Firing ex-wife costs husband $70,000
Friday 3 July, 2020
It is not uncommon during a relationship for a spouse or de facto partner to take a salary from a family business even though they don’t actually work in the business. If couple separates, the spouse or de facto partner who owns the company may be able to stop the salary without breaching employment obligations, although there can be relationship p...
What happens on separation when relationship debts are greater than relationship assets?
Monday 29 June, 2020
It is not uncommon in a relationship for one partner to incur debts without the knowledge or consent of the other, or for one partner to have sole responsibility for a debt incurred for the benefit of both parties. Debts are classified as either relationship debts or separate debts under the Property (Relationships) Act 1976. A debt is generally co...
A recent High Court judgment considers whether trust powers can be relationship property and when debts can be divided
Tuesday 16 June, 2020
In 2016, the Supreme Court held that powers to manage a trust can be relationship property in certain circumstances. If the trust deed essentially gives one party the right to allocate all the assets under the trust to themselves, unhindered by the normal fiduciary duties placed on trustees, those powers are properly classified as rights which give...
Stay at home Mum receives more than 50% of the property pool
Monday 15 June, 2020
When one party in a relationship is likely to have significantly higher income and living standards after separation, the courts can order them to compensate the other party out of their share of relationship property if the disparity is due to the different roles that the parties took on during their relationship.
Penalty clauses and public policy
Tuesday 9 June, 2020
Sometimes when parties enter into a contract, they anticipate that one of them might not fulfil their contractual obligations. Instead of seeking a remedy from the courts, they choose to agree in advance what the consequences of breaching the contract will be and insert those consequences into a clause in the contract.
Farmers and growers preparing for a new Environmental Freshwater Standard
Friday 5 June, 2020
The Government’s new Action for healthy waterways package will impose proactive obligations on farmers and growers to prevent further degradation of New Zealand’s waterways. The Package, announced on 28 May, includes a proposed new National Policy Statement for Freshwater Management, National Environment Standard for Freshwater and Regulations for ...
Changes to overseas investment rules post COVID-19 - Emergency Notification Regime
Thursday 28 May, 2020
Businesses hoping for foreign investment to help them survive after the COVID-19 lockdown need to be aware of the proposed changes to the Overseas Investment Act. The Government is making urgent changes to the Act to ensure that overseas investment in sensitive New Zealand businesses is in New Zealand’s ‘best interests’, while those businesses are ...
Cryptocurrency is property
Wednesday 20 May, 2020
Do you own cryptocurrency? Bitcoins, released in 2009, were the first decentralised cryptocurrency and since then over 6000 other types of cryptocurrencies have been created. After the value of bitcoins skyrocketed from $998 in January 2017 to $19,783 in December 2017, some New Zealanders started trading in cryptocurrency, including through New Zea...
When processing a resource consent, what weight should Council give a rule in the PDP?
Thursday 23 April, 2020
The High Court in Knowles v Queenstown Lakes District Council recently considered the extent to which councils should take a Proposed District Plan into account when granting resource consent applications. The applicants owned several residential properties on Queenstown Hill and had also purchased a vacant property in front of them in order to pre...
When will the Environment Court award higher costs?
Thursday 23 April, 2020
The Environment Court recently released two decisions in which it considered when it was appropriate to award higher costs and indemnity costs. Costs in the Environment Court generally fall into three broad categories.
Environment Court gives green light to Airbnb in Christchurch
Thursday 23 April, 2020
A Christchurch resident has succeeded in the Environment Court against a decision by the Christchurch City Council to decline to grant resource consent for her to rent her home out on Airbnb. The house was located in an area of Christchurch zoned Residential Suburban and the activity was a discretionary activity under the District Plan. Guest acco...
Avoiding double penalties when sentencing a company and director
Thursday 23 April, 2020
In Southland Regional Council v Erskine, a recent District Court sentencing under the RMA, the Court considered whether it would be a double penalty to impose a fine on the sole director of a company as well as the company itself. The defendant was the sole director of a company which had previously been convicted and fined $32,000 on the same c...
Select Committee reports back on Resource Management Amendment Bill 2019
Thursday 23 April, 2020
On 30 March 2020, the Environment Committee released its report on the Resource Management Amendment Bill 2019 (“the Amendment Bill “). The Amendment Bill was introduced into the House on 23 September 2019. It proposes a new separate process for freshwater planning and proposes to amend a number of changes to the RMA made by the previous National G...
Is the end use of the activity a relevant consideration?
Wednesday 1 April, 2020
The Environment Court has recently considered whether, and to what extent, a consent authority may consider matters beyond the particular activity for which consent is sought and take into consideration the end use of whatever may be produced by the activity or the effects of other activities for which consent is not required.
Is a tiny house a structure under the RMA?
Wednesday 1 April, 2020
Tiny houses are becoming popular throughout New Zealand. In a recent decision of the Environment Court, Judge Dwyer considered whether a tiny house being constructed in Hutt City was a “structure” that required resource consent under the Resource Management Act 1991 “RMA”.
Bundling permitted activities
Wednesday 1 April, 2020
The High Court recently considered whether permitted activities can be bundled with more restrictive activities in a resource consent application. Marlborough District Council v Zindia Limited was an appeal by the Council against a decision by the Environment Court to cancel an abatement notice issued against the respondent, Zindia.
