LawNews - Issue 32

NEWS Sep 15, 2023 Issue 32

Inside ■ TRUSTS

Uncovering hidden assets P09

■ CRIMINAL

Is your client a flight risk?

P10

Why the CCCFA could be difficult

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TO FIX

Contents 03-05 CREDIT BANKS LIABILITY

Lending culture is the biggest barrier to fixing the CCCFA

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Tricky times for those still doing business with Russia

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Sep 15, 2023 Issue 32

FINANCIAL SERVICES

National to prioritise repeal of CCCFA while protecting vulnerable borrowers Supported by regulations, the Credit Contracts Legislation Amendment Act 2019 introduced prescriptive requirements on lenders to ensure compliance when assessing borrowers’ affordability and suitability, and made directors and senior managers of banks and other credit companies potentially liable for irresponsible lending

The biggest issue we’ve got now is that some of this is already ingrained. How do we change the culture?

Reweti Kohere

lenders – and that’s where I want to focus.”

If elected, a National-led government has pledged to roll back “three years of damage” that CCCFA amendments have caused to the credit and mortgage industry and refocus regulations on loan sharks and other high-risk lenders.

But commerce spokesperson Andrew Bayly admits that shifting the lending culture that has developed inside banks over the past three years in response to onerous and prescriptive regulations and other factors will be difficult.

Should the National MP be “lucky enough” to serve as Commerce Minister after the October election, Bayly says repealing all the 2020 and subsequent amendment regulations under the Credit Contracts and Consumer Finance Act 2003 (CCCFA) will be his priority. From there, a new set of regulations will be fashioned to ensure high-cost lenders – the 2019 reforms’ intended target – don’t prey on vulnerable New Zealanders.

However, Bayly concedes his efforts might not suffice.

“The biggest issue we’ve got now is that some of this is already ingrained…The trouble is that we’ve had now, what, three years of damage? How do we change the culture?” he says, adding it’s necessary that banks and reputable lenders are prepared to lend small amounts of money to New Zealanders. “That’s what we want, that’s what their business is.

But the intent of the regulations was meant to be on high-cost

Changing culture While Labour’s succession of commerce ministers has “fiddled at the edges”, Bayly says he’s clear about his plans to strip the legislative regime back and refocus attention. “Changing culture is not going to be easy, but that’s what we’ll have to do. We’ll have to explain it to the people. It should be on those high-cost lenders that people in budgeting services tell you about.”

Supported by the regulations, the Credit Contracts Legislation Amendment Act 2019 introduced prescriptive requirements on lenders to ensure compliance when assessing borrowers’ affordability and suitability, made directors and senior managers of banks and other credit companies potentially liable for irresponsible lending, and capped interest rates and fees on high-cost loans – all with the purpose of better protecting borrowers against debt spirals and predatory lending.

However, the changes proved controversial and, together with rising interest rates and living costs, ushered in a raft of unintended consequences. As lenders stiffened their assessment processes, more borrowers across all lending types – who normally should have passed affordability screenings –

Continued on page 04 03

were being declined by the major banks or had their borrowing reduced. Borrowers also reported being subject to unnecessary, disproportionate, and intrusive inquiries into their expenditure habits.

The government in early 2022 announced an investigation and has since moved to claw back some of the damage. And the work continues. Just over a month ago, Commerce Minister Dr Duncan Webb announced that certain types of lending would be exempt from the CCCFA, as well as a wider review of the Act itself.

The timing of the announcement has been political, says Bayly, “so that Duncan Webb can stand up at the election and say he’s listening to people. But [Webb’s predecessor] David Clark took at least a year to respond to incredibly intense criticism so that’s why I’m just going to get rid of it.”

The amendment statute was originally passed to deal with the economic issue of predatory lending, he says. In many ways, the reforms have worked: a recent Commerce Commission review of high-cost lenders found they have either exited the lending market or reduced their interest to below 50%.

