THIS WEEK’S ARTICLES
Issue 5 5 Mar 2021
Lawyers line up against sexual violence bill p1
Fishhooks in our new tenancy laws p3
ADLS profile: marathon man Bill Hodge pages 4-5
LawNews adls.org.nz
CRIMINAL LAW
Pressure builds on govt to can sexual violence bill By Jenni McManus
The legislation, promoted by Justice Minister Kris Faafoi and Justice Under-Secretary and Green MP Jan Logie, passed its second reading in the House last week despite opposition from ADLS, the NZ Law Society, the Criminal Bar Association and the NZ Bar Association. If passed in its current form, it will require amendments to the Evidence Act 2006, the Victims’ Rights Act 2002 and the Criminal Proceedings Act 2011. The bill is the brainchild of Logie, who says its intention is to reduce the courtroom trauma of sexual violence complainants and to remove barriers that might discourage other victims from coming forward. Until last year’s election, its progress through the House was blocked by NZ First. The government, now with an outright majority, has thrown its weight behind Logie’s bill and is said to be “determined” it will pass into law. Faafoi describes it as “part of the government’s commitment to reduce and ultimately eliminate family and sexual violence”. Nobody is disputing that this is a desirable objective. But, says ADLS President Marie Dyhrberg QC, it should not be achieved at the expense of fair trial rights. The bill as it stands, she says, “is a fundamental attack on long-held fair trial protections”. Barrister Elizabeth Hall, co-chair of the Defence
Photo by ncognet0/Getty Images
Pressure is mounting on the government not to pass the controversial Sexual Violence Legislation Bill as a raft of objectors, including defence counsel, prosecutors, judges and Opposition MPs, voice concern that dozens of innocent people could be jailed for crimes they did not commit.
But did he get a fair trial?
Lawyers’ Association, concurs. “The legislation is driven by those who appear to have a misunderstanding of the trial process and misrepresent the way trials happen and are controlled by experienced judges,” she says. And, from Jonathan Eaton QC: “We believe that the bill could lead to significant injustice, particularly for the more vulnerable members of our society, such as youth, members of minority populations and those with diminished capacity.” Former Opposition leader Simon Bridges last week told Parliament that lawyers “almost without exception” had lined up against the bill because of two specific areas they knew were wrong: the move to make pre-recorded cross-examination of the complainant an entitlement rather than an exception to the normal trial process and a move to severely curtail relevant evidence from being heard, such as a complainant’s previous sexual history with the defendant. The bill limits judges’ discretion in this area, in favour of mandatory direction. Pre-recorded cross-examination is already available in limited circumstances, but the general
rule is that the accused is not required to show his/her hand before the trial begins. The Court of Appeal endorsed this position in the leading case M v R in 2011 where it spelt out the reasons for this limitation, saying it would require a “compelling” case to overturn the rule against pre-recording. Bridges, a former senior Crown prosecutor who specialised in sexual abuse cases, says most of the bill is “fantastic” and that National could probably support it once the offending clauses were gone. In particular, the added flexibility around victim impact statements was “great”. But the two clauses opposed by the legal profession were “unjust and unworkable”. On the question of pre-recorded cross-examination, Bridges said expecting the defence to have its ducks in a row, sometimes a year in advance of the trial, “is basically impossible”. “I can tell you, as a prosecutor, the Crown has all the resources,” he said. “There is a complete inequality.” And because new evidence would likely emerge between the pre-recording and the trial, Continued on page 2
CRIMINAL LAW
Pressure builds on govt to can sexual violence bill Continued from page 1
Bridges also commented on the irony of the government, on the one hand, setting up the Criminal Cases Review Commission to investigate claims of miscarriage of justice and wrongful conviction but, on the other hand, was seeking to pass a bill that would likely see an increase in wrongful convictions. “The reality is that nearly all the lawyers – prosecutors and defence lawyers – they agree with what I’m saying. The judges, they think these clauses are wrong,” he said. In a last-ditch effort to have the bill amended, Dyhrberg last month wrote to Faafoi, once again outlining her concerns about “the remarkable idea of prima facie outlawing relevant evidence benefitting the defendant, thereby increasing the likelihood of innocent men being convicted and imprisoned”. Along with the move to pre-record cross-examination, this had been designed by Logie to please “an ideological fringe” that most voters in the political centre would not support, Dyhrberg said. A better plan, she said, would be to remove these clauses and present an amended bill to Parliament
Photo by Kerry Marshall / Stringer /Getty Images
the complainant would need to be called again for a second cross-examination, this time in court.
Simon Bridges
Marie Dyhrberg QC
that preserved the more positive aspects of the draft legislation.
interview. The alleged breaches are of the code’s standard 8 (balance), standard 9 (accuracy) and standard 112 (fairness).
Dyhrberg has also filed a formal complaint with TVNZ, claiming multiple breaches of the Broadcasting Standards Code during an interview with Logie on 21 February. The interview was broadcast on Q & A; the interviewer was Jack Tame. Dyhrberg is requesting a right of reply in order to rebut what she describes as “egregiously inaccurate statements” and misrepresentations made by Logie during the
In her complaint, Dyhrberg says there is every indication the government intends to pass this legislation as soon as possible so the only effective remedy is a right of reply. The next step in the legislative process is for the bill to be presented to the Committee of the Whole House, where it will be debated clause-by-clause.
