

MEMORY EXPERT EVIDENCE

Seminar CPD 2 hrs Tue, 29 Jun 4.30pm – 6.45pm Presenters Rob Harrison, barrister, Inangahua Chambers and Dr Rachel Zajac, expert witness and Professor of Psychology, University of Otago | Te Whare Wānanga o Otāgo

Cases can turn on memory, so understanding the science and how it works, and when to engage an expert are vital. This seminar, aimed at those practising in criminal law, will help practitioners to understand this complex and key area of the law.

Chair His Honour Judge David Sharp

IN PERSON

FINAL NOTICE

Conducting effective client interviews

Workshop CPD 3 hrs Thu, 1 Jul 2pm – 5.15pm Presenters/Facilitators Dr Stephanie Mead, barrister sole, and instructor, Institute of Professional Legal Studies and Seung Youn, lawyer, Public Defence Service

LIVE STREAM

Most lawyer-client relationships begin with an interview. Among other things, it is an opportunity to identify who the client is and to understand the nature of the services required. Mistakes made during the initial interview can have a lasting impact and even hinder a lawyer’s ability to provide effective representation.

Limited spaces available – register now.

CHALLENGES EXPECTATIONS COMMUNICATION

FIND OUT MORE

Breach of mandate & licence fee damages LICENCE FEES BREACH REMEDIES

Seminar & Livestream CPD 1.5 hrs Tue, 6 Jul 4pm – 5.30pm Presenters Matthew Harris, partner, Gilbert Walker and Daisy Williams, barrister, Shortland Chambers

This seminar discusses remedies for agents’ breach of mandate and licence fee damages. It is particularly relevant for contract and commercial lawyers, civil litigators, intellectual property practitioners, trusts lawyers and in-house lawyers for banks and other organisations that handle assets for customers and other thirdparties.

IN PERSON 16

LIVE STREAM

Jun 25 2021 Issue 20

CPD IN BRIEF

The implications of Addleman

Webinar CPD 1 hr Wed, 7 Jul, 12pm – 1pm Presenter Anthony Grant, barrister Chair Vicki Ammundsen, director, Vicki Ammundsen Trust Law Limited

The Supreme Court has delivered a significant decision with serious implications for all trustees. Specifically, this webinar will cover what trustees should do if beneficiaries request copies of trust documents, including legal advice and how trustees should respond to criticisms and threats from beneficiaries.

FIND OUT MORE

Privacy kōrero

Live Stream CPD 1.5 hrs Tues 27 July, 12pm – 1.30pm Presenters Kathryn Dalziel, barrister, Walker Street Chambers and Amy de Joux, senior legal adviser, Office of the Privacy Commissioner | Te Mana Mātāpono Matatapu

Covid-19 has heightened interest in, and concerns about, privacy. This seminar builds on our Privacy 2020 seminar and will address the following: collection of, and requests for, personal information, employment issues, mandatory reporting and dealing with complaints.

Chair Michelle Hall Collins, senior associate, Kiely Thompson Caisley

FIND OUT MORE

Business evolution in a changing world

Workshop CPD 2 hrs Thurs 29 July, 9am – 11.15am Presenters Katie Gray, founder, Principals of Practice; Kirsten Hodgson, life coach and business development consultant, Kaleidoscope Marketing and Coaching

In a rapidly changing and competitive legal market, lawyers must remain relevant, valued and trusted advisers to their clients. If you want to attract more ‘ideal’ clients, appeal to new markets or deepen relationships with existing clients, we can show you the skills and approaches you will need.

Limited spaces available – register now.

FIND OUT MORE

The brightline test: coming into the light

Webinar CPD 1 hr Tue, 3 Aug 12pm – 1pm Presenters Jayshree Khushal, technical specialists network, Inland Revenue; Helen Johnson, partner, PwC Legal and Nicky Harrison, director, PwC Legal

This webinar will shed light on the IRD’s compliance focus and how the new brightline tax rules are being developed. We will use case studies to demonstrate the issues and traps, and point out the risks. Recommended for property lawyers and conveyancers.

FIND OUT MORE

Summary Judgment & Strike Out: The Nuts & Bolts and Dos & Don’ts Tuesday 10 August | Webinar | 1.5 CPD hours Visit adls.org.nz for more information.

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Chancery Chambers office for rent

Law Firm Ownership Opportunity An affordable opportunity is available for an entrepreneurial lawyer to purchase their own practice. Ideally suited to a young lawyer after a different pace and flexibility, who is ready to step out on their own, but with an existing client base and law firm structure, and without the hassle of starting from scratch.

The current sole practitioner of this virtual/home [Auckland] based law firm wishes to exit for family reasons. They have been making a good return from minimal hours of input. Continue as is for great work/life balance or use it as a base to grow from.

The current director would be available to stay connected to the firm as required.

Areas of practice include property, commercial and general practice, with a speciality in advising on and transacting residential new builds.

Please email expressions of interest to: lawfirmadvertiser@gmail.com

This space could be yours An office is available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

The office is 33.71sqm and is located on the third floor of 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

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

Medically Assisted Dying – The Deadline Approaches Thursday 19 August | 2.00pm - 4.15pm This seminar probes the Act and the corresponding process, offers insights into its implementation, considers capacity and other clinical challenges from the perspective of a psychogeriatrician, and outlines some of the red flags and thorny issues.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

Jun 25 2021 Issue 20

Bookstore A convenient, one-stop-shop for all your legal resources 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

The ADLS Bookstore couriers nationwide.

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

Personal Effectiveness Workshop Thursday 12 August | 9.00am - 1.15pm What are your goals for this year? Are you performing at your peak? Is there room for improvement in your work methods?

Returning for 2021, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-oneffort at work.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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