LawNews - Issue 4

NEWS Feb 25, 2022 Issue 4

Inside ■ OCCUPY WELLINGTON

‘Policing by consent’ isn’t working P04

■ TRUST LAW

Why Preston and Clayton are so tricky P06-07

Fishhooks in proposed

adls.org.nz

UNIT TITLE LAW REFORM

Contents 03 DISCLOSURE CERTAINTY PROPERTY

How to make our unit titles law fit for purpose

04 RULE OF LAW CONSPIRACY ANARCHY

Occupy Wellington: ‘Powerlessness, toothlessness and an apparent unwillingness to do anything’

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05 PRVACY DATA ADVERTISING

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Privacy breach: a must-read for companies doing business in the EU

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Photo: DLMcK / Getty Images

CPD IN BRIEF

No quick fix to supply chain disruption

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Cover: Nazar Abbas Photography / Getty Images

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Feb 25 2022

Photo: Dean Purcell / Getty Images

Issue 4

PROPERTY LAW

Problems remain with certainty and disclosure in unit title reform While electronic voting may remove the need for proxies, it can turn a meeting into a rubberstamping exercise with the committee controlling the reports being sent to owners

problems until around the settlement date will leave vendors in an unacceptably precarious position up to settlement rather than being dealt with upfront. We are hopeful this will be addressed before the final reading.

Disclosure issues

The existing UTA disclosure regime was inadequate as important information was provided too late. The amended bill removes a buyer’s ability to request additional disclosure, keeping body corporate-endorsed pre-settlement disclosure and allowing sellers to delegate disclosures and Joanna Pidgeon removes the requirement on them to discuss any issues arising from the disclosure. All bodies On 3 December 2021 the Finance and Expenditure corporate now have a duty to maintain records. select committee recommended unanimously that the Unit Titles (Strengthening Body Corporate Pre-contract disclosure will need to include Governance and Other Matters) Amendment Bill the disclosure of weathertightness issues and be passed. earthquake-prone issues as well as any other significant defects. Vendors must keep up-to-date This bill arose from problems seen with the Unit Joanna Pidgeon with committee minutes so they can give accurate Titles Act 2010 (UTA) around leaky developments disclosure. This sort of issue is sometimes kept ‘in and a lack of transparency. Nikki Kaye, a former committee’ before disclosing to the wider group of owners if they Cabinet minister and Auckland Central MP, was a catalyst for the don’t use a manager to provide pre-contract disclosure. formation of the Unit Titles Working Group (UTWG), of which Three years of meeting minutes (general and committee), ADLS has been a member. This was set up to lobby and then financial statements, the long-term maintenance plan (LTMP) assist with the drafting of amendment legislation which became a and an extensive list of other material is required. There is no member’s bill and is now in the name of deputy Opposition leader obligation, however, to provide professional remediation reports.

Nicola Willis.

This is a big gap as, without access, it will be difficult to assess Members of the UTWG are diverse and include the Strata the extent of damage and costs. Additional disclosure is removed Community Association (a voluntary body corporate managers as the select committee saw it as too onerous, which was not the and industry body), the Body Corporate Chairs Group, HOBANZ industry view. (representing owners and buyers), REINZ and ADLS. If proper pre-contract disclosure is not provided up to five The bill was drafted to ensure the biggest problems were working days before settlement, the purchaser may delay addressed, with the ability for debate and to make submissions settlement until the fifth working day after it is provided. at select committee, as unit title reform had not been high on the But what happens if it is never properly provided? This is government legislative agenda.

We look forward to the passing of the bill which will be an improvement on the current legislation. But there is some detail Continued on page 15 missing in the regulations and the delay in dealing with disclosure 03

LAW SCHOOL/TECHNOLOGY

Occupy Wellington: the consent of the governed

David Harvey

David Harvey As I write this, a protest camp is present outside Parliament. It has been there for 12 days and is likely to remain. It seems to be well supported in terms of those attending and in terms of the infrastructure that has developed. There are cooking facilities, recreational facilities and educational facilities for the young who are present.

It isn’t difficult to ascertain what the protest is about. It has been characterised as an anti-vax protest but the message coming through is that it is a protest against the effects of mandatory requirements for vaccines. Those who are in the catchment for those mandatory requirements are teachers and health workers, so it is no surprise that several from these professions are present.

Of course, the protesters have been demonised.

Although comfortable words are spoken about the right to protest, there is condemnation for this one because it has gone too far and in some respects it may well have done.

But the anti-protest rhetoric, aligning the protesters with the ‘far right’ has become clear from such ‘progressives’ as Simon Wilson in this piece headlined Pandemic, protest, nurses and nutters and an awesome piece of rolling inferential reasoning from Thomas Coughlan in a piece entitled Parliament 04

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions

This post continues the theme developed in Social Cohesion or Social Conformity of the importance of the rule of law as the most important element of social cohesion and how the rule of law can be undermined by the loss of respect for, and apparent powerlessness of, our established institutions

occupation inevitable, but end should also be where he says: Given the anti-mandate crowd are only antimandate because they’re anti-vaccine, and they’re only anti-vaccine because of conspiracy theories about its provenance and efficacy, there’s also an air of inevitability about the involvement of neoNazis and associated far-right conspiracy theorists and cranks with the protest.

That sort of dismissive commentary overlooks the seriousness with which many of the protesters view the situation. This attitude of dismissiveness has continued from no less a source than the advocate for kindliness – the Prime Minister – and is reflected in many of the statements from other politicians.

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions.

Initially the police seemed ready to take action but then pulled back. In essence, this has given the protesters carte blanche to continue to develop the site and increase the semi-permanence of their presence. The theory of ‘policing by consent’ – and it can only be a theory – isn’t going to gain any traction with the protesters.

The steps taken by Mr Speaker last weekend in turning on the sprinklers and playing awful music over loudspeakers was infantile to say the least and served

only to diminish any respect for his office or for the institution of Parliament.

The public looks on and what does it see?