But since 2019, the government has not only made the economic issue worse but has transformed it into a “pernicious” social issue where vulnerable New Zealanders can’t get access to credit. Locked out from typical credit sources, borrowers risk having to turn to the very high-cost lenders that lawmakers believed would be the sole targets of their reform efforts. “That is why I am so angry about it,” Bayly says.

Personal liability Industry participants spoken to by LawNews say lending appears easier now than it has been at various times since late 2021 when the first tranche of CCCFA changes were put in place.

While getting credit is nowhere near as easy as it was before 2021, recent changes to the regulations have given lenders a steer on how to properly assess a borrower’s ability to service a home loan, says Financial Advice New Zealand (FANZ) chief executive Katrina Shanks. But the most significant hurdle to the easing of mortgage lending remains in the statute.

Directors and senior managers of creditors must exercise due diligence to ensure the business complies with its duties and obligations under the CCCFA – or face personal liability.

Consequences may include a pecuniary penalty of up to $200,000 and/or court-ordered damages. Directors and senior managers cannot be indemnified if they are ordered to pay a pecuniary penalty.

Shanks says the ease with which borrowers can obtain credit won’t return to pre-2021 levels until the liability provisions have been relaxed – something a new government can do, she says.

“If you remember, pre-December 2021, there was no evidence that there were poor outcomes for consumers which needed that change in legislation.”

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Zeroing in on where the harm to consumers lies will benefit the industry. “What they need to do is look at the legislation, see how they can carve out payday lenders and then write legislation specifically for payday lenders because the banks are responsible lenders and meet requirements that are needed for affordability...Targeted legislation has to be for where the harm is and what you’re trying to fix,” Shanks says.

Bayly doesn’t think softening liability via amendments to the statute is necessary, saying he’s happy with the Act as is.

Instead, the wider regulations are the problem. Asked if those in control of banks will be spared personal liability, he doesn’t rule it out.

“Banks and non-bank deposit takers that are regulated financial institutions are already subject to a lot of oversight.

The focus of the bill – the intent of Parliament – was that we were dealing with high-cost lenders, not banks and reputable lenders. It wasn’t designed or thought or anticipated that we were going to set out prescriptive tables to ask banks to require they ask about Netflix accounts,” he says.

Up for interpretation Reserve Bank statistics show new commitments to all types of borrowers have been falling. In July 2023, they totalled nearly 13,800, having dropped just over 3% from July 2022. Compared to July 2021, however, new commitments have dropped 48%.

The value of new commitments to all borrower types has fallen 7.5% to $5 billion in July 2023, from $5.4 billion in July 2022.

By contrast, two months ago, new commitments to firsthome buyers were up 20% to 2,201 when compared to July 2022. But they’re nearly down a quarter on the almost 3,000 commitments made to first-home buyers in July 2021. Total

Continued on page 05

It’s necessary that banks and reputable lenders are prepared to lend small amounts of money to New Zealanders

Photo: Catherine Falls Commercial / Getty Images

Continued from page 03

Sep 15, 2023 Issue 32

Continued from page 04 lending to first-home buyers of $1.24b in July 2023 has jumped 21% compared with July 2022.

Loan Market mortgage broker Bruce Patten says lending has gotten easier, “but only through common sense”. Nevertheless, affordability very much remains up for interpretation.

“Some banks are still digging into the depths of a person’s expenditure, whereas others are relying predominantly on what the customers are saying their future expenses will be. I still feel it’s gone way over the top and we really don’t need to be in this space. We didn’t have an issue before; we now have an issue because of the way it’s been written.”

The government’s CCCFA guidance in April 2023 was “lacklustre” as it has merely clarified where lenders can use their common sense on an applicant’s spending, “which should probably not have needed to be said in the first place. But when you get a piece of legislation, the banks tend to take it to their legal department and they tend to be the ones that tell them how to interpret it. And that’s where it’s so up-in-the-air because all the banks still do it slightly differently.”

Patten urges National to follow through on its promise to “actually revisit it and repeal it and just go, ‘let’s look at what it was meant to do’. That’s what we asked for the current government to do, to just put it in place for what it was meant to do, not what it wasn’t meant to do. That would be ideal,” he says.

