The Land Transport Amendment Act (‘the Act’) was passed on 25 July 2009 and will come into force on 1 December 2009. The Act is in response to the public’s growing concern about drug-impaired drivers posing a serious risk on our roads.

The Act not only covers controlled drugs but also prescription medicine not taken in accordance with the instructions of a health practitioner.

Under the Act it is now an offence for a person to drive or attempt to drive a motor vehicle when impaired and the driver’s blood contains evidence of the use of a controlled drug or any prescription medicine.

Currently, drivers cannot be forced to take an impairment test.

Under the Act, an individual may be required by a police officer to undergo an impairment test if he or she is:

• a driver or someone attempting to drive a motor vehicle
• a person whom a police officer has good cause to suspect has recently driven or attempted to drive a motor vehicle under the influence of drugs, or
• the driver of a vehicle which has been involved in an accident, or if they are unable to locate the driver, then a person whom the police officer has good cause to suspect was in the vehicle at the time of the accident.

Impairment tests

The impairment tests to be implemented are already used extensively worldwide and New Zealand police officers are to receive specialist training in the United Kingdom. Proposed tests include balance (the one-leg stand test), co-ordination (the walk and turn test), and the eye-pupil response test.

If a person fails the impairment test then a blood test will follow to establish whether the person has taken a controlled drug or any prescribed medication.

Defences

There are however some defences available. It is not an offence if the person consuming the controlled drug or prescription medicine has done so in accordance with:

• a current and valid prescription, and
• any instructions from a health practitioner or the manufacturer of the drug or medicine.

It is also not an offence if the person has been administered the drug or medicine by a health practitioner without a prescription, and they have complied with any instructions the health practitioner has given them.

Penalties

The penalties for drug-impaired driving are similar to the current penalties for driving under the influence of alcohol: six months disqualification of licence and a fine of up to $4,500.

Any evidence gathered for a conviction under the Act cannot be used as evidence in a prosecution under the Misuse of Drugs Act 1975.

Vendors and purchasers now have a choice as to the type of agreement used when buying and selling land.  Until now, real estate agents and lawyers have worked together using a single form of agreement prepared with input from the Real Estate Institute and the Auckland District Law Society.

The REINZ has now released a new form, which aims to use everyday language and simplify contractual terms.

It remains to be seen how well the new agreement works.  It now forms two separate parts and vendors and purchasers must make sure they have both sections and understand them.  Vendor and purchaser rights and obligations, time frames and terminology are now very different.

Lawyers fear that until the new agreement “beds down” there will be many disputes as to the meaning of the new words and phrases. Don’t forget to ask for time to talk to your lawyer before signing any agreement to avoid an expensive mistake.

Phone Graeme McLelland on 407 0179 or Sue Wooldridge on 407 0174 for cost effective advice.

New Zealand’s highest appellate court, the Supreme Court, has recently delivered its decision in Rose v Rose. The case is about the classification of property. The Property (Relationships) Act 1976 (‘the Act’) defines relationship property and separate property. Relationship property is the pool of common property and at separation it is to be divided equally, unless there are extraordinary circumstances which would make equal sharing “repugnant to justice”. However, Rose v Rose illustrates how there are also pathways in which separate property becomes relationship property.

Relationship Property

Relationship property as defined in the Act includes:

• the family home – whether acquired before or during the relationship
• family chattels – whether acquired before or during the relationship
• all property jointly owned
• property owned immediately before the relationship began, if it was acquired in contemplation of the relationship and it was intended for the common use or the common benefit of the partners
• all property acquired after the relationship began, unless it is separate property (s9 and s9A) or the succession, survivorship, trust and gift provisions (s10)
• increases or gains in relationship property, subject to exceptions
• increases in the value of one partner’s separate property, if the increase is attributable to:
  • the use of relationship property
  • the direct or indirect actions of the other spouse or partner.

Separate Property

Separate property is defined in the Act as being any property that is not relationship property.

