Articles

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Business Law

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What would happen to your business if the worst suddenly happened to one of the owners? It’s certainly not a pleasant thought, but it is scenario that could have serious ramifications...
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Every year, greater emphasis is being placed on the desire to excel in sport, not only at a national level, but also at provincial, club and even school level. A...
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Company directors need to know and understand their duties and obligations regardless of the size and nature of the company. Directors can be personally liable if they breach their directors’...
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There comes a time in the life of many small privately owned companies when one of the shareholders wants to sell up. They might be retiring from business, moving out...
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What is a constitution?A constitution is a public document (i.e. it must be filed, uploaded and displayed on the Companies Office website) containing specific rules about how your company is...
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The best professional advice I can give anyone looking to buy a business is to get advice before, during and after the transaction. There is no single best way to...
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New Zealanders are very entrepreneurial, and small to medium businesses dominate our business landscape.  Almost all of us will consider starting a business at some point in our lives, but...
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Whether you are starting a company with other people or investing in an existing company, a shareholders agreement is a must have to ensure that your investment is protected.  Human...
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In tough economic climates, more companies tend to go into voluntary liquidation or be liquidated by a court on application by a creditor. The liquidators are now turning towards the...
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 Buying a business is a big decision that will have a significant impact on your personal and financial life for years to come.  There are complexities to understand when buying...
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You understand the importance of protecting your business trade name – but have you thought about what could happen if you don’t protect your internet domain name?  Your domain name...
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Ensuring positive cash flow is an important part of running any business. The most effective way of achieving this is by controlling your debtors. The simplest way of achieving that...
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Buying an existing business is an important financial decision and should not be rushed. With assistance from your accountant and lawyer, you should carefully consider all aspects of the business...
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Intellectual property rights are a key asset for any business. Intellectual property rights are a set of exclusive rights which are granted over a variety of intangible assets, such as...
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When you’re just starting out in business, there are a myriad of factors to consider and an important one that you should discuss with your lawyer is how you should...
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A patent is a right that is granted to prevent others from using your invention. This relates to a new product or a process; it could be the material it...
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There are some important changes to the Construction Contracts Act 2002 (“CCA”) that come into force on 1 September 2016 and 31 March 2017 that may affect your business.1 September...
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A management buyout is when employees of a business – usually executive directors and/or managers purchase the business.What are the other options for selling a business?A management buyout is just...
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Clients from time to time enquire about the efficacy of Trading Trusts.  The Trust Deed that establishes a Trading Trust is very similar to a discretionary family trust Deed with...
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There is no formal system for copyright registration in New Zealand and you don’t need to put a copyright notice on your work or do anything else in order for...
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When you start up a new business you may not think that your business name or logo has any great value.You may think that branding is more about larger businesses.But,...
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Property Law