Government Infrastructure Announcement
Wednesday 1 April, 2020
The Government recently announced the details of over $7 billion in infrastructure spending, with $5.3 billion allocated to roading, including cyclepaths and footpaths, $1.1 billion to rail, and nearly $400 million on the Skypath and Seapath for cycling and walking across the Auckland harbour. The announcement also indicated that $300 million had b...
Supreme Court refuses to hear rates revolt case
Wednesday 1 April, 2020
The Supreme Court has delivered a small piece of good news for local authorities around the country on rates recovery. The case came out of the long-running rates revolt saga in Kaipara. The Rogans had refused to pay their rates and Kaipara District Council took the matter to court. The Council succeeded in the District Court, High Court and Cou...
Could companies be liable to the public for the harm caused by their emissions?
Tuesday 10 March, 2020
The High Court says that it’s arguable. In a recent decision, it dismissed the possibility that corporate emitters were committing a public nuisance or were liable for negligence but refused to strike out an argument that there was a new duty relating to climate change emissions.
Changes to the Fair Trading Act
Tuesday 3 March, 2020
Late last year, the Government introduced a Bill to amend the Fair Trading Act 1986. The purpose of this Bill is to protect consumers and small businesses from ‘unfair’ commercial practices.
There are three key changes proposed, read the full article to find out what they are.
Agricultural Emissions: Farm plans and measuring emissions
Friday 21 February, 2020
This is the second article in our series of three relating to the proposed changes to the Emissions Trading Scheme. The first article outlined the main changes; this article focuses on agricultural emissions.
Climate Change Response (Emissions Trading Reform) Amendment Bill
Thursday 13 February, 2020
Submissions have recently closed on another Bill amending the Climate Change Response Act. The Climate Change Response (Emissions Trading Reform) Amendment Bill seeks to reduce greenhouse gas emissions by making changes to the Emissions Trading Scheme, as well as improving the operation of New Zealand’s emissions trading scheme (ETS).
What is a trade mark?
Tuesday 11 February, 2020
Do you know the difference between this symbol ® and this symbol ™? The ® indicates a registered trade mark, which means that the holder of the trade mark has the exclusive right to use that trade mark in relation to nominated categories of goods and/or services in New Zealand. The ™ indicates an unregistered trade mark, which only has limited leg...
What to do if an employee is damaging your business
Monday 10 February, 2020
There’s been a lot in the news recently about the brand damage that the Royal Family has suffered through recent actions by some of its members. The fact that those damaging the brand are family members makes it harder to take decisive action. But what can a business do if an employee damages its brand?
A battle Royal over Registration
Tuesday 28 January, 2020
The Guardian has reported that Harry and Meghan are facing a potential legal battle over their brand ‘Sussex Royal’ after someone else lodged an application with the EU Intellectual Property Office to trade mark a range of goods, including alcohol, beer and luggage under ‘Sussex Royal’. If you haven’t protected your brand, it can come as a huge sho...
Record fine for privacy breaches
Monday 20 January, 2020
A German company has recently been fined €14.5 million for breaching the General Data Protection Regulation (GDPR), the highest-ever GDPR fine imposed on a German company. The GDPR is the core of Europe’s digital privacy legislation, not only covering information like names, addresses and photos, but also IP addresses and genetic and biometric dat...
Better protections for contractors
Monday 13 January, 2020
Businesses might find themselves in the position of having to prove their workers are contractors, not employees, under a new set of proposals released by the Ministry of Business, Innovation and Employment (“MBIE”). MBIE has released a discussion document seeking feedback on a range of options to improve the rights of contractors and address the v...
Equal sharing to stay for now
Tuesday 17 December, 2019
In July 2019, the Law Commission recommended ending equal sharing of the family home if one partner had owned the property before the relationship began. The Commission also recommended giving courts greater powers to access and divide trust property and the introduction of new Family Income Sharing Arrangements.
Can a regional council prohibit fishing in a specific area?
Thursday 12 December, 2019
In Attorney-General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532, the Court of Appeal considered whether the Bay of Plenty Regional Council could ban fishing in areas of outstanding natural character in order to maintain indigenous biodiversity of fish species when the Fisheries Act 1996 (“FA”) separately regulates the taking of the pa...
Can an easement be granted over an esplanade reserve for a commercial activity?
Thursday 12 December, 2019
In Douglas Craig Schmuck v Opua Coastal Preservation Society Incorporated [2019] NZSC 118 the Supreme Court considered whether the easements granted to the appellant, Schmuck, over an esplanade reserve were valid, as well as the role of a local authority acting as the Minister’s Delegate.
Schmuck operates a boatyard business in Opua and, as part o...
When will the Environment Court recall a judgment?
Thursday 12 December, 2019
In Granger v Dunedin City Council [2019] NZEnvC 143, the Court considered whether it could recall its judgment which allowed an appeal against Council’s decision to grant a subdivision consent to Peninsula Holdings Trust (“PHT”).
Modifying land covenants
Thursday 12 December, 2019
In our June 2019 edition of the legal brief we provided commentary on the then recently issued Court of Appeal decision relating to the modification of existing land covenants on the site of Synlait Milk’s Pokeno Factory. The Court of Appeal decision reinstated the land covenants which had the consequence that Synlait Milk’s factory had been built ...