Rose v Rose

The basic approach of the courts has been that if the non–owning partner contributes to an increase in the value of the other partner’s separate property that increase in value becomes relationship property.

In this case, Mr Rose’s separate property included a farm he owned prior to the marriage.

Mrs Rose sought to share the increase in the value of the farm at the date of separation. Mrs Rose argued that during the course of the marriage relationship her outside earnings combined with her duties as a homemaker enabled her husband to keep his farm and develop it into a vineyard. During the term of the marriage relationship the farm appreciated in value significantly due to inflationary pressures and its location within a prime grape region in Marlborough.

The Court accepted Mrs Rose’s argument and held that Mrs Rose was entitled to a 40% share in the increase in the value of the separate property. Mr Rose was given a 60% share giving him greater credit for the inflation and general increase in the value of the land.

It is considered a landmark decision because despite the apparent indirectness of Mrs Rose’s contributions, she was awarded a 40% share of the increase in the value of the separate property.

A Suggestion

It is possible to prevent separate property becoming relationship property by completing a relationship property agreement which also specifies that no matter what the contributions made to the relationship or specific property by the other partner during the life of the relationship, it is to remain separate property.

Contact Sarah Jury on (09) 407 0176 for advice about separate and relationship property.

Meet our staff

Simone Scully is personal assistant to Sue Wooldridge.  Simone and her partner Sam were both born in Kaikohe and have always lived in the Bay of Islands area.  They have three children.

Judith Graham is personal assistant to Graeme McLelland and has lived in Kerikeri for the past 9 years with her husband and two teenage children.  They own an engineering business in Mill Lane, Reef Rite Engineering.

Bay of Islands Walkway

In our summer 2008 issue, we mentioned the success of the BOI walkway (www.boiwalkways.co.nz), so it is good news that the government will support the first stage of the coast to coast walkway which is intended to eventually link up with the BOI path.

Hospice

Enclosed with this newsletter is a brochure from Hospice Mid-Northland, whose work we at McLeods have supported for a number of years.  We encourage you to consider supporting Hospice, either by helping out or making provision in your will.

What many of us don’t realise is that every time we use our credit card, surf the net or download photos we are creating a digital footprint.  Alarmingly, a recent study by International Data Corporation (IDC) has revealed that the digital information generated about us on a daily basis (dubbed our “digital shadow”) is now greater than the total information we actively create ourselves. The database will continue to increase rapidly.  This information has a commercial value.

A great deal of information is gathered through surveillance footage without our knowledge.  Every time you walk into a department store, bank, petrol station or supermarket you are filmed through closed circuit television (CCTV).  CCTV is also used on many central city streets; Auckland’s Queen Street alone has over 100 cameras operating, not to mention the cameras monitoring Auckland’s motorways.

The Privacy Act 1993 requires that a person be made aware information is being gathered about them and the purpose for doing so.  A Hamilton City nightclub came under scrutiny last year when the use of CCTV footage revealed a patron causing damage.  The cameras were located in the nightclub toilets and the patron was not aware he was being filmed as there were no signs indicating cameras were in use.

The release of the New Zealand edition of Google Street View has also been controversial.  It is created from millions of photos taken by cameras in cars which travelled the country taking images of our streets.  The result is that anyone with access to the internet can take a virtual walk down your street and view the surroundings.  Concerns raised about identification of people and vehicles have been addressed by the blurring of faces and licence plates. Property owners or individuals may report concerns about a particular image.  This may be of small comfort as the harm may have already occurred by the time the image is altered.

Privacy Commissioner Marie Shroff has identified privacy and data protection as being one of the biggest issues of our time, and warned that the misuse of personal information, identity theft and fraud are all dangers which should not be ignored.  In response, the Law Commission is currently undertaking a four stage investigation into privacy issues.  Stages one and two were completed in 2008.  These stages involved an assessment of privacy values, changes in technology, international trends and implications for New Zealand law, and consideration of whether the law relating to public registers required systematic alteration.  In stage three, the Law Commission will investigate the adequacy of current civil and criminal law in dealing with invasions of privacy.  In the final stage, the Law Commission will review the Privacy Act 1993 and make suggestions on how it can be changed.

