Requirements for international yachts and crew entering New Zealand
While New Zealand’s sea borders are currently closed to most foreign Flagged vessels, a number of pleasure craft and super yachts in the Pacific are hoping to enter New Zealand in time for the Ameri...
Class Actions – Supreme Court rules it’s “opt-out”, Law Commission Issues Paper imminent
Following the Supreme Court decision in Southern Response v Ross [2020] NZSC 126 the Law Commission is now set to release its Issues Paper on Class Actions and Litigation Funding on 4 December 2020. ...
The Commerce Commission is set to undertake a market study into the Retail Grocery Sector
On 17 November 2020 the Minister of Commerce and Consumer Affairs announced a market study into the retail grocery sector through the Commerce Commission under Part 3A of the Commerce Act 1986 (Act)....
Court of Appeal cuts fine for Steel & Tube’s breaches of the Fair Trading Act
The Court of Appeal in Commerce Commission v Steel & Tube Holdings Limited [2020] NZCA 549 has set aside last year’s High Court decision under the Fair Trading Act 1986 (FTA) where it imposed a ...
My way or the highway: repudiation, cancellation and dispute resolution clauses
In Jade Residential Ltd v Paul, the Court of Appeal reviewed two issues which may arise in contractual disputes:
The right to cancel a contract for “partial” repudiation; and
Whether an aggrieved...
Making up the shortfall: Subcontractor awarded an interim injunction requiring head contractor to hold its retentions in a separate trust account
In a recent High Court decision,[1] Hanlon Plumbing Limited (Hanlon) successfully obtained an interim injunction on a without notice basis requiring Downey Construction Limited (Downey) to pay retenti...
There are major changes to the Building Act on the horizon that will impact the entire construction sector including manufacturers, builders, building consent authorities, consultants and many others ...
Is this Organic? Proposed Regulation of Organic Product Claims
The Organic Products Bill, which is currently at the Select Committee stage, proposes to introduce a regime to regulate claims made by businesses that products are organic (known as making an “organ...
Entitlement to Indemnity under Marine Transit Insurance
The decision of the Full Federal Court of Australia in Swashplate Pty Ltd v Liberty Mutual Insurance Company trading as Liberty International Underwriters addresses the issue of when risk attaches pur...
The Singapore Mediation Convention has now entered into force, creating a comprehensive framework for the enforcement of international mediation settlement agreements.
On 10 September 2020, Osborne J delivered the long-awaited judgment in Body Corporate 335089 v Vero Insurance New Zealand Ltd and Body Corporate 341154 v Vero Insurance New Zealand Ltd.[1] The judg...
Construction’s Insolvency Predicament: Cooper, Mainzeal and Reckless Trading
Insolvency events have become common place in the construction industry in recent years. In particular, a focus has been investigating whether directors allowed their insolvent company to engage in re...
The Employment Relations Authority (Authority) has recently issued a determination that considers redundancies implemented due to the Government’s COVID-19 restrictions: De Wys and Jenney v Solly...
Cancelled Plans and Future Liabilities: A post lockdown annual holidays FAQ
COVID-19 has not only hit many employers hard in terms of economic impact, it has also confronted employers with many employment challenges that require urgent attention.
A high bar to set aside statutory demands to enforce adjudication determinations under the Construction Contracts Act 2002
The “pay now argue later” principle underpins the Construction Contracts Act 2002 (CCA). The recent decision of C&R Property Development Ltd v MR Civil Ltd confirms the importance of this pr...
Blackpool Borough Council v Volkerfitzpatrick [2020] EWHC 1523 (TCC)
In 2009, Blackpool Borough Council (Principal), as principal, contracted with Volkerfitzpatrick Ltd (Contractor), as head contracto...
A recent decision by New Zealand’s Advertising Standards Authority (“ASA”) concerning a sponsored Instagram story posted by a well-recognised New Zealand personality, serves to remind all partie...
12 June 2020
New Zealand has moved into Alert Level 1 from 8 June 2020. While this means that life has largely returned to normal, as physical distancing and other restrictions have been removed, upd...
Liquidated damages and penalty clauses: the last word on Honey Bees
The Supreme Court’s judgment in 127 Hobson Street Limited & Anor v Honey Bees Preschool Limited & Anor [2020] NZSC 53 confirms the test for determining when a clause in a contract designed t...