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The Building Amendment Act 2013 has now been fully implemented. The purpose of the amendments is to increase consumer protection and certainty. The Act moves reliance (and liability) away from council...
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So, your parents have agreed to give you and your partner a loan to help you buy your first home – great! But what do you need to be aware...
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If you’ve been planning to use KiwiSaver for the deposit on your first home these guidelines will help you understand what you can and cannot do. When you have to have...
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  On April 1st, KiwiSaver HomeStart grants replaced the First Home deposit subsidy. What are the fundamentals of the new scheme and how will it affect decision-making for first home buyers? Eligibility In...
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If you’re planning to buy a home, there is a lot to think of. This First time home buyer's checklist will help you keep track of everything there is to...
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When you list a property for sale, it is important to be clear about what you are selling. And for buyers it is important they are aware of exactly what...
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Richard and Sally are a couple looking to buy their first property in Auckland. The only problem is that house prices are reaching record highs and many houses are way...
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  From Jan. 1, 2015 new laws regarding consumer protection measures will be coming into effect, according to the NZ’s Ministry of Business, Innovation and Employment’s website.“These new laws, which are...
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  In November, Auckland Council undertook a revaluation of all properties located within the Auckland region . Council was scheduled to post your notice of valuation between the 10th and the...
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Buying an apartment, unit or townhouse isn’t the same as buying a residential property. Since you’re buying into a shared space, it’s worth spending the extra time to consider if...
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No two building contracts are exactly the same.  But there are a few key points that we think should be discussed with the building company in every case – there...
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The New Zealand Welcome Home Loan is a scheme managed by Housing New Zealand to help people who are capable of mortgage repayments but are unable to save for a...
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So, you read the newspapers and watch the news. Are “P” or “meth” houses the new leaky building?  Is the hype all it’s “cracked” up to be?  How serious is...
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For first home buyers a KiwiSaver withdrawal can be a kick start to saving enough money for your mortgage deposit.  But who can withdraw money from KiwiSaver, and how do...
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Okay, so you have just bought or built a house and your attention has turned to your fencing requirements.  Obviously, any fence erected on a shared boundary will benefit both...
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Reserve Bank has recently announced new lending restrictions. What does this mean for you as a purchaser? What are the key things you need to be aware of to help...
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Smith and Partners have been paying close attention to the recent changes to banking regulations. In particular we are concerned about the possible effects of the 20% deposit requirement. This...
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On Tuesday 10 September Auckland Council agreed on the proposed unitary plan. From here it goes to a notification period and a formal submission period begins on 30 September 2013.Auckland...
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  The Auckland District Law Society "ADLS" produces the standard agreements that most, if not all real estate agents and lawyers use for the sale and purchase of residential property.In 2012, the ADLS published a...
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Purchasing a property can be one of the most stressful things you’ll ever do.  It can be even more stressful if you have no idea what you’re supposed to do...
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  If you have been asked to guarantee part or all of a loan for a family member, you need to be fully aware of the risks and liabilities involved with...
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Property purchasers are encouraged to conduct due diligence and get a lawyer to check the agreement for sale and purchase before they sign, but what about the vendor or person...
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There is no legal requirement that a person change their surname and take on that of their spouse or partner when they marry or enter into a civil union.  The...
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Anyone who owns or is looking to buy property in Auckland should be closely following the Auckland Councils’ proposed Unitary Plan.As part of the development of the super-city, the Auckland...
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One of the outcomes of the global financial crises and the effect that it has had on our economy is the increase in mortgagee sales. A mortgagee sale is usually...
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If you own or live in a multi unit style development then it is more than likely to be a unit title development meaning that the building and any common...
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Whether it is to be the family home or an investment, buying property has a big impact on your financial future. It is important that you ensure you have all...
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A title is in effect the ownership paper for your property.  A title is also referred to as a “Unique Identifier” or “CT” (Certificate of Title).   The title records: the legal...
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Fee simple is often referred to as “an estate in fee simple” or “freehold”. (Freehold not to be confused with having no mortgage).  A fee simple title is considered to...
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A cross lease title consists of both an undivided share in the fee simple land and a leasehold estate in the building(s).A number of owners own and share the fee...
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A unit title is also referred to as a “strata title” or “stratum estate”.  It can either be in fee simple (freehold) or leasehold.  This type of title is generally...
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A flats plan is a plan attached to the cross lease title which shows the outline of the buildings on the land, allocates the building a “flat” or “area” number...
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From the 1st of April 2012 amendments to the Credit Reporting Privacy Code 2004 will allow lenders to find out whether you pay your bills on time or not. Up...
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So, you have entered into an agreement to purchase a house – congratulations!  You may have included a finance condition in the agreement or you may have already had finance...
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When you purchase your property with your partner or other co-owners, it is important to consider how you 'own' your property and be described on the title to your property. ...
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From 1 March 2012, changes to the Building Act 2004 means that critical building work, known as Restricted Building Work, must be completed by a Licensed Building Practitioner (LBP). This...
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Are you buying or selling a unit title property?  If so, you need to know about the new requirements for the seller to disclose certain information about the property to...
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Buying a house is a momentous occasion, and after all those weeks (or months) of searching for the right place it’s important that you don’t spoil all that work by...
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The Government has announced plans to introduce new laws to protect tenants. Along with existing landlords, this will affect those residential buyers looking at buying an investment property.The main points...
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 The terms “Riparian Rights” and “The Queens Chain” are often referred to in marketing material and the media. However, the meaning of these terms, and the rights to which they...
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Buying at auction is quite different from other ways of purchasing residential property. As soon as you have purchased at auction the agreement becomes legally binding and is unconditional. You...
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Often as a result of not understanding the subdivision process, we find subdividers experience delays for issue of title, sale of lots from the subdivision and additional costs.The subdivision process...
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Selling your house by private sale (without the aid of a real estate agent) is becoming more common in New Zealand. If you are considering selling your house by private...
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With the prices of property in Auckland skyrocketing, many first home buyers are buying out of Auckland; But what do you need to know about buying an investment property as...
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So you’ve found your dream home and it is a house and land package, how does the finance work?The key thing to remember with any building contract (which includes house...
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Here are some practical tips for calculating whether refinancing to a new bank or within your current bank is best for you.Break CostsWhat are the break costs? Break costs are...
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A LIM report from the local Council will disclose information to you about a property which is not immediately apparent through viewing the property and obtaining a builder’s report.For example,...
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Are you a New Zealand citizen living overseas and looking to buy property “back home”?Overseas Investment Office Requirements (OIA)If you are a New Zealand citizen, but live overseas, you are...
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Commercial Property Law

