LawNews - Issue 27

NEWS Aug 13, 2021 Issue 27

Inside ■ PUBLIC LAW

The ‘hecklers’ veto’ at work?

P03

■ TRUST LAW

The taxman cometh P04-05

Supreme Court to put cancel culture

adls.org.nz

UNDER THE MICROSCOPE

Contents 03 JUDICIAL REVIEW COURTS HECKLERS

Can venue-hirers de-platform controversial speakers?

04-05 TAX TRUSTS AUDITS

The taxman cometh: the long arm of Uncle Sam

06-07 BEDDOE LITIGATION TRUSTS

Getting trusts to pay for litigation

03 08-09 EVENTS

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

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12 CPD IN BRIEF

Protestors had threatened to blockade the venue to prevent attendees from entering the building

©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.

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Cover: wildpixel / Getty Images

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Aug 13 2021 Issue 27

PUBLIC LAW

Cancel culture legal battle goes to Supreme Court

resident and ratepayer and a member of the Jewish community. He joined the action because of concerns that RFAL’s decision might affect future events that his community wanted to host at public council-controlled venues.

In the High Court, the pair argued that RFAL had public law obligations and a duty to act “rationally and We consider it incontrovertible that the right of freedom of not perversely or arbitrarily” when making decisions about the granting or cancellation of licences. It was expression was engaged when RFAL decided to cancel the also under public law obligations to facilitate the event. Those wishing to assemble for a purpose likely to attract rights of freedom of expression but breached those by cancelling the event. The applicants sought a protest are equally entitled to do so as those who protest declaration that RFAL had acted unlawfully because the decision was unreasonable on orthodox public law principles and an unreasonable limitation of BORAprotected rights. public interest factors. But it concluded that RFAL’s Jenni McManus RFAL, however, argued that it exercised no public decision was a justifiable limit of the applicants’ BORApower when it decided to cancel the event. It was a affirmed rights to freedom of speech and freedom of The power of so-called ‘cancel culture’ to shut down purely commercial decision. assembly. speech and ideas its supporters find abhorrent has Justice Jagose agreed, saying RFAL was That was because the two speakers’ Australian caught the attention of the Supreme Court, which performing no public function, power or duty in promoter, Axiomatic Media Pty Ltd, had given no last week decided to wade into the row surrounding cancelling the event, meaning indication that security might be the ‘de-platforming’ of two controversial Canadian The court did the decision was not amenable to an issue when booking the venue, speakers from an event at Auckland’s Bruce Mason judicial review. even though Axiomatic had taken not accept that Centre in August 2018.

The Court of Appeal the precaution in Australia of not Self-described alt-right political activists Stefan cancelling the event disagreed. It said RFAL’s statutory notifying attendees of the location Molyneux and Lauren Southern had been scheduled was an example function of providing venues of the event until 24 hours to speak at the Auckland Council-controlled venue, for live performances engaged beforehand. with ticket prices ranging from $79 to $749. But when of the so-called rights protected at common law Significantly, the court said, news of their visit became known, complaints about ‘hecklers’ veto’ and under BORA. “We consider Axiomatic had offered no bond their views began to escalate, culminating in a threat it incontrovertible that the right or guarantee to cover the extra

by Auckland Peace Action to “confront [the speakers] of freedom of expression was engaged when RFAL in the street” and blockade the venue so nobody could security costs and RFAL had not sought one as it was decided to cancel the event…. Those wishing to enter – a tactic this group has used successfully in the unaware at that point that security would be an issue. assemble for a purpose likely to attract protest are Another factor, the Court of Appeal said, was the past. escalating risk of protest and violence at the Takapuna equally entitled to do so as those who protest.”

Concerned about public safety, the risk of violence It was not solely a commercial decision as RFAL, venue. Because the Bruce Mason Centre is located at and the extra $30,000 needed to provide security for formed as a charitable trust after the Auckland the intersection of two busy streets and in the middle the event, Regional Facilities Auckland Ltd (RFAL) – a supercity was set up in 2010, also exercised some of the Takapuna business district, RFAL said streets council-controlled organisaton – decided to cancel. of the powers formerly held by regional local would likely be closed and barricades erected to keep Two aggrieved members of the public, Michael government, the court said. These were public powers. event attendees, other members of the public and Bruce Moncrieff-Spittle and Dr David Cumin, then The court did not accept that cancelling the event protestors apart. applied to the High Court for judicial review of RFAL’s The Court of Appeal also reversed Justice Jagose’s was an example of the so-called ‘hecklers’ veto’ in decision, saying it had been irrational, unreasonable action, where those wishing to exercise free speech finding that RFAL’s decision was not susceptible to and arbitrary, and in breach of the New Zealand Bill of rights were prevented from doing so by actual or judicial review.

