NEWS Dec 3, 2021 Issue 43
Inside ■ INVESTMENT
New overseas investment rules kick in P05
■ TRUST LAW
The tricky job of appointing receivers over a trust P06-07
Insurers bailing out of
CYBERSECURITY COVER adls.org.nz
Contents 03-04
Cyber-cover dries up for high-risk law firms
INSURANCE RAMSOMWARE RISK
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
05 FARM LAND INVESTMENT CERTAINTY
The new overseas investment regime finally kicks in
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06-07 REASONABLENESS NECESSITY RECEIVERSHIP
10-11
Appointing receivers over a trust: the High Court draws a line in the sand
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CPD IN BRIEF
13 EVENTS
Ensuring Kiwis get first dibs on buying farm land is a key part of the revamped overseas investment regime
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Dec 3 2021 Issue 43
CYBERSECURITY
The large amount of money they handle makes law firms prime targets for fraudulent invoicing scams. That’s where scammers intercept a business invoice or other communication around a large payment and replace the invoice with a fake document containing a different bank account number. They then send through a doctored bank deposit slip or sometimes the scammer telephones the firm, impersonating the client and changes the bank account number. Haszard recalls one claim where the law firm’s procedure was to verify any change of account details via a phone call. “The scammer pre-empted that,” she says. “There was no physical relationship between the person who took the call and the caller. And sure enough, the money went [to a scammer’s account], never to be seen again.” Diana Clement The other main scams law firms in New Zealand fall victim to, says Haszard, are ransomware attacks, where the company’s Law firms are falling foul of cyber-attacks more often than most IT systems are frozen until it pays a ransom. Client data is realise. In New Zealand, several firms each month are being held compromised with no guarantee it won’t fall into the wrong hands to ransom or have client payments redirected to criminals. even if the ransom is paid. Many keep quiet about what’s happening. But that will become In a 2019 claim, an Auckland law firm found itself suddenly a whole lot harder thanks to changes to the Privacy Act, which locked out of its computer systems. “They make reporting mandatory, says Lloyd Gallagher, couldn’t do anything,” says Haszard. The managing partner at Gallagher & Co Consultants The fewer CyberSAFE insurance the law firm had in place and ADLS Technology & Law committee security paid for forensic costs first, and when it was convenor. measures a ascertained that there was no way around it, the “The number of law firms being hit with insurer paid the US$50,000 ransom in Bitcoin. ransoms or business email-redirection scams has law firm has in The firm did not want to be named but a reached an all-time high,” he says. place, the higher partner told Haszard, “It happened right before Lawyers also have obligations under the the premiums, Christmas. We were in a state of absolute shock. Lawyers and Conveyancers Act to keep if they can get We wouldn’t have thought in our wildest dreams information and systems secure, says fellow international cyber criminals would target a committee member Edwin Lim, a partner at cover at all suburban law firm. But we were wrong.” HudsonGavinMartin. “That’s not just physical She added: “Having cyber insurance in place security,” he says. It’s IT security and getting staff was probably the best insurance decision the to act as human firewalls to protect information. company has ever made.” As cyber-attacks soar, insurers are cracking The costs of an attack don’t end with a ransom. The law firm down on what they will cover and increasing premiums thanks also had to notify clients. Under current law, it would also have to to the high risk posed by law firms. Cyber cover for law firms is notify the Privacy Commissioner. The insurance claim also paid costing insurers dearly and underwriters have responded by public relations costs. “Some cyber policies also pay for credit increasing premiums, demanding greater security measures and monitoring costs for those clients that may have been affected by lowering limits. scammers,” says Haszard. Claire Haszard, manager northern region financial & It’s not only the Privacy Commissioner who is likely to have professional risks at insurance broker Crombie Lockwood, says concerns about vulnerable systems within law firms. Cyber-attacks her team often receives late-night calls from legal clients who don’t just compromise personal data but also business information have fallen victim to phishing attacks. “It is a very stressful time for that is not protected by privacy laws. Increasingly, clients want them,” says Haszard. Crombie Lockwood arranges insurance for assurance that their lawyers have adequate security measures in about one quarter of all law firms in New Zealand and receives on place to protect data they hold about them. “This could extend average nearly one claim a month on cyber cover. to looking at what security measures have been put in place by Prime targets suppliers.” Wotton+Kearney, which handles CyberSAFE claims from law firms, is dealing with two or three at any given time, says special counsel Higher premiums Joseph Fitzgerald. “Law firms are prime targets for cybercrime, Haszard confirmed that insurers have been reducing policy whether it be ransomware, business email compromises or other frauds and compromises. When they do suffer incidents, they also Continued on page 04 tend to be relatively severe,” he says.