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There are a number of things that you should consider when looking to buy a commercial property. Some are the same as when you are buying a standard residential home,...
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As a commercial landlord, it is vital that you carefully negotiate any lease with a prospective tenant and ensure that the agreement to lease and/or deed of lease covers you...
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Negotiating the terms of a lease is just like negotiating any other legal agreement. Both parties will have deal breakers and both will have points they're willing to concede on....
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If you are the landlord of a commercial property, and your tenant is selling its business, you may want to know what say you have as to who the new...
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What are your liabilities when you assign a commercial lease?If you are part way through a commercial lease and want to arrange for someone else to take over the lease,...
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What has changed?If you are a commercial landlord you need to be aware that the most common form of deed of lease used in Auckland (being the Auckland District Law...
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As outlined in an earlier article, one of the more significant changes to the latest edition of the Auckland District Law Society Deed of Lease (“Lease”) is that there is a...
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Smith and Partners utilise commercial property management software Nomos One to assist us and our clients with the compliance and management of Commercial Property.The essence of Nomos One is that...
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Completing well documented and timely rent reviews of your commercial property is imperative to achieving profitable commercial property management. Letting rent review dates lapse is common amongst commercial landlords, but...
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The obligations of a landlord of commercial property are usually set out in the Deed of Lease between the Landlord and Tenant. There are also obligations implied by statute lawAssuming...
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An Agreement to Lease  is a binding contract between the landlord of a commercial property and a prospective tenant, outlining the basic details of the lease. It is a preliminary...
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Family Law

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What do you do if you have a real fear that your child will be taken out of New Zealand without your consent? You and the other parent/guardian of your child have a joint...
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Who can be a guardian?Legal guardians are the people who are responsible for making decisions for a particular child. The people who are on the child’s birth certificate are the...
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 The NZ government recently developed a larger support system for resolving care of children disputes, which involves minimal legal/court intervention. If you’ve found yourself in a dispute regarding the care...
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    In 2013, Mary’s Alzheimer’s reached the stage where she no longer had the capacity to make decisions for herself. Mary had not granted a power of attorney to manage her...
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One of the most difficult disputes in Family Law can be when parents cannot agree where a child is to live or move to. The stakes are extremely high, particularly...
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Separating from your partner is a painful time, and there can be many things to think about and organise. It is easy to overlook the legal steps you should take...
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It is increasingly common for client to report that they didn’t try to protect themselves from the equal sharing provisions of the Property (Relationships) Act 1976 because they had heard...
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Your marriage, civil union or de facto relationship has ended. It may be tempting to ignore property and legal issues and “muddle-through” or simply walk away, but that could leave...
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If you have separated, or are in the process of separating, and you have an informal care arrangement for your children (meaning it has not been formalised by way of...
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 A Contracting Out Agreement is more commonly referred to as a prenup or prenuptial agreement. In New Zealand, The Property (Relationships) Act 1976 ("the Act") says that all relationship property...
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Are you already in a “de facto relationship” in the eyes of New Zealand law and you don’t even realise?New Zealand law defines a de facto relationship as being between...
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Separated parents looking to relocate internationally (move overseas) with children is becoming more and more frequent, and the question often becomes, if I live in “x” country and I want...
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If you are a victim of domestic violence and wish to seek protection from your abuser, a protection order can help. Taking action to protect yourself when you are...
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Will and Trusts