Rights Act 1990 (BORA). threatened violence. The applicants’ lawyer, Jack The applicants, Moncrieff-Spittle and Cumin, They lost in the High Court, with Justice Pheroze Hodder QC, said this would make for a perverse then sought leave to appeal to the Supreme Court, Jagose ruling that they didn’t even have standing outcome. But the court said it would be ‘unprincipled’ which has agreed to hear the appeal. The issue to to bring the action. And because he deemed the to treat such an outcome as perverse because that be determined is whether the Court of Appeal was issue not to be a matter of public interest, the judge would depend on whether the limitations of freedom correct in dismissing the applicants’ appeal from the awarded significant costs against the pair. of speech were reasonable for the purposes of s 5 of The Court of Appeal disagreed, saying the pair had High Court’s substantive decision.

BORA. If so, there would be no basis for calling the Moncrieff-Spittle is a Dunedin resident who standing. It also reduced the $46,000 costs award by decision perverse, the court said. ■ bought a ticket for the event. Cumin is an Auckland 70%, saying the High Court judge had failed to weigh 03

TAX LAW/TRUST LAW

Tax compliance: the long arm of Uncle Sam

repositories of cash and securities.

FATCA was transposed into New Zealand law on 1 July 2014 by an intergovernmental agreement between the US and New Zealand.

It is different to previous mechanisms used by the US government to prevent tax evasion in that it places The compliance obligations of FATCA and CRS are generally the onus of reporting to the IRS details of foreign accounts on the financial institutions used to hold handled by banks and investment management firms. But financial assets, rather than the individual account holders. This is clever but not controversial. it is important for trustees of trusts in New Zealand to What is contentious is that the definition of understand they too may have compliance obligations ‘financial institution’ in the legislation is extremely wide. For example, a trust is not an ‘entity’ in the legal sense of the word: it is a set of obligations binding someone (known as a trustee) who and CRS are relevant only where holds property for the benefit of others Henry Brandts-Giesen there are foreign settlors, trustees or (known as beneficiaries). But FATCA beneficiaries but the reality is not so regards trusts as entities and imposes The transparency agenda as it applies to private straightforward. on some trusts the obligation to register wealth has become an important consideration All trusts should be reviewed at on the IRS website as a ‘financial for clients and advisors. Not only are transparency least annually to determine whether the institution’. requirements here to stay but they are set to trustees have compliance obligations.

Remarkably, this is so even where strengthen, broaden and deepen as data-gathering Even where there are none, the trustees there are no US citizens or tax residents and sharing becomes more sophisticated and will likely need to classify the trust for immediate than ever before.

Henry Brandts-Giesen or US investments connected with the the purpose of opening and maintaining trust in question.

The default setting is becoming automatic accounts with financial institutions.

So, every New Zealand trust must determine disclosure rather than ‘on request’ and authorities are Recent changes to tax law in New Zealand deem whether or not it is a financial institution for FATCA investing in technology to enhance data-gathering, beneficiary current-account holders to be settlors in purposes. If a trust is a financial institution, it must reporting and exchange and to enable international certain circumstances and many more trusts are likely register as such on the IRS website and obtain a cooperation and collaboration in relation to to have registration and Global Intermediary Identification Number (also known enforcement. reporting obligations. as a GIIN).

The transition from Until recently, the IRD Until recently, the IRD There are some limited exemptions from this privacy to transparency has appears to have taken a appears to have taken a registration requirement – for example, where a trustee been happening gradually restrained approach to which itself is a financial institution undertakes all the for several decade. However, restrained approach to enforcing compliance reporting obligations of the trust of which it is trustee, the years following the enforcing compliance with FATCA and CRS but or some other third party (known as a ‘sponsoring Global Financial Crisis of the with FATCA and CRS but increasingly trustees are entity’) assumes such reporting obligations and there late 2000s were when the increasingly trustees are being audited. This means are no US persons connected with the trust. move started to become all trustees, accountants, However, this exemption will likely apply only effective. being audited lawyers and others where the trust is administered by a professional The Foreign Account Tax associated with trusts trust company (eg, Public Trust, Perpetual Guardian, Compliance Act (FATCA) should have at least some understanding of the Trustees Executors, etc in a New Zealand context). and the Common Reporting Standard (CRS) were the regimes.