Certainly, no positive steps from our politicians who will not engage unless the protesters move on. This is reminiscent of the approach taken to hostage negotiations or a ‘lay down your arms before we talk about a ceasefire’ approach. The Prime Minister dismisses the protest as anti-vax (when clearly it is not only that) and was conspicuous by her absence when Mr Speaker was playing his part.

Other politicians (apart from David Seymour) seem unwilling to engage and the reasons are opaque.

Once again, leadership seems to be lacking and our governing institutions suffering from powerlessness, toothlessness and an apparent unwillingness to do anything.

What is extraordinary is that the politicians and those in government are not our masters but our servants.

We look to the government especially to maintain the rule of law – another institution that seems to be in difficulty – since it seems that the rule of law is engaged on two fronts: the question of how the law deals with a protest that has aspects of unlawfulness;

Continued on page 11

Feb 25 2022 Issue 4

PRIVACY LAW

Privacy breach: a warning to NZ companies doing business in the EU This decision will be of particular interest to New Zealand businesses that handle the personal information of anyone living in the EU, or target their goods and services at individuals in the EU

Tania Goatley & Olivia Zambuto

The investigation

or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of processing personal data.

It was held that in this context, personal data included a TC String. IAB Europe asserted it wasn’t a data controller as the TCF does not require participating organisations to pursue certain objectives. Rather, it argued, the TCF aims to provide information which must be provided to data subjects in accordance with the GDPR. The DPA considered IAB Europe was a data controller because it imposed binding rules on participating organisations for processing personal data. IAB Europe was also found to “determine the means of generating, storing and sharing the TC String by which the preferences, objections and consent of users are processed”.

As a data controller, IAB Europe is subject to several responsibilities under the GDPR – for example, ensuring the security of personal data, carrying out a data protection impact assessment and appointing a data protection officer.

The DPA further held that, as a data controller, IAB Europe had breached several articles in the GDPR including: ■ Lawfulness: IAB Europe failed to establish a legal basis for the processing of the TC String.

■ Transparency and information of the users: The information provided to website users was not offered in a ‘transparent, comprehensible and accessible manner’ as required. Users of webpages participating in the TCF were not given sufficient information about the categories of personal data collected about them. The information provided to website users was deemed too general, invalidating any consent received for processing.

■ Accountability, security and data protection by design/by default: The integrity of the TC String was not sufficiently ensured. While IAB Europe used a consent management system, it had not taken the “necessary steps to ensure the validity, integrity and compliance of users’ preferences and consent”, meaning it was possible for consent to be falsified.

■ Other obligations for controllers that process personal data on a large scale: IAB Europe failed to: ■ maintain a record of processing activities; ■ carry out a comprehensive data protection impact assessment; and ■ appoint a data protection officer.

First, the DPA had to consider whether IAB Europe was a data controller, as defined in the GDPR. A ‘controller’ means the natural

Continued on page 09

A regulatory decision on a GDPR compliance framework widely used by the digital advertising and marketing industry in Europe could impact New Zealand businesses using the framework to ensure compliance with strict EU privacy laws.

The Belgian Data Protection Authority (DPA) has fined the Interactive Advertising Bureau Europe (IAB Europe) €250,000 for failing to comply with several provisions of the European Union’s General Data Protection Regulation (GDPR). IAB Europe is a federation representing the digital advertisement and marketing industry in Europe.

The decision comes after a series of complaints were filed against IAB Europe in 2019 for allegedly breaching the GDPR in relation to the large-scale processing of personal data.

The complaints related to IAB Europe’s transparency and consent framework (TCF) in the context of real-time bidding (RTB), the automated practice of buying and selling advertising space on websites through real-time auctions.

This decision will be of particular interest to New Zealand businesses that handle the personal information of anyone living in the EU, or target their goods and services at individuals in the EU. It also offers a timely reminder on compliance with New Zealand’s own privacy rules for those dealing with the collection of personal information in the local advertising technology sector.

How it works RTB auctions occur as quickly as it takes a webpage to load and result in targeted advertising being displayed to website users.

To display advertising specifically tailored to the website user, the user’s personal data (for instance, year of birth, gender, interests or location) is communicated to advertisers during the bidding process.

TCF is an IAB Europe framework which facilitates the capture of a website user’s preferences (for example, whether a user has consented to the use of cookies or pop-ups) and is intended to promote compliance with the GDPR. It is ‘the expression of users’ preferences regarding potential vendors and various processing purposes, including the offering of tailor-made advertisements’.

These preferences are stored in a ‘TC String’ which is shared with advertisers participating in the RTB process.

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TRUST LAW

Applying theory to practice: why Preston and Clayton are so tricky The Supreme Court’s rejection of a formulaic or presumptive approach to s 182 is fine in terms of enabling the courts to do justice as they see fit, but what it gives in freedom it takes away in predictability of outcome

Andrew Steele

Andrew Steele

Section 182 of the Family Proceedings Act 1980 empowers the court to vary the terms of a nuptial settlement where the parties’ marriage or civil union comes to an end.

The Supreme Court’s landmark decision in Clayton v Clayton [2016] NZSC 30 clarified that where the premise of a discretionary family trust is a continuing marriage, then the courts will make orders to remedy the consequences when that premise fails.

The court used this diagram to illustrate the approach:

A

Practitioners need clarity in respect to the rules and principles which guide a court’s discretion 06

B C

Where: A is the time of settlement; B is the position of the spouse under the settlement with the marriage dissolved; and C is the position the spouse would have been in, assuming the marriage had continued.

The court said the remedy available under the section focuses on the variance between B and C. The first stage of the court’s inquiry is to determine whether there was a nuptial settlement. The second stage is to ascertain the existence of the ‘variance’. The third and final stage relates to how, or if, the court should exercise its discretion to make orders by way of relief.

In Preston v Preston [2021] NZSC 154 (issued 9 November 2021) the Supreme Court revisited the section and, in particular, s 182(3) which directs the court to have regard to “… the circumstances of the parties and any change in those

circumstances since the date of the agreement or settlement and any other matters which the court considers relevant”.