Hastie Mortgages owner Campbell Hastie believes the recent easing in lending is partly because lenders have become used to the workings of an amended CCCFA and are interpreting it in a way that “allows business to be done and to continue to be done”.

While he welcomes the increased robustness the Act has introduced for affordability assessments as it leaves applicants more informed about the implications of their spending habits on their ability to service a mortgage, “the end result is no different to what we’ve been getting for years. So, more work for the same result – but it’s a better result in a sense because of that work.”

Buy now, pay later?

In Hastie’s view, Bayly should leave the CCCFA intact and instead focus on enforcing it against “those entities in the lending landscape that probably aren’t going through the same kind of robust process the banks are.

“Put it this way, when was the last time you heard of someone feeling overwhelmed by the mortgage they’ve got versus someone feeling overwhelmed by the 15 different bits of short-term debt they’ve got?”

According to credit bureau Centrix’s August 2023 credit indicator report, overall mortgage delinquencies fell in July to 1.26%, although there were nearly 19,000 mortgage accounts past due – a 31% year-on-year increase. By contrast, buy now, pay later (BNPL) arrears sat at 9.4% – the lowest since February 2023.

Cabinet last October agreed to bring the BNPL industry within the CCCFA. Following consultation, Webb last month announced BNPL loans would be exempt from affordability and suitability assessments as “that would be too onerous for these short-term, low-value, interest-free loans”. Instead, he said BNPL lenders must complete comprehensive credit reporting when customers sign up or request a higher credit limit.

Detailed regulations will be announced soon, although BNPL lenders will have a grace period to implement changes.

Hastie sees this as a bad move. While he understands the rationale, given it’s less likely a consumer will get into trouble with only a small loan, “when you’ve got people who have five different buy now, pay later accounts, you’re really upping the ante. That’s pouring petrol on a little fire,” he says. “To have that kind of facility exempted from the CCCFA, it’s a bit of a slap in the face in a way.”

Which bit works?

Go Mortgages broker Tony Ridley believes the CCCFA has faded into the background while other market factors exert more pressure on the accessibility of mortgages.

“Whenever you were doing an application before, it was almost impossible to pre-empt every question around the CCCFA and customer spending. You just anticipated the banks were going to come back and ask questions, whereas I don’t really get that anymore because you comment on all the stuff that seems reasonable to ask questions about,” he says. “Now, as long as you cover off everything relevant and material, then it’s not normally that which trips you up anymore.”

The Reserve Bank’s most recent credit conditions survey, which asked banks about their views on credit availability and demand, found the demand for residential mortgages had declined further in the six months to March 2023. Banks noted a series of major headwinds were dampening household demand, including rising mortgage rates, the higher cost of living and rising building costs.

The banks also expected mortgage demand to remain subdued in the six months to September 2023. While household credit availability had stabilised after incremental falls during the past two years, some tightening in prices remained. Of the factors affecting credit availability for the next half-year, “regulatory changes” was largely equal to balance sheet constraints, compared with March 2022 when pressure from competition and perception and appetite for risk were the biggest factors.

In an ideal world, mortgages would not even be a part of the CCCFA, Ridley says, “but I don’t know if that’s likely”. The mortgage broker thinks there’s been ample regulation recently of the financial services industry and questions whether the CCCFA is needed for mortgage lending.

“It’s almost like if you throw enough different legislation at something and it works, then how do you know which bit actually works?” he says. “I don’t know if the CCCFA does much to achieve the goals that it was originally trying to achieve.” ■

Locked out from typical credit sources, borrowers risk having to turn to the very highcost lenders that lawmakers believed would be the sole targets of their reform efforts

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FINANCIAL SERVICES/SANCTIONS

Tricky times for Kiwi companies still operating in Russia There are a lot of cases involving the banks and a lot of cases involving insurers because people who’ve had their assets frozen or seized by the Russian state are now turning to insurers which are trying to avoid cover

Diana Clement When Russia invaded Ukraine on 22 February last year, New Zealand fund managers, companies and other entities scrambled to announce that they would divest their Russian assets. Many did. But for others, Russia has proven to be a case study in just how difficult it can be to divest.