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What happens to this power when I die?Most people with a discretionary family trusts realise that a trustee’s role is to make decisions regarding the trust and generally to carry...
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Harry’s father was diagnosed with Alzeihmer’s five years ago. It was not until recently that Harry noticed a real decline in his father’s memory and ability to carry on conversation....
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What is a deed of distribution? An irrevocable Deed of Distribution is a deed binding on the trustees requiring them to distribute all or part of the trust assets to...
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An executor is ultimately responsible for carrying out the terms of your Will and ensuring your estate is distributed efficiently. An executor has a range of legal responsibilities including disposing...
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A Memorandum of Wishes is a document in which the settlor (person who creates the trust) sets out for the trustees of a trust how they want the trust managed...
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The Law Commission has released its report on the review of the law of trusts.  While recommendations have not yet been made law, the proposed changes are likely to proceed...
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It is amazing how many clients write Wills and then lock them away in the bottom drawer without ever thinking about them again. Your Will should be a document that...
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It was already our advice settlors and to review the state of their individual trusts. This is particularly important in light of any personal, legal or policy changes. The changing...
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Trusts and Incorporated Societies can sometimes acquire considerable assets both property and business.Significant property and business interests require specialised skills, good governance and a succession plan. This is an approach...
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We often hear that people think that a trustee of a family trust can simply be removed from the trust if the other trustees vote and agree on the matter....
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The law on trusts is always changing so it is a good idea to review your trust affairs regularly and ensure that you are getting the most out of your...
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Recent high profile legal cases (for example the case involving the Financial Markets Authority and Mark Hotchin) and the abolition of gift duty highlight the need for higher standards of...
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Family trusts can be an excellent way to protect your assets in the event of future bankruptcy or business liquidation.  However the law prevents people from knowingly defrauding their creditors...
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The Charities Amendment Act 2012 has made some important amendments to the Charities Act, including adding the definition of an officer.Definition of OfficerThe definition of officer under the Act has...
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Few people realise the importance of setting up enduring powers of attorney.  Enduring powers of attorney are especially important for the elderly, but it is an unfortunate fact of life...
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A family trust can help you protect your assets against future claims by creditors, spouses, de-facto partners, and challenges against your estate.  Family trusts can also smooth the administration of...
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The 1990’s legislation which means tested the over 65’s for rest home and hospital care precipitated an avalanche of discretionary family Trusts. Set up by middle New Zealanders to protect...
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As you may be aware, on the 1st of October 2011 the Government abolished gift duty for which the consideration was natural love and affection. The repeal of gift duty...
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Everyone needs a will.  We cannot plan when we will die, and unfortunately it is often all too sudden. What you can plan for is how your estate wll be...
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For many family trusts, their only asset is the family home. These Trusts were set up as part of the estate plan that protected the home for future generations of...
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The below submission was written by Peter Smith and submitted in December 2016 to The Trusts Bill Consultation Team at the Ministry of Justice in response to a draft Bill...
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The Government has appointed a Trusts Bill Consultation Team to draft a new Trusts Act that legislates for the administration of Trusts. The draft Bill was published in November...
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KiwiSaver has changed the financial landscape for many Kiwis – and one of the big changes has been the consequences of New Zealanders having a significant asset (their KiwiSaver account)...
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The Story of Two Hand-Written Wills Done On The Same Day (With No Legal Advice Obtained)Hand written wills and do-it-yourself “will kits” can seem like a cost effective option compared...
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Employment Law