Who can bring an appeal under the RMA?
Thursday 12 December, 2019
In Strategic Property Advocacy Network v Auckland Council [2019] NZEnvC 134, the Court considered the definition of “person” in the RMA in order to decide whether the Strategic Property Advocacy Network (“SPAN”) was able to bring an appeal against Auckland Council’s Proposed Auckland Unitary Plan (“PAUP”).
Stage 1 of Resource Management Act reforms
Thursday 12 December, 2019
The Resource Management Amendment Bill 2019 (“the Bill”) was introduced into the House on 23 September 2019 and has been referred to the Environment Select Committee, with a report due back on 26 March 2020.
Local Government Amendment Bill (No 2) passed
Thursday 12 December, 2019
The Local Government Amendment Bill (No 2) received Royal Assent on 21 October 2019 and has come into force. The amendment removes the threat of forced amalgamation for local authorities. Reorganisation requests can now only be made by members of the public if they are a group comprising at least 10% of the voters in the area.
Climate Change Response (Zero Carbon) Amendment Bill passed
Thursday 12 December, 2019
Parliament passed the Climate Change Response (Zero Carbon) Amendment Bill on 7 November. It received Royal assent on 13 November 2019 and has now come into force. The purpose of the amendment is to provide a framework for New Zealand to develop and implement climate change policies to help limit the global average temperature increase to 1.5°C and...
Draft National Policy Statement for Indigenous Biodiversity released on 26 November 2019
Thursday 12 December, 2019
The Draft National Policy Statement for Indigenous Biodiversity (“proposed NPS-IB”) was released for consultation with the purpose to maintain indigenous biodiversity. Under the RMA, management of indigenous biodiversity by councils has resulted in uncertainty and debate by councils and communities, and litigation that is costly and time consuming ...
Will climate-related financial disclosures be compulsory for NZ businesses?
Monday 2 December, 2019
MBIE has released a discussion document for consultation on whether NZ businesses should be subject to mandatory reporting of climate-related information and seeking information on the cost to businesses of introducing mandatory reporting.
Trusts Act 2019: Removal of Trustees
Thursday 28 November, 2019
More and more New Zealand trusts are facing problems due to trustees losing mental capacity from dementia or other age-related issues. At the moment, if a trustee loses capacity, they cannot retire as a trustee. They have to be removed by the person who has the power to appoint and remove trustees of the trust.
Minimum wage obligations and how to meet them
Tuesday 26 November, 2019
Did you know that employers are obliged to pay salaried employees at least the minimum wage for every hour that they work? Many employers think that they can average hours worked to comply with minimum wage legislation, but the courts have expressly stated that this is unacceptable.
Trusts Act 2019: Beneficiaries' rights to information
Thursday 21 November, 2019
The new Trusts Act clarifies and codifies beneficiaries’ rights to certain trust information to help beneficiaries make sure that the trustees are complying with their duties and the terms of the trust.
Lime Scooters - a new option
Thursday 31 October, 2019
The recent introduction of Lime Scooters to New Zealand’s major cities has presented people with the option to glide quickly and effortlessly across the CBD on an electric scooter. People on a Lime Scooter do not waste precious minutes searching for a carpark or spend money on parking.
Trusts Act 2019: Trustees' duties
Tuesday 22 October, 2019
Last week we explored the purpose of the new Trust Act 2019 and some of the administrative changes that are being made to trusts in New Zealand. This week, we are looking at one of the most important aspects of the new Act: the changes to trustees’ duties.
Trusts Act 2019
Monday 14 October, 2019
Trustees, settlors and beneficiaries should all be aware that there is a new Trusts Act 2019, which comes into force on 30 January 2021. The new Act makes some significant changes to current trust law, and everyone who is involved with a Trust needs to know the new legislation.
How can you identify the subject of an anonymous defamatory statement?
Thursday 10 October, 2019
A recent Privy Council decision considered whether a defamatory statement that did not identify anyone can be read together with a later statement that identified a person but was not defamatory. The Court decided that, in certain circumstances, you can join the two statements together as grounds for an action in defamation.
Climate Change Response (Zero Carbon) Amendment Bill
Thursday 3 October, 2019
Submissions on the Climate Change Bill have now closed, with the Select Committee report due on 21 October 2019. This Bill will amend the Climate Change Response Act 2002. The purpose of the Bill is to provide a framework for New Zealand to develop and implement climate change policies to comply with the Paris Agreement to limit the global average ...
Consultation is not a "referendum"
Thursday 3 October, 2019
The High Court has confirmed that the Local Government Act 2002 (”LGA”) does not give a participant in a particular process the right to have input into a Council’s consultation material, nor does it oblige a Council to accept the preference of the majority of submitters in respect of a LGA process.
Resource Management Act Review
Thursday 3 October, 2019
On 24 July 2019, David Parker, Minister for the Environment announced that the Government is establishing an expert advisory group to undertake a wide review of the RMA, including how it interrelates with transport, climate change and local government laws. The group will provide an ‘options and issues’ paper seeking feedback by the end of October ...