The court cautioned against a formulaic or presumptive approach, but nevertheless listed the following factors as relevant, mostly involving a comparison between positions B and C: ■ The interests of children, particularly dependent children. The court described this as a ‘primary consideration’.

■ The interests of other beneficiaries of the nuptial settlement.

■ The terms of the settlement and how the trustees are exercising, or are likely to exercise, their powers in the changed circumstances.

■ Who established the trust and the source and character of its assets. This consideration needed to be applied ‘in the twenty-first century’ – ie, recognising that parties to a marriage contribute in different but equal ways to the marriage and to the accumulation of assets during the marriage [36].

■ Whatever their origin, all assets in the trust are, however, part of the nuptial settlement.

■ The manner in which the trustees would have exercised their discretion if the marriage had continued.

■ The wider benefits the trust has provided to the family, or might have been expected to provide.

■ The suitability of the relevant trust structure in light of the changed circumstances.

■ Need, but the court qualified this as not being a prerequisite.

■ The length of the marriage.

The court emphasised that the principles of the Property (Relationships) Act 1976 did not underpin s 182, so there was no entitlement or presumption as to a 50/50, or any other, fractional division of the trust property.

The Supreme Court rejected the notion that the statutory discretion should be exercised in the manner of an ‘independent and fair-minded trustee’, preferring to ‘move away from existing trust arrangements’ to achieve the relief to which an applicant is entitled ‘in whatever form is best suited to the circumstances’.

Importantly, the Supreme Court stated that where there is a disparity between positions B and C, then, generally, the discretion would be exercised in favour of the applicant – an outcome mandated by the statutory purpose (my emphasis).

Continued on page 07

Feb 25 2022 Issue 4

Continued from page 06

The key times/facts in Preston were: ■ 2004: Grant Preston settled the GPF Trust with him and children as the final beneficiaries.

■ 2005: The trust purchased a section and in mid-2007 built a home on it.

■ 2007: The Prestons met.

■ November 2008: Grant Preston transferred company shares to the trust.

■ March 2009: The Prestons began a de facto relationship.

■ October 2009: Katharine Preston moved into the newly-built home on the trust property.

■ February 2010: Katharine Preston was added as a beneficiary of the trust, by reason of being a member of the following new class: ‘the spouse or de facto partner of the settlor’.

■ 4 December 2010: The Prestons married.

■ 27 September 2015: They separated.

■ December 2018: The marriage was dissolved.

The High Court held that Katharine Preston’s addition as a discretionary beneficiary of the family trust constituted a ‘nuptial settlement’ for the purposes of s 182. That determination was upheld by the Court of Appeal and not challenged in the Supreme Court.

‘unedifying and unhelpful’. Instead, stated the court, the position had to be looked at in a more ‘broad-brush way’.

Grant Preston argued against there being a ‘family unit’ because: ■ the parties’ finances were not intermingled. They in fact made deliberate attempts to create a firewall between each other’s assets; ■ Katharine Preston settled her own trust to hold her own assets; ■ one property was owned by the parties’ respective trusts as tenants in common in equal shares; ■ there were no joint bank accounts; and ■ there was no will addressing or acknowledging a joint financial life or making provision for each other on death.

The court held that the parties’ separation of financial affairs was not necessarily decisive for the purposes of s 182.

Third, it erred in its approach to the source of the assets in the trust, in that it had: ■ incorrectly seen the fact that Grant Preston was the source of the assets as decisive, without considering other relevant factors; ■ focused on what the court described as Grant Preston’s ‘separate property’, when those principles were applicable to the Property (Relationships) Act and should not have influenced the approach to s 182; and ■ viewed the making of an order as encroaching upon Grant Preston’s separate property which ignored the legal reality that all the GPF Trust property was part of the nuptial settlement.

Supreme Court decision

Appropriate orders

The Supreme Court held that the Court of Appeal erred in three respects.

First, it had not undertaken the necessary comparison of the difference between Katharine Preston’s position under the settlement ‘on dissolution’ with that under the settlement ‘had the marriage continued’.

Second, it incorrectly focused on the parties’ financial contributions to such an extent that non-financial contributions had been treated as unequal in value. The Supreme Court said this approach materially undervalued the other roles and functions spouses perform in support of the relationship and its economic base.

For instance, Katharine Preston’s claims about work done to complete the landscaping of the home were largely dismissed and her other contributions, such as doing housework and helping with the ongoing running of a household, were treated as being of lesser value.

The constructive trust approach of determining contributions was rejected and the court referred to the debate about the extent to which parties have contributed financially as being

Taking a broad-brush approach, the Supreme Court held that there should be orders, but they should be for a modest sum because: ■ Grant Preston’s children are the final beneficiaries of the GPF Trust; ■ the shares were originally Grant Preston’s personal property and were transferred to the trust before the beginning of the parties’ de facto relationship and marriage; ■ the section was purchased by the trust, also prior to the relationship; ■ property held as tenants-in-common was settled on the trust during the relationship but was governed by the property sharing agreement; and ■ the marriage was not lengthy.

Katharine Preston received 15% of the value of the trust, with the court noting that this resulted in the parties effectively receiving one mortgage-free property each – a result the court saw as

The facts

It transpires that the tricky part of applying s 182 is not identifying the existence of a nuptial settlement, nor in ascertaining the variance between ‘before’ and ‘after’ dissolution

Continued on page 15 07

ECONOMICS

Pandemic exposes New Zealand’s supply chain vulnerability Rahul Sen & Sadhana Srivastava You don’t have to be an economist to know New Zealand faces its highest annual inflation rate in 30 years – 5.9% as of December 2021. Visit a supermarket or petrol station and the evidence is right before your eyes.

The average price of petrol per litre is now up by 31% compared to last year. In some places, it has already hit $3 a litre. To take just one grocery example, tomatoes doubled in price during the same period, contributing to the highest annual food price inflation since 2011.

These severe price hikes are a direct reflection of the impact of the global pandemic on tradable inflation – that is, goods and services we either import for our own consumption or as components in our own manufacturing and exporting processes.

Since mid-2021, annual tradable inflation has been outpacing non-tradable inflation (the rising price of goods and services we produce and consume domestically) – 6.9% versus 5.3% at December 2021.