The Overseas Investment (Urgent Measures) Amendment Act 2020 (“Amendment Act”) was passed on 28 May 2020 and received Royal Assent on 2 June 2020. The majority of the Amendment Act will ...
On 27 May 2020 the Government announced several in-principle changes to strengthen the retentions regime (Regime) in the Construction Contracts Act 2002 (the CCA).
Despite the Regime’s introduction ...
Adjudicators’ Powers: The ability to award statutory damages and to consider matters already determined
Adjudication under the Construction Contracts Act 2002 (CCA) is a commonly used procedure to determine disputes between parties to a construction contract. The recent decision of the High Court in H...
The new Privacy Act: What will this mean for your Business?
The long awaited reform to New Zealand privacy law is currently making its way through the final stages in Parliament, and is expected to become law on 1 November 2020. The Privacy Bill (which when en...
Payment schedule dispute causes delay to Commercial Bay completion
The recent judgment in Fletcher Construction Company Ltd v Spotless Facility Services (NZ) Ltd [2020] NZHC 780 and 871 demonstrates the Court’s pragmatic approach to injunctive relief against a subc...
COVID-19 – Contact Tracing – Health and Safety and Privacy. Think! and save us all.
As we slowly venture out into the world, we have noticed some businesses have adopted questionable contact tracing practices. Businesses need to Think! about the competing obligations they are opera...
Yesterday Hon Grant Robertson delivered Budget 2020, which he called “the most significant financial commitment by a New Zealand government in modern history”. The Budget establishes a $50 billio...
COVID-19: Industries interrupted: A call for clarity in respect of Business Interruption Cover
Understandably, businesses worldwide are looking for financial support to offset losses flowing from the restrictions governments have placed on how we can conduct business as part of global and local responses to control the spread of COVID-19.
Contractor or Employee? The decision in Leota v Parcel Express Limited
The legal distinction between contractors and employees can sometimes be a fine one. Being an employee, rather than a contractor, is generally (and in most cases) advantageous to the worker as it prov...
The High Court[1] has ordered The Fletcher Construction Company Ltd (Fletcher) to pay one of its subcontractors Electrix Ltd (Electrix) $7.5m for electrical work carried out on the recently completed ...
On Tuesday afternoon the government introduced legislation to implement the changes to the Companies Act 1993 (the Act) it announced in early April. These changes are intended to assist companies to...
COVID-19: Extension of Leave Support Scheme for “At Risk” Workers
On 24 April 2020 and with a shift to Alert Level 3, the Government has announced that the COVID-19 Essential Workers Leave Support Scheme has been extended to cover “non-essential” workers who are...
COVID-19: Update on buying and selling property during alert level 3
The guidelines for Alert Level 3 have been issued and will be in place as of today, Tuesday 28 April 2020.
New Zealanders are now able to move house during Alert Level 3, including moving between regi...
Administration of Retentions Trust: Oorshot v Corbel Construction
In 2018 the decision of Bennet & Ors v Ebert Construction Limited (in rec and liq) [2018] NZHC 2934 (Ebert) established an important precedent for the administration of retentions under constructi...
COVID-19: It’s advertising as usual in New Zealand
New Zealand’s Advertising Standards Authority (“ASA”), the industry organisation responsible for the self-regulation of advertising content and placement across all media in New Zealand, has emp...
Extension of unfair contract terms regime to small trade contracts
New Zealand’s Fair Trading Act (“FTA”) currently prohibits the inclusion or use of terms that have been declared to be an “unfair contract term” in standard form consumer contracts. The Fa...
At first glance: Overseas Investment Amendment Bill (No. 2) 2020
On 19 March 2020, the Overseas Investment Amendment Bill (No. 2) 2020 (the “Bill”) was introduced to Parliament. The two key intentions of the Bill are to strengthen and simplify the ove...
COVID-19: Contracts – Managing through lockdown and beyond
The current COVID-19 lockdown has brought many businesses to a standstill and, at the very least, interrupted all businesses. In light of supply chain and workforce difficulties, together with the i...
The Covid-19 pandemic has already had a significant impact on the marine industry. In this briefing, we summarise the current situation for the yachting sector in New Zealand and the Pacific.
New Ze...