OBITUARY
Barrister Jonathan Temm QC dies Barrister Jonathan Temm QC died at his Rotorua home on Wednesday afternoon, surrounded by his family. He was 58. Friends and colleagues yesterday paid tribute to the man they described as “a great friend to many of us, a great man and a voice for the weak and the weary. “He stood strong in his belief that the justice system was for all and that everyone was entitled to a fair trial,” they said. “He lent his voice to those who were too afraid or lost to speak for themselves. He was an advocate for human rights
and the NZ Bill of Rights and having those rights followed and observed. “He fought for what he believed in and fought for what was right when people might have fallen through the gaps without his help. “He made a difference. He also had a fine sense of humour, a laugh that roared and swelled like the ocean crashing in, until he couldn’t breath and then it was like the sea wheezing back out at low tide, with tears running down his face. “His joy at seeing friends and foes alike was widespread and we could tell you many stories of the delight he took in sharing jokes and stories with people. He valued his friendships, as we valued
LawNews
Editor: Jenni McManus
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz
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his with us. We will miss those stories, the laughter to the point of tears, the strategising for trials, the discussions on …well, everything! The son of the late High Court Judge Paul Temm, Jonathan graduated from the University of Auckland with honours in 1992 and was admitted the following year. He began his career at Chapman Tripp before moving to Rotorua and, in 2005, joined Phoenix Chambers as a barrister, specialising in serious criminal and civil litigation. He served on the NZLS board from 2004 to 2008 and as President from 2010 to 2013. In December 2019 he was appointed a Queen’s Counsel.
All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year. To subscribe, please email reception@adls.org.nz.
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LawNews Issue 5 | 5 Mar 2021
PROPERTY LAW
Residential tenancy law: fishhooks in the new regime
Photo by Kerkez/Getty Images
By Diana Clement
the property in question, including threatening behaviour, threats to kill, indecent exposure, throwing items into the grounds and onto the rooves of neighbouring properties, wandering onto their sections, abusing contractors and domestic disputes.
As tenants and landlords grapple with the biggest changes to our residential tenancy law in 35 years, loose definitions around some of the key provisions in the new legislation are creating uncertainty for both sides.
The landlord told the tribunal that neighbours felt intimidated and, in some cases, terrified. One neighbour had stopped work because of concerns for a family member. Some neighbours were reluctant to walk the street and some would not allow their children to walk to school. Some neighbours had even sold their homes and moved away.
And, with the Tenancy Tribunal now able to make awards of up to $100,000, an increase in litigation is expected as landlords, tenants and bodies corporate seek certainty about the limits of the law. One of the most difficult legal issues is likely to be the replacement of ‘no cause’ termination notices under the Residential Tenancies Act 1986 with new requirements for three recorded instances of antisocial behaviour within a 90-day period. The legislation, however, fails to define ‘antisocial behaviour’. Likewise, new rights allowing tenants to make ‘minor changes’ to properties have not been spelled out in anything near black and white. Antisocial behaviour Section 55A of the Act defines antisocial behaviour as “harassment or any other act or omission (whether intentional or not), if the act or omission reasonably causes alarm, distress, or nuisance that is more than minor”. A factsheet published by the Ministry of Housing and Urban Development (MHUD) in February 2021 notes “a list of all behaviour that would warrant a notice warning cannot be definitively provided, but this guidance will be updated after some Tenancy Tribunal orders are made”. This creates gaps and the meaning isn’t clear, says Smith & Partners litigation lawyer Alana Kalinowski. “There’s a definition but what exactly does that mean? Whether [an action] amounts to harassment or some form of nuisance that’s more than minor will depend on the situation.” Pidgeon Law partner and former ADLS President Joanna Pidgeon questions where the line will be drawn between major and minor breaches. ”What if someone is seen to be overly sensitive?” Pidgeon asks. “Is it a subjective or an objective test?” The Tenancy Services factsheet outlines some real examples of antisocial behaviour complaints to the Tenancy Tribunal under Covid-19 legislation, and possible examples, covering issues such as repeated banging noises, loud television noise, tenants’ dogs defecating on neighbours’ lawns, accumulated smelly rubbish that attracts mice and tenants blocking shared driveways. Collecting evidence Pidgeon is also acting chair of the Auckland City Mission and understands the desirabilty of people
The beginning of a risky relationship
Tenants have been known to add or remove walls and rip up carpet to polish floorboards
On October 2 last year one of the tenant’s sons assaulted a neighbour. His son jumped the fence into another neighbour’s property, accusing the occupant of being a ‘snitch’. The victim, who intervened, was assaulted by the son, receiving broken ribs and a punctured lung. The tribunal ordered immediate termination of the tenancy. Minor changes Section 42B is the other section of the Act where the language is imprecise.
having stable housing. She says the issue for landlords will be collecting evidence of the original antisocial behaviour. All three events need to pass the bar of ‘antisocial’ for the tribunal to agree to the eviction.
This makes it unreasonable for a landlord to withold consent to a ‘minor change’ to premises. The legislation says a ‘minor change’ is “any fixture, renovation, alteration, or addition of or to the premises”. The change must have low risk of material damage to the premises or pose a risk to health and safety or compromise the structure or character of a building. It must not need consent or breach obligations or restrictions such as those imposed by body corporate rules or covenants.
Landlords must be careful to ensure they file notices that comply with the letter of the law. Otherwise the 90-day clock will be reset.
The landlord must not unreasonably withhold consent but can impose conditions, such as having the work done by professionals.
Pidgeon says one of the big issues with the new legislation will be persuading neighbours to come forward with evidence of antisocial behaviour.