Insurers crack down on slack law firm cybersecurity We wouldn’t have thought in our wildest dreams international cyber criminals would target a suburban law firm. But we were wrong
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Continued from page 03 sub-limits, increasing premiums and setting a higher bar for security before, in some cases, policies are underwritten at all. She says policy sub-limits are being reduced for email redirection claims, in particular. Law firms could once get $1million to $2m cover for this type of claim. That scaled back to $250,000 a few years ago and nowadays $25,000 is not an uncommon figure, if the cover is offered at all. The lowered sub-limits highlight that cyber insurance is not a get-out-of-jail card. “A $25,000 limit isn’t going to touch a $1m compromise claim,” says Haszard. “In terms of the actual loss of funds, it’s very low.” It covers only the associated expenses, including the cost of getting a lawyer and paying for public relations assistance, she says. If that weren’t bad enough for law firms, the underwriting criteria are becoming more stringent with underwriters expecting a long list of security measures to be in place. The fewer security measures a law firm has in place, the higher the premiums, if they can get cover at all. AIG, a big player in this field expects, for example, multi-factor authentication on all email, virtual private networks and virtual desktops. It requires a variety of endpoint detection and response measures and for all patches to be present and updated. A law firm should also operate tools such as CyberArk or BeyondTrust, along with disaster recovery measures such as offline backups for all critical systems. “Whilst AIG is particularly stringent in their underwriting controls, all underwriters have increased their requirements and having certain security measures in place is now a pre-requisite to obtain cover,” says Haszard. Anyone who doesn’t understand the requirements needs to seek advice, says Lim. Cybersecurity and insurance issues are causing considerable concern among the ADLS Technology & Law committee members. Gallagher says that concern has escalated following security breaches earlier in the year with Microsoft Azure cloud services, including Teams, Office 365 and Dynamics 365. These products are used by many law firms. “That became a real red alert for us because [Microsoft serves] the big guys. If the big guys can be affected, then then how do we protect the little guys who can’t even afford the big guys? It exploded into us realising that issue was actually bigger than when we were first looking at it six months ago.”
Robust policies At the same time, says Lim, clients in the tech sector and other industries are saying that cyber insurance is getting harder to get, and premiums are sometimes a multiple of what they used to be, with lower coverage. One way to lower costs is for businesses to get their house in order, he says. “In a way, that’s a good thing, because you’re forced to sort your issues out.” Both the technology and the security issues are why law firms need to ensure they have robust policies and procedures, Gallagher says. “If your procedures are proper, then you can make sure attacks can’t happen, unless the procedure is not followed.” 04
Too many law firms think their ISP will protect them. “If we get the protection and knowledge up, then the risks start to go down. And a lot of those protection issues relate to understanding how attacks happen [and] how social engineering occurs.” Some law firms balk at the cost of IT consultancy and insurance. “But it costs less than if you’re hit with a ransomware attack,” Gallagher says. “That’s going to cost you $50,000 to $100,000 to unlock your files. “I had a discussion with one firm, which we recommended, and we said, ‘even if you don’t choose us, you need to do the following bare minimum to get it sorted’. They made the decision we were wrong. A month later, they were hit with ransomware and were locked out. And because of the type of business they do, they have to get that information back. They don’t have a choice. “One thing I pointed out to them [after the attack] is that there’s nothing to stop this from happening again in three months’ time because of the way the attack was performed. They need to get the staff into training.” That attack involved one staff member falling for a phishing email. “They unfortunately gave away something they shouldn’t have. And within seconds, the whole system was locked up with ransomware.” Lim says law firms that don’t have an in-house or outsourced IT team should consider seeking advice on system security. “We’re the legal experts in our fields. Most of us probably aren’t experts in IT security. So rather than figuring it out yourself, get an expert in to help.” When law firms do suffer attacks, they often have no idea where to seek help if they’re not insured, says Gallagher. “The law society won’t play favourites and point them in the direction of businesses that can help. Very often small firms approach companies offering big firm [services] and are offered big firm pricing.”
Escalating attacks In a special report Signals and noise: The new normal in cybersecurity published by The Economist on 20 November, IBM states the average cost of a data breach in 2021 was US$4.2m – the highest in the 17 years the company has tracked such breaches. And according to the report, a recent study examining 12,000 listed companies in 85 countries over 20 years reveals cyber risk has tripled since 2013. A major reason is increased connectivity: 51% of the world’s population is now online, up from 17% in 2005. Remote working as a result of the pandemic has also created new headaches around cybersecurity. The World Economic Forum has found that cyber-attacks and data fraud due to the shift in work patterns is globally the third biggest worry for business leaders, after fear of a prolonged recession and a surge in bankruptcies. Cyber-attacks are escalating at a frightening pace. The Economist says in the first half of 2021, these attacks – particularly ransomware – increased by 93% year-on-year. In 2020, victims paid US$350m in bounties, four times more than the previous year. Humans, the publication says, remain the major weak link in cybersecurity. ■ Read more here and here.