While tradable inflation accounts for about 40% of New Zealand’s overall inflation, the pace at which it’s growing means external sources are increasingly fuelling inflationary pressure.

Pandemic pressures Much of this can be sourced back to the effects of the pandemic on global supply lines. Three key factors are driving the pressures: ■ Costs of raw materials and other inputs are rising at each stage of the supply chain, with factories closing and reopening due to changing restrictions. The semiconductor industry, for example, has been facing a chip shortage since 2021.

■ Logistics and transport costs are rising due to massive disruptions at the distribution end of the supply chain. Reduced airline capacity and re-routing of cargo, coupled with lockdowns and 08

The unpredictable impacts of the pandemic on supply chain-led tradable inflation create a tough balancing act for policymakers because the causes are out of their direct control

Australia, US, EU and Japan), imported inflation will isolation requirements, have led to delays in remain a problem throughout 2022. unloading cargo at ports and slower turnaround times for ships. Freight company Mainfreight, for No quick fix example, expects delays of 20-30 days above normal shipping times for Auckland.

The unpredictable impacts of the pandemic on supply chain-led tradable inflation create a tough balancing ■ Energy costs are rising, partly due to recovery act for policymakers because the causes are out of in global demand in 2021, combined with supply their direct control. shortages and cartel-controlled production.

These combine to cause disruption at each stage The Reserve Bank’s use of interest rates and of the supply chain – production, monetary policy to maintain short-term Some relief transportation and distribution – price stability has worked well when forcing New Zealand to ‘import’ domestic factors drove inflation. It’s a could be more inflation on top of what is provided by the lot trickier when external supply shocks being generated from within its own become the key drivers and inflation government economy. Vehicles, fuel, clothing, predictions are clouded by global processed foods and manufacturing uncertainties. reducing GST materials have all been affected.

Some relief could be provided by and fuel taxes the government reducing GST and fuel but this is not a taxes but this is not a quick fix. In the Supply chain vulnerability quick fix medium to longer term, New Zealand The rising cost of house construction needs to diversify risk and bring some provides an illustrative example. Prices supply chains back within its own go up when, say, imported iron girders borders. cost more to produce in their country of origin, in turn The government could take a cue from the caused by costlier imports of iron and steel. trilateral supply chain resilience initiative (SCRI) On top of this there can be delays in shipping the launched last year by two of New Zealand’s main materials due to port closures or workforces affected trading partners, Australia and Japan, and the fastestby the pandemic. growing emerging global market, India. Its aim is to Similarly, the scarcity caused by a worldwide identify key sectors vulnerable to supply chain shocks semiconductor shortage means higher costs of and invest in their resilience to future uncertainties. production for electronic products and new vehicles, For now, however, New Zealand can count on an pushing up retail prices for imports. unpredictable road ahead, and should be ready for the Above all, rising energy costs are a financial body possibility of even higher inflation. ■ blow to the transport and logistics sector – the backbone of the local economy.

The geopolitical tensions over Ukraine and Russia Rahul Sen is a senior lecturer at the school – both major oil and gas producers – simply add to the of economics at the Auckland University of risk of spiking imported energy costs.

Technology. Sadhana Srivastava is an economics The pandemic has exposed New Zealand’s lecturer at AUT ■ ever-present vulnerability to global supply chain For upcoming ADLS webinar, click here. disruptions. If the emergence of new covid-19 variants The above is republished, with permission, from affects New Zealand’s major trading partners (China, The Conversation

Feb 25 2022 Issue 4

Continued from page 05

New Zealand businesses As well as the €250,000 fine issued by the DPA, the DPA ordered IAB Europe to immediately delete all personal data collected through the TCF. While the DPA’s ruling doesn’t prohibit the TCF (as requested by complainants), IAB Europe has been given two months to submit an action plan to make its activities compliant with the GDPR. This means that organisations which have implemented the TCF and rely on it to comply with the GDPR, should prepare for changes to the framework in the upcoming months.

New Zealand businesses handling the personal information of anyone living in the EU or targetting their goods and services at individuals in the EU and have implemented the TCF should take particular note of this ruling and prepare for upcoming changes.

While the DPA’s decision is unlikely to directly affect New Zealand businesses that operate solely in New Zealand, it serves as a timely reminder for New Zealand businesses dealing with the collection of personal information in the ‘adtech’ space.

They should ensure they are doing so correctly under the Privacy Act 2020.

IAB Europe has confirmed it will appeal the DPA’s decision to the Belgian Market Court, asserting it is not a data controller in the context of the TCF. IAB Europe has stated that the DPA’s ruling “will have the perverse effect of discouraging other standard-setting organisations from investing in instruments that aim to protect users and facilitate the exercise of their rights under the GDPR”. ■ Tania Goatley is a partner at Bell Gully. Olivia Zambuto is a lawyer at the same firm ■

Notice of ADLS Annual General Meeting 2022 The Annual General Meeting (AGM) of members of Auckland District Law Society Incorporated will be held on Thursday 3 March 2022 at 5.30 pm as a virtual event.

Items of business ■ Annual Report of ADLS Inc (available in the members section of ADLS ■ ■ ■ ■ ■

website) Confirmation of President and Council Members for 2022 Approval of 2021 AGM minutes Appointment of auditors Notices of motion General business

Online participation Due to current Covid-19 health and safety considerations, this year’s AGM will be held via online participation only.

Members and proxy holders entitled to attend and vote at the AGM will be able to attend virtually via an online platform provided by Link Market Services where they will be able to vote and ask questions during the AGM. To enable online participation, ADLS members will be sent a link to the meeting along with a member registration number prior to the meeting.

Lawyer opportunity Hawke’s Bay Unique opportunity to become an intrinsic part of a small well-established firm.

Significant learning and career development on offer with option to acquire equity.

Work across a range of legal matters using sound judgement and high levels of integrity.