If a minor change is made in accordance with a request under s 42A, the tenant must, on or before the expiry of the tenancy, return the premises to a condition that is substantially the same as the condition the premises were in before the minor change was made.
“I have, in the past, had a situation where a client bought their first property,” says Pidgeon. “The tenant gave false references. It turned out it was actually a gang family with the husband in jail and a new gang partner in the property. The neighbours were very upset and concerned about the things happening there, but were too scared for fear of retribution to give evidence in a way that my client could actually use to deal with all the breaches in relation to the tenancy agreement. “If the landlord lives next door it’s a totally different thing. They can observe and take those steps themselves.” Recently published order [2020] NZTT Tauranga 4275277 shows exactly why neighbours might not come forward to report incidents of antisocial behaviour. The neighbours in that case reported a range of concerning behaviours from the tenants at
That’s where the wording of the Act ends and the differences of opinion begin. Is painting the walls black a minor change? Landlords commenting on a property investment group about the new law cited other examples. In one case the tenants had changed the height of a cupboard above the fridge, misaligning it with the others. Tenants have been known to add or remove walls and rip up carpet to polish floorboards. Not all landlords would approve. The other issue needing to be ironed out in the tribunal or the courts is the requirement for tenants to return the premises to a condition that is substantially the same as before the minor change was made. Is doing an amateur paint job over what was a Continued on page 6 3
PROFILE
Marathon man: Professor Bill Hodge By Jenni McManus
New Zealand first came onto the radar of Bill Hodge, just-retired Professor of Law at the University of Auckland, when he rubbed shoulders with a couple of young New Zealanders who, like him, were studying at Stanford University in California. They were typical Kiwis, Hodge says – “very modest, very quiet and under-stated and I think he said his father was a builder.” ‘He’ turns out to be Hugh Fletcher who was doing an MBA; his wife, who was studying for an LLM, was Sian Elias. “I always wondered whether they’d done okay when they returned to New Zealand,” says Hodge, who, with a Stanford doctorate under his belt, moved on to practise what in the US is called ‘labor law’ in San Francisco. Hodge found out exactly how well they were doing a couple of years later when the pair, as fate transpired, became his entrée into New Zealand. “I think they recommended me to [law school dean] Jack Northey,” Hodge says, and in 1972 the newlyminted lecturer arrived in Auckland for – or so he thought at the time – a two-year stint of teaching law at the University of Auckland. But once again, fate intervened. Hodge met Sue, a young law student who would later become his wife, and discovered a passion for long-distance running and the great Kiwi outdoors. He loved his new job. So that initial two-year stint somehow stretched to almost 50 and Hodge is preparing to semi-retire. When he arrived, all Hodge knew about New Zealand was that it produced mountain climbers and great runners. Sian Elias’ sister met him at the airport and drove him to the family home in Titirangi, nestled in the bush with spectacular views over the Manukau and Waitemata harbours. Taking in the view and with a beer in his hand, Hodge says, “I thought I’d died and gone to paradise.” University career Initially, he taught constitutional (now called ‘public’) law. For an American, it was “a bit of a scramble”, he says, to get up to speed with a parliamentary Westminster system. But it wasn’t totally foreign as British law underpins much of the US system and Hodge had read English tort and contract cases at law school. “There are all sorts of questions I would look to the English for background on, things like ‘can the president pardon himself? Can you prosecute the president while in office?’ and I think the answers can be found in the English Bill of Rights of 1688 and English practice about whether the king can do no wrong, or that you can sue the king in his own courts. Those sorts of things can answer some 4
Professor Bill Hodge
of the difficult things that ironically were arising in the US in 2020.” About 10 years into his tenure at the University of Auckland, Hodge began teaching employment law – a subject that would explode in popularity in the 1990s when the Employment Contracts Act made it easier for non-unionised employees – who would require legal representation – to file persona grievances. Northey needed a replacement for Margaret Wilson, who had been teaching industrial law but moved into politics, becoming a Cabinet minister when Helen Clark’s government was elected in 1999. Because Hodge had practised in that area, he was asked to take over when Wilson left. Under his watch, employment law rocketed in popularity. Thousands of students have passed through Hodge’s classes – people who are now senior practitioners and even judges. In fact, so many have been taught employment law by Bill Hodge that this sometimes created an issue in itself when Hodge took leave from the university in 1999 for a stint on the Employment Tribunal as an adjudicator. “Somebody complained, saying he’d discovered I had taught the person representing the other side,” he says. “I had to say to him, ‘well, if you’ve got a lawyer, I will have taught them too’. When I was sitting in the tribunal, I couldn’t avoid hearing from people who’d been my students because they’d be on both sides. It was exciting and happy and intellectually stimulating. It was fun to have counsel on both sides who’d been in my classes.” Hodge enjoyed his time on the tribunal where he
helped shift a huge backlog of cases, largely from people who had been excluded from bringing claims of unjustified dismissal. And he worked hard to get it right. “What the parties want is [to know that] ‘at least he heard my case and understood what I was arguing and understood the facts, even if I didn’t win’. I felt that was my obligation – to show both parties I had listened and even though I didn’t agree, I understood their facts and their legal arguments.” Another major interest is writing. Hodge has written books on criminal procedure, and torts and is one of the four authors of Brookers’ four-volume Employment Law, as well as the two-volume Employment Contracts. He remains active as a mediator/arbitrator/investigator in employment matters. Marathon man Physical fitness had been part of his life in the US – Hodge served four fulltime years in the US army in between Harvard and Stanford – and it wasn’t long before he discovered the joys of long-distance running. Encouraged by his friend and colleague Ken Palmer, he joined the Owairaka club (where Olympian gold medalist Sir Peter Snell and celebrated coach Arch Jelley had links) and did his first Round the Bays run in Auckland. In 1976 Hodge did his first marathon. Including the Auckland marathon late last year, he has now completed 197. “I’ve still got a couple more to do,” he says. “I’ve run Continued on page 5