Nineteen months into the war, significant numbers of New Zealand companies are still struggling with their moral and legal obligations. That includes large corporates, fund managers and smaller companies that fly under the radar.

To say that MinterEllisonRuddWatts partner Sarah Salmond’s sanctions-related practice has been busy since Russian tanks crossed the border in February 2022 would be an understatement. When war broke out, New Zealand businesses were becoming increasingly aware of the regulatory, contractual and reputational risks associated with doing business in countries involved in armed conflicts, Salmond says.

Within two weeks of the invasion, a significant proportion of publicly listed entities and those with public profiles such as KiwiSaver funds announced an intention to sell their Russian investments. “Those announcements were being picked up by the media, and that creates more pressure,” says Salmond, who took part in a panel discussion at the Responsible Investment Association Australasia (RIAA) conference in Auckland last month.

For some, that announcement to the market proved awkward because they couldn’t follow through.

Rock and a hard place There are no statistics on the degree to which New Zealand 06

Sarah Salmond

It takes a lot of time, effort and money for the banks to work out what the boundaries are from a legal perspective

companies have divested, Salmond says. She’d expect it would be similar to other Western countries, where those with Russian subsidiaries or other operations have divested around 10%. But businesses and fund managers have divested between 70% and 90% of their Russian government bonds, along with securities in companies with ties to the Kremlin.

For companies that have stayed in Russia, the reasons vary.

Some cite humanitarian issues or fiduciary obligations. Others, which may have dormant or expropriated assets, have found themselves unable to exit.

Many of those still invested find themselves between a rock and a hard place, trying to balance conflicting multi-jurisdictional regulatory, legal, risk management, fiduciary and reputational considerations, Salmond says.

The sensitive nature of remaining invested means that after these businesses receive advice, the outcome is not made public.

No-win situation Whatever investors chose to do after the invasion, it was largely a no-win situation, except for Ukraine. Those able to divest in the immediate fire-sale made significant losses because Russian share and bond prices collapsed, the rouble went into free-fall and buyers were hard to come by.

Those who failed to divest immediately found themselves hamstrung when, just weeks later on 17 March 2022, New Zealand introduced the Russia Sanctions Act 2022. The Act was based on a general autonomous sanctions bill from 2017, which had been voted down.

The first draft of the sanctions legislation effectively made it illegal for a New Zealand person to do anything that benefited a sanctioned person. “If you, as a New Zealand person or business, had securities in a Russian company that became designated, you couldn’t sell them,” Salmond says.

“This sparked a wave of urgent sanctions advice, and lobbying of MFAT (the Ministry of Foreign Affairs and Trade) to lift the prohibitions. The regulations were changed rapidly, with new provisions added to enable businesses to divest securities.”

For many, however, the delay brought new issues. “We had this permission [from MFAT] to sell, but the Russian government started to introduce counter-sanctions. New Zealand quite

Continued on page 07

Sep 15, 2023 Issue 32

Continued from page 10

quickly ended up on the list of unfriendly nations.”

Presidential decrees in August and October last year made it especially difficult to get foreign currency out of Russia without Vladimir Putin’s personal approval, which was generally provided only when businesses were being sold at less than half-price to his friends. Banks, in particular, struggled.

“You had to find a bunch of intermediaries to facilitate the sale, none of whom were restricted, and you had to find someone who wanted to buy. Quite often you had to find a Russian buyer or a Chinese buyer [and] that became quite difficult,” Salmond says.

“Then you had to balance your fiduciary obligations because you’re meant to be trying to get a good return for your investors.

Selling at a bargain-basement price wasn’t necessarily seen as doing right by your investors.”

Reputation risk Just days after the invasion, responsible investment charity and comparison site Mindful Money analysed fund portfolio data and found that KiwiSaver, ACC and the NZ Super Fund had more than $100 million invested in Russian government bonds and companies.