We know many clients are looking at the remainder of the year with a sense of uncertainty and, in some cases, anxiety, about business and personal decisions.  We all share the need to know where we are headed so we can plan and make appropriate and forward looking arrangements.  Sometimes, it feels too hard and overwhelming to confront the situation, make an assessment and implement the changes needed to address difficult circumstances.  Remember, we at McLeods have the knowledge and skills to help you through a rough patch.  Whether it is just the opportunity to talk a situation through with an impartial advisor and confidant acting as a sounding board, or finding someone to identify the best action to take, and to support you through that process, we can do that. Sometimes the financial and personal cost of doing nothing is much greater than the cost of being proactive and taking control of the situation you find yourself in.  In sharing a problem, you may find it is not as great and unmanageable as you may have thought.

If this sounds like you, take the first step and ring Graeme (09) 407 0179 or Sue (09) 407 0174 for a confidential chat.

On 1 March 2009, the Employment Relations Amendment Bill came into effect.  The amendment allows employers who have fewer than 20 employees to terminate the employment of new staff within the first 90 days of employment without fear of a personal grievance for unjustified dismissal if the parties have agreed to a trial period in the employment agreement.

The legislation does not specify who is counted as an employee and so casual and part time employees may be included.  The following conditions apply to the trial period:

• It will only apply to employees who have not previously been employed by the employer.
• Both parties must agree to the trial period.
• The trial provision must be in the employment agreement.
• The trial period must not exceed 90 days – so it may be for a shorter period.
• During the trial period the employer may dismiss the employee by giving notice of termination.
• The employer must give notice of termination to the employee within the trial period in order to be protected by the trial provision.
• If the employee is dismissed she or he may not bring a personal grievance or other legal proceedings in respect of the dismissal.
• Employees will still be able to bring personal grievance claims for unjustified disadvantage, sexual or racial harassment, discrimination or duress.

In all other respects the employee must be treated no differently from other employees whose employment agreements do not contain a trial period.  The obligation of good faith remains during the trial period, with the exception that the employer is not required to consult and to provide information to the employee prior to termination.

The Government believes this legislation will encourage employers to provide employment opportunities to people without financial risk to the employer if the employment relationship does not work out.

Given that the trial period must be agreed between employer and employee, those employees who are in demand and have some bargaining power will no doubt resist the inclusion of the trial period.

Employment problems can take some time to surface so employers should take care to ensure they can act within the 90 day period.

Worldwide focus on environmental sustainability has given rise to a green building movement which aims to incorporate environmentally sustainable design principles into the building process, and maintain those principles after the building has been completed.

When a building is completed, and the tenant moves in, what measures need to be put in place to ensure ongoing commitment to environmentally sustainable design principles?  Addressing these issues has resulted in the introduction of the Green Lease concept.

Green Lease Schedule

It is predicted that the concept of the green lease will become a standardised schedule to accompany commercial lease documents.  A collaborative approach is required by landlords and tenants to ensure that the principles are complied with over the term of the lease.

Contents of Schedule

A green lease may include incentives for both parties to improve environmental performance, and ongoing requirements such as:

• Obtaining Green Star NZ ratings
• Cleaning with environmentally friendly products
• Reducing energy/water use
• Recycling
• Having an environmentally friendly fit-out and building management process

The landlords may provide systems to ensure target ratings are achieved and maintained for the term of the lease.  The tenant may also make a similar undertaking in relation to its fit-out and use.