Productivity Commission Draft Report
Thursday 3 October, 2019
The Productivity Commission released its draft report on Local Government funding and financing on 4 July. The Commission assessed current and prospective funding tools through the lens of five principles: Appropriate for local government use, coherent, efficient, equitable and fair, and sustainable.
Withdrawing Charges under the RMA
Thursday 3 October, 2019
The District Court recently refused to grant Canterbury Regional Council (“Regional Council”) leave to withdraw charges under the RMA against a defendant. In the case in question, the Regional Council alleged that Bathurst Coal had discharged sediment-laden water onto land which resulted in contaminants entering the Bush Gully Stream.
Draft National Policy Statement for Freshwater Management 2019 for consultation
Thursday 3 October, 2019
The Ministry for the Environment and the Ministry for Primary Industries have released a draft proposed National Policy Statement ("NPS") for Freshwater Management for consultation. Submissions close on 17 October 2019.
Draft National Policy Statement for Urban Development
Thursday 3 October, 2019
The Ministry for the Environment and the Ministry of Housing and Urban Development are currently consulting on a proposed National Policy Statement ("NPS-UDC") on Urban Development. Submissions close 10 October 2019.
Draft National Policy Statement for Highly Productive Land
Thursday 3 October, 2019
The Ministry for the Environment and the Ministry for Primary Industries are currently seeking consultation on a proposed National Policy Statement for Highly Productive Land (“NPS-HPL”).
Submissions on the proposed NPS on Highly Productive Land close on 10 October 2019.
Businesses can't remove bad reviews
Thursday 1 August, 2019
The Commerce Commission has filed charges under the Fair Trading Act against holiday rental management and booking company Bachcare. The Commission alleges that Bachcare did not publish reviews if consumers had given fewer than 3.5 out of 5 stars and removed negative comments from some reviews before putting them on its website. The Commission beli...
Australian defamation decision raises risk for public Facebook pages
Wednesday 31 July, 2019
A recent Australian judgment has found several media companies liable for defamation after members of the public posted defamatory comments on the companies’ public Facebook pages. The Court thought that it was significant that the media companies had the ability to delay publication of comments until after they had reviewed them.
In this articl...
Is this the end of equal sharing?
Tuesday 30 July, 2019
The Law Commission released a report on relationship property rules on 23 July 2019. The most significant recommendation suggests ending the equal division of the family home when the home was owned by one partner before the relationship or was received by one partner as a gift or inheritance during the relationship.
The Law Commission also rec...
Resource Management Act Review
Tuesday 30 July, 2019
The Minister for the Environment has announced the establishment of an expert advisory group to undertake a wide review of the RMA, including how it interrelates with transport, climate change and local government laws. The group will provide an ‘options and issues’ paper seeking feedback by the end of October 2019, and a final report by the end of...
Why have a dress code?
Tuesday 9 July, 2019
Wardrobe choices can affect how customers or clients perceive you or your employees. Clothing choice can also improve performance at work and increase respect from others. How employees present is part of a company’s brand and businesses should consider whether their dress code policy is consistent with the brand they want to portray.
There are...
What timely legal advice could have avoided
Thursday 20 June, 2019
The benefit of timely (and early) legal advice on council notification decisions in contentious resource consent applications has been highlighted in the recent High Court decision in Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council & Resin and Wax Ltd [2019] NZHC 449 [15 March 2019] (Resin & Wax Decision).
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
The Environment Court in Tauranga City Council v Minister of Education [2019] NZEnvC 32 has confirmed that a local authority has the power to recommend, and that the Environment Court has the power to impose, conditions requiring monetary contributions on designations in circumstances where the requiring authority has not offered such conditions on...
Consultation obligations for Outsourcing contracts
Thursday 20 June, 2019
We have been involved in several recent instances in which a local authority planned to outsource its water and/or wastewater operations. Local authorities are prohibited from selling their relevant assets unless it is to another local authority or CCO, so these arrangements typically take the form of long term operations contracts.
Quarry covenants affecting Synlait's new Pokeno dairy factory
Thursday 20 June, 2019
The Court of Appeal has recently delivered a decision on land covenants restricting land use, which affects the land Synlait has constructed its new $250 million Pokeno dairy plant on. The Court of Appeal has ruled that the land covenants be reinstated, meaning the plant has been constructed in breach of covenants restricting the use of the land in...
Availability Provisions Clarified
Thursday 20 June, 2019
A recent decision of the Employment Court has clarified the reach of availability provisions. This decision has an impact for all employers who require their employees to be available to work overtime. The case of Postal Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47, considered the question of whether a clause in the e...
Employment Law Changes
Friday 31 May, 2019
The introduction of the Labour government has seen a recent shake up to employment legislation. Many of the changes are a restoration of standards and protections for employees as well as being intended to promote and strengthen collective bargaining and union rights in the workplace.
The changes came in two waves, with the second set of chang...
Court sends warning on poorly drafted consent conditions
Tuesday 9 April, 2019
The Environment Court recently issued strong warnings that poorly framed conditions could impact the Court’s decision-making. Those warnings went unanswered by the Applicant which resulted in the release of an interim decision only.
Court of Appeal guidance on obligation to pay rates
Tuesday 9 April, 2019
The Rogans were unhappy about having to pay substantially increased rates because of a major cost overruns in the construction of a wastewater treatment plant in Kaipara District. At the time, they refused to pay rates. Later, they offered to pay the outstanding rates but not penalties. They said that the rates assessments and invoices did not c...