SJ Scannell & co, a sole practice, is a trusted and well-known law firm based in Hastings. The firm has a very strong and large client base which comprises of commercial, farming, horticultural and family clients. The main areas of expertise cover commercial law, conveyancing (rural, commercial and residential), estates, trusts and matrimonial property matters coupled with providing general legal services to clients including civil litigation, employment law and certain areas of family law.

Currently an opportunity exists for an experienced and driven lawyer to become an intrinsic part of this small well-established firm. This is a unique opportunity for somebody seeking learning and career development, to acquire an equity share in the practice over time and ultimately full ownership. You will have the chance to build your own client base in addition to the firm’s existing client base and grow and develop the firm for your future benefit and ownership. There are also opportunities to expand the areas of the law the firm practices in.

The firm has a reputation for high quality, efficient and friendly service and these values will need to be maintained. To be successful these values will resonate with you and you will need to be able to demonstrate strong initiative and drive towards developing and growing the business as well as assisting the current principal with the succession plan.

If this sounds like the opportunity you have been looking for, please apply online with a CV and covering letter to martin@engagers.co.nz. For a confidential discussion please contact Martin on 021 959 303.

S J SCANNELL & CO BARRISTERS & SOLICITORS

09

LAW SCHOOL/TECHNOLOGY

Amy Irvine ‘Stay calm’ echoes throughout exam season – a time-honoured piece of advice given to stress-ridden students everywhere.

You should know the drill by now, after all. Bring any equipment you need, arrive early to the exam room and try not to fall victim to the murmurs of lastminute revision that swarm around the entryways. Take deep breaths, manage your time, you’ve done this before.

But we hadn’t. Online-proctored exams are a whole new experience and one that students were facing in the midst of Auckland’s longest lockdown yet.

Online exams themselves were nothing new – it was not our first exam season in lockdown – yet we were being introduced to our new exam buddy in speed-dating style – an artificial intelligence that would watch through our webcams to examine our every move during the exam process.

The irony that I was studying privacy law the very same year that we, as law students, were surrendering our right to privacy was not lost on me. We were handing over recordings of our faces, voices, computer screens, student identification and anything else that fell into the webcam’s view. For more than two hours, the software had unfettered access to us.

Notwithstanding such concerns, the reason we were subjected to strict monitoring was made clear. Academic integrity in remote examinations had, 10

With record levels of cheating and misconduct, the university had no choice but to respond

understandably, become a key concern.

With record levels of cheating and misconduct, the university had no choice but to respond.

An emphasis on monitoring misconduct was made clear when the new approach was introduced but the implementation left many of us uncertain of what was permissible and what was problematic. And stress levels rose.

We were advised to print out our notes but excessive staring away from the monitor could be flagged. We could not use any online material unless it was legislation, but we could download information.

One day we would be advised we could have a separate monitor; the next day it would be flagged. Searching information in your notes? Debatably flagged, but no clarity was given on that front.

The announcements about the exams were sparse and confusing. On the day of my first exam, we still had many unanswered questions, all adding to the normal stress of exams.

Some bugs had become apparent: students were unable to access the exam without reloading the page while others were kicked out during the exam.

The worst I had to deal with was my neighbours choosing to mow their lawn

just as I was about to begin my final exam for the semester. Anxious that the noise would be flagged by the system, I sprinted outside to ask them to wait a few hours so I could write in silence.

To abate the nervousness I felt, I followed the advice we were given: waving my notes occasionally in front of the webcam to show I was not looking at my device; staying firmly in one spot, not daring to move out of the webcam’s vision; and avoiding any online materials except legislation which I had downloaded to avoid online sites in their entirety.

I was not the only one. Reverting to primary school antics, others hurriedly gestured the “T” sign as they rushed to the bathroom. I am not sure how many dared to search typed-up notes in case the software flagged the action.

The resulting chaos of these invigilated exams was sorely felt.

Fortunately, the university was responsive in creating a process for those who had experienced technical issues to receive compassionate consideration.

We can jest that the online process removes the stress of traditional examinations. But with the pressure of an overseer who looks for all missteps, a new kind of stress was imposed in 2021 that arguably matched, or even exceeded, that of our regular exams. ■ Amy Irvine was a student member of the ADLS Technology & Law committee ■

Photo: Westend61 / Getty Images

The chaos of online exams in a time of covid

The irony that I was studying privacy law the very same year that we, as law students, were surrendering our right to privacy was not lost on me

Feb 25 2022 Issue 4

Continued from page 04

and how the courts might continue to function when the protesters by their actions make the administration of justice almost impossible.

No less a person than the Chief Justice has commented on the fact that a jury trial in the High Court at Wellington had to be cancelled.

In addition to the issue of the powerlessness of our institutions or their apparent unwillingness to act is an aspect The theory of of constitutional theory expressed by ‘policing by Thomas Jefferson in the Declaration of consent’ – and Independence Governments are instituted among it can only be Men, deriving their just powers from the a theory – isn’t consent of the governed. going to gain As things stand, I wonder if the consent any traction of the governed is as willing as it once was.

Do people consent to being governed with the by institutions that seem powerless or protesters unwilling to maintain the rule of law?

Certainly, the protesters, anarchic as they may appear, are in fact quite well organised. It seems that the consent consensus they have is a little more resilient than that of the government. But I don’t think the majority of New Zealanders would consent to that form of regime.

Or are we headed into something else? William Butler Yeats, the Irish mystic poet writing after the horrors of World War I and the Spanish Flu pandemic, wrote in Second Coming: Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of passionate intensity.

It seems that his words may aptly describe our present situation. ■ David Harvey is a retired District Court judge ■

LECTURER/SENIOR LECTURER IN BUSINESS LAW The School of Accountancy is a quality provider of accounting and business law education, and research. Due to retirement, we are seeking to appoint another Lecturer/Senior Lecturer in Business Law, to teach at undergraduate and possibly postgraduate level.

You’ll join a team of five Business Law Lecturers. This position is based on our Palmerston North campus in the Manawutu-. Have you considered relocating to the Manawutu-?? https://manawatunz.co.nz/live/settle/living-in-manawatu/ To be successful in appointment for Lecturer/Senior Lecturer, you must have a relevant PhD in Business Law along with an outstanding record of research and teaching.