Landlord/Tenant benefits

The scheme will provide benefits for both landlords and tenants.  The benefits for tenants include:

• Reduced outgoings such as water, electricity, waste disposal and air conditioning
• Provision of a more pleasant working environment
• Enhancement of reputation

Landlords will benefit as they are able to attract quality tenants and increased returns over the long term.  Most new leases to government departments now have a significant focus on sustainable building systems and “green” features.

More prescriptive green leases are likely to emerge over time.  What may be perceived by developers/landlords as unwelcome increased costs in the short term may eventually provide long term cost benefits associated with putting in place environmentally sustainable design principles.

Staff News

In early January Sarah Jury gave birth to a beautiful baby girl, Aurora.  Sarah is away on parental leave and will be back in the office in July.

All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

Hon. Shane Jones, the Building and Construction Minister, has amended DIY building regulations enacted as a result of the leaky building crisis.

The Government has realised that the response to the crisis was too far reaching and has reduced the scope of work requiring building consent. The work which no longer requires consent now includes:

• Changing existing household plumbing
• Removing or changing non-load bearing walls
• Installing or replacing windows or exterior doors
• Making a home more accessible by widening doorways and building access ramps
• Construction of retaining walls which retain not more than 1.5 metres depth of ground
• The construction, alteration or removal of a pergola

These changes will allow Kiwis to once again take up their tools and go about what they have always done in that long standing tradition of DIY.

A short time later your widowed mother died, leaving her entire estate, worth several million dollars, only to your siblings because of a recent falling out with you. Then, two months ago, you lost your job because you stood up to your manager, who is a workplace bully. The final straw came when your plasma TV died last night during a test match, after having intermittent problems since you bought it 18 months ago.

You decide it is time to right some wrongs and see your lawyer who tells you there are time limits within which certain claims must be brought.

The limitation periods which apply in this scenario include:

You believe that the real estate agent who sold you the house misled you and you would like to bring a claim under the Fair Trading Act 1986. However, your claim under that Act might be barred because applications under the Fair Trading Act must ordinarily be made within three years of the date of the event.

You then consider bringing a claim through the Weathertight Homes Resolution Service against the architect, the developer, the builder, the roofing company and the council which issued the code compliance certificate.  Unfortunately,  the  house is 11 years old  and section 393 of the Building Act 2004 prevents claims being brought 10 years or more after the date the work was carried out.

You may have better luck bringing a claim for provision from your mother’s estate pursuant to the Family Protection Act 1955 (or on the basis of a testamentary promise, if you had been led to believe that you would inherit some of the estate). The general rule for bringing claims is that they must be filed within 12 months of the date administration or probate is granted. However, in certain circumstances you need to be even quicker, because the estate may be distributed after six months.

What about your case for unfair job dismissal? If you wish to bring a personal grievance pursuant to the Employment Relations Act 2000 against your employer, it must be submitted to the employer within 90 days of the date you were dismissed.

Surely the Consumer Guarantees Act 1993 won’t let you down! However the Act provides you must reject goods “within a reasonable time”. What is reasonable will depend on the type of goods and how they were used. You might not be entitled to compensation if it turns out that the minor problems you have been having for 18 months, if fixed, would have prevented the TV from stopping altogether.

This is a handful of the limitation periods applying to a vast array of legal situations. While some of the limitation periods may be extended by a court, the examples highlight it may be crucial to seek legal advice as soon as possible. Most claims must be brought within a certain time, or the opportunity to obtain a remedy will be lost.

If you would like further information, call Sue Wooldridge 09 407 0174 or Graeme McLelland 09 407 0179.

These Boots are Made for Walking – The Walking Access Act 2008

If you are a farm owner this Act won’t walk all over you!

On 25 September 2008 the Walking Access Bill was passed in Parliament. The origins of the Bill hail back to 2004 when the Government floated the idea of creating marginal public strips across privately owned land to allow all New Zealanders access to important recreational waterways. Property owners were concerned at the possibility of compulsory acquisition of private land for public walkways and farmers raised concerns related to disruption of stock, damage to private property near walkways and public safety. One major concern was their own liability for accidents on their property.

