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Implications for Franchisors under The new Health and Safety at Work Act

Created: Monday, 28 September 2015 21:52

The new Health and Safety at Work Act 2015 comes into force on 4 April 2016 and carries with it maximum fines of $3,000,000 for non-individuals and up to $600,000 or a term of imprisonment of up to 5 years for individuals for the most serious offences.  

The new Act has a much wider reach than the existing Health and Safety in Employment Act 1992 and has the potential to impose duties on franchisors not just in respect of their own workers or work place.  If a Franchisor directs or influences its franchisee's workers, if it subleases or licences premises to its franchisees or supplies goods or plant or equipment which are used in the work place, then it will have additional duties and obligations under the new Act.

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Property Taxation Legislation - New Obligations

Created: Friday, 25 September 2015 23:08

New obligations are to be imposed on clients in the majority of residential property transactions pursuant to the Taxation (Land Information and Offshore Persons Information) Act which comes into effect on 1 October 2015.  Buyers and sellers will be required from then to provide additional information for tax compliance purposes.


LINZ will collect additional information when people buy, sell or transfer property. The information will be passed to Inland Revenue, to follow up on those who have property tax obligations – whether they are New Zealanders or from overseas.

Under the new legislation:

  1. Property buyers/sellers must provide their IRD number and other details when transferring property (there will be an exemption for the main home, but this doesn’t apply to offshore persons or trusts);

  2. Those who are tax resident in another jurisdiction to also provide the equivalent of their IRD number in that country (if the person is able to claim the main home exemption they do not need to provide this information);

  3. Offshore persons who need to apply for a New Zealand IRD number will be required to have an operational New Zealand bank account as a pre-requisite.

These requirements apply to contracts entered into on, or after, 1 October. From 2 April 2016, all additional information must be provided regardless of when the contract was entered into.

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You are incapacitated - Who is looking after all your assets?

Created: Wednesday, 09 September 2015 15:03

It is estimated that 60,000 New Zealanders are afflicted by dementia.  However, in the next 35 years it is projected this is going to increase threefold to more than 150,000.  One of the issues that arises when somebody is diagnosed as being incapacitated, whether by dementia or otherwise, is “who has control over their property affairs?”  There are two choices of formal arrangements which are provided for by law.  These are:

  1. either the person has signed an enduring power of attorney (“EPA”) that appoints someone, often a family member, to take control; or 
  2. an application is made to the Court to appoint a property manager.

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"LOCAL AUTHORITIES ARE ATTRACTIVE DEFENDANTS"

Created: Wednesday, 19 August 2015 21:21

"LOCAL AUTHORITIES ARE ATTRACTIVE DEFENDANTS"

In Monticello Holdings Ltd v Selwyn District Council the High Court took a good look at negligence in the local authority context, and found in favour of the Council. 

Gendall J has produced one of those wonderfully useful judgements that sum up the law on all of the matters in dispute, including in this case local authority liability in negligence, the production of LIMs and PIMs, and the production of information generally.

The case

Monticellois a land development company, which found part of the land it had purchased for residential development was contaminated by hazardous substances arising from a disused town dump that had been operated by one of the predecessors of the current Council.   Historical information about the disused dump was available in Council archives, but unknown to officers who processed the application for resource consent, or those responsible for the issue of PIMs and LIMs.

Since resource consent to subdivide the land was subject to a condition that should contaminants be found the land had to be rehabilitated, this discovery during earthworks meant that the company incurred considerable additional development costs.  Consequently it brought proceedings alleging the Council owed it a duty of care to keep and maintain accurate and reliable records about the existence of contaminated sites, to disclose that information to it, and that under the circumstances it ought to have refused to grant resource consent to develop the land.

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Clarification of the Authority for setting Speed Limit Bylaws

Created: Tuesday, 28 July 2015 03:01

Government recently passed emergency legislation to rectify a technical legal issue relating to speed limit bylaws. The Land Transport (Speed Limits Validation and Other Matters) Act 2015 (“The Act”) clarifies the power of local authorities and other road controlling authorities (such as the NZ Transport Agency) to set speed limits, and retrospectively ensures speed tickets issued since 2004 are enforceable.

The issue

Validity of speed limits set by around 25 local authorities since 2004 had been put in doubt. The issues were a result of increasing complexity in local government legislation and the Land Transport Act:

  • Any speed limit bylaw created under section 145 of the Local Government Act 2002 was required to be reviewed within five years. If no review took place the bylaw was deemed revoked after seven years;
  • Speed limit bylaws claiming to have been made under section 684 of the Local Government Act 1974 or section 22AB of the Land Transport Act 1998 may not have had the appropriate authority; and
  • Speed limits that were not validated according to section 10.1(7) of the Speed Limit Rule 2003 were deemed invalid.

If left uncorrected, speed limits in the districts and cities of local authorities affected may have been found to be unenforceable, if tested before a court.

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"It's a Lawyer Jim, But Not As We Know It" - Limitations on claiming Legal Privilege for advice from in-house Counsel

Created: Tuesday, 07 July 2015 02:01

"It's a Lawyer Jim, But Not As We Know It" – Limitations On Claiming Legal Privilege For Advice From In-House Counsel

A recent decision by the Ombudsman on the release of information under the Official Information Act 1982 (OIA) is a timely reminder of the limitations on claiming legal privilege for advice from in-house counsel.

In the decision (reference 334056, May 2015), the Ombudsman concluded that advice provided to the Minister from a practising lawyer employed as a public servant was not legally privileged because it could not be demonstrated affirmatively that the public servant was acting in a legal capacity.

The context may be familiar. The Campaign Against Foreign Control of Aotearoa complained to the Ombudsman about the Overseas Investment Office’s (OIO) decision to refuse a request for information relating to Kim Dotcom’s applications for consent to invest in New Zealand. The OIO sought to withhold two memoranda to Ministers, setting out the OIO’s advice on the applications, to maintain professional legal privilege (section 9(2)(h) of the OIA).

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