Most New Zealand trusts which are ‘financial pièce de resistance. They are important compliance institutions’ will be administered by trustees who are regimes and should be considered and understood by How FATCA works individuals or companies set up specifically to act as private-wealth advisors in New Zealand. trustee, and will need to register.

The compliance obligations of FATCA and CRS FATCA is US legislation with a global effect, designed Section 185G of the Tax Administration Act 1994 are generally handled by banks and investment by the US Internal Revenue Service (IRS) to detect requires compliance with the relevant registration management firms. But it is also important for trustees and prevent tax evasion by people who should be of trusts in New Zealand to understand they too may paying tax in the US. FATCA is highly complex and have compliance obligations. has a significant global impact on the way business Continued on page 05 There seems to be a misconception that FATCA is done by, with and through banks and other 04

Aug 13 2021 Issue 27

tax residents. This would include a settlor, trustees, protector, beneficiaries or class of beneficiaries and any other natural person exercising ultimate effective control over the trust. The financial institutions would then be the ones to carry out reporting requirements under FATCA.

Photo: manx_in_the_world / Getty Images

The CRS rules

Continued from page 04

requirements. Failure to comply would constitute an offence and could lead to financial penalties for the trust and its trustees.

Family trusts A family trust which holds only a family home will not be a financial institution and therefore will not be required to register. However, a family trust which holds real estate and/or a securities portfolio with an account at a bank or wealth manager under a discretionary investment mandate is likely to be a financial institution. In such cases, the trust is required to register on the IRS website unless it falls within one of the limited exemptions.

But if a trust receives income from real estate that exceeds a passive income (interest and dividends etc) from financial assets, then there is a process by which the trust can avoid being a financial institution. If it follows that process, it will not be required to register with the IRS. Another consequence of a trust being a financial institution is that the trustees must carry out due diligence on the beneficiaries and other categories of persons (eg, settlors, trustees, creditors etc) to ascertain if any are US persons. If so, and subject to

certain thresholds, then details of distributions and other information must be reported to the IRD which will, in turn, pass that information to the IRS. US persons for FATCA purposes include a US citizen or tax resident individual and a US company, partnership or a US trust. A US citizen includes a person born in the US, having a US citizen parent or who is US-naturalised. A US tax resident includes a green card holder and someone who satisfies a substantial presence test.

The qualifying criteria are therefore very wide and require careful consideration by trustees, accountants, lawyers and others associated with trusts.

For example, a New Zealand-born and resident discretionary beneficiary of a family trust who has a parent who is also living in New Zealand but has retained US citizenship would be within the scope of the definition. If that beneficiary receives a distribution from the trust, then details may need to be reported even though neither the beneficiary nor the parent may have any other connection to the US. If a trust is not a financial institution for FATCA purposes, it may still have some (albeit more limited) obligations. For example, a trust could be a ‘passive non-financial foreign entity’ and therefore not be required to register with the IRS but, rather, inform any financial institutions with which it has accounts of any ‘controlling persons’ who are US citizens or

Since the implementation of FATCA, the OECD was charged with designing a global FATCA system that was based on similar principles but globally focussed.

The outcome of this was the CRS, the essence of which is contained in a document called the Standard for Automatic Exchange of Financial Account Information in Tax Matters. Countries across the globe (other than the US) began to opt into this system; New Zealand began reporting in accordance with the CRS in 2018. The CRS has been modified and incorporated into New Zealand law in accordance with New Zealand legislation. Part 11B of the Tax Administration Act 1994 relates to foreign account information-sharing agreements.

The goal of CRS is the same as that of FATCA: to find local resident taxpayers who are maintaining accounts in overseas financial institutions.

If a resident of a CRS country has an account in a financial institution in another country, that financial institution must report to its home-country government. Assuming the home country has an agreement with the country where the taxpayer is resident, the home-country government will report the persons behind it to the tax-payer’s home country.

This addresses a situation where a taxpayer tries to evade paying tax on income earned from the financial institution.

Like FATCA, the CRS divides trust entities into two categories using a similar classification system, being either a ‘financial institution’ or a ‘non-financial entity’. Similarly, there are two sub-categories of a ‘non-financial entity’. An ‘active non-financial entity’ is the likely classification for an entity that derives the majority of its income, within a reporting year, through the course of an active trade or business. A ‘passive non-financial entity’ is a non-financial entity that is not an ‘active non-financial entity’ (this is a catch-all definition) and generally includes entities deriving passive income from financial assets.