In answer to these concerns a Walking Access Consultation Panel was established which received almost 1400 submissions. The Panel made various recommendations which have now been enshrined in the new Act.

The Walking Access Act 2008 (“the Act”) establishes a New Zealand Walking Access Commission (“the Commission”) to enhance and extend walking access to our great outdoors. The Commission will form a national strategy and provide national leadership to co-ordinate access among key stakeholders. The Commission will also provide advice and information on walking access routes, determine the nature of the access (i.e. walking, bicycles, access with motor vehicles, dogs and use by hunters) negotiate new walking access across private land and facilitate the handling of any disputes.

The Commission will develop, promote and maintain a code of responsible conduct for users of walkways which will include:

• Standards of behaviour to be observed.
• Information about Maori customs, values and practices.
• Maori relationships with the land and waterways.
• A summary of benefits conferred and obligations imposed by the Act, and
• Any other matters the Commission feels would be beneficial to users of walkways and relevant landowners. A draft code is to be prepared as soon as practicable.

The Act preserves private property rights and provides that public access to private land should be achieved through negotiation and agreement with landholders rather than compulsory acquisition. It sets out the process to be followed to declare a walkway over public land, and to negotiate a walkway over private land and Maori freehold land.

Section 54 of the Act prohibits the following by walkway users:

• Discharging a firearm
• Setting a net, trap or snare
• Placing poison or explosives
• Lighting a fire
• Taking plants
• Using a vehicle
• Taking a horse or dog on a walkway without authority

Anyone committing one of these offences is liable even if they didn’t intend the action.  Section 56 sets out offences requiring knowledge, intent or recklessness, such as interfering or disturbing livestock or wildlife, damaging or destroying structures and attempting to intimidate persons using a walkway.

Enforcement officers will have powers to prevent or stop offenders. Fines of up to $5,000 under section 54 and $10,000 under section 56 may be imposed.

The Act contains an automatic revision provision and the public will have the opportunity of making further submissions as to how it is working.

You can find out more about the commission at its website, www.walkingaccess.org.nz.

At a local level, the Bay of Islands Walkway Trust has opened another leg of their project to develop a public walking track following the foreshore from Okiato to Russell.  For information visit www.boiwalkways.co.nz.

All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

Contracting with Young People – The Minors Contracts Act 1969

As a result WCCU sued R and T for the balance. However, a District Court Judge held that R and T did not have to pay any of the $12,000. WCCU appealed, but the High Court agreed with the District Court that R and T did not have to repay their debt. This was essentially because they were minors when they borrowed the money; R was 17 years, 9 months and T was 17 years, 6 months.

The Law

The Minors Contract Act 1969 provides that a contract with someone under 18 years of age is presumed to be unenforceable against that person. There are several important qualifications to that rule. Firstly, certain contracts are excluded, such as some contracts for life insurance and some employment contracts. Secondly, a court may enforce the contract against the minor in whole or in part if it concludes that the contract was fair and reasonable in all the circumstances. In the present case, the Court found WCCU could not enforce the loan contract and recover any of its money because R and T had not deliberately misled WCCU about their ages. They had correctly recorded their dates of birth on the application form but an employee of WCCU had miscalculated their ages to be 18.

If WCCU had made reasonable inquiries of R and T it would, in addition to establishing their ages, have also easily discovered that
R and T:

• had only known each other for three weeks
• were employed in seasonal part-time work
• had overstated their income, and
• couldn’t afford the repayments.

Both Judges concluded that WCCU was careless and ought to have made more inquiries. In all the circumstances the contract was not fair and reasonable and the contract was unenforceable against R and T.