Barry Coates, chief executive of Mindful Money, notes that few funds took action in the months before the invasion, despite clear warning signs, and then had to sell at a loss.

“Very few funds seem to have exited during that time. Those that didn’t lost an estimated 80% to 100% of the value of their investments.”

Once their names hit the headlines, the KiwiSaver and other investment funds took rapid action to get out of Russia.

Coates told LawNews his analysts went back to fund managers afterwards and checked that they actually had divested. “We found that all had, apart from a few residual holdings that had no value but were unable to be exited because of restrictions from the Russian government.”

Physical presence While most funds and many corporates could sell securities, it was more difficult for New Zealand companies with a physical presence in Russia. “For them, trying to sell any of their holdings on the ground became [almost] impossible,” Salmond says.

Investment funds that failed to exist in the months leading up to the invasion lost an estimated 80% to 100% of their value

Buyers tended to be Russian-sanctioned people, thanks to the decrees of August and October. “Not exactly great terms of business. You were really only going to get his personal approval if you were selling for at max half-price and selling to either an oligarch or someone that Putin approved. If the only way you can sell is to sell to a sanctioned person, you [might be] better off holding what you have.”

Under New Zealand’s sanctions legislation, companies were allowed to continue to hold securities in a sanctioned company and do nothing with them. “They’re not legally doing anything wrong. But someone might make the argument that morally, they’re doing something wrong,” she says.

Humanitarian good New Zealand companies that continue to do business in Russia tend to fly under the radar. Generally, they are not corporates or investment funds.

“There are plenty of New Zealand businesses that provide a weightless export to Russia and get payment for that. They might provide software services [and] the public are not aware of them. They feel they’re providing a completely benign service and being paid for it via lawful channels, so they’re still in the market.”

Some companies have decided they provide humanitarian good, and on balance it is the right thing to do to stay in the market, Salmond says. “[There are] others who believe that what they’re doing leaves no footprint and therefore, for whatever reason, they’re not really changing the model either.”

Big ‘buts’ There are several big “buts” for companies still caught up in Russia. Banks, both in New Zealand and internationally, have no appetite for the risk involved in doing business in Russia which can make it difficult for companies still operating in Russia.

The second “but” is that Russian transactions are predominantly in US dollars with US banks involved, adding another layer of complexity.

“It has become really difficult for all those who continue to have some kind of interest in Russia to facilitate transactions,”

Continued on page 08 07

It’s complicated

Continued from page 07 Salmond says. “It takes a lot of time, effort and money [for the banks] to work out what the boundaries are between what is and isn’t possible from a legal perspective. It’s just a lot easier to just go ‘you know what, from a risk management perspective we just don’t want to be involved in a transaction with material nexus to Russia’.

“Then that becomes difficult because you’ve got a New Zealand company saying,’ well, actually, my transaction is lawful for the following reasons. Please reconsider’. So you have now a tension between banks and companies arguing about what is and isn’t possible and whether you’re allowed to restrict transactions from a risk management point of view.”

It has become really difficult for all those who continue to have some kind of interest in Russia to facilitate transactions

An iron rod That aligns with the other “but” – companies still involved in Russia don’t have only New Zealand law and the MFAT regulator to worry about. The bigger concern for many is the US Office of Foreign Assets Control [OFAC], which administers and enforces economic and trade sanctions with an iron rod.

“Probably 60% of New Zealand’s trade and general foreign exchange transactions are in US dollars. If you can’t do those, you’re out of it,” Salmond says.

“OFAC is a very, very well-resourced, well-run organisation. It has a lot of people dedicated to compliance with its sanctions and it does take enforcement action, [including] against foreign corporates. New Zealand banks and New Zealand’s big corporates are all terrified of breaching US sanctions [and] getting a big fine from OFAC. “Even if you don’t get a big fine but you’re found to have breached sanctions by OFAC, that’s terrible public relations. US businesses will not want to deal with you.

“And if you’re a bank that has been found to be repeatedly breaching US sanctions, you can actually find one of the repercussions is that you get effectively locked out of the US banking system. If you’re a New Zealand bank that can’t transact in US dollars, or with US persons, game over.”