High Court recognizes “property” in cryptocurrency
Introduction
Last week the High Court issued its decision in Ruscoe & Moore v Cryptopia Ltd (in liquidation) [2020] NZHC 728. The decision is notable, being the first of its kind in New Zealan...
These are challenging and uncertain times and we wanted to provide a briefing on some of the issues yacht owners may be experiencing during the current lockdown.
Do you have a mortgage over your yacht...
COVID-19: Buying and selling property during level 4
The imposition of COVID-19 Alert Level 4 lockdown (“Lockdown”) is adding stress to what is generally a stressful time for New Zealanders buying or selling their homes. It has been said that an e...
COVID-19: Rent abatements during level 4 – updated 14th April 2020
With the COVID-19 Level 4 Eliminate now in force, so that the part of the population not providing essential services must stay home, what is the position with the payment of rent and outgoings by tenants?
Next Level
We are almost 3 weeks into a Level 4 lock-down and a little over a week from Level 3 if all goes to plan. Now is the time to be thinking about what the next stage will look like for your bu...
New Zealand entered Covid-19 Alert Level 4 at 11.59pm on Wednesday 25 March. Anyone not working in essential services is required to stay at home. This restriction does not apply to building or co...
COVID-19: Government contract guidelines for NZS3910:2013
The Government has announced contract guidelines to help support the construction industry during the Covid-19 restrictions. These apply to contracts based on NZS3910:2013 (un-amended), being the mo...
COVID-19: Temporary ‘safe harbour’ from directors’ insolvency duties
As mentioned in Hesketh Henry’s article “COVID-19: Insolvency law changes” (https://www.heskethhenry.co.nz/insights-opinion/covid-19-insolvency-law-changes/), Grant Robertson has announced that ...
COVID-19: Government signals infrastructure push for economic recovery
While New Zealanders play their part in eliminating the spread of COVID-19 by staying at home, the government has released details of its plans for the construction sector in a post COVID-19 New Zeala...
On Friday afternoon the government announced temporary changes it intends to make to the Companies Act 1993 (the Act) to assist companies facing financial stress during the COVID-19 pandemic.
Summary ...
COVID-19: Business Finance Guarantee Scheme – loan applications now open
Businesses can now start applying to their banks for loans under the $6.25 billion Business Finance Guarantee Scheme (“BFGS”), set up to support small and medium-sized businesses during the COVID-...
The Government, retail banks and the Reserve Bank recently announced a major financial support package for businesses affected by the economic impacts of COVID-19.
The package includes a $6.25 billion...
COVID-19: Relief for businesses: COVID-19 Economic Response Package – updated 31 March 2020
The Government has introduced a number of key measures to reduce the impact of the COVID-19 pandemic on businesses:
Wage subsidy scheme – businesses may be eligible for wage subsidies ($585.80 (gro...
We have prepared the following tips for businesses to guide them through the current circumstances. Urgent advice should be sought where cash flow problems are arising, or where contractual obligati...
COVID-19: Employment issues -updated 24 March 2020
The COVID-19 situation is rapidly evolving, and employers need to be continually assessing and reassessing their response. This article is being updated regularly: the last update was 24 March 2020.
L...
Workplace bullying: what it is and what steps to take
Kiwis have a reputation as being friendly, optimistic people, however many of our workplaces have an unspoken dark side: New Zealand has the second-worst rate of workplace bullying in the developed wo...
Adjudication: Conflicts of Interest with Professional Advisors
The last working day of 2019 saw another judicial review of an adjudication determination (Yousseff v Maiden [2019] NZHC 3471), this time focused on conflict of interest and apparent bias. Despite j...
Take Care with Beneficiary Loan Accounts in Credit
It is common for family trusts to resolve that a distribution be made to beneficiaries but the actual amount paid to the beneficiaries is less than the authorised “distribution”. In the ...
Employment Law Workshop: Medical Incapacity 4 March 2020
Workshop - 4 March 2020
29.01.2020
Do you really need a Fixed Term Agreement? Really really?
Most of us (and especially lawyers) like certainty. Experience tells us however that there is nothing as uncertain as a sure thing. Frequently, we speak to employers that are tempted to use fixed ...
New National Interest Test Proposed for New Zealand’s Overseas Investment Rules
The New Zealand Government has recently announced yet more proposed changes to New Zealand’s overseas investment rules to be introduced early next year.
Media reports indicate that class action litigation in relation to ACP cladding is very likely. A litigation funder has announced it will be funding a class action lawsuit for owners of buildings cl...