If the trustee is a ‘financial institution’ (such as a

Continued on page 13 05

TRUST LAW

Getting

a trust to pay for litigation

The process is expensive, uncertain and so bogged down by a need for procedural fairness and factual evidence that it is usually uneconomic to apply for one

Anthony Grant

The new High Court Rule

If you find most articles about Beddoe orders boring, and the Court of Appeal’s you’re not alone. I do too. It’s because a Beddoe order is a procedural device which, to use a maritime image, guidance should make is like a boat whose hull has become so encrusted the Beddoe procedure a with barnacles, seaweed and other growths that it is bit more useful on the verge of sinking.

This article will hopefully shine a more positive light on the procedure. accuracy of the advice.

Beddoe orders are directions given by a court in Kós P, in giving judgment for the Court of Appeal which it approves a trustee bringing or defending in McCallum v McCallum & Others [2021] NZCA 237 proceedings at the expense of a trust. With a Beddoe on 8 June 2021, said it may not be necessary to give a order in place, the person can pursue or defend copy of the advice to the opposing party claims with the confidence that he or and the trustees in that case were not she will not be personally liable for the required to disclose to the plaintiffs the reasonable costs they incur. expert advice they had been given.

When the original Beddoe decision The second development which has was made in the late 19th century, the helped to clarify and possibly simplify process for getting a Beddoe order was the Beddoe regime to some degree is said to be cheap and efficient. the McCallum case itself.

Not now. The process is expensive, The trustees, who were also sued in uncertain and so bogged down by a their individual capacities and in their need for procedural fairness and factual Anthony Grant capacities as executors, wanted Beddoe evidence that it is usually uneconomic to orders for eight different causes of action. The High apply for one.

Court and the Court of Appeal have considered But times are changing. The Rules Committee recently introduced a new rule in the High Court Rules whether Beddoe orders should be made for each of (it’s 19.4A) which clarifies to a degree the nature of the those claims and, in doing so, they have set out some principles that will hopefully simplify some Beddoe application process. applications going forward.

Amongst other things, applications should be This is a summary of the outcome of the accompanied by “the advice of an appropriately application in relation to each of the eight causes of qualified lawyer as to the prospects of success of the action. proceeding and whether bringing or defending the proceeding is in the best interests of the trust”.

■ No Beddoe order was made for a claim of breach If the legal advice obtained by the applicant has of moral duty under the Family Protection Act. to be given to the respondent, the process will get ■ No Beddoe order was made in respect of two bogged down in conflicts about the quality and causes of action, involving two trustees in their 06

personal capacities, for breaching their fiduciary duties as trustees by profiting from the assets of a trust of which neither was a beneficiary and receiving an asset at an undervalue which was said to be the subject of a moral claim owed to another.

■ No Beddoe order was made for a claim that sought the removal of executors of the estate and trustees of two trusts on the grounds of their alleged conduct. This order was predictable since, in general, Beddoe orders are not made in respect of ‘hostile’ litigation and applications to remove trustees are almost invariably characterised by the courts as ‘hostile’.

■ No Beddoe order was made in respect of a claim that trustees in their personal capacities knowingly received trust and estate assets for no consideration or inadequate consideration. “That claim lies against the respondents purely in their personal capacities. The new trust has no interest in those assets. It is not in the interest of the new trust that it funds the defence of that claim.” [68] Now for the more interesting parts.

A limited Beddoe order was made in respect of a claim that assets of a trust had been invalidly resettled on another trust. The Court of Appeal said, “The scope of the order made is very limited. …. To the extent the trustees incur legal costs for the limited purposes… [of] assist[ing] the court with the provision of factual information and submissions on relevant legal principles (but not actively defending), the trustees are patently entitled to expect indemnity, subject only to any rebate for misconduct.” [67] A Beddoe order was made in relation to a claim that a grant of probate should be recalled on the basis

Continued on page 07

Aug 13 2021 Issue 27

Briefs Remote hearings Two new protocols for remote participation and viewing in senior court hearings have been published on the Courts of NZ website.

■ Protocol for participation in virtual hearings. This replaces the Supreme Court and Court of Appeal remote hearings protocol and the High Court remote hearings protocol. It sets out the ground rules for hearings where counsel or self-represented parties are permitted to participate remotely using videoconferencing technology.

■ Protocol for remote viewing of hearings. This applies where the court has made a direction allowing remote viewing of a hearing, using videoconferencing technology.

Both protocols apply to the Supreme Court, the Court of Appeal and the High Court.

With a Beddoe order in place, the person can pursue or defend claims with the confidence that he or she will not be personally liable for the reasonable costs they incur Continued from page 06

that it had been procured by undue influence. This is because “if successful [the claim] would diminish the assets of the new trust.