Conclusion

It was 20 years after the passing of the Minors Contract Act 1969 before there was a reported decision of the High Court concerning enforcement of a contract against a minor. A further 20 years has passed and the High Court has confirmed the basic principle, which is that generally contracts with minors under 18 are presumed to be unenforceable against the minor unless the other party can satisfy a court that, in all the circumstances, the contract is fair and reasonable and ought to be enforced.

The WCCU employee’s error in miscalculating R and T’s ages and failure to question them about fundamental aspects of their application led to WCCU losing $12,000 of a loan on top of incurring the costs of litigation. The case highlights the need to check the age of a young person you are contracting with and to be aware that if they are under 18 the contract may not be enforceable against them.

If you need advice about any type of contract or agreement call Graeme McLelland 09 407 0179 or Sue Wooldridge 09 407 0174

“Estate” is the word used in both every day and legal language to describe the assets and liabilities of a person following his or her death. It includes “personal property” (chattels, debts owed by third parties, intellectual property and other rights) and “real property” (interests in land.)

An estate which does not exceed $11,000 in value at the date of death can be administered informally without the approval of the High Court. However, any estates exceeding $11,000 in value must be administered formally by a grant of probate or letters of administration from the Court.

At McLeods, our estates are managed by our qualified legal executive Lisa Baker. Lisa helps executors and administrators fulfil their duties to beneficiaries and liaises with accountants and other professionals. When required, she supports executors and administrators in steering their way through the paperwork and processes during what is often a bewildering and sad time. Because of the need to “get it right” in estate administration, professional advice is essential.

Call Lisa on 09 407 0175 if you have any queries about estates and their management.

The Regulations supplement and update existing law and are intended to oblige investment advisers and brokers to make certain disclosures to clients in a prescribed manner before giving investment advice or providing services as an investment adviser or broker.

What Must Be Disclosed?

An investment adviser must disclose in writing, in the manner prescribed, the following:

• experience and qualifications
• criminal convictions and adverse findings in any Court on their professional role
• the nature and level of any fees charged
• details of remuneration or rewards they received or will receive from anyone else
• other interests and relationships that could affect the advice
• types of securities they advise on

It is important to note that clients do not have to ask for this information: it must be provided up-front.

Who is an Investment Adviser or Broker?

An investment adviser gives recommendations, opinions or guidance relating to investment in securities to members of the public in the course of the adviser’s business or employment. Certain information will not constitute advice, such as opinions published in the media, assistance with acquiring and disposing of securities, and offer documents including a registered prospectus and authorised advertisements.

An investment broker receives investment money or property from members of the public in the ordinary course of business. The definition of an investment advisor or broker may include share brokers, financial planners, accountants, lawyers and others who give investment advice to the public.

Investment advisers and brokers must now disclose their commission structure and the amounts before advice is given. This includes all remuneration whether direct or indirect, which the adviser or broker may receive following the giving of advice.

Criticisms

The regulations have been criticised for not going far enough. Advisers and brokers are not required to give advice about the nature and quality of the investment, and the client is not required to sign any agreement or receive any warning about associated risks. The regulations do not provide for a declaration of any conflict of interest on the part of the broker or adviser and a consequent prohibition if a conflict does arise.

It has been suggested that a client agreement should be introduced that clearly sets out the risk associated with the investment being considered. It has also been argued that because an investor’s life savings may be at stake, the government should consider passing more comprehensive laws requiring advisers to fully inform unsuspecting investors of the risks being taken, assess the client’s situation and make a recommendation based on that. Legislation aimed at ensuring that the risk is understood could be the next step.

Remedies

An investment adviser or broker who fails to disclose in accordance with the Act commits an offence, and may be liable for a maximum fine of $100,000 for an individual and $300,000 for a body corporate. However, the investment adviser and broker has a potential defence if he or she believed on reasonable grounds that the disclosure given was not deceptive, misleading or confusing.

It is hoped that these changes go some way towards increasing transparency and reducing the types of losses we have seen recently. We have been asked for advice by clients who have lost savings due to the failure of finance company investments and/or bad advice. This is a specialist field and we refer clients to other lawyers who are able to advise on the relevant law.