LawNews Issue 5 | 5 Mar 2021
Continued from page 4 New York, Boston, Seattle and in hills of Colorado, the trails of South Dakota and San Francisco and a few in Australia.” But most of his running has been in New Zealand. “There are so many good ones here – the Buller Gorge, Otago from the albatross colony, back into town. There are some beautiful courses.” Another highlight was taking part in a relay run across the United States in 2002. Twelve runners lined up for the 3,400-mile route, with each person doing two stints of five to six miles a day. “We covered between 110 and 130 miles a day,” Hodge says. The start line was on the Oregon beach at Tillamook on 24 May and they finished on 23 June, running into Fenwick Park, the home of baseball in Boston, Massachusetts. The brainchild of a law professor at Lewis and Clark Law School in Portland, Oregon – where Hodge has been a visitor several times – the run raised US$1 million for research into myotonic dystrophy, a disease that afflicted one of his friends. How fit is he now? Fit enough to win his age group (75-79) in the Auckland marathon last year but, as he wryly points out, “there was no second or third”. The body is showing signs of age, he says, “but one of the things that keeps me going is the marathon club at the YMCA. It’s an outstanding organisation and they let you run in a group at your own pace. I’m running with a slower group than I used to”. Hodge likes running with others, saying that doing it by yourself is mentally incredibly difficult. “You have to get yourself up by yourself. But if you’ve got other people depending on you and you know will be there, you tend to say ‘well, it’s raining, or I don’t feel good or I had a big night but I’ll still go. If you didn’t have that, you’d probably say ‘stuff it, I’ll stay in bed’.” Voter suppression In his first three years in New Zealand, Hodge notes the country had five Prime Ministers – Keith Holyoake, Jack Marshall, Norm Kirk, Bill Rowling and Rob Muldoon. His fascination for politics and constitutional matters also means he keeps a close eye on what’s happening in his native US and is not backward in coming forward with his views on former President Donald Trump. Hodge remains a US citizen (with New Zealand permanent residence) but no longer votes in the United States, as voting there is anchored in state residency and he says he no longer feels honest about claiming that. But before the November presidential election, he said he would love “to cast as many votes as I could” in his home state of Ohio where it might have made a difference. So strongly does he feel about Trump that Hodge says once he gets going, “you might find it hard to shut me up”. He describes himself as a patriotic American, saying it’s painful to watch the country going down the tubes because of the former
In 1976 Hodge did his first marathon. Including the Auckland marathon late last year, he has now completed 197 president’s “unique behaviour”. “I didn’t like Trump, the person, before he became a candidate, I didn’t like Trump the candidate because he had one tactic and that was the ad hominem attack on his competitors, and he’s had one style as president and that’s attack,” he says. “He’s dragged the office of the presidency from the gutter into the sewer and he’s now tainting the Supreme Court and the federal bench generally. When I came to NZ, people invited me to tell them about America’s wonderful Bill of Rights and the wonderful Supreme Court. Now people say, ‘give us the talk about what’s gone wrong’. They used to say, ‘shouldn’t we have a constitution like the US?’ Nobody would ask me that now. The US has gone from being a guiding light and a beacon and a hope to being an object lesson on what not to do.” The US has survived Trump, Hodge says, “but only just.” Whether his antics have damaged the rule of law and the sinews of democracy, only time will tell. Deprived of his ‘bully pulpit’ of social media and the power of office, and with good governance from the Biden/Harris administration, he believes Trump and his ability to stoke hatred will fade into the rear-view mirror. Biden is not necessarily the most exciting candidate or the way of the future, he says, but it’s time for healing. The bigger and most serious issue going forward is the move by the Republican Party to ramp up its bid to restrict access to the vote in the 2024 election. Already, in states where Republicans control the legislature, moves are afoot to ban postal and advance voting and to demand complex citizenship tests before votes can be cast. Hodge points out that a big percentage of Americans, especially the poor and minority groups, don’t have passports, or even driving licences. These are not idle fears. In a speech last Sunday to a conservative conference in Orlando, Florida – his first since leaving office – Trump lashed out at the Supreme Court, saying “they should be ashamed of themselves and what they’ve done to our country”. The former president urged Republicans to outlaw mail and advance voting (as these are perceived to favour the Democrats) and demanded the banning of independent judges from adjudicating election disputes. Hodge says there are already examples of significant voter suppression, such as the lack of