It is in the best interests of the new trust that the respondents defend” the cause of action. [70] What was described as a ‘general Beddoe order’ was made in respect of ‘a novel cause of action’ which alleges that a person owes ‘legal and fiduciary duties’ to others, based on a combination of parentage and wealth, to make sufficient provision for his children out of his estate.

Kós P said that it was “in the best interests of the beneficiaries of the new trust that this claim is defended, because the effect of the claim, if successful, would be to diminish the assets of that trust.

But the indemnity can extend only to reasonable and proper costs attributable to the new trust’s defence, as opposed to any costs incurred by [the two trustees] personally in defending it. The costs sheeted home to the trust must reflect the marginal costs needed to protect the trust assets.” [65] The new High Court Rule and the Court of Appeal’s guidance should make the Beddoe procedure a bit more useful. But it would be helpful if there was a designated judge to hear such applications who is also tasked with trying to make the procedure as efficient as possible.

Anthony Grant is an Auckland barrister specialising in trusts and estates ■

Mandatory vaccines In response to the Covid-19 Delta variant, vaccine mandates are increasing in law firms in the US where many are requiring employees to be fully vaccinated before they can return to the office. Clients, too, will need to show proof of vaccination, according to a story in The American Lawyer, which has set up a vaccine mandate tracker to display various firms’ vaccine policies. In some cases, no vaccine means an employee’s building keycard access will be removed.

But unvaccinated employees can continue to work at home until September when firms are likely to require most employees to return to the office.

Digital surveillance Privacy concerns have been raised in New York City where mayor Bill de Blasio will soon require proof of vaccination from everybody wanting to enter the city’s businesses. Vaccine passports This has raised have been under discussion for concerns about months to allow people who are increased digital at less risk to gather safely. But this has raised concerns about surveillance increased digital surveillance because vaccine because vaccine passes may passes may enable location tracking and there are few rules about how people’s enable location digital vaccine data will be stored tracking and how it will be shared. President Joe Biden has ruled out a national vaccine passport, leaving the states and cities and the private sector to decide their own rules. ■

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Events Takapuna lawyers’ lunch Hosted at Regatta on Wednesday 28 July.

Thank you to event sponsor MAS.

Lesley Chapman, Marie Dyhrberg QC and Anuschka Meyer

Natalie Schumacher, Tyrone Hack and Barbara Knowles

Ralph Davies, Jo-Anne Thomas, Natasha Williams and Alison Dymond

Debbie Nelson and Christopher McBreen

Melissa Perkin, Iain Hutcheson and Rosa Bae

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Nicholas Smith and Gary Simpson

Aug 13 2021 Issue 27

Featured events

Connecting New Zealand Lawyers

ADLS Newly Suited meet the QCs evening Wednesday 25 August, 5.30pm – 7.30pm Stanbeth House, 28 Customs Street East, Auckland CBD

Upcoming August

Thursday 19 | Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Wednesday 25 | ADLS Newly Suited meet the QCs evening, Auckland

Learn More

Rotorua lawyers’ lunch Wednesday 1 September, 12.30pm – 2pm Ambrosia Restaurant, 1096 Tutanekai Street, Rotorua Sponsored by MAS

September

Wednesday 1 | Rotorua lawyers’ lunch Wednesday 8 | Albany lawyers’ lunch, Auckland Thursday 16 | ADLS annual breakfast with the Attorney-General, Auckland Wednesday 29 | New Plymouth sundowner

Learn More

Soon to be added: Albany lawyers’ lunch Wednesday 8 September, 12.30pm – 2pm The Merchant Pub Co., 219 Don McKinnon Drive, Albany Sponsored by MAS

October | South Auckland lawyers’ lunch October | Tauranga lawyers’ lunch October | ADLS annual golf tournament November | Hawkes Bay lawyers’ lunch November | Auckland central lawyers’ lunch November | Nelson sundowner

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ADLS annual breakfast with the Attorney-General Thursday 16 September 2021, 7.15am – 8.30am The Northern Club, 19 Princes Street, Auckland Learn More

Book Here

events@adls.org.nz

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FEATURED CPD

FINAL NOTICE

REGULATION LIABILITY SAFETY

When an inspector comes knocking In Person | Live Stream 1.5 CPD hrs Tues 17 August 4pm – 5.30pm Presenters Tim Clarke, partner, Bell Gully and David Collins, team leader – Enforcement, Regulatory & Enforcement, Legal Services, Auckland Council

Clients are exposed to significant liability under resource management and safety legislation for environmental and safety incidents. What should you advise a client to do when an incident occurs? Is your client required to notify the regulator and, if so, when?