We will consider appointing at a Tutor, Senior Tutor, or Assistant Lecturer level for someone who holds a master’s degree and has relevant teaching and professional experience.

You will teach the following courses: • 115.211 Business Law • 155.210 Commercial Law • 155.203 Law of Business Organisations Find out more about our School of Accountancy: https://www.massey.ac.nz/massey/explore/departments/school-ofaccountancy/school-of-accountancy_home.cfm To learn more about this opportunity please feel free to contact Professor Fawzi Laswad, Head of School of Accountancy to arrange a confidential discussion; F.Laswad@massey.ac.nz or 06 951 6064.

Note - all completed applications must please be submitted online rather than emailed to Professor Laswad.

Applications close at 11.30 pm Sunday, 20 March 2022.

Reference number: MBS_SA_1302_10/21 For further information and to apply online, visit: http://masseyunicareers.nga.net.nz

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

We are inspired by our name Te Kunenga Ki Pu-rehuroa; from inception to infinity. Massey is not simply defined by what we do, but by how we do it. As a Tiriti-led University we are committed to demonstrating authentic leadership in contemporary Aotearoa New Zealand as we uphold Te Tiriti o Waitangi, the founding document of our nation, and its principles through our practice.

Toi te mana, toi te reo, toi te Tiriti

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

11

FEATURED CPD

FINAL NOTICE

INSIGHTS CONSIDERATIONS TIPS

Drafting contracts in a digital world Livestream 1.5 CPD hrs Tuesday 1 March 4pm – 5.30pm Presenters Arran Hunt, partner, Stace Hammond and Edwin Lim, partner, Hudson Gavin Martin

Drafting contracts that take into account technology matters might not be front-of-mind but getting it wrong can have serious implications.

With application to various areas of practice, this seminar will cover key terminology, boilerplate clauses, privacy and more.

LIVESTREAM

FINAL NOTICE

Living with the Residential Tenancies Act

Webinar 1.5 CPD hrs Thursday 3 March 12pm - 1.30pm Presenters Des Wood, barrister and Nathan Tetzlaff, associate, Smith & Partners

PROPERTY TENANTS AMENDMENTS

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 will be 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.

FIND OUT MORE

A practical guide to employment remedies REMEDIES EMPLOYMENT DISPUTES

12

Livestream 1.5 CPD hrs Tuesday 8 March 4pm – 5.30pm Presenters Simon Lapthorne, executive partner, Kiely Thompson Caisley; and Charlotte Parkhill, partner, Dentons Kensington Swan Chair Scott Worthy, partner, Kiely Thompson Caisley

This seminar provides a practical guide to the types of remedies available in employment law and the basic principles to consider when applying for each type of relief. It also discusses what’s new in this space, including recent cases and the key takeaways. Further, it addresses routes to enforcing awards and the tax considerations of settlement agreements.

LIVESTREAM

Feb 25 2022 Issue 4

adls.org.nz/cpd

Property law half-day conference 2022 UPDATES TIPS TRAPS

In Person | Livestream 4 CPD hrs Thursday 10 March 12.30pm – 5pm Presenters Mark Hopkinson; Helen Johnson; Louis McLennan; Joanna Pidgeon; Andrea Watson; Sarah Blackmore; Paul Cogswell and Mark Robinson

IN PERSON

cpd@adls.org.nz

09 303 5278

This conference will offer practically focused sessions on a range of property law topics presented by experts in their fields. It will be valuable to all those practising in the area of property law.

Chair Ian Jespersen

LIVESTREAM

Modern slavery and responsible supply chains BUSINESS SUPPLY RISK

Livestream 1 CPD hr Tuesday 15 March 4pm – 5pm Presenters Rebekah Armstrong, director, Business and Human Rights Consultants and head of advocacy and justice for World Vision and Nicola Swan, partner, Chapman Tripp

A lawyer’s guide to emerging requirements This seminar discusses the existing and emerging legal and ethical requirements around engaging suppliers and vendors, and the resulting impact on businesses.

It outlines some practical steps businesses can take to minimise modern slaveryrelated risk in their supply chains and operations.

LIVESTREAM

Rural law series: demisting the environmental fog

Webinar 1 CPD hr Thursday 17 March 12pm – 1pm Presenters: Mark Dineen, partner, Anthony Harper and Charlotte Glass, director/ consultant, Agri Magic Limited

Covering a range of rural due diligence environmental issues, this webinar will assist practitioners to demystify and digest the bow wave of amended or pending legislative and regulatory content so they can navigate and advise safely and with best practice.

CHANGES ISSUES GUIDANCE

LIVESTREAM 13

CPD IN BRIEF

Self-represented litigants

Significant developments in consumer law

Webinar 1.5 CPD hrs Wednesday 23 March 4pm – 5.30pm Presenters Brian Carter, barrister, Bastion Chambers; William Fotherby, principal, Meredith Connell and Joanna Trezise, senior solicitor, Russell McVeagh

Challenges & solutions This webinar will offer strategies and practical insights into how lawyers can effectively deal with situations involving self-represented parties. It will particularly focus in on the challenges encountered by civil and commercial litigators and those practising in criminal, family and employment law.

Thursday 24 March 4pm – 6.15pm Presenters Brigette Shone, special counsel, Russell McVeagh and Charlotte Fleetwood-Smith, consumer law specialist, Russell McVeagh

This seminar will explain the key Fair Trading Act changes, work through practical examples and offer tips on how businesses can start preparing for them. It will discuss the Bunnings decision and what it means for your clients.

Finally, our presenters will discuss the Advertising Standards Authority, including some recent decisions and what role it could play for businesses and their advertising.

FIND OUT MORE

FIND OUT MORE

Personal effectiveness workshop 2022

Online workshop 4 CPD hrs Tuesday 29 March 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams

Reflecting on your goals for this year? Are you performing at your peak?

Is there room for improvement in your work methods? Coming to grips with how to be effective working virtually?

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. Limited spaces available. Register now to avoid missing out.