dropboxes for early votes in some states in last year’s election. Texas was a particularly egregious example where each of the state’s 250 counties was allowed only one box. That’s fine, he says, if your county has only 200 people but a significant barrier to voting if it’s Harris County, covering Houston and its five million people. Moving on Hodge says he loves teaching but, after 50 years, it’s time to move on. He wants to do even more exercise in his retirement, and more writing. And he’s not keen on the university’s moves to record lectures as a matter of course and make them available for students to download. While the university has resumed face-to-face classes (Covid-19 levels permitting), Hodge says an expectation has developed among students that lectures will also be recorded. As a result, attendance at in-person classes is down from 70 to about 10. “I guess what I don’t like is the electronic side of it and I wouldn’t have been happy to be Zooming all my classes,” he says. “I like people in the same room. So, I think I wouldn’t have been happy moving into a new age where everything is recorded. Everybody can download an electronic version of what you’re doing and what you’re saying and that’s not fun. I like the interaction. The energy is totally different. I looked forward to classes, but I don’t look forward to doing a Zoom. They’re very wearing. You’re trying to detect what’s actually going on with those other people and it’s hard work, whereas in a room it’s natural and you can feel what’s going on. “Depending on the size of the class, to me it was always bringing people into it and not letting them slump back in a chair and avoid being seen. If you can bring them into it, it’s more fun for everyone, especially the teachers.” Similarly, Hodge says lawyers and clients will always want facetime “and they’ll always want facetime with the people making the decisions. I wouldn’t be happy with a remote decision-maker who’s just pixels on a screen. I think law has to have a human element in it and that must be part of it. “I think there’s a student expectation now that we have to be in the electronic age and make all the luxuries available remotely. That’s not a career pathway I’d have been happy going into because my purpose in enjoying teaching was the interaction and being in the same room. “That’s why I’m happy to be leaving the teaching side at this time if it’s going to be dominated by electronic exchange because I don’t get any excitement or joy or pleasure out of that.” Hodge is looking forward to more time in the swimming pool, cycling and running events “and a bit less time looking at people’s problems”. 5
ADLS COMMITTEES
Can I wear my Doc Martens and a cardy to court? QUESTION: Dear Newly Suited Committee, I am scheduled to have my first court appearance next week and am unsure what to wear. I have previously attended court to observe my supervising partner; however, her wardrobe is always fabulous and expensive. During a call over, what other counsel wore ranged from Doc Marten boots, to cardigans, to plain business attire.
your first, can be stressful. So, it is important to be comfortable but not “activewear comfortable”. Perhaps leave your highest stilettos at home unless you’re used to wearing them on a daily basis.
We suggest you err on the side of conservativism when it comes to prints and colours. Dark or neutral shades are best until you get a feel for what is suitable.
What you choose to wear should demonstrate that you are taking the court process seriously and respectfully.
Every now and then, judges will issue practice notes reminding practitioners about things like appropriate attire. Pay attention to these.
When gowns are not required, counsel are expected to wear formal business attire, being:
Should your clients ask for input on what they should wear, encourage them to wear what they consider respectful and formal.
blazers or suit jackets (a must!); Please help! #counselwearsprada
suit pants or appropriate-length skirts;
ANSWER:
shirts and ties/blouses; and
Dear #counselwearsprada
formal shoes.
We know that any court attendance, particularly
Given the pandemic, face masks are appropriate. However, we suggest you remove your mask when you’re addressing the court so you can be heard clearly. All the best for your first appearance. The Newly Suited Committee
Hair should be tidied and out of your face.
Continued from page 3 professional job in the first place returning it ‘substantially’ to the same condition? Or if the tenant removed the carpet and polished the floorboards, is recarpeting with a cheaper quality carpet returning the property ‘substantially’ to the same condition? “Again, this is quite broad,” says Kalinowski. “How is that going to be enforced?” Pidgeon anticipates situations where the property becomes more difficult to tenant, thanks to the quality of the ‘minor change’ made by the tenant. Barrister and member of the ADLS Property Law Committee Des Wood adds ,”You start looking at things like the bond. Is the bond adequate to cover the cost of damage or repainting?” Precedents Tenancy Tribunal decisions don’t set precedent. However, orders from the tribunal will be watched carefully by lawyers and landlords. Multiple decisions could help give direction, says Wood,
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providing guidance on how the law is being applied. If the tribunal’s decisions start to follow a pattern, that gives tenants, landlords and lawyers a good indication of the direction, says Kalinowski. “It’s going to be decisions that are coming out of the tribunal to fill in those gaps. It’s not necessarily always binding and it’s obviously going to be very factually-dependent on the circumstances of each case.” The Tenancy Tribunal has had a signifant increase in its jurisdiction and has powers to award up to $100,000, points out Wood, meaning it will be dealing with more than minor cases. He predicts some quite severe penalties set out in the schedule will lead to considerable litigation before the Act beds in. Small landlords will not have the deep pockets of insurers, which saw Holler v Osaki go to the Court of Appeal. Some, however, will take their cases further.
Kalinowski predicts some landlords will be willing to pay the $200 filing fee and represent themselves in an appeal to the District Court. Unit Titles Act Another issues with the new Act, says Pidgeon, is how it will interact with the Unit Titles Act. What happens if a tenant breaks body corporate rules but his or her behaviour can’t be described as antisocial, or there is no damage to property? An example might be where body corporate rules ban tenants from drying their washing on balconies but a tenant persists. Would the tribunal consider it to be more than a minor nuisance under the Act if tenants ignore this body corporate rule? Pidgeon adds: “The thing that has never really been addressed properly is how residential tenancies connect and correspond where body corporate rules are part of the tenancy agreement. I don’t know that [the Act] really contemplates the closeness and proximity of modern living and of apartment buildings.”
MEDIATION Nigel Dunlop Barrister
Tony Horrocks is available for locum and part-time consultancy work (flexible as to location). Many years’ experience, both as a sole practitioner and as a partner in a small law firm, in general practice, with particular expertise in trusts, estate administration, and business law. Contact me by email: anthonycharleshorrocks@gmail.com or on mobile: 021 754312.