Edwin Lim
Claire Haszard
Increasingly, clients want assurance that their lawyers have adequate security measures in place to protect data they hold about them
Dec 3 2021 Issue 43
OVERSEAS INVESTMENT/PROPERTY
How the new-look overseas investment regime will work The new rules require that a farm is advertised in print and online for at least 30 days before an agreement with an overseas buyer can happen
assessment previously required by case law has been replaced with a simplified comparison between the likely benefits of the proposed investment and the current state.
More efficient process New assessment timeframes apply is advertised in print and online for at to the process for considering and Anneke Turton least 30 days before an agreement with deciding applications for overseas an overseas buyer can happen. investment consent, as well as Overseas investment into New Zealand is an New rules also clarify and strengthen variations and exemptions. important part of our economy bringing new capital, the requirements around ‘fresh or access to technology, boosting trade and creating The timeframes are designed to seawater areas’, previously known as jobs. But as a country we must ensure overseas give investors greater certainty, support ‘special land’, namely marine and coastal investments are high quality and in New Zealand’s commercial processes and help attract areas and the beds of rivers and lakes. interests. high quality investment to New Zealand. If an overseas investor is purchasing The timeframes apply to all The Overseas Investment Act 2005 sets strict Anneke Turton a property that includes this type of participants, including applicants and rules governing the purchase of sensitive land, land, the Crown has the right to acquire their legal advisors, and may pause significant business assets and fishing quota by the fresh or seawater areas – but may decide not to. while the applicant responds to requests for further overseas investors. A program of reforms of the Act information or complies with a legal requirement. To has been underway since 2018, designed to simplify Benefit to New Zealand help get timely decisions, we are asking legal advisors the requirements for investors and focus screening to make sure applications are complete with all and assessment on investments that pose more risk. The way the Overseas Investment Office assesses required documentation supplied, and for any requests The final package of changes came into effect applications to invest in sensitive land through the for further information to be prioritised. on 24 November 2021. These ‘benefit to New Zealand’ test is The timeframes vary depending on the type of changes have an impact on the changing. The timeframes application, but all will be challenging to meet and requirements for some property Overseas investors who are designed to require significant improvements to timeliness. It will transactions, particularly overseas want to buy, lease or otherwise give investors investments in sensitive land, and acquire sensitive land through this take time for the Overseas Investment Office to make the necessary improvements and there will likely be a will drive improvements in the time greater certainty, investment pathway must show phasing-in period to allow time for this to happen. taken to assess and decide on that the investment is likely to support commercial applications. benefit New Zealand. processes and help Assessing overseas investments The new benefit to New Overseas investments in Toitū Te Whenua Land Information New Zealand’s attract high quality Zealand test is designed to give land a more certain approach to how Overseas Investment Office manages the process for investment to New benefits of proposed investments receiving and assessing applications from overseas Law changes strengthen and Zealand are assessed. The changes investors, supporting the ministers who make modernise the requirements for are intended to streamline the decisions on applications, and making some decisions making sure New Zealanders assessment process and simplify under delegated authority. have the opportunity to buy farm applications. land before overseas investors. Under the Overseas More information about the law changes and The new test will assess benefits against seven Investment Act, farm land includes non-residential implementation dates, detailed information about broad factors, including economic benefits, benefits to land used for agricultural, horticultural and pastoral what is covered by the regime and how to make the natural environment and public access. There will purposes, but not forestry. an application is available on the Toitū Te Whenua also be greater emphasis on how sites of importance website. ■ Any farm land for sale must be offered to New to Māori are protected. Zealanders on the open market before an overseas Anneke Turton is the reform program manager at The complex and hypothetical counterfactual investor can buy it. The new rules require that a farm the Overseas Investment Office ■ 05
TRUST LAW
The high bar for appointing a receiver for a trust The onus is on an applicant to show that nothing less than appointing a receiver will do Andrew Steele Andrew Steele