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Adding to the pain, US legal fees are very high. “You have to get all these different lawyers involved.”

Corporates with continuing connections to Russia have found ways to operate for now, but could face further issues. “[From] the private practice perspective, most corporates with some kind of involvement with Russia have gotten their heads around the basics of the regime and what is and isn’t possible,” Salmond says.

“But we’re seeing the more gnarly stuff. It’s fascinating, but all very difficult. The really tricky transactions or relationships that are very difficult to exit from.”

She adds that more disputes are moving into the litigation phase. “There are a lot of cases involving the banks, [and] a lot of cases involving insurers because people who’ve had their assets frozen or seized by the Russian state are now turning to insurers [which] are trying to avoid cover. This is likely only to continue.”

Much of the litigation is happening overseas, albeit not in Russia itself because Western corporates don’t want to bring a case there.

“Even if a contract is between a Western party and a Russian party governed by the law of Russia, ordinarily you’d expect a dispute to be resolved in the Russian courts. Western parties are making arguments that actually another seat is appropriate, whether that’s London or Hong Kong, because you can’t get a fair trial or an expeditious trial in Russia at the moment.”

New Zealand entities with insurance claims will be battling with London-based reinsurers, she says.

Sanctioned Russian oligarchs are also proving litigious. “You’re seeing cases all around the world where Russian persons who’ve been sanctioned, whether they are corporates or individuals, are suing the governments that sanction them, saying that their designation was unlawful.”

Russian billionaire Alexander Abramov, who has ties to New Zealand, went to court in Australia arguing he was not an oligarch.

Another case, which came out of the High Court in London in August, involved an associate of Abramov who challenged his designation but was unsuccessful.

Salmond herself has written about a New Zealand case involving people connected to Abramov. ■

Sep 15, 2023 Issue 32

TRUST LAW

Uncovering assets from litigants who conceal them The path bypasses the Mr Bs of this world and goes straight to the banks, requiring them to disclose all the financial records that are being withheld Anthony Grant The case of Broederlow v B & others [2023] NZHC 2019 (1 August 2023) involved a former husband who did his best to conceal matrimonial assets from his former wife.

The assets were related to three known trusts and, it seems, other entities. To avoid disclosing them, the man “had continuously changed bank accounts” [22]. He had also reneged on commitments to make disclosure. This had gone on for four years.

In frustration, his former wife persuaded a Family Court judge to make an order that would be served on seven New Zealand banks. With one change (to address a criticism that the High Court judge said could be made of the order), the husband was directed to sign the following order: “To [the seven named banks] I, the undersigned [former husband] authorise you to provide such information as may be requested to you by [his former wife’s lawyer] in respect of any accounts held by me in my

name or to my benefit including but not limited to [three named trusts, three named companies and a business] and any other company in which I have a controlling interest, and corresponding bank statements from the period 2019 to the present along with associated credit card statements for the relevant period.

I waive all privileges and/or all confidentiality, for you to discuss my matters freely with [the wife’s lawyer]...”

The court directed that if the husband didn’t sign the order in 14 days, the court would make a non-party discovery order against the seven banks “on the same terms and conditions as the authority” [25].

Tahana J held that there was authority under rules 141 and 143 of the Family Court rules and ss 44B, 44D and 44E of the Property (Relationships) Act to make the order [45].

She held that “it was necessary to make such an order in circumstances where the history of the proceedings and the evidence … indicated that Mr B may have taken steps to hide relationship property

income” [43].

It appears that the order was successful. It was served on the banks on 22 December 2022 and they disclosed documents in response to the order in January 2023.

In approving the order, Tahana J referred to the overriding principle in family law litigation, that Family Court proceedings should be dealt with “as fairly, inexpensively, simply and speedily as is consistent with justice; to avoid unnecessary formality; and work in harmony with the purpose and spirit of the Act …” [49].