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LawNews Issue 5 | 5 Mar 2021
Sam Gunn, Melissa Castelino and Dayna Vautier
Kiri Petrie, Georgie Sanders and George Lello
ADLS EVENTS
ADLS newly-suited summer quiz On Wednesday 24 February, a group of cheerful and competitive newly-suited lawyers gathered at Freeman & Grey in Auckland for a quiz evening. The quiz, created by members of the ADLS Newly Suited committee, provided some stiff competition with only two points between the top three teams. A huge thank you to MAS for its sponsorship, the $100 Countdown spot prize voucher and swag bags for the winning team. Hannah Hellyer and Jasmine Jackson
Simon Barber, Isabelle Boyd and Yunsi Luoyu
Tom Richards and Katherine Eichelbaum
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To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278
Featured CPD Trusts Act Changes & New Disclosure Rules – Is it Worth Keeping your Trust Going? — FINAL NOTICE For months now lawyers (and accountants) have been trying to get to grips with the new Trusts Act. Many trusts have already been wound up. Now trustees will be faced with onerous new tax disclosure obligations at the end of the tax year commencing 1 April for the period from 1 April 2021. Is it all getting too hard? Should clients be advised to wind their trusts up before 31 March? What other options are available?
Learning outcomes: • • •
Develop a better understating of what benefits there are in creating a new trust or keeping an existing trust for the future. Understand the new reporting/disclosure rules will affect trustees and beneficiaries and the consequences of failing to comply with these obligations. Identify key points for trustees in dealing with existing trusts under the new Trusts Act if a decision is made to retain, vary, resettle, or wind up the trust.
Commercial Law Series: PPSA Refresher on PMSIs — FINAL NOTICE When dealing with security interests over personal property, you might think that the Personal Property Securities Act covers it all. Think again. Other property interests (such as under the Property Law Act) can apply, and there’s also the consumer credit regime to factor into the mix. To add to the complexity, the language across these three regimes is not consistent. Using a rolling fact scenario, this webinar will raise your awareness of how the PPSA and some aspects of the PLA may interact (including what may be a mortgage of goods), and of some issues that commonly arise and challenges that present themselves in this area of law.
Learning outcomes: • • • • • •
Reflect on whether your client has a PMSI (purchase money security interest) in a particular situation. Enhance your knowledge about what having a PMSI means. Develop a better understanding of how to protect a PMSI, its limits, and maximising its effectiveness. Understand the importance of serial number registration. Gain insights into associated issues, such as cross-default and cross-collateralistion clauses, appropriation clauses, and marshalling. Delve into some specific issues relating to registration of financing statements.
Criminal Proceeds: Refresher & Live Issues — FINAL NOTICE In person | Live Stream Eleven years have passed since the Criminal (Proceeds) Recovery Act came into force, widening the state’s ability to recover monetary gains derived from criminal offending. Since then, the Act has been applied in a range of situations, including white-collar crime, trans-national offending and regulatory offending such as health and safety. This seminar will provide a refresher on the Act’s provisions and machinery and look at some of the live issues being faced.
Learning outcomes: • • • •
Refresh your understanding of the Act’s provisions and machinery, including the types of orders available and their requirements. Refresh your understanding of the procedural requirements including recent issues such as statements of claim and discovery. Receive guidance on the quantification of unlawful benefits. Learn more about claims for relief and settlement with the Commissioner of Police.
A Guide to Guarantees — FINAL NOTICE In person | Live Stream With tough economic times seeing more guarantees being enforced, this seminar will, inter alia, refresh your understanding of the definition and requirements for a valid and enforceable guarantee, unpack the wideranging implications of the Supreme Court’s decision in Brougham v Regan, and consider the effect of Covid-19 and impact of the responsible lending codes on guarantees.
Learning outcomes: • • • • • •
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Receive a refresher on the definition and requirements for a valid and enforceable guarantee, including the requirement of signature, particularly electronic signature. Receive a recap of the Court of Appeal’s decision in Regan v Brougham. Receive a full review of the Supreme Court’s decision in Brougham v Regan (which overturned the Court of Appeal) and understand what the decision means for lenders and guarantors. Consider whether guarantors are still ‘the darlings of the Court’. Consider the effect of Covid-19 on guarantees. Learn about the responsible lending codes and what impact they will have on guarantees.
Livestream CPD 2 hrs
Mon, 8 Mar 4pm – 6.15pm
Presenters Bill Patterson, Partner, Patterson Hopkins Denham Martin, Lawyer, Denham Martin Tax Law
Presenter & Chair Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited
Webinar CPD 1.25 hrs
Tue, 9 Mar 4pm – 5.15pm
Presenter Michael Arthur, Partner, Chapman Tripp Steve Dukeson,Principal, Dukesons Business Law
Seminar
Livestream
CPD 2 hrs
Wed, 10 Mar 4pm – 6.15pm
Presenters Katie Hogan, Barrister, City Chambers Mark Harborow, Partner, Meredith Connell
Seminar
Livestream
CPD 2 hrs
Thu, 11 Mar 4pm – 6.15pm
Presenters Michael Lenihan, Barrister Michael Harper, Partner, Chapman Tripp
LawNews Issue 5 | 5 Mar 2021
CPD in Brief Current Contractual Issues: Force Majeure and Frustration In person | Live Stream The first in a series, this seminar will explore the topics of force majeure and frustration – looking at the core principles together with the impact for contracts that events such as the Covid-19 pandemic have had and will have. Presenters: Paul David QC, Eldon Chambers; Marcus Roberts, Senior Lecturer, Faculty of Law, University of Auckland
Restraints of Trade Explained In person | Live Stream If drafted and used correctly, restraint of trade clauses can be an effective tool to protect a business’s propriety interests. Get it wrong however, and a business could stand to lose its key clients and important trade protections. This seminar will examine the use, dispute, and enforcement of restraint of trade clauses in both the commercial and employment contexts and cover franchise agreements, agreements for the sale and purchase of a business/shares and employment agreements. Presenters: Deirdre Watson, Barrister; Helen Gilbert, Barrister
Becoming an Accounting-Savvy Lawyer In person | Live Stream You give advice on the law, but the detail will often be in the numbers (the financial statements). The objective of this seminar is to make reading financial statements as easy as reading a book (albeit, a boring book). This seminar provides an introduction to reading financial statements, understanding accounting principles and, more importantly, understanding the story that the financial statements tell. That means working through the income statement (are sales increasing or decreasing? what about the gross margin? are overhead expenses out of control?), understanding the balance sheet (it’s just a list of assets and liabilities at a particular date), and understanding imputation credits and current accounts. Presenters: Shane Hussey, Director and Principal, Hussey & Co.; Sian Heppleston, Analyst, Hussey & Co.