The hot-off-the-press judgment in Armani v Armani [2021] NZHC 3145 (per Walker J) may have poured cold water on the notion that persuading a court to appoint a receiver for a trust is going to be easy. Since the Trusts Act 2019 came into force in January this year, the court has been empowered by s 138 to appoint a receiver over a trust where it is both reasonably necessary and just and equitable to do so. Practitioners have been looking forward to the High Court giving the new provisions its interpretation. Armani v Armani proved an ideal case study with its complicated multi-trust structures and landholdings involving companies and a claim of constructive trust by Victor Armani, all arising from an acrimonious business and de facto relationship break-up. Justice Tracey Walker did an admirable job wading through the 3,000+ pages of evidence to deliver a clear and succinct judgment. In short, Armani made an interlocutory application to appoint a receiver for what he described as the “Armani Group of properties”, comprising multiple trusts owning valuable properties. Armani maintained that he entered into a joint venture with Nicole Armani in 2013 after which various companies were incorporated, trusts were formed, trustees came and went, and properties were bought and sold. The position was so complicated that descriptions gave way to a diagram of the structure inserted into the judgment between pars [19] and [20]. Nicole Armani held the reins of the key trusts which left Armani marginalised from control and in a financially difficult position. At the same time, it was alleged there was a prospect of the banks not re-financing significant borrowings which could bring down the financial house of cards. Adding to the urgency was the unusual fact that the relationship breakdown potentially crystallised the ‘trust periods’ for two of the trusts. Armani sought enforcement of the alleged joint venture agreement, and account for his alleged one-half share of the properties in respect to which he asserted a constructive trust. To set the premise, the court observed that traditionally the function of the court-appointed receiver of a company is to preserve assets and its potential for earning profits in the future. 06
The court-appointed receiver is not so much a doctor as a caretaker [63]. The appointment is a matter of last resort where no other adequate legal or equitable remedy is available or when the court is satisfied the existing law and contractual arrangements are such that no other means of achieving the desired object can be obtained. In short, the onus is on an applicant to show that nothing less than appointment of a receiver will do [67]. For the purposes of this article, the court identified the following three key issues for determination [61]: ■ Does Armani have standing to seek appointment of a receiver? ■ Is appointing a receiver reasonably necessary and just and equitable for the purposes of s 138 or otherwise appropriate in the court’s inherent jurisdiction? ■ Should the court exercise its discretion to appoint a receiver in the circumstances?
Standing
The position was so complicated that descriptions gave way to a diagram of the structure inserted into the judgment
Nicole Armani argued that Armani lacked standing because the relief he sought was entirely personal and his causes of action were independent from the trusts’ positions. But the court noted that s 138 gives standing to any ‘interested person’ which was interpreted purposively as encompassing a fellow trustee, a creditor or a beneficiary, whether final or discretionary, depending on the circumstances. The court held that Armani achieved ‘standing’ in a variety of ways, including that he [80]: ■ was a trustee of a creditor of the express trusts; ■ had a good prima facie arguable case that he is a beneficiary of a constructive trust over the trusts’ property; ■ was likely to be a beneficiary with a vested interest at the expiry of the trust period, given the odd acceleration provision in the trusts’ deeds; and ■ is a principal guarantor of the interconnected debts of the trusts.
Section 138(2)(a): Is the appointment of a receiver reasonably necessary? Justice Walker turned to the dictionary to consider the meanings given to the words ‘reasonably’ and ‘necessary’. In the result, the court held that together the phrase meant something more than expedient or desirable, falling closer to ‘required’ or essential to achieve a particular outcome or purpose, but not necessarily restricted to measures of a last resort though
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Dec 3 2021 Issue 43
Continued from page 06
it was not wildly different (see above earlier reference to these latter words) [86]. With the legal test set, the court turned to the four categories of grounds put forward by Armani to establish ‘reasonable necessity’ [87], namely that: ■ there was an intractable deadlock akin to the partnership dissolution context; ■ Nicole Armani had, and would, mismanage and be unable to prudently manage the trusts and properties; ■ the bank relationship was in jeopardy; and ■ Nicole Armani had a conflict of interest because of familial relationships.
Deadlock The court recognised that cooperation between the protagonists would facilitate preservation of capital and income and ought to be achievable without undermining their respective (divergent) positions, but that was not the same thing as a deadlock. The reality was that administration of the trusts and properties was not prevented by the dispute [89]. An actual deadlock would have rendered the trusts incapable of being administered, akin to a company left without management because of the absence of directors or dissension among board members.