High Court strikes out a judicial review for trade competition
Tuesday 9 April, 2019
Sheffield Properties Ltd (“Sheffield”), with interests within the Paraparaumu Town Centre, sought judicial review of the decision by Kapiti Coast District Council (“the Council”) to approve Private Plan Change 84 - Airport Zone (“PC84”).
Council's statutory demand upheld
Tuesday 9 April, 2019
The High Court has declined to set aside a council’s statutory demand for a $415,493.45 debt for development contribution levy. The case is reassuring for local authorities.
Government establishes new Infrastructure Commission
Tuesday 9 April, 2019
The Minister for Infrastructure, Shane Jones, has announced the establishment of a new independent infrastructure body, the New Zealand Infrastructure Commission, ‘Te Waihanga’.
Bella Vista: MBIE Report highlights failure to perform statutory functions
Tuesday 9 April, 2019
MBIE has released a report of its review of Tauranga City Council’s (“Council”) performance of its functions under the Building Act 2004 with respect to the Bella Vista development. It concludes that there were a number of reasons for the Council’s failure to perform its regulatory functions.
Privacy Bill: Select Committee Report
Thursday 4 April, 2019
Almost a year after the Privacy Bill was first introduced, the Select Committee has provided its much awaited report. The Select Committee has made some significant changes to the Bill, including additional changes to the Privacy Principles and clarifications around the transfer of personal information offshore.
Can a trustee use trust funds for litigation costs?
Friday 22 March, 2019
Trustees are generally entitled to reimbursement for costs properly incurred in the administration of a trust. There are however limitations to that principle, particularly in respect of litigation costs. This issue was addressed in the recent Court of Appeal decision of Pratley v Courtney (2018) CA40/2018 NZCA 436, which concerned an appeal agains...
Case highlights risk of assuming a director has authority to contract
Friday 22 March, 2019
It is common practice for a director to sign documents on behalf of the company. A recent case serves as a reminder that it cannot be assumed, unless the company only has one director, that a contract signed by a single director is enforceable against the company.
A glimpse into the Personal Property Securities Register
Friday 22 March, 2019
The use of credit is an essential part of commercial transactions and is made easier by, and usually dependent on, the debtor’s ability to provide security for the credit. Security interests over personal property (for example, plant and equipment, trucks, trailers and tractors, stock in trade, accounts receivable and the like) are granted on a dai...
Land Transfer Act 2017
Wednesday 28 November, 2018
The Land Transfer Act 2017 came into force on 12 November 2018. It is a significant rewrite of important Property Law legislation – but what impact does it have on local authorities? There is a lot of new terminology. The Act introduces the concept of a Record of Title which replaces what was previously referred to as a Certificate of Title or, s...
Recent decision on "affected persons" highlights the importance of context
Wednesday 28 November, 2018
In Ennor v Auckland Council [2018] NZHC 2598, Whata J adopted the threshold test for an “affected person” under s 95E of the Resource Management Act 1991 (“RMA”) and addressed the importance of context in notification decisions. The Court considered an application for judicial review of the Council’s decision to grant a neighbours’ resource consen...
The Government's Three Waters Review
Wednesday 28 November, 2018
The ripple effects of the Havelock North water crisis continue to make themselves felt. The government’s three waters review has resulted in a November 2018 cabinet paper that lays out the regulatory pathway that the government will pursue. Over the 2019 year this comprises detailed policy proposals for...
Chief Ombudsman upholds Auckland Council's restrictions on stadium reports
Wednesday 28 November, 2018
Two Auckland councillors complained to the Ombudsman about lack of access to two “pre-feasibility” reports on the proposed national stadium in Auckland. Councillors were provided unredacted copies on the basis that the reports were not copied, that they were kept in a secure location, and that they were returned to the mayor’s office once the coun...
Email quarantine: getting it right
Wednesday 28 November, 2018
Councils, like other employers, have obligations to protect their employees from harm. Quarantining abusive or offensive emails is one method of doing so. However, Councils must tread carefully.
Deemed Directors and nervous employees
Friday 12 October, 2018
The law requires the business and affairs of a company to be managed by, or under the direction or supervision of, the board of directors (“Board”). The Board can delegate some of those management powers to employees, but where employees exercise management powers (whether properly delegated or not) there is a risk that they may be personally expo...
Are you dating or in a de facto relationship?
Tuesday 2 October, 2018
One issue that commonly arises is whether a couple are in a de facto relationship. The reason why this is so important, is that the equal sharing rules of relationship property law apply to de facto relationships of 3 years or more. It also applies to de facto relationships under 3 years, where there is a child and other factors are met.
Court of Appeal Decision in R J Davidson Family Trust
Thursday 27 September, 2018
The much-anticipated Court of Appeal decision on an appeal from the High Court on the question of whether a consent authority can, or should, have recourse to Part 2 of the Resource Management Act 1991 (“RMA”), when considering resource consent applications under section 104 of the RMA.