IN PERSON

FINAL NOTICE

Reflections on the Bathurst decision

Webinar 1 CPD hr Wed 18 August 12pm – 1pm Presenter Gillian Coumbe QC, O’Connell Street Barristers

CONTRACT INTERPRETATION ADMISSIBILITY

LIVE STREAM

The Supreme Court’s highly anticipated, and unanimous, judgment in Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85 is out. This webinar will examine two aspects of this important decision: the court’s agreement on the general approach to admissibility of evidence in contract interpretation and the test for implication of terms. There are, however, some surprises.

FIND OUT MORE

FINAL NOTICE

DEATH CAPACITY PROCESS

How our medically-assisted dying law will work In Person | Live Stream 2 CPD hrs Thurs 19 August 2pm – 4.15pm Presenters Grant Illingworth QC; Richard McLeod; Dr Jeanne Snelling and Dr Jane Casey

The End of Life Choice Act 2019 comes into force on 6 November 2021.

Hear from our panel of lawyers, academics and a psychogeriatrician who will unpack the Act and the corresponding process, offer insights into its implementation, consider capacity and other clinical challenges, and outline some of the uncertainties, red flags and thorny issues.

Chair Professor Kate Diesfeld, Professor of Law, AUT and Chair, AUT Ethics Committee

IN PERSON 10

LIVE STREAM

Aug 13 2021 Issue 27

adls.org.nz/cpd

Class and funded litigation

Seminar & Live Stream 2 CPD hrs Tues 24 August 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

CONDUCT CLIENT RESPONSIBILITY

IN PERSON

cpd@adls.org.nz

09 303 5278

Knowing your professional obligations The rapid growth in class and funded litigation has exposed issues and challenges not encountered in regular litigation and where the Conduct and Client Care Rules do not always fit neatly.

This seminar is intended to help lawyers navigate this difficult and potentially perilous field.

LIVE STREAM

Preventing employee burnout ADVICE COVID-19 STRESS

Webinar 1.5 CPD hrs Thurs 26 August 12pm – 1.30pm Presenters Katie Gray, executive coach, lawyer and founder of Principals of Practice and Carmel Byrne, partner, Stepshift

Providing high-quality advice while meeting client demands on cost and timeframe are difficult for lawyers, especially when you add a global pandemic into the mix. In this webinar, the presenters will share recent research and findings on the causes of employee burnout (including remote working burnout experienced as a result of Covid-19) and ways legal leaders can mitigate this risk.

FIND OUT MORE

Cross-examination workshop

Workshop 4 CPD hrs Sat 28 August 9am – 1.15pm Facilitators Marie Dyhrberg QC, Paul Dacre QC, Paul Borich QC, Rachael Reed QC, Julie-Anne Kincade QC, Ish Jayanandan, Panama Le’Au’Anae and Aieyah Shendi

INTERACTIVE PRACTICAL FEEDBACK

Cross-examination can make or break your case. In this learn-by-doing workshop, you will test your cross-examination skills and get individualised feedback from experienced practitioners and members of the judiciary. This is an opportunity to boost your confidence by testing and refining your practical skills and receiving feedback direct from the ultimate decision-maker – the judge.

Moderators Judge Gerard Winter, Judge David Sharp and Judge Richard Earwaker

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CPD IN BRIEF

Expert evidence on memory

The art of drafting complex wills

Legal ethics and client care: a practical guide

In Person | Live Stream 2 CPD hrs Tue 7 September 5pm – 7.15pm Presenters Rob Harrison, barrister, Inangahua Chambers and Dr Rachel Zajac, expert witness and Professor of Psychology, University of Otago | Te Whare Wānanga o Otāgo

Workshop 3.5 CPD hrs Wed 8 September 9am – 12.45pm Facilitators Henry Stokes, General Counsel, Perpetual Guardian and Theresa Donnelly, Legal Services Manager, Perpetual Guardian

Seminar | Live Stream 1.5 CPD hrs Wednesday 8 September 4pm – 5.30pm Presenters Michael Taylor, partner, Russell McVeagh and Joanna Trezise, senior solicitor, Russell McVeagh

A case can turn on memory. So when should you engage an expert? With reference to the Peter Ellis trial and other relevant ‘memory’ cases, an experienced barrister and an experienced expert witness will explain how memory works, the types of issues that can arise in criminal cases and how to use a memory expert.

Chair Judge David Sharp

IN PERSON

What does a good will look like? And how do you know it will do the job?

The acid test comes only after the will-maker has died. This workshop is about drafting wills that are fit for purpose and easy to administer. It includes practical tips on what to look out for in complex wills and how to make them as bullet-proof as possible.