Mismanagement In respect to the second ground, the judge discerned that Nicole Armani’s action, which had resulted in alleged losses, was an incident of the dispute about ownership and control rather than one of negligent management or retribution [96]. And Armani’s own actions had been in part responsible for the outcomes that had resulted [97]. Armani somewhat shot himself in the foot by describing Nicole Armani as a “tough businesswoman, familiar with agreements for sale and purchase and the financing arrangements that accompany them” while simultaneously contending that she was likely to provide inadequate management of the trust properties [98]. The court took what some might call a pragmatic approach by holding that such initial mismanagement as occurred happened during a transition period and the consequences appeared to have been rectified [99]. Also, Nicole Armani had apparently engaged professional advisors, including experienced legal advisors and accountants to address the concerns about her being in control (or otherwise) of the trusts.
The bank
Since the Trusts Act 2019 came into force in January this year, the court has been empowered by s 138 to appoint a receiver over a trust where it is both reasonably necessary and just and equitable to do so
Armani’s contention that unless a receiver was appointed the bank would not renew the loans [117] was undone by the bank whose representative said: “[the bank’s] previously stated position that ongoing facilities would be considered on normal commercial terms for facilities of this type, if that approach is favoured by all parties”. In short, Armani’s contention had not reached the point of being tested by intractable disagreement between the parties, so the third ground fell away.
Nicole Armani’s conflict of interest because of familial relationships Again, the court took a pragmatic view, saying: “The steps [Nicole Armani] has or has not taken since the breakdown in the relationship must be seen against the backdrop of the complex and acrimonious dispute between the former couple.” The conflict relied on was historical not prospective, so the court concluded that the matter did not make it reasonably necessary to appoint a receiver [116].
The result The application was dismissed before the court was obliged to address s 138(2)(b) and determine whether the appointment was ‘just and equitable’. On the merits and overall justice, however, it is interesting to note that the court was bold enough (on an interlocutory application, that is) to state: “Nevertheless, I am satisfied by a wide margin on the evidence currently before the court that Mr Armani has a good arguable case on a claim to constructive trust in respect of up to 50 per cent of the assets owned by the interrelated trusts, applying the principles of Lankow v Rose.” This sobering indication to the parties may be the fruit of planting 3,000+ pages of evidence in the court. The final comment of the court at [125] is worth relating in full for the benefit of would-be applicants for appointments of receivers: “… a good arguable substantive case does not answer the issue on this application. Appointment of a receiver might be expedient, and even desirable, pending determination of the substantive dispute. I suspect it would streamline the litigation and increase its efficiency. That does not however translate to satisfying the test under s 138 of the Act, or under the inherent jurisdiction”. ■ Andrew Steele is an Auckland barrister specialising in family trusts and estates disputes ■
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COVID-19
oppose a proposal to temporarily suspend trade rules that protect the monopolies of pharmaceutical companies on covid-19 health products and technologies. Initially proposed by India and South Africa in October 2020, the so-called TRIPS waiver would enable companies around the world to freely produce covid-19 products and technologies without fear of litigation over possible infringements of intellectual property rights. It is now co-sponsored by 63 countries and supported by well over 100 of the World Trade Organisation’s 164 member states. The US signalled its support for a waiver in May (limited to vaccines), secure enough vaccine doses since its inception. but it hasn’t formally co-sponsored the proposal. The Nearly 100 low-income nations are relying on European Union, the UK and Switzerland continue to the program for vaccines. COVAX oppose it, with Germany a particularly was initially aiming to deliver 2 billion By the end of staunch opponent. doses by the end of 2021, enough to The TRIPS waiver, if adopted in the November, vaccinate only the most high-risk groups form sponsored by the 63 countries, around 54.2% would cover all health products and in developing countries. However, its of the global technologies needed for preventing, delivery forecast was wound back in September to only 1.425 billion doses by population treating and containing covid-19, the end of the year. vaccines, treatments, had received including And by the end of November, less diagnostic tests, medical devices and at least one than 576 million doses had actually personal protective equipment. been delivered. It would waive rules in the covid-19 This predictable failure is largely due WTO’s Agreement on Trade-Related vaccine to wealthy countries mopping up more Aspects of Intellectual Property dose. For than half of the first 7.5 billion vaccine Rights (TRIPS) that apply to patents, low-income doses developed through pre-purchase undisclosed information (such as agreements, leaving only crumbs for information submitted to regulatory countries, COVAX. agencies or protected as trade secrets), however, the Chronic under-investment in COVAX copyright and industrial designs. And it rate was just would last for at least three years from (in terms of both doses and funds), and further hoarding of vaccine doses the date the waiver is adopted, and then 5.8% in wealthy nations for boosters, have be reviewed annually. continued to starve COVAX of supplies However, more than a year after the to distribute to those most in need. waiver was proposed, discussions at the WTO remain Wealthy countries have been shamed into making deadlocked. pledges to donate large numbers of doses to low- and Urgent action middle-income countries. But few of these pledges