High Court finds Council liable in negligence for damage from fallen tree
Thursday 27 September, 2018
The High Court has held that the Queenstown Lakes District Council (“Council”) breached its duty of care to Plaza Investments Ltd (“Plaza”) by failing to prevent a rotting 30-metre-tall Lombardy poplar tree in a Council-owned park from falling onto Plaza’s motel. Council was found liable for the amount required to repair Plaza’s property.
Court confirms penalty bands under the Health and Safety at Work Act
Thursday 27 September, 2018
When the Health and Safety at Work Act (HSWA) came into force in 2016, the penalties for offences were increased six-fold. We have been waiting for some time for guidance from the High Court as to the sentencing approach and culpability bands under the new legislation to understand just how much bigger the penalties imposed on Persons Conducting a...
Court of Appeal recognises new public interest defence to defamation claims
Thursday 27 September, 2018
In our ‘Defamation Update’ on 15 September 2017, we discussed the High Court decision in Durie v Gardiner [2017] NZHC 377, [2017] 3 NZLR 72 which recognised that a new defence for “responsible communication on matters of public interest” could apply in New Zealand.
The Court of Appeal has now issued its decision (Durie v Gardiner [2018] NZCA 2...
Environment Court's Annual Review 2017
Thursday 27 September, 2018
The Environment Court has just released its fourth Annual Review, covering the Court's activities in the 2017 calendar year. This article provides a snapshot of the Annual Review.
The role of Councils in the 'foreign buyer ban'
Thursday 27 September, 2018
Councils should ensure that a property’s “property category” is included in the searchable property information available on their websites.
Court upholds sensible approach to local authority works on private property
Tuesday 24 July, 2018
Local authorities have a power to construct works on private property under s 181 of the Local Government Act 2002 with the consent of the owner or after following the process in Schedule 12. The High Court recently ruled that local authorities must only give notice and follow the process under s 181 and Schedule 12 once; the process need not re-s...
New process for calculating court-awarded interest
Tuesday 24 July, 2018
A new process for calculating Court-awarded interest on debt and compensation claims came into force on 1 January 2018 that more fairly compensates creditors and has potential application to Public Works Act acquisitions.
New RMA Compliance Oversight Unit and best practice guidelines
Tuesday 24 July, 2018
A new unit is to be established to oversee compliance with the Resource Management Act 1991 (‘RMA’).
Should Councillors see Council reports?
Tuesday 24 July, 2018
The answer will almost always be “yes”, but Auckland Mayor Phil Goff has had reservations. The report in question cost Auckland Council almost $1 million and relates to the proposed national stadium, which could cost $1.5 billion.
Supreme Court upholds councils' power to fluoridate water
Tuesday 24 July, 2018
On 27 June 2018 the Supreme Court issued a judgment which is of significance to councils across the country.
In 2012 South Taranaki District Council decided to fluoridate the drinking water supply for Patea and Waverley. Both towns had high levels of dental decay. Anti-fluoride group New Health New Zealand Inc brought unsuccessful claims in the H...
Bella Vista learnings
Tuesday 24 July, 2018
The Hon Paul Heath QC’s review of Tauranga City Council’s (TCC) assessments, decisions and monitoring of the land use, subdivision and building consents for 21 properties in the Bella Vista subdivision is essential reading for any council officer working with the Resource Management Act 1991 (RMA) and the Building Act 2004 (BA).
New Local Government Bills
Thursday 3 May, 2018
The Local Government (Community Wellbeings) Amendment Bill has passed its first reading and has been referred to select committee.
Environment report highlights serious land issues
Thursday 3 May, 2018
A new comprehensive report on the state of land in New Zealand has been published by the Ministry for the Environment and Statistics NZ. Our Land 2018 is the first land specific report produced under the Environmental Reporting Act 2015.
New guidance on publicly available official information
Thursday 3 May, 2018
The Ombudsman has recently released a useful guide relating to the power not to provide official information that is or soon will be publicly available.
High Court guidance on HASHAA
Thursday 3 May, 2018
A very recent High Court decision on the Housing Accords and Special Housing Areas Act 2013 (HASHAA) provides valuable guidance to councils with established special housing areas (SHAs) or in the midst of discussions with the Minister to establish SHAs.
Bright-line test extended to 5 years
Wednesday 4 April, 2018
As signalled by the Government during the 2017 election and again in February 2018, the bright-line test for tax on the disposal of residential land has now been extended to 5 years.
Caselaw Update
Friday 9 March, 2018
Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council [2017] NZSC 190
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
The issue was considered in the recent Environment Court case David Mulholland Consulting Engineer Ltd v Whanganui District Council [2018] NZEnvC 10.
Briefing to the Incoming Minister for the Environment
Friday 9 March, 2018
MfE prepared two BIMs, one on the environment portfolio generally and one specifically relevant to water issues.
Briefing to the Incoming Minister for Local Government
Friday 9 March, 2018
The Department of Internal Affairs prepared a single BIM for the new Minister for Local Government ...
Proposed Employment Law Changes
Friday 9 March, 2018
The Labour-led Government has recently announced the first round of the employment law reforms that it promised pre-election. Although changes were expected, the exact nature and extent of those changes had previously been unknown.
Alert: Ombudsman's warning to Local Government
Friday 9 March, 2018
Ombudsman Peter Boshier has recently hit out at local government, saying that councils are not meeting their LGOIMA obligations and seem to resent being held accountable.