Limited spaces available.

FIND OUT MORE

Refresh your understanding of your duties and responsibilities with client relationships. This session will be particularly useful for junior- or intermediate-level practitioners and provide a refresher for more senior lawyers.

IN PERSON

Cyber security: a guide for law firms

Seminar | Live Stream 1.5 CPD hrs Tuesday 14 September 4pm – 5.30pm Presenters Lloyd Gallagher, Gallagher & Co; Arran Hunt, Stace Hammond; Edwin Lim, Hudson Gavin Martin and Campbell McKenzie, Incident Response Solutions

IN PERSON

Saturday 18 September | Conference | 7 CPD hours

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LIVE STREAM

How would your firm deal with a cyberattack? Could it deal with the resulting loss of information, money, time and trust? Or the adverse impact on reputation and insurance premiums, and even the availability of insurance?

Learn what you need to protect and how to do so, and how to get the most out of your cybersecurity budget.

Running an Effective Jury Trial

Visit adls.org.nz for more information.

LIVE STREAM

LIVE STREAM

Aug 13 2021 Issue 27

Continued from page 05

professional trust company), then, assuming the underlying trust is also a ‘financial institution’, the trustee will ordinarily complete the CRS reporting on behalf of the trust.

However, if the trust is an active or passive nonfinancial entity, then it will need to certify as such with any financial institutions (such as banks or investment firms) where it holds accounts. The financial institution will then report information about a passive (but not an active) non-financial entity trust.

The important thing to note is that CRS places registration and reporting obligations only on financial institutions, including custodial financial institutions and investment entity financial institutions. Any entity which is an active or passive non-financial entity will not have any registration or reporting obligations for CRS purposes.

Rather, those active or passive ‘non-financial entity’ entities will need to certify as such with financial institutions they hold accounts with. Those financial institutions will then report information about any passive ‘non-financial entity’ account holder to the tax authority in accordance with CRS.

Settlors, beneficiaries and trustees A practical consequence of a trust being classified as a financial institution under FATCA and/or the CRS is that information about foreign account holders will be reportable to the IRD and exchanged with the tax authority in the country in which they are resident.

Settlors and beneficiaries who receive distributions are classified as account holders so all trustees should be considering whether there are any settlors or beneficiaries whose interests in the trust should be

introduction in late 2019 of a new CRS Compliance reported.

Declaration form. On this form, Cayman FIs must The definition of ‘settlor’ includes all persons who certify, amongst other things, have contributed assets to that they have valid and the trust (even if they are not The goal of CRS is the comprehensive written policies named as settlors in the trust and procedures in effect. deed) and certain beneficiaries same as that of FATCA: to find local resident Switzerland has also who have current accounts in imposed statutory CRS audits. the trust’s financial statements. taxpayers who are The SFTA audit team requests Similarly, a person who is maintaining accounts and reviews written documents using and enjoying real estate in overseas financial related to the CRS compliance owned by the trust is likely to of the Swiss FI, such as policies be deemed to be a beneficiary institutions and procedures, training and the value of that benefit is materials, IT updates and form reportable. templates.

Enforcement There is increasing evidence of IRD stepping up its enforcement activity in this area. We are aware of Liability for non-compliance with FATCA and CRS situations where trustees in New Zealand have been is attributed to trustees (and directors of corporate requested by IRD to provide evidence of compliance in trustees) so it is important that all trustees, relation to trusts under their administration. accountants, lawyers and others associated with In one matter, a ‘please explain’ letter was sent trusts are familiar with the regimes.

by The Federal Central Tax Office of Germany to the Every trustee should be classified at each annual appointor of a trust who was living in Hamburg after meeting of the trustees and, if necessary, reporting to an automatic exchange of information between tax the IRD should be done in a timely manner. authorities about a trust in which she had no beneficial The Cayman Islands legislature recently vested interest. the Cayman Tax Information Authority (TIA) with These compliance regimes are complicated but comprehensive FATCA and CRS audit powers for the obligations are manageable and there are various monitoring compliance with the Cayman FATCA and entity classification resources, reporting tools and CRS law. experienced advisors available to help. ■ In so doing, the Cayman government set the legal basis for FATCA and CRS audits on the island and added new penalty provisions of up to five years’ jail Henry Brandts-Giesen is a partner at Dentons for fraudulent statements made to the TIA. Kensington Swan ■ The long-anticipated audit amendments follow the

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NEW BOOK

The Law of Insolvency in New Zealand, 2nd edition Author: Lynne Taylor Insolvency law deals with the legal rules applicable in the case of individuals or corporates who are unable to pay their debts and, as such, intersects with virtually every area of legal practice. The Law of Insolvency in New Zealand is a comprehensive treatise on all aspects of New Zealand’s fast-developing insolvency law.