have yet translated into vaccines in arms. By October Wealthy countries have hoarded vaccines, starved 25, more than 1.3 billion vaccine doses had been COVAX of funds and doses, released promised pledged, but only around 10% had been delivered. donations at a slow dribble and stalled agreement Meanwhile, many high-income countries on a global agreement to lift barriers to wider have ignored pleas from the WHO to hold off on manufacturing of vaccines in the developing world. providing booster vaccinations until the rest of the We must do better. The Omicron variant illustrates world catches up. Even after boosters have been that clearly the world can’t afford to wait any longer. ■ administered, Médecins Sans Frontières estimates that 10 high-income countries will be sitting on more than Deborah Gleeson is Associate Professor of Public 870 million excess doses by the end of the year. Health at La Trobe University, Victoria This piece was first published by The Trade rules Conversation and is republished with permission ■ Some wealthy countries have also continued to
The cost of starving the developing world of vaccines Deborah Gleeson We don’t yet know how dangerous the new Omicron variant of SARS-CoV-2 will turn out to be. Early evidence suggests it may be more transmissible than other variants, and the World Health Organisation has raised concerns about its potential to spark another global surge in infections. If currently available vaccines continue to protect us from severe disease and death, which seems likely at this stage, vaccinated people in developed countries should be able to breathe a sigh of relief. But with a yawning gap between vaccination rates in high- and low-income nations, Omicron could present a major problem for the world. It could cause a further wave of preventable disease and premature death in developing countries, and exacerbate poverty in parts of the world that are already struggling with the pandemic. And unless governments take urgent action to correct these inequities, we risk the emergence of further variants, some of which may evade vaccines.
Inequities of access By the end of November, around 54.2% of the global population had received at least one covid-19 vaccine dose. For low-income countries, however, the rate was just 5.8%. The gap in vaccination coverage between highincome and upper-middle-income countries on one hand, and low-income countries on the other, is particularly stark. Vaccination rates in Africa are particularly concerning. About 40 or so countries still have less than 10% of their populations fully vaccinated, the vast majority of which are in Africa. Experts have warned about the inequitable distribution of covid-19 vaccines since the beginning of the pandemic, so why is there still a problem? First, COVAX, the global program for purchasing and distributing covid-19 vaccines, has struggled to 08
Dec 3 2021 Issue 43
Briefs Pandemic law problems The Victorian Bar is concerned that amendments to the state government’s pandemic bill fall short of providing proper oversight of pandemic orders and appeal rights for people detained under the legislation. Dozens of QCs and other senior lawyers in Melbourne have strongly opposed the bill which is about to pass through the state’s Upper House. Bar President Roisin Annesley QC told The Australian that while the Bar is pleased the government had addressed several issues of concern, problems remained about the lack of parliamentary oversight of a health minister’s pandemic orders and that there was no provision for independent review of detention orders.
Win for Afghan refugees Justice Francis Cooke has delivered a win to two Afghan nationals who sought residency visas to join family in New Zealand but were knocked back by Immigration New Zealand (INZ) because of the Covid-19 border closure. The pair, who In refusing the had worked alongside the New Zealand Defence Force in Afghanistan for several applications years, had their applications accepted on grounds for processing under the Refugee Family of the border Support Category in 2019 but this had not been competed when the borders closed closure, in March 2020. Justice Cooke In denying the applications on grounds of the border closure, Justice Cooke said INZ said INZ had had misapplied the law. The Act required misapplied INZ to assess applications in accordance the law with the instructions that were in effect at the time the application was made, he said. The pair would then have had the same rights to enter New Zealand as any other resident once the visa was granted. Justice Cooke said INZ made a further error of law when it decided not to apply the humanitarian exception when considering the applications. He ordered the department to reconsider the applications in accordance with the law. The applicants, who are clients of Community Law Waikato, say they have been in fear of their lives since the Taliban takeover of Afghanistan in August. Community Law Waikato says it represents about 70 other clients in a similar position. Community Law Centres O Aotearoa CEO Sue Moroney says she now expects INZ to respond with urgency to the plight of those fearing for their lives who have a legitimate pathway to New Zealand. Read the judgment here. ■
Expressions of Interest Chairperson – Human Rights Review Tribunal Expressions of Interest are sought from suitably experienced candidates for appointment as Chairperson of the Human Rights Review Tribunal. The Tribunal hears and determines proceedings lodged pursuant to the Human Rights Act 1993, the Privacy Act 1993 and the Health and Disability Commissioner Act 1994 after complaints have first been dealt with by the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner pursuant to their respective Acts. The principal matters considered by the Tribunal concern discrimination, sexual and racial harassment, misuse of personal information and breaches of professional health standards. This is a full-time role and the Chairperson must be a barrister and solicitor of the High Court of not less than 5 years’ practice with career experience at a senior level. Appointments to this role are made by the GovernorGeneral on the recommendation of the Minister of Justice for a term not exceeding 5 years and may be reappointed. Expressions of interest must be received by 5 pm Friday 17 December.