Complaints are on the rise: A snapshot of complaints made to the Commerce Commission
The Commerce Commission (Commission) has recently released a snapshot of the complaints it has received in the year to 30 June 2019. A copy of the Commission’s report can be viewed here.
The snaps...
Unfair Contract Terms: High Court issues its first declaration
On 12 November 2019 the High Court issued its first declaration under the Fair Trading Act 1986 (FTA) that terms in a standard form consumer contract are unfair.[1] The Commerce Commission (Commiss...
In New Zealand we are trust crazy and owning a home in trust is common place. For many, just as for Mr Hodgkinson in Judd v Hawkes Bay Trustee Company Limited [2016] NZCA 397, the trust has been set u...
This year we have seen strong private M&A activity and the use of warranty and indemnity (“W&I”) insurance in a number of transactions.
W&I insurance is a specialist insurance product ...
Even when employment has lasted for a very short time, an employer is still required to follow the law, and the consequences of failing to comply can end up being very significant. So it was for a C...
A common issue for New Zealand companies engaging in international trade and dealing with foreign counterparties is how and where to resolve disputes and ensuring payment is received when the dispute ...
Court of Appeal considers the law on notice during a Trial Period… are we all clear now?
In Ioan v Scott Technology NZ Limited, the Employment Court looked at the requirement to give notice during a trial period termination under the Employment Relations Act 2000 (Act).
Mr Ioan’s employ...
In August 2019, a United Kingdom judgment imposed a custodial sentence on a site supervisor who was involved in breaches of the Health and Safety at Work Act 1974 (UK Act) that caused the death of a w...
Stop Press: “It was pure luck that nobody was killed”
Earlier this month, we set out an overview of the Health and Safety at Work Act 2015 (HSWA) as it applies to landlords and tenants.
On 23 August 2019, the first sentencing decision involving a landlor...
Between 2016 and 2022, demand for construction-related occupations is projected to increase by approximately 56,000 employees. Temporary workers provided by third party labour hire agencies have long ...
Fail to Plan, Plan to Fail: Leasing and Health and Safety
Fail to Plan, Plan to Fail: Leasing and Health and Safety
When the Health and Safety at Work Act 2015 (HSWA) came into force over 3 years ago as part of the Government’s strategy to reduce serious...
Improvements to the overseas investment regime could be on their way…
Certain features of the Overseas Investment Act 2005 (“Act“) that have caused frustration in the past could be set to change. The Act is currently in the midst of a two stage review. The...
From 6 May 2019, the statutory regime around rest and meal breaks in the Employment Relations Act (Act) has returned to a prescriptive approach. The changes replace the more flexible provisions that...
What must be in an individual employment agreement to comply with legislation? You might be surprised!
Most employers know that an individual employment agreement (IEA) must be in writing and that they are required to retain a signed copy (or the current terms and conditions of employment that make up ...
Employment Relations (Triangular Employment) Amendment Bill
You may have heard the phrase “triangular employment relationship” thrown around, particularly in the media. Although it sounds complicated, the phrase refers to a common employment relationship, ...
During 2019, Hesketh Henry’s Employment Law Team will present exclusive training opportunities to help employers navigate tricky workplace issues.
Our employment law workshops have been established ...
29.04.2019
The PPSR Files: Diarise your expiry dates!
Late last year, the Personal Property Securities Register (“PPSR”) upgraded its interface to a more user-friendly platform. However, some things have not changed. You will still not be notified by...
The Payment Claim / Payment Schedule regime in the Construction Contracts Act 2002 (CCA) can be a powerful tool in assisting cashflow in the industry. Please click here for a practical explanation o...
A million reasons for Rangatira to be bitter about the Tuatara earn-out
The Court of Appeal’s decision in The Malthouse Ltd v Rangatira Ltd highlights some of the risks with earn-out arrangements and, in contrast to recent High Court rulings, illustrates a more traditio...
The risks arising from the use of unguarded machinery are well-known to the point of being blindingly obvious. The measures to ensure the safe operation of machinery are usually straightforward. W...
CONSTRUCTION CONTRACT REFORM: Ten Guidelines the Government could Adopt
“We need to lead by example and if there are things that we can do to take a leadership position with that industry then we should be.” Prime Minister Ardern[1]
As 2018 draws to a close a...