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The Health and Safety at Work Act 2015 came into effect on 4 April 2016. Its aim is to encourage proactive participation in health and safety culture at work and...
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The Government has introduced amendments to the Employment Relations Act 2000, which affect you as an employer or as an employee. The changes include: Flexible working arrangements The ability to apply...
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The Government has approved a package of changes to NZ employment law, designed to better enforce employment standards against employers. The measures proposed are specifically directed at employers who exploit...
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In cases of misconduct, an employer may want to suspend an employee while an investigation takes place. As always, getting the process right is crucial. Generally, there is no automatic right...
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Being suspended can be very stressful for an employee, especially if not handled well by the employer. Generally, there is no automatic right to suspend an employee unless the employment agreement...
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 Figuring out what you are, or your employee is, entitled to by law when working on a public holiday has its challenges. But, it is worth getting it right! Any employee...
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One of the most difficult tasks an employer can face is making sure they employ the right staff. That means someone who is hardworking but who is also trustworthy and...
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Have you just received a personal grievance from an ex-employee? Don’t know how to respond? It would pay to get some initial advice from an employment lawyer. In their haste to...
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If you feel like you have been treated unfairly then chances are that you may have the grounds to challenge your employer.  The difficulty arises in figuring out what gives...
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Every employee in NZ must have a written employment agreement.  If you employ staff and you do not have a written agreement in place you might be liable for a...
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There are many factors that might lead an employer to consider a restructure of the workplace. Two examples are reduced revenues due to an economic downturn, or a change in...
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Disciplinary issues within a business can cause a myriad of issues. If not handled properly they can cost you thousands of dollars and months of stress.Even if you have a...
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Mediation has become the default ‘first port of call’ in employment disputes.  One reason is certainly cost but the other is that the Employment Relations Act 2000 and Employment Relations...
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For most people, their job is a significant part of their life – therefore before signing a new Employment Agreement, you should ensure you are fully aware of what is...
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Do you want your new employee to be covered by a 90 day trial period?  If so, you need to meet certain procedural requirements to ensure the trial period is...
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If you employ staff in your business, it is advisable to have documented policies and procedures in place.Policies and procedures provide employees with a clear understanding as to what you...
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This update provides a summary of the key changes to the Employment Relations Act 2000 and the Holidays Act 2003 (the majority of which come into force on 1 April...
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A new Bill dealing with zero hour contracts, extending parental leave and setting greater employer obligations has now passed its third reading in Parliament and comes into force on 1...
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The festive season can be a challenging time of year for employers as you try to grapple with the complexities of the Holidays Act and understand employee entitlements. We set...
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The Shop Trading Hours Act 1990 has been amended so that each individual Council can now decide whether or not retailers in their Districts can open on Easter Sunday.The key...
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Debt Collection & Recovery

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Are you tired of chasing your debtors for payment or being drip fed monies owed? If you have already obtained judgment against a non-company creditor, maybe it is time you...
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 If your debts are running out of control, the common presumption is that your only option is bankruptcy.  However, what many do not know is that there are other options...
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Keeping on top of cash flow is key to the success in any business. Being able to quickly and easily recover debts is an important step in keeping that cash...
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No one likes having unpleasant conversations; which is why debt collection is one of those tasks that is very easy to put to one side. Many of our clients tell us...
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A company served with a statutory demand does not have the luxury of time.   Steps can be taken to deal with the statutory demand, but action is needed as soon...
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Once you have obtained judgment against your debtor, the next question that arises is how to enforce that judgment. A way to quickly proceed and to motivate the individual to...
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Bankruptcy is a legal status for people who cannot repay their debts as they become due. If a person is declared Bankrupt it means that ordinarily the Bankrupt person’s creditors...
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A Statutory Demand is a court document giving written notice that a debtor company must pay the debt that is owed to the creditor. It is the first step in...
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A letter of demand is a letter sent by a creditor to a person or business that owes that creditor money, when the debtor (the one who owes the money)...
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Litigation