Employment law reforms announced
Friday 5 January, 2018
The Labour-led coalition Government has recently announced the first round of the employment law reforms that it promised pre-election. Although change was expected, the exact nature and extent of those changes had previously been unknown.
Trusts, Gifting and the Rest Home Subsidy
Thursday 23 November, 2017
The Ministry of Social Development (MSD) administers the Social Security Act 1964. The Act includes a residential care subsidy regime which concerns the cost of rest home care (commonly called the rest home subsidy).
Forest and Bird decision
Thursday 23 November, 2017
The recent Supreme Court decision in Hawke’s Bay Regional Investment Co Ltd v Royal Forest & Bird Protection Society of New Zealand Inc [2017] NZSC 106 is a timely reminder for local authorities and other parties exercising statutory decision making powers to be fully aware of all relevant factors when exercising such powers.
In addition, the d...
Slippery slopes: local authority liability for landslips
Thursday 23 November, 2017
Councils owe various different potential duties in relation to damage caused by landslips. In this Legal brief, we comment on a recent case where a Council was held liable for damage caused by a landslip. While the slip itself was triggered by natural causes, the underlying instability was the result of earthworks carried out by the Council more ...
Responding to a workplace accident
Thursday 23 November, 2017
It is important to have a plan in place outlining how you will respond to a workplace accident in order to balance the need to satisfy your responsibilities under the Health and Safety at Work Act 2015 (‘the Act’) and the need to protect your interests in the event of a prosecution.
New Statutory requirements for consent conditions
Thursday 23 November, 2017
Section 108AA of the Resource Management Act 1991 (“the RMA”) was inserted as part of the recent resource legislation amendments and came into effect on 18 October 2017. The new section introduces restrictions which limit the scope of conditions that may be imposed on a resource consent, in addition to the requirements of sections 108 and 220.
Actual and reasonable costs principles
Thursday 23 November, 2017
Local authorities when levying additional charges pursuant to Section 36 of the Resource Management Act 1991 (RMA) must ensure that those charges reflect the actual and reasonable costs in relation to the activity. We review a recent High Court decision – Porirua City Council v Ellis [2017] NZHC 784 – where the Court upheld an Environment Court dec...
Minister to reverse new non-notification law
Thursday 23 November, 2017
Environment Minister David Parker has indicated that the Government will attempt to reform the Resource Management Act 1991 (RMA) which was amended in April this year through the Resource Legislation Amendment Act 2017 (RLAA).
Defamation update
Friday 15 September, 2017
Local body authorities and politicians need to be particularly mindful of defamation law. In our defamation update we outline recent developments in defamation law and set out ways that local bodies can manage their defamation risk.
Local Authorities owe a duty of care to their neighbours - High Court decision
Friday 15 September, 2017
Local authorities owe the same duty of care to their neighbours as any other owners or occupiers of land. We review a recent High Court decision - Double J Smallwoods Ltd v Gisborne District Council [2017] NZHC 1284 - which held a local authority negligent for fire damage to a neighbouring sawmill operation, as a result of its failure to reduce the...
Local Authorities' decision-making requirements - Court of Appeal decision
Friday 15 September, 2017
In the recent Court of Appeal decision of Wellington City Council v Minotaur Custodians Limited [2017] NZCA 302 (Brown, Simon France and Williams JJ), the Court overturned the decision of the High Court, holding that Part 6 of the Local Government Act 2002 gives local authorities a broad discretion as to how to meet their statutory decision-making ...
Tendering pitfalls: the importance of "no process contract" clauses
Friday 15 September, 2017
In The Rintoul Group Limited v Far North District Council [2017] NZHC 1132, the Council was found to have breached a tender “process contract” and potentially liable for significant damages to an unsuccessful tenderer. We comment on the case and explain how the outcome could have been avoided.
New Bill extends enforcement powers under the LGA
Friday 15 September, 2017
A Member’s Bill from The Honourable Jonathan Young (National MP), the Local Government (Freedom of Access) Amendment Bill, was recently introduced to Parliament. The Bill proposes to widen the scope of enforcement officer powers to remove property (such as structures and tents) from council land – a power which will no doubt be welcomed by councils...
LGOIMA Update - Ombudsman's dedicated webpage for councils
Friday 15 September, 2017
The Office of the Ombudsman is taking proactive steps to provide advice and guidance to agencies (including local authorities). In earlier Legal Briefs we have referred you to the guide, ‘The LGOIMA for local government agencies’ and summarised the Ombudsman’s new approach to ‘delay complaints’. In this edition, we summarise a recent addition to th...
Health and Safety - Duty to consult, co-operate and co-ordinate
Friday 15 September, 2017
The Health and Safety at Work Act 2015 imposes a new duty on local authorities, as “persons conducting a business or undertaking” (PCBUs), to consult, co-operate and co-ordinate activities, so far as is reasonably practicable, with all other PCBUs who share health and safety responsibilities in relation to particular work.
Bribery of a public official
Thursday 13 July, 2017
The high profile prosecution of a former public official and a private roading contractor in R v Borlase and Noone [2016] NZHC 2970 raises interesting issues as to what constitutes acceptable gifts, entertainment and hospitality when engaging with the public sector in the context of New Zealand’s bribery and corruption laws.