FIND OUT MORE

Livestream 2 CPD hrs Wednesday 30 March 4pm – 6.15pm Presenters Vicki Ammundsen; Andrew Steele and Dr Mark Fisher Chair Professor Kate Diesfeld

Client capacity

Practical considerations and best practice. Client capacity can be a grey and challenging area for lawyers and with our ageing population it will continue to be so. Understanding capacity issues in different legal contexts and the relevant legal tests and thresholds for capacity is essential.

Recognising red flags and having strategies to sensitively advise your client, knowing when and how to obtain the relevant capacity assessment from a medical practitioner and your obligations regarding client instructions when capacity is in question but not medically assessed, are all key.

FIND OUT MORE

The ADLS/REINZ Agreement for Sale and Purchase of Real Estate: 11th Edition 2022 − Information and Insights On Demand Available Now | 1.5 CPD hours Learn more 14

Feb 25 2022 Issue 4

Continued from page 03

unworkable as it will leave vendors exposed, left in limbo and unsure whether a transaction will proceed.

There should be more certainty. Rather than notice of intention to cancel for pre-contract issues being at the settlement date, this should be done by notice upfront. That period could be extended by agreement between the parties but if inadequate pre-contract disclosure hasn’t been made by then, the purchaser should be making an election to cancel then, not delaying settlement later.

The materiality aspect for cancellation for disclosure being late, incomplete or not made at all relies on substantiality concepts taken from the previous Contractual Remedies Act. Case law developments will be watched with interest.

An opportunity has been missed to ensure the chairperson of the body corporate automatically sits on and chairs the committee.

New off-the-plan disclosure requires a draft budget, estimated ownership and utility interests, draft rules and details of proposed contracts – for example, utility contracts and manager appointment.

Electronic voting Enabling online meetings which have been operating

Continued from page 07 ‘practical’ and consistent with the purposes of s 182.

Comment It is interesting that Preston v Preston did not displace anything in Clayton v Clayton, yet the High Court and Court of Appeal erred in applying Clayton’s principles, illustrating how difficult it is to apply theory into practice.

It transpires that the tricky part of applying s 182 is not identifying the existence of a nuptial settlement, nor in ascertaining the variance between ‘before’ and ‘after’ dissolution, but in understanding and valuing the possible factors the court will balance when exercising its discretion about what relief to order.

The Supreme Court’s rejection of a formulaic or presumptive approach to s 182 is fine in terms of enabling the courts to do justice as they see fit, but what it gives in freedom it takes away in predictability of outcome.

Practitioners need clarity in respect of the rules and principles which guide a court’s discretion both as to the factors that will be considered and how they will

temporarily through covid-19 will be available on a permanent basis. Owners may now vote electronically in advance of a meeting but there is no limit on proxy farming. While electronic voting may remove the need for proxies, it can turn a meeting into a rubberstamping exercise with the committee controlling the reports being sent to owners. People with a contrary view will be unable to communicate with owners before a meeting.

Speaking at the meeting will be of little use if all the voting has taken place ahead of time. The regulations currently give no guidance as to how to maintain the sanctity of electronic voting ahead of time to prevent voter fraud, for example. The process is left to each body corporate to determine. Postal voting at least had more rigour around signature requirements, etc.

Committee members must be up-to-date with levies to be elected and vote. Committee meeting minutes are to be provided within a month and there is provision for redacting material if it would be a breach of the Privacy Act 2020, subject to legal professional privilege or commercial sensitivity. There is a code of conduct for committees, and a requirement to disclose a conflict of interest and not to take part in decisionmaking on those issues.

Body corporate managers will be subject to a code of conduct and their engagement is to contain certain terms, but there is no formal regulatory body which is

be valued, so they can advise clients both in terms of settling disputes after marriage dissolutions and, more generally, for estate planning.

Consider Katharine Preston’s position. She received 15% of the equity in Grant Preston’s trust. But why should she not have received 20%, 25% or 30%? It is difficult to assess whether 15% is ‘just and practical’ because the factors considered to be relevant cannot be quantified financially nor even weighed for relative importance.

Preston helpfully indicates what factors influence an increase or a reduction in the ultimate award. But there is little guidance as to how these factors reliably and consistently dictate what that award should be.

The Supreme Court criticised the Court of Appeal for undervaluing Katharine Preston’s contributions (landscaping, housework and assisting in the ongoing running of a household), yet it did not itself value those contributions.

The difficulty with the broad-brush approach is that any consideration of contributions becomes an exercise of grasping at shadows.

The value of the statutorily imposed 50/50 sharing regime in the Property (Relationships) Act

at odds with recent government proposals to regulate property managers. The chief executive of MBIE will have enforcement and monitoring powers. We will wait and see whether it is resourced to do this adequately.

Pecuniary penalties have also been introduced for bodies corporate and managers.

Bodies corporate can opt out of funding a LTMP by special resolution. Once opted out, to opt back into funding will also require a special resolution which may make it difficult for owners to ensure adequate funding in the future.

The tribunal filing fees have reduced significantly.

There will now be some different rules applying to two sizes of bodies corporate – those with fewer than 10 units and those with 10 or more.

We look forward to the passing of the bill which will be an improvement on the current legislation. But there is some detail missing in the regulations and the delay in dealing with disclosure problems until around the settlement date will leave vendors in an unacceptably precarious position up to settlement rather than being dealt with upfront. We are hopeful this will be addressed before the final reading. ■ Joanna Pidgeon is a director of Pidgeon Judd and chair of the UTWG. She is also a presenter of the Property Law Half Day Conference on 10 March ■

1976 is that spouses and partners and their legal advisors know where they stand. This means more relationship property disputes are resolved out of court notwithstanding the intensity of the feelings that the separation inevitably causes.

The lack of a formulaic or presumptive approach to s 182 disputes results in uncertainty of outcome. This is likely to mean more of these disputes finding their way into the courtroom.