There will likely always be litigants who act as obstructively as Mr B. When faced with such obstructions, the case of Broederlow identifies a path by which the court can reduce delays created by wasteful correspondence and interlocutory applications. The path bypasses the Mr Bs of this world and goes straight to the banks, requiring them to disclose all the financial records that are being withheld. ■ Anthony Grant is an Auckland barrister and trustee, specialising in trusts and estates ■

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CRIMINAL LAW

Is your client a flight risk? An update from the ADLS Criminal Law committee The ADLS Criminal Law committee is concerned about where that line is being drawn by prosecuting agencies In deciding whether to grant bail, under s 8 of the Bail Act 2000 the court must consider the likelihood that a defendant will fail to appear.

Part of this assessment involves looking at whether a defendant will abscond overseas to avoid the criminal process in New Zealand.

Sometimes this assessment is straightforward – for example, where the defendant is an overseas national, owns property and has family overseas, and is arrested at the airport with a one-way ticket out of the country and a panicked look on her face.

Other times, this assessment is more fraught.

What do you do about an overseas-born New Zealand citizen who emigrated to New Zealand as a child? Or in her teens? What about in her twenties? What if she has built a family in New Zealand? What if her elderly parents still live in her country of birth? What if she owns property here? And what do you do (or not do) about a New Zealand-born defendant who has built overseas links?

Questions about who is branded a flight risk are bound up with intimate questions of whom we think is entitled to call New Zealand home. While shades of grey abound, at some point we must be able to

DENHAM MARTIN

BRIAN CARTER

definitively say, “she is not a flight risk, despite being born overseas” or conversely, “he is a flight risk, despite being born in New Zealand”.

The ADLS Criminal Law committee is concerned about where that line is being drawn by prosecuting agencies. Committee members have reflected on cases where the prosecution has cited flight risk for clients of Asan appearance who, while born overseas, have lived in New Zealand for decades and have ample family, property, and jobs here.

There are also cases where flight risk has not been raised in respect of clients of caucasian appearance who own property and have family overseas and more-than-ample means to abscond and start over.

A knee-jerk reaction appears to be embedded, with problematic assumptions. If, for example, the defendant has an ethnic-sounding name and looks Asian, the words “flight risk” are far more likely to appear in the prosecution’s opposition-to-bail document. This is regardless of whether the defendant has substantial links to New Zealand.

The effects vary, from a tense bail hearing where the defendant is faced with the risk of being remanded

ANDREW STEELE

ANTHONY GRANT

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Questions about who is branded a flight risk are bound up with intimate questions of whom we think is entitled to call New Zealand home

into custody, to the indignity of being forced to hand over his or her passport to the court, to the inability to travel overseas for legitimate purposes without going through the administrative burden of seeking a bail variation.

Have you come across any examples of this in your practice? If so, we want to hear about it as soon as possible. We have anecdotal examples but do not have any visibility yet on how widespread this problem is. ■ Please forward any examples or comments to daniel.conway@adls.org.nz. ■

SANDRA GRANT

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Sep 15, 2023 Issue 32

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FEATURED CPD

FINAL NOTICE

In Person | Livestream 2 CPD hours Thursday 21 September 4pm – 6.15pm Price from $140 + GST Presenters Stewart Dalley, partner, D & S Law and Warren Pyke, barrister

This seminar will cover a range of options for challenging official decisions.

It aims to educate practitioners about the expanding scope of judicial review, with a particular focus upon criminal, immigration and refugee law.

Chair Grant Illingworth KC

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SEMINAR ALL LEVELS CRIMINAL

Power of judicial review

IN PERSON

How to lead a team

In Person 4 CPD hours Tuesday 26 September 9am – 1.15pm Price from $400 + GST Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

LIVESTREAM

This four-hour workshop for those leading teams distils proven and emerging team leadership best practice into a practical ‘how-to’ guide.

Limited spaces available.