The Ombudsman's new approach to 'delay' complaints
Thursday 13 July, 2017
The Office of the Ombudsman has just announced that, from 1 July 2017, it will be taking a new approach to how it responds to complaints about delays in making and communicating decisions on requests for official information within the maximum statutory timeframe (i.e. 20 working days).
Requiring authority status for irrigation scheme operators
Thursday 13 July, 2017
Ministerial approval of private entities as requiring authorities under section 167 of the RMA is, after the initial rush following commencement of the Act in October 1991, comparatively infrequent these days. There was no corresponding Ministerial power in the former Town and Country Planning Act, so the emergence of private entities able to desi...
Update on RJ Davidson Family Trust
Thursday 13 July, 2017
In our last Legal Brief we discussed the implications of the High Court’s decision in RJ Davidson Family Trust v Marlborough District Council [2016] NZEnvC 81 to resource consent applications. The High Court held that the King Salmon principles regarding the application of Part 2 of the RMA to the preparation of plans, also apply to resource consen...
Clarity for supermarkets or not?
Thursday 13 July, 2017
The Alcohol Regulatory and Licensing Authority has recently provided clarity on a supermarkets ability to display and promote alcohol within single alcohol areas. ARLA’s decision has been appealed to the High Court.
Relief for grocery stores
Thursday 13 July, 2017
The Government are making changes to the Sale and Supply of Alcohol Act to enable grocery stores to continue to sell alcohol.
Duties under the Health and Safety at Work Act 2015
Thursday 13 July, 2017
The Health and Safety at Work Act 2015 imposes different health and safety duties on different people, depending on their role in the workplace. Local authorities need to be aware of these duties and adopt a cautious approach in reducing the risk of a workplace accident.
Increased Compensation available under the Public Works Act
Monday 12 June, 2017
With the Government’s recent budget announcement of $32.5 billion infrastructure spending over the next four years, it is anticipated that the use of compulsory acquisition powers under Public Works Act 1981 (“PWA”) may be necessary to ensure that such projects can be completed. Recent changes to the PWA have been introduced with the intention to ...
King Salmon applies to resource consents
Wednesday 17 May, 2017
Following the Supreme Court’s finding in EDS v NZ King Salmon [2014] NZSC 38, that there is generally no need (or ability) to refer back to the purpose and principles in Part 2 of the Resource Management Act 1991 (which was in the context of a plan change), there was some uncertainty as toits application in respect of resource consent applications ...
High Court determines property arrangement is not a "subdivision"
Wednesday 17 May, 2017
Clearspan Property Assets Ltd v Spark New Zealand Trading Ltd [2017] NZHC 277 is a recent decision of the High Court which deals with the nexus between the law of property rights and the law regulating the use of land. The High Court overturned the unanimous decision of two Judges of the Environment Court in Spark New Zealand Trading Ltd [2016] NZ...
Case review: Invercargill City Council v Southland
Wednesday 17 May, 2017
This case looks at the obligations a Council may have when issuing Code Compliance Certificates, particularly in relation to the extent of any duty of care that may be owed to property owners.
Health and Safety at Work Act 2015
Wednesday 17 May, 2017
New Zealand’s poor health and safety record in the workplace has led to significant reforms in the law and the organisations governing this area.
In June 2012, the Minister of Labour established the Independent Taskforce on Workplace Health and Safety to research and critically evaluate New Zealand’s workplace health and safety system and to rec...
Your Periodic Discovery Reminder
Wednesday 17 May, 2017
This periodic reminder comments on two particular issues that can pose challenges to organisations dealing with litigation: the duty to preserve documents, and the application of privilege to reports prepared internally or externally in the course of seeking legal advice or preparing for apprehended or actual proceedings.
Key changes to limitations for civil claims
Monday 13 March, 2017
Limitation regimes are designed to protect defendants from stale claims. Claims that are brought many years after the relevant events are problematic for defendants (and their insurers), who may no longer have access to the evidence and witnesses they need to adequately defend themselves.
From 1 January 2011 the Limitation Act 2010 replaced the ...
Plan Change 1 to the Waikato Regional Plan – “Healthy Rivers” Update
Submissions on proposed Plan Change 1 close on 8 March 2017 at 5pm. The submission process provides opportunity for those affected by PPC1 to have their say about its provisions. It gives a submitter the right to participate in the hearing process and influence outcomes. If you would like any assistance to complete your submission or wish to dis...
Farming Directorships - A due diligence guide
This guide was developed between the Institute of Directors, its Waikato Branch and DairyNZ, with input from Tompkins Wake and BDO
Conscious Uncoupling - an alternative approach to separation
When actress Gwyneth Paltrow and musician Chris Martin announced they were splitting after ten years of marriage, they did not use the word “divorce”, but “conscious uncoupling”.
New Zealand's family justice system aims for civilised separations to be the rule, particularly where children are involved.
Application of King Salmon to Regional Policy Statements
The High Court recently considered the application of the Supreme Court’s decision in King Salmon to the drafting of regional policy statements. The Environmental Defence Society Incorporated “EDS” challenged the Otago Regional Council’s wording of a provision in the Proposed Otago Regional Policy Statement “PORPS”. The EDS alleged that the policy’...