Seminar
Livestream
CPD 1.5 hrs
Mon, 15 Mar 4pm – 5.30pm
Seminar
Livestream
CPD 2 hrs
Tue, 16 Mar 4pm – 6.05pm
Seminar
Livestream
CPD 2 hrs
Thu, 18 Mar 4pm – 6.15pm
Personal Effectiveness Workshop (Auckland)
Workshop
What are your goals for this year? Are you performing at your peak? Is there room for improvement in your work methods? Returning for 2021, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant. Places are limited. Register now to avoid missing out. Presenter: Tony Gardner, Managing Director, Archetype Leadership + Teams
CPD 4 hrs
The Art of Communication — Be a Powerful Advocate (Auckland workshop)
Workshop
As Spandau Ballet put it, “Communication let me down.” How often have you thought that you could, or should, have slowed down when addressing a room, used more eye contact, or come across as more confident? This workshop, led by an experienced advocate and an accomplished teacher/director, will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak. This workshop sold out in 2018 and 2019 - register now to avoid missing out. Feedback from the previous sessions included the following comments: • “Interesting, lively workshop – well presented.” • “Great anecdotes, relevant stories and examples.” • “The presentation was relaxed, informative and encouraging.” Presenters: Marie Dyhrberg QC; Isabel Fish, Director, Producer and Educator
Thu, 18 Mar 9am – 1.15pm
CPD 3 hrs
Sat, 20 Mar 9am – 12.15pm
CPD Pricing Delivery Method
Member
Non-Member
Webinar (1 hour)
$80 + GST
$115 + GST
Webinar (1.25 hour)
$90 + GST
$130 + GST
Seminar (2 hour in person)
$130 + GST
$185 + GST
Seminar (2 hour live stream)
$130 + GST
$185 + GST
On Demand (1 hour recording)
$90 + GST
$130 + GST
On Demand (2 hour recording)
$145 + GST
$205 + GST
CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd
For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases. Terms and conditions apply.
Top Up your CPD with ADLS before 31 March 2021 Visit adls.org.nz for more information.
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Barrister Wanted A centrally located Chambers has a vacancy for a barrister to share resources with 6 other collegial barristers. Handily situated in an historic building in Vulcan Lane, you are steps away from major transport links and restaurants and in close proximity to the courts & many of New Zealand’s corporate offices. As well as a spacious office, other facilities include: a Boardroom, library, kitchen, shower and access to all technology. An onsite Office Manager is also available. Very reasonable rates are on offer to the right candidate.
All enquiries to eden@vulcanbuilding.co.nz / 09 300 1253
WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270
wyndham | chambers family law specialists
Wyndham Chambers is pleased to announce that Sarah Bush has joined Chambers. Sarah was formerly the family law partner at a large suburban law practice. Sarah practises in all areas of family law, specialising in complex relationship property cases involving trusts and companies. Wyndham Chambers barristers are all family law specialists and Sarah’s skills will complement the services offered by Alan Gluestein and Jennifer Perry.
SOUTH AUCKLAND LAW PRACTICE FOR SALE A highly profitable boutique law practice with a large and longstanding client base offers the potential for both lifestyle and success for a general practitioner. Situated in the South Auckland area, this is a unique opportunity to walk into a solid and ever-expanding profitable base of private and small to medium business clients. The practice has a substantial conveyancing, commercial, trusts and estates clientele with room to expand into civil litigation and family law. The possibilities are endless for an ambitious general practitioner. Very flexible arrangements are available for transition to the new ownership.
Wills 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. Thomas Gerald COULTER, Late of 61 Smythe Road, Henderson, Auckland, aged 83 (died 07’12’20) Tanya Maree FRAHER, Late of 1b Babich Road, Swanson, Auckland, single, retired, aged 53 (died 23’05’19)
Expressions of interest c/- Matthew Pasley, Keegan Alexander, Lawyers Auckland, mpasley@keegan.co.nz
Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes. The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area. Telephones, internet connection, printing and secretarial services also available and some furniture available. Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required. Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.