For further advice please call Sue Wooldridge 09 407 0174 or Graeme McLelland 09 407 0179.

All information in this newsletter is to the best of the authors’ knowledge true and accurate.  No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

We were recently asked to support the Kerikeri Basin Weedbusters group in their efforts to conquer the invasive weeds in and around the historic precinct. The group was delighted to be presented with some serious hardware to help them in the battle.

Snippets

Education Update – Violent Students

A school principal has successfully defended a judicial review of her decision to stand down a seven year old student with ADHD for five days after a violent incident in the classroom.  The Education Act 1989 provides that a principal may stand down a student if there has been gross misconduct that is a harmful or dangerous example to others, or, the behaviour is likely to cause serious harm to the student or other students.  Upon standing down a student, the principal must immediately notify the Ministry of Education and the parents, and give reasons for the decision. The High Court reviewed the decision and found that the principal acted within the law.

Consumer Guarantees Update

The Family Protection Act 1955 (“the Act”) enables persons to make a claim against the estate of a family member whom they believe should have made provision for them in their Will by virtue of the family connection, but have not done so.

Who can claim?

The persons who may bring a claim under the Act are as follows:

• The spouse or civil union partner of the deceased.
• A defacto partner provided he or she was living in a defacto relationship with the deceased at the date of his or her death.
• The children of the deceased.
• The grandchildren of the deceased.
• The stepchildren of the deceased who were being maintained either partly or wholly by the deceased immediately prior to his or her death.
• The parents of the deceased.

When can a claim be made?

A claim can be brought under the Act within 12 months from the date of the grant in New Zealand of administration in the estate. The only exception to this is where an application is brought on behalf of a child or person who does not have mental capacity in which case the application may be brought two years from the date of grant of administration.

Claims are most commonly brought by children who for one reason or another, have not been provided for under their parent’s Will. In some instances, provision may have been made for them but the share which they receive is disproportionate to the shares received by other beneficiaries.

Frequently, an application will be brought because of economic need. However, there have been instances where adult children have brought a claim even though they were wealthy in their own right. The basis of the claim is that their parent had a moral duty to provide for them by virtue of their filial relationship.

How do the Courts treat claims?

In considering claims under the Act, the Court will consider not just the economic needs of the applicant but the overall merits of the claim having regard to the applicant’s circumstances at the date of death of the deceased, relations between the deceased and the applicant as well as the size of the deceased’s estate.

In considering applications under the Act, the Court must have regard to the moral duty of the deceased toward the applicant.

Family protection claims are essentially a balancing act between the wishes of the deceased and the needs of the applicant coupled with the consideration of the deceased’s moral duty towards her or his family.

Conclusion

Family protection claims can be very costly and usually the costs are borne by the estate. If you make a Will and decide to exclude children or other family members who would otherwise be entitled to, or would expect to benefit from your estate, you should state the reason clearly, in your Will. This can be of considerable help to the Court in determining how best to settle a claim under the Act and could also help to minimise the associated legal costs. If you do wish to exclude one or more family members from your Will, we strongly advise you to contact your lawyer first.

All information in this newsletter is to the best of the authors’ knowledge true and accurate.  No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

The New Property Law Act

On 1 January 2008 the Property Law Act 2007 came into force, replacing the 1952 Property Law Act and other legislation, dating back as far as 1257.

The Act is to create modern, more user-friendly legislation for people buying, selling or mortgaging their property or entering into commercial leases of land.

The following highlights some of the changes that have been introduced.

Landlord’s Consent

If a tenant asks a landlord for permission to transfer or sublease premises to a third party, or to change the permitted use of the premises, the landlord must not unreasonably withhold consent and the landlord must respond in writing within a reasonable time. If consent is given subject to conditions or is withheld, the landlord must give written reasons for the decision, if asked to do so by the tenant.