WORKSHOP SENIOR DEVELOPMENT

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Contingency and continuity: employment, health and safety WEBINAR ALL LEVELS EMPLOYMENT

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Webinar 1 CPD hour Thursday 28 September 12pm – 1pm Price from $80 + GST Presenters Penny Bower, head of legal, Waste Management NZ Limited, Myriam Mitchell, partner, Copeland Ashcroft and Daniel Erickson, partner, Tompkins Wake Chair Claire Mansell, barrister

Extreme weather and natural disasters require urgent responses. This webinar will provide timely insights and helpful practical learnings to help your clients prepare a contingency and continuity plan that remains effective over time.

FIND OUT MORE

Sep 15, 2023 Issue 32

adls.org.nz/cpd

Lessons from Mainzeal

Webinar 1.5 CPD hours Thursday 5 October 12pm – 1.30pm Price from $195 + GST Presenters Mihai Pascariu, partner, Hamilton Locke and Zane Kennedy, barrister, Mills Lane Chambers

cpd@adls.org.nz

09 303 5278

In this webinar, the presenters (both members of the team that acted for the liquidators) will explain and analyse the Supreme Court’s decision and consider the practical implications of this judgment for directors.

WEBINAR ALL LEVELS COMMERCIAL

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Starting and ending a franchise WEBINAR ALL LEVELS CIVIL LITIGATION

Webinar 1.5 CPD hours Tuesday 10 October 4pm – 5.30pm Price from $140 + GST Presenters Deirdre Watson, barrister and Paul Dalkie, barrister

Presented by barristers experienced in franchising, this webinar will address basic due diligence, renewals and exiting a franchise.

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Mastering the art of negotiation

Workshop Wellington 3 CPD hours Thursday 19 October 9am – 12.15pm Price from $375 + GST Facilitator Dr Grant Morris, Associate Professor, Faculty of Law – Victoria University of Wellington.

Grant Morris will equip you with a powerful toolkit designed to uncover new strategies and elevate your negotiating skills.

WORKSHOP INTERMEDIATE LITIGATION

FIND OUT MORE 13

Legal Business Sale Specialists NEW EDITION

SOLD

SOLD

SOLD

Are you considering selling your Law Firm?

If you are looking at selling your Law Practice and are curious about the value of your business call me today for a confidential discussion.

Nick Stevens 021 641 978 nick.stevens@linkbusiness.co.nz

Author Vicki Ammundsen The Trustee’s Handbook is a must-have for trustees, trust advisers and anyone involved with administering trusts.

This 6th edition includes 120 precedent minutes and resolutions. The precedents reflect day-today decisions trustees make and matters that trustees need to take into consideration.

As well as references to contemporary case law, the book includes comprehensive and practical checklists to guide trustees as they go about the everyday business of being a trustee.

Price for ADLS members $86.40 plus GST* Price for non-members $96 plus GST* (* + Postage and packaging) To purchase this book please click here or visit https://adls.org.nz/bookstore/ or contact the ADLS bookstore by phone: 09 306 5740, or email: thestore@adls.org.nz

0800 546 528 LINKBUSINESS.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

Workplace Investigator Margaret Robins • Association of Workplace Investigators Certificate Holder • Member Association of Workplace Investigators (USA) • Member Australasian Association of Workplace Investigators

Visit my website to learn more about my experience and my approach: www.workplaceinvestigator.co.nz Or contact me on (027) 270 1057 or mrobins@workplaceinvestigator.co.nz

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SOLD

FOSTER Terau Awhina previously known as Te Rau Awhina Remuera • Late of 3/12 Short Street, Claudelands, Hamilton • De facto – previously Separated/Divorced • Housekeeper • Aged 44 / Died 30’04’23 LEPINE Constance Eleanor • Late of Auckland • Retired • Aged 96 / Died 04’06’23

Fax: (09) 309 3726

Ph: (09) 303 5270

MITCHELL Craig Edward • Late of 703 West Coast Road, Oratia, Auckland • Machine Operator • Aged 63 / Died 23’08’23 PRINGLE Carol Ann • Late of 92 Joan Gaskill Drive, Whitianga • Married • Nurse • Aged 77 / Died 30’12’22

All LINK Offices Are Licenced REA08

The Trustee’s Handbook, 6th edition