Setting the goal of s 182 as achieving a ‘just and practical’ result, one is reminded of the 17th-century jurist John Selden who famously said: Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ‘tis the same thing in a Chancellor’s conscience. ■ Andrew Steele is an Auckland barrister at Princes Chambers ■ 15

WILL INQUIRIES

NOW PUBLISHED

Police Law and Practice in New Zealand Author David Robinson Police: Law and Practice pulls together all topics relating to the New Zealand police, including a comprehensive statement of the law governing the police, detailed analysis of police powers of search, arrest and questioning, their investigative powers and function, the conduct and prosecution of offences, and remedies available for acting in excess of their powers.

Police: Law and Practice is the definitive text for lawyers acting for and against the police, the police themselves, and criminal procedure and justice students.

Price for ADLS members $171.00 plus GST* Price $190.00 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740 or email: thestore@adls.org.nz * + Postage and Packaging

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

We have a 117sq.m. open-plan office available to lease as a barrister’s chambers. The office has a sunny aspect, a separate meeting room and kitchen, and comes with a carpark – additional parking is available at the Wilson carpark which is directly across the road.

We are looking to lease this space long-term to the right tenant.

It will appeal to lawyers practising at the Auckland District Court in particular, as it is only a short walk away.

Inquiries to: phil.hamlin@hamlinlaw.co.nz or phone 09 377 1499

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(09) 303 5270

HILLYER Jacqueline Mary

• Late of 72B Puriri Park Road, Maunu, Whangarei • Married • Disability support worker • Aged 64 / Died 25’11’21

• Late of Bupa Glenburn Hospital and Care Home, 33 Astley Avenue, New Lynn, Auckland • Aged 60 / Died 31’01’22

CHEN Wenpei

IAKO Benjamin Puapii

• Late of 16 Ardkeen Place, East Tamaki, Auckland • Fruiterer • Aged 79 / Died on or about 20’12’21

• Late of 323A Bairds Road, Otara, Auckland • Joinery storeman • Aged 34 / Died 20’11’21

CRUDEN David Roy

FANGUPO Mosiana Kaloni Kakala

Hobson Towers West, 26-28 Hobson Street

Fax: (09) 309 3726

BROWN Peter Glenn

• Late of 7 Wairau Avenue, Avondale, Auckland • Security guard • Aged 72 / Died 02’11’19

Barrister’s Chambers available for rent

ADLS, PO Box 58, Shortland Street,

• Late of 33 Taratoa Street, Point England, Auckland • Born in Tonga • Cleaner • Aged 63 / Died 14’09’20

RANUI Georgina Helen • Late of Bayview, Auckland • Separated • Mother • Aged 57 / Died 24’12’21 THOMAS Marcia • Late of 93 Maungarei Road, Remuera, Auckland • Office manager • Aged 62 / Died 30’11’18 WILKINS Michael John Stephen • Late of 162 Stokes Road, Taupiri • Permanently separated from marriage or civil union • Retired • Aged 88 / Died 19’01’22

Feb 25 2022 Issue 4

Community Law South Auckland Legal aid lawyer fixed term

FOR SALE Law practice + Freehold property

(lead provider status)

Rarely does an opportunity such as this come along. A wellestablished, successful law practice plus a freehold title is offered for sale in South Auckland.

Community Law South Auckland is a Community Law Centre with offices in Otara and Papakura. We wish to add to our legal service offerings and therefore are seeking a Legal Aid Lead Provider in Family and Civil to work out of our Papakura office. This position is a one-year fixed-term role.

Working primarily in conveyancing, estates and relationship property, but with scope to expand, this well-established suburban practice provides a unique opportunity for either a sole practitioner, or perhaps 2 lawyers to establish their futures.

It is expected that you will deal with a minimum of 3 Legal Aid clients per day with this number increasing as time progresses.

Currently operating as a sole practice, with support, this centrally located business offers a home and income proposition and an excellent property investment.

It is also an expectation that you will mentor more junior members of staff.

We have culturally diverse staff who all have passion and empathy towards those we serve. You will be working alongside a fun, supportive and dedicated team.

The accompanying freehold property contains two separate dwellings, one a dedicated office the other residential.

The current principal is willing to remain with the new owner(s) for an agreed period to ensure a seamless transition.

Please send a cover letter and C.V. to robyn.martin@clsstlaw.com

All enquiries in strictest confidence to: advertiser@adls.org.nz Quoting reference: SA1221

If you have any queries please do not hesitate to phone me on 022 065 0164.

Applications close on 7 March @ 5.00pm.

Top Up your CPD with ADLS before 31 March 2022 And receive bonus CPD hours Choose from pre-selected 4-hour CPD On Demand Packages aligned to your area of practice and receive 2 Bonus CPD hours of On Demand to complete at no extra cost (total 6 CPD hours).

Prices (GST exclusive): Members $295 | Non-members $370 T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Business For Sale Highly Profitable Boutique Law Firm

SOLICITOR

$495,000

Auckland Surrounds Take your law career to the next level with an established practice in a booming town with a client base of over 2,500. With highly trained and loyal staff keep operations humming smoothly all year round.

We are a boutique firm providing services to private clients, SMEs, and community organisations. Recent internal changes have created the need for a capable solicitor to manage the firm’s existing private client work. The role will require a background in General Practice (including some experience in subdivisions).

• The entire operation can run remotely!

• Profits in excess of $545k!

• Efficient systems and procedures in place.

• Work-life balance.

We are a small and collegial team, with an eye on high professional standards. The applicant should be: an experienced solicitor; adaptable; and willing to work in a small team environment. The role may also suit a practitioner, with their own clients, who is looking for a home.

linkbusiness.co.nz/EL03400

Are you considering selling your Law Firm in 2022?

If you are looking for a fresh start and are curious about the value of your business call me today for a confidential discussion.

Please email applications to: The Practice Manager Vinci Law Greenlane | Auckland manager@vincilawyers.com

JD Hyslop 021 377 569 jd.hyslop@linkbusiness.co.nz 0800 546 528 LINKBUSINESS.CO.NZ

Cradle to Grave™ Conference 2022 Christchurch Conference | Monday 2 May Auckland Conference | Thursday 5 May For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is back again in 2022.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

All LINK Offices Are Licenced REA08

“You only get one chance to sell your business, so it makes sense to do it right.”