Hadleigh James KEANE, Late of 527 Kiwitahi Road, Helensville, Auckland, aged 34 (died 09’01’21 in San Diego, USA)
Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481
Stephen Teuanua NASSAU, Late of 44 Hillside Road, Mount Wellington, Auckland, never in a legal relationship (died 25’02’21)
Cambridge Law – Senior Associate / Partnership Opportunity
Sefo PONEUILA, Late of 21 Estuary Road, Weymouth, Auckland, aged 37 (died 23’01’21) Isileli TALAKAI, Late of Totara Hospice, The Gardens, Manukau, previously resided at 39 Mckinstry Avenue, Mangere East, Auckland 2024, aged 44 (died 25’10’20)
We are seeking a motivated individual with a minimum of 5-6+ years’ PQE to join our busy practice. The role is full time, Monday to Friday from 8.30am to 5.00pm starting immediately. Experience in trust work (including good knowledge around the new Act), estate work, commercial transactions (including leasing) and conveyancing are essential. In addition, strong communication skills, the ability to give practical advice and work independently are keys to success in this role. The right candidate will need to have a strong focus on partnership as the firm is currently finalising succession plans with one partner looking to retire in the next 12-15 months and move into a role of consultancy to provide a structured and smooth supportive transition in the partnership. You will be provided with your own office, a competitive salary package and will be welcomed by a friendly and supportive team working in the heart of Cambridge. If you are looking for your next career opportunity with scope to grow and independence, please send your CV and covering letter to sabrina@cambridgelaw.co.nz by Friday, 12 March 2021.
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LawNews Issue 5 | 5 Mar 2021
Senior Lawyer – Trust/Property/Business Role We are looking for a senior lawyer with a minimum of 5 years’ PQE to join our team. This role is to ease the workload of a Director who is moving towards retirement. This is a great opportunity for an ambitious and dynamic person with a sound understanding of trusts, property and business. The ability to supervise estate work undertaken by another team member would be beneficial. Key attributes required for this role: • Have experience in dealing with clients and able to manage your
own files with minimum supervision
• Relate well to clients and referrers • Have good time management, interpersonal skills, attention to
detail and operate in a collaborative team environment
• Be able to work in a Paperlite office and manage an electronic file
using Infinity Software
We offer: • An innovative firm with a great team environment • An opportunity to be part of one of the eastern suburbs’ largest
• • • •
legal practices Market salary, team monthly and annual bonus schemes Excellent established precedents, systems and technology Free parking and iPhone The excellent training, conferences and benefits that are available to members of NZ LAW legal firms
Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.
GENERAL LITIGATION LAWYER We are a busy general practice located in Howick, Auckland. Due to continual demand, we are expanding and require an experienced General Litigation Lawyer to join our team. The role requires solid experience in the areas of Relationship Property, Family, Employment, Disputes and Litigation. You will be required to cover all areas of family law including preparing separation agreements, contracting out agreements, relationship property and care of child matters. You will need to run files from opening to hearing stage and to liaise with barristers when necessary. We anticipate that you would have 7+ years’ New Zealand PQE. You will be experienced in dealing with clients, able to work autonomously and handle a heavy workload. Excellent interpersonal and communication skills are essential, as well as a confident and professional approach. An attractive salary package will be offered to the successful applicant. If you would like to learn more about this opportunity, please refer to the full advertisement on https://www.seek.co.nz/job/51545487 or alternatively email your CV, in confidence, to Richard Galbraith: richard@fenciblelaw.co.nz www.fenciblelaw.co.nz
No Agencies please
Criminal Proceeds: Refresher & Live Issues Wednesday 10 March | 2 CPD hours
This seminar will provide a refresher on the provisions and machinery of the Criminal Proceeds (Recovery) Act and look at some of the live issues being faced.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
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Expressions of interest sought
General Practice Solicitor Move Towards Partnership • Step towards Partnership • Well-established Practice • Plenty of variety and scope to advance your skills Are you keen to move your career ahead? My client is a true general practice. Situated in South Auckland, they work with clients across a range of property, trusts, and business law matters. Rather than being confined to a narrow specialisation, your work will truly reflect the broad nature of instructions that come through the door from real people. In this next phase of the firm’s development, we are seeking a person who is ambitious to make their mark and to become part of the partnership in due course. There’s plenty of work to get on with and scope to grow. General practice experience is the key, but if you have additional areas of interest, then we’re also keen to hear your thoughts. If you are intrigued by what you read, please email me with your CV and any initial questions you may have. I’ll send you out our application form for completion which I’d appreciate you completing and returning to me.
FortyEight Shortland Barristers is a leading civil and commercial barristers’ chambers, situated in the heart of Auckland’s legal district on Shortland Street. We currently have two rooms available in chambers for which we are seeking expressions of interest. One is a larger room, with expansive views over Auckland’s CBD. It would suit an existing member of the bar, or senior member of a firm looking to move to the bar. The other is a smaller room which would suit an intermediate or junior-level barrister. All chambers facilities, including the use of a boardroom, meeting room, storage, reception, kitchen and lounge area are included. The Vero Centre includes a restaurant and cafe, gym, showers and bike storage, and carparking (at an extra charge). Please forward expressions of interest to Mark Colthart at markcolthart@fortyeightshortland.co.nz by 31 March 2021. Level 34 Vero Centre, 48 Shortland Street, Auckland 1010
Karen Courtney Business of Law karencourtneynz@gmail.com 027 7296023
www.fortyeightshortland.co.nz
Commercial Law Series: PPSA Refresher on PMSIs Tuesday 9 March | 1.25 CPD hours
This webinar will raise your awareness of how the PPSA and some aspects of the PLA may interact (including what may be a mortgage of goods), and of some issues that commonly arise and challenges that present themselves in this area of law. T 09 303 5278
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E cpd@adls.org.nz
W adls.org.nz/cpd