The new edition captures case law and legislative updates since the first edition was published in 2016 and includes two new chapters on Covid-19 debt hibernation and insolvency practitioners.

It has retained the practical structure and writing style that makes the book the ideal resource for specialist insolvency practitioners, legal practitioners, judges, academics and students.

Price: $234 plus GST* Price for ADLS members: $210.60 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz/Bookstore alternatively, contact the ADLS bookstore by phone: (09) 306 5740

Chancery Chambers office for rent Three office spaces are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

12.27sqm net located on the fifth floor, internal facing.

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21.16sqm net located on the fifth floor, consisting of two smaller adjoining offices, internal facing.

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33.71sqm net located on the third floor of the O’Connell Street side of building.

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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

Introducing Martelli McKegg’s Expanded Specialist Commercial Property Team

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Aug 13 2021 Issue 27

SOLICITOR OPPORTUNITIES We have a number of roles available in various locations. These roles range from junior to senior and include partnership opportunities.

Property / Commercial Property Litigation – Construction & Employment Family, Trusts, Wills & Estates Corporate & Commercial Contact Ally or Sarah +64 9 359 9244 or info@legalpersonnel.co.nz

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,

DX CP24001, Auckland 1140

Inspiring excellence in the classroom and on the court.

Open Day 18 September | 10.30am-2.30pm

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Learn more

R. BRUCE STEWART QC

Having practised as a senior QC in the New Zealand courts, I am now modifying my practice to providing advice and guidance as to litigation strategy.

I will provide advice on what to consider as you navigate the legal system and assist you in determining the best strategic and practical course of action to achieve your desired outcome in the following areas: • • • •

The economics of litigation Strategic decisions for plaintiffs before issuing proceedings Strategic decisions for defendants once proceedings have been issued Strategic decisions for both parties to reach a resolution and the alternative avenues. For example, mediation, arbitration etc.

Please contact me: Email: rbstewart@xtra.co.nz Phone: (09) 3022060 or +64 21 927 553

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COTTERALL Michael James

NOOROA Nooroa

• Late of 31 Hamilton Road, Herne Bay, Auckland • Retired • Aged 67 / Died 13’07’21

• Late of 8 Bland Place, Otara, Auckland 2023 • Aged 37 / Died 19’06’21

HEGLEY Thelma Mary • Late of Whitianga Continuing Care, 6 Halligan Road, Whitianga • Married • Homemaker • Aged 98 / Died 14’06’21 HO Ming Hok (aka HUSEN, Ming) • Late of 72 Ashton Avenue, Otara, Manukau, Auckland • Retired • Aged 67 / Died 26’07’21 MITCHELL Scott James • Late of 2 Ware Place, Pakuranga Heights, Auckland • Account Manager • Aged 37 / Died 04’07’21

SONG Yonggang • Late of Rongcheng City, Republic of China • Aged 48 / Died 30’06’19 STOREY Hamish Attewell • Late of Hamilton, formerly of Auckland • Single • Unemployed • Aged 21 / Died between 12’04’18 and 14’04’18 TAPENE Pita Te Haeata • Late of 4/100 Victoria Street, Onehunga, Auckland • Aged 67 / Died 08’05’21 WHITLEY Anthea Kay • Late of 42 Earlys Road, RD5, Rangiora • Aged 46 / Died 16’06’21

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Save time & money whether working in the office or at home • Save money - with great pricing on everything your practice needs: • Stationery • Furniture • Café Supplies & Fresh Milk • Technology • Hygiene & Cleaning • Safety & First Aid

• Save time - Place fewer orders, receive fewer deliveries and process a single invoice • Shop your way - online, phone or email Visit officemax.co.nz for details and store locations. ^See officemax.co.nz/prices for details.

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Remedies: Breach of Mandate & Licence Fee Damages Tuesday 21 September | 4.00pm - 5.30pm Presenters: Matthew Harris, Partner, Gilbert Walker; Daisy Williams, Barrister, Shortland Chambers This seminar discusses remedies for agents’ breach of mandate, and licence fee damages.

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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:

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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

Excellence in Legal Writing (Nelson) Monday 20 September | 11.00am - 2.15pm This workshop will introduce you to three simple hacks to improve your written work: writing concretely; writing actively; and writing less. It builds on the work of linguistic experts, notably Helen Sword and Steven Pinker.

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