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The  Construction Contracts Amendment Act 2015 has been implemented progressively since 1 December 2015, changing the face of dispute resolution arising from construction contracts in New Zealand. The new...
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Mrs. Jones owned a small office block in Massey. West IT Limited, a start up IT company rented the premises. A lease was negotiated for an eight-year term with West...
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Settling commerical disputes by mediation is now a commonly used and widely accepted practice, but it does require some special skills to get the best possible results. The plus points...
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The District Court deals with civil claims for up to $200,000. Any claim smaller than $15,000 is normally heard by the Disputes Tribunal.Any claim must be made within 6 years...
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Although a party cannot be legally represented in the Disputes Tribunal hearing, a lawyer can still assist parties by giving them guidance; drafting Disputes Tribunal claim forms; drafting responses to...
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The details contained in a LIM (Land Information Memorandum) report often have a significant impact on whether or not you purchase a property. A LIM contains information about protected trees...
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The words “natural justice” have specific meaning in the law. Natural justice comprises two rules, the rule against bias and the rule of the right to a fair hearing. Because...
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What makes this country what it is, is the number of trees that decorate our towns and countryside. But these specimens of nature can also have a detrimental effect in...
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Estates

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 When a person dies without a Will, administering the estate is more complicated than if the person had left one. Dying without a Will is called “dying intestate”. When you have...
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The more information you can provide at this stage, the better.  Executors may wish to discuss these matters with other family members, or conduct all the research on their own....
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Only the executors need to attend the meeting but they may invite other family members if they feel it is appropriate. Arrange for payment of the funeral bills It is a good...
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There are no immediate pressing legal issues to take care of when someone passes away.  Family members should take time to grieve before worrying about legal issues for the estate. Before...
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Coming to terms with the death of a loved one can be made much more difficult by disagreements regarding the distribution of their assets.  Even if there is a valid...
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The complexity of selling residential property after the owner passes away depends on how the property was held – jointly or as tenants in common.You will first need to request...
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 A person’s Will is an extremely important document and it must be well looked after.  Even a copy of a person’s last Will can only be released to authorised persons. ...
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If you have been named as an executor of someone’s last will it is often unclear what must be done when that person has died, and what responsibilities are expected of...
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The death of a family member or someone close to you is an emotional time.  Feelings can be further exacerbated if you discover that your inheritance is not what you...
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A will is a document left by the deceased person about what is to happen to their property after they go, and it used to be thought that a person’s...
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A will may seem like an easy document to create, something that you can do on your own or with the help of a ‘do-it-yourself’ will kit.  It isn’t until...
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When faced with the prospect of dealing with the administration of an estate, often while grieving for the recent loss of a loved one, people generally do not know where...
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If a person dies with more than $15,000 assets in his or her name, but does not have a will (also known as dying intestate), or if he or she left a...
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If a person dies with more than $15,000 assets in his or her name, and a valid will, then Probate will have to be obtained in order to administer the estate. ...
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If you have been left an inheritance in the will of a deceased person, you are considered to be a beneficiary of the estate. But what happens now? How do...
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They say there are two certainties in life - death and taxes. Unfortunately death does not necessarily mean the end of taxes. As executor or administrator you are responsible for...
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If you live overseas and you have been appointed as an executor of a New Zealand estate, you are able to fulfil the duties of an executor, but in many...
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Elder Law

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Some property owners are entitled to a discount of their Council rates – this is called a rates rebate. There are two eligibility requirements: 1) Your income must be under a...
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 With new retirement villages springing up all over Auckland we have had a number of clients looking to purchase their ‘right to occupy’ or 'occupation right' off the plans.  Although...
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In New Zealand a competent person has the right to consent to, or refuse, any medical treatment. But what happens when you are not in a position to communicate your...
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 Whether you are looking to free up money tied up in your current property or simply no longer need your large family home, it is important you carefully consider all...
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You may have spent years building up equity in your family home only to be left with no savings for retirement, leaving you asset rich but cash poor.  A reverse...
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For those people aged 65 years and over who require long term rest home accommodation or hospital care, it is important for many of them that they qualify for the...
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 Over half of New Zealand retirement villages offer potential residents an occupation right agreement as the legal title for their unit, villa or apartment.  But what is an occupation right agreement?...
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Rest home or residential care is expensive and no one at this time of life should be worried about money.  You may qualify for a residential care subsidy but what...
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 Retirement villages can offer peace of mind and a great lifestyle but the legalities of the process and understanding the future implications can be daunting. Expert friendly advice, that is...
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