Deputy Judicial Conduct Commissioner Expressions of Interest are sought from suitably experienced candidates for appointment as Deputy Judicial Conduct Commissioner pursuant to s.8A of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The role of the Deputy Commissioner is to receive and examine complaints about the conduct of Judges for the purpose of enhancing public confidence in, and to protect the impartiality and integrity of, the judicial system. Appointments to this position are made by the GovernorGeneral on the recommendation of the House of Representatives and the term of appointment is not less than two years and not more than five years (reappointments may be made). An Expression of Interest form, Statutory Declaration and a position description can be found here. Expressions of interest must be received by 5 pm Friday 10 December.
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The ADLS/REINZ ASPRE 11th edition UPDATE PROPERTY AGREEMENT
Webinar 1.5 CPD hrs Thursday 3 February 1pm – 2.30pm Presenters Tim Jones, barrister and Thomas Gibbons, principal, Thomas Gibbons Law
On 8 February 2022, ADLS/REINZ will release the 11th edition of the Agreement for Sale and Purchase of Real Estate. In this webinar, Tim Jones and Thomas Gibbons will outline and provide the rationale for the changes, highlighting the implications for both lawyers and their clients.
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Dec 3 2021 Issue 43
adls.org.nz/cpd
Immigration policy changes RESIDENCE VISAS DEVELOPMENTS
Live Stream 2 CPD hrs Wednesday 16 February 4pm – 6pm Presenters Pooja Sundar, partner, D&S Law and Lauren Qiu, principal, Stay Legal Chair Stewart Dalley, partner, D&S Law
cpd@adls.org.nz
09 303 5278
The immigration landscape is constantly evolving. Add covid-19, lockdowns and border restrictions into the mix and what you get is a recipe for unprecedented change to immigration policy. Perhaps most notable is the introduction of the 2021 ‘one-off’ resident visa which will be tested for the first time in December 2021.
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Outlook for lawyers 2022 EMAIL FUNCTIONS PRODUCTIVITY
Webinar 1 CPD hr Thursday 17 February 12pm – 1pm Presenter Carlene O’Meagher, senior customer success manager, LawVu
Discover how to use Microsoft Outlook to best effect. This session will cover Outlook functions and shortcuts to overcome email deluge, stay focused, and gain productivity. You will learn about email phishing and security, and see Outlook’s role in conjunction with other communication platforms including Microsoft Teams and Slack.
LIVE STREAM
‘Court’ by forensics
Workshop 4 CPD hrs Saturday 19 February 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd
Forensics never goes away. Every contact leaves a trace. This workshop will take you behind the scenes as a crime scene investigator, giving you a greater understanding of what type of evidence is preserved from the scene and used effectively in court, the importance of the chain of evidence and an insight into how to deal with expert forensic witnesses. Spaces strictly limited
HANDS-ON INSIGHTS CLARITY
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CPD IN BRIEF
Living with the Residential Tenancies Act
Webinar 1.5 CPD hrs Thursday 3 March 12pm - 1.30pm Presenters Des Wood, barrister; Nathan Tetzlaff, associate, Smith & Partners
The Residential Tenancies Act has had numerous amendments in recent years. The most recent amendment features some significant changes. Are you ready to advise a landlord or tenant? This session is of interest to all lawyers and legal executives practising in Property law, and general practitioners. Property managers, letting agents and real estate agents might benefit from attending.
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Personal effectiveness workshop 2022
Workshop (Auckland) 4 CPD hrs Thursday 3 March 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams
What a year it’s been (again). Returning for 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant. Places are limited. Register now to avoid missing out.
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Modern slavery and responsible supply chains
In Person | Live Stream 2 CPD hrs Tuesday 15 March 4pm – 6.15pm Presenters Rebekah Armstrong; Nicola Swan and Trevor Johnston
This seminar discusses the existing and emerging legal and ethical requirements around engaging suppliers and vendors, and the resulting impact on businesses. It also outlines practical steps businesses can take to minimise modern slavery-related risk in their supply chains and operations, with helpful insights into how The Warehouse Group conducts its due diligence.