Various affected parties may claim damages from a landlord if they suffer loss as a result of the unreasonable delay or withholding of the landlord’s consent.

Insurance Protection for Tenants

If the premises are damaged by a risk covered by insurance (e.g. fire, flood, explosion) the landlord and their insurers may not require the tenant to pay for the repairs.  This is so even if the damage was caused by the tenant’s negligence.

Distraint

The Distress and Replevin Act 1908 previously allowed a landlord to enter the premises and seize items belonging to the tenant, if the rent was in arrears. This self-help remedy has been abolished.

Sale and Purchase  –  Return of Deposit

A purchaser of land now has a statutory right to apply to a court for the return of the purchaser’s deposit.  The surrounding circumstances must be such that a court would not order the purchaser to perform the contract and also that the purchaser has no right to cancel the contract.  An example could be where there is a defect in the property that the purchaser was not aware of until after signing the contract and paying the deposit.

The court is also given the power to cancel the contract and declare that the purchaser has a lien on the land to secure payment of the refund.

Conclusion

The new Act affects many facets of the law relating to property. Chances are, if you are dealing with land in any way, the new Act will affect what you are doing.  With such a major law change, it is more important than ever to obtain proper advice at the outset of any transaction.

Sue Wooldridge 09 407 0174, Graeme McLelland 09 407 0179 or Sarah Jury 09 407 0176 are able to advise you on all aspects of the new Property Law Act.

Last year Edith, an elderly widow, paid a painting contractor $7,000 to paint part of her house.  After only 12 months the house looked terrible and needed to be repainted. The contractor refused to fix the work and Edith found another more reputable painter who would redo the work for a further $7,000.

Edith’s lawyer advised her that she could sue the first painter in the District Court but that the cost of doing so may be uneconomic. Fortunately for Edith, she can bring a claim in the Disputes Tribunal.

What Types of Claims are Covered?

The tribunal is very versatile and can hear claims about almost anything, from car repairs to grazing stock, from a faulty new computer to hairdressing for a wedding gone terribly wrong.

There are some limitations. There must be a dispute – you can’t file a claim if someone simply refuses to pay a bill. The tribunal is also limited in terms of disputes concerning employment, land sales, wills, rates, taxes, and other statutory amounts.

For most disputes the tribunal is an informal, inexpensive, quick and private way to resolve the disagreement.

A claim involving up to $7,500 can be filed as of right. If the value is between $7,500 and $12,000, both sides must consent for the matter to be heard by the tribunal.  The tribunal has no jurisdiction to hear a claim over $12,000.

Procedure

The tribunal is much more flexible than a District Court. No one is allowed to be represented by a lawyer and the rules provide that the tribunal must decide disputes “according to the substantial merits and justice of the case”.  In doing so it is not bound by strict legal rights or obligations.  This allows a referee to take matters into account that a judge in a District Court may be prevented from considering.

In Edith’s case, she may have signed a contract with a clause prohibiting her from claiming compensation more than 6 months after the work was completed. The referee is not bound by that provision and may award her $7,000, if that seems to be fair and just.

Preparation is the Key

Probably the single most important aspect of bringing (or defending) a claim in the tribunal is preparation.  Make sure that you have copies of any important documents, such as bills, receipts, photographs or reports.  Ensure that any important witnesses can attend.  If they cannot do so in person they may be able to attend by telephone and support a written summary of what they saw or know. Review each step of your claim (or defence) thoroughly before the hearing so that you can anticipate any challenge that the other party might make and anticipate any concerns that the referee may have. If you prepare your claim carefully and thoroughly, it can be an excellent forum to resolve a dispute of up to $12,000.

For further information call Sarah Jury 09 407 0176 or Katharine Taurau 09 407 0173

All information in this newsletter is to the best of the authors’ knowledge true and accurate.  No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter.  It is recommended that clients should consult a senior representative of the firm before acting upon this information.