IN PERSON
Wellbeing of tamariki
In Person | Live Stream 2 CPD hrs Thursday 31 March 4pm – 6.15pm Presenters Judge Otene; Alison Cleland and Anthony Dickson Chair Judge Parsons
The care and wellbeing of all children is of the utmost importance to most people. Yet the rationale behind the constitutional principles and the legislative scheme is little known, let alone well understood. This lack of knowledge and understanding can translate into poor presentation and argument of Oranga Tamariki cases. Providing an essential understanding of the context and nature of the legislation, this seminar will help lawyers better comprehend – and perform − their role in this crucial area. IN PERSON
The Deportation Process – A Practical Guide for Lawyers Wednesday 16 March | Seminar | 2 CPD hours Visit adls.org.nz for more information.
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LIVESTREAM
LIVESTREAM
Dec 3 2021 Issue 43
Events Featured events
Connecting New Zealand Lawyers
Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Friday 11 February, 2022 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More
New Plymouth sundowner Thursday 24 February, 2022 5.30pm – 7.30pm The Pepper Room, Millennium Hotel New Plymouth Waterfront Catering sponsored by MAS Learn More
Upcoming February
Friday 11 | Christchurch breakfast with Chief Justice Dame Helen Winkelmann Thursday 24 | New Plymouth sundowner
March
Wednesday 2 | Central Auckland express lunch Wednesday 16 | Newly Suited meet the QCs evening, Auckland Monday 28 | ADLS golf tournament
April
Wednesday 6 | Rotorua lawyers’ lunch
Auckland central express lunch Wednesday 2 March, 2022 1pm – 2pm Glass Goose, 78 Federal Street, Auckland Sponsored by CoLegal Learn More
Newly Suited meet the QCs evening Wednesday 16 March, 2022 5.30pm – 7.30pm Stanbeth House, 28 Customs Street East, Auckland CBD Learn More
ADLS golf tournament Monday 28 March, 2022 2pm – 8pm Remuera Golf Club, 120 Abbotts Way, Auckland
Soon to be added:
Feb – April Newly Suited ‘saved by the bell’ careers evening, Auckland Immigration law dinner, Auckland May – July Hamilton lawyers’ lunch Auckland breakfast with Chief Justice Dame Helen Winkelmann Employment law dinner South Auckland lawyers’ lunch Breakfast with the Attorney-General, Auckland Hawke’s Bay lawyers’ lunch Henderson lawyers’ lunch, Auckland Tauranga lawyers’ lunch Northland lawyers’ lunch
Book Here
Learn More
events@adls.org.nz
adls.org.nz
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LEGAL EXECUTIVE
WILL INQUIRIES
Our busy and long-established Takapuna Law Firm has a position available for an intermediate/senior Legal Executive. Experience in the following areas is essential: • Trusts and Property focus with exposure to other areas of practice • Probate and estate administration • The ability to manage files with minimal supervision • Willingness to form excellent relationships with clients and staff The role is varied and busy, however with the support of the Director and Associates. We offer a pleasant office environment in the heart of Takapuna, close to cafés and the beach. Remuneration will be commensurate with skills and experience. Please forward your CV to cristine@mortontee.co.nz
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 DX CP24001, Auckland 1140
ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726
(09) 303 5270
DAVIES Hyrum Alamein
HEWITT Lawrence William Francis
LAWYER, minimum 2 years’ PQE – Katikati
• Late of 1366 Rawhiti Road, Hikurangi • In a de facto relationship • Retired • Aged 54 / Died 13’04’21
• Late of Independent Apartment A10, William Sanders Retirement Village, 7 Ngataringa Road, Devonport, Auckland • Married • Retired • Aged 76 / Died 12’11’21
Are you a lawyer with 2 years or more experience working in property law, relationship property, trust law, wills and estates? We are looking for a talented lawyer to join our friendly team. Anderson Law is a well-established small law firm specialising in property law with growth in other areas available. We are in Katikati, a great little town in the Bay of Plenty, not too far from Auckland, Tauranga and Hamilton. If this sounds like the job for you, please forward your CV by email to john@andersonlawoffice.co.nz
Examination-in-Chief and Re-Examination Workshop Saturday 26 March | 9.00am - 1.15pm In this learn-by-doing workshop, you will get to test your examination-in-chief and reexamination skills and receive individualised feedback from experienced practitioners and members of the judiciary. Limited spaces available.
T 09 303 5278
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E cpd@adls.org.nz
W adls.org.nz/cpd
Dec 3 2021 Issue 43
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
Significant Developments in the Consumer Law Space – Are Your Clients Prepared? Thursday 24 March | 4.00pm - 6.15pm This seminar will explain the key Fair Trading Act changes, work through practical examples and offer up tips on how businesses can start preparing for them.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
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