The Commerce Commission recently announced that, after its investigation of jeweller Michael Hill Limited, the company was fined $169K for breaching its obligations in relation to the extended warrant...
Ebert Construction: Court provides Guidance on the Retentions Trust Regime
Following our previous updates (Ebert Construction Receivership – What You Need to Know and Ebert Construction – Receivership and Liquidation), on 12 November 2018 the High Court ordered that the ...
When the employment relationship comes to an end, for whatever reason, there are still a few boxes to be ticked. So what needs to be done before you can bid each other a (hopefully) fond farewell?
Erich Bachmann, the Managing Partner of Auckland based commercial law firm Hesketh Henry, has been awarded the Cross of the Order of Merit with Ribbon of the Federal Republic of Germany (Verdienstkreu...
30.10.2018
Building and Construction Law Journal
Construction partner, Nick Gillies, has been published in the latest Building and Construction Law Journal ((2018) 34 BCL 179).
Introduction
Following our Initial Note, the receivers of Ebert Construction Ltd (Ebert) released their first report on 1 October 2018. Then, on 3 October 2018, Ebert put itself into liquidation, wi...
Pruning Back Liability: Do Contractual Arrangements Hold the Key?
The first defended hearing under the Health and Safety at Work Act 2015 (HSWA), WorkSafe v Athenberry Holdings Ltd, required the District Court to consider the ability of a business (a PCBU) to influe...
Negotiating The Best Incentives For Korean Companies
Hesketh Henry Special Counsel, Hak Jun Lee recently presented at the 2018 IAKL conference on “ Negotiating the best incentives for Korean companies “.
The topic included: Current trends f...
The Employment Law team at Hesketh Henry is thrilled to welcome Jodi Sharman back from parental leave. Jodi is excited to be back at her desk. We are also happy to announce that Sam Houliston has ...
Hesketh Henry has authored the New Zealand chapter of the LexisNexis Foreign Investment Law Guide 2018-2019, a guide for foreign investors interested in doing business in New Zealand.
The chapter prov...
Partners Nick Gillies, Helen Macfarlane and Christina Bryant are the contributing authors of the New Zealand Chapter of the 2019 edition of “Getting the Deal Through Construction”.
Getting...
Antares Restaurant Group Limited (which owns and operates Burger King in New Zealand) has received a whopper of a sanction – a ban on the company supporting visa applications until July next year.
Hesketh Henry was pleased to host the New Zealand Institute of Quantity Surveyors on 14 August 2018, where one of our construction partners, Nick Gillies, presented on concurrent delay. The same pre...
New Zealand has introduced a new standard requiring all vessels to have a “clean hull” on arrival in the country after 15 May 2018.[1] The objective is to minimise the introduction of ...
EBERT CONSTRUCTION RECEIVERSHIP – What You Need To Know
What is currently known?
On 31 July 2018 Ebert Construction Ltd (Ebert) was placed into receivership. John Fisk, Lara Bennett, and Richard Longman from PwC have been appointed receivers. The recei...
Hesketh Henry Ranked in the new Chambers and Partners HNW (High Net Worth) Guide
We are pleased to announce that the prestigious Chambers and Partners HNW Guide have ranked partner Mary Joy Simpson and the firm in the first Chambers HNW section devoted to the New Zealand private W...
On 25 July 2018 the Domestic Violence – Victims’ Protection Bill passed its third reading in parliament. The resulting Domestic Violence – Victims’ Protection Act 2016 will come into force on 1 April 2019.
Contractor, Worker, Employee: The Gig Economy Gets a Judicial Serve
The UK Supreme Court’s recent decision about a plumber could influence how our own courts classify workers held out as contractors and workers for app-based companies like Uber.
The SA-2009 form of Subcontract Agreement is commonly used in the construction industry. It has undergone a review and a new SA-2017 form has been produced.
Continued Importance of IP Protection for Manufacturers
The Ministry of Business, Innovation and Employment (MBIE) has recently released a report which identified key trends and challenges for the manufacturing sector.
Two of the most commonly used standard agreements to engage consultants are the ACENZ / Engineering New Zealand (formerly IPENZ) Short Form Agreement (“SFA”) and the Conditions of Contract for Consultancy Services (“CCCS”).
Ministry of Health statistics confirm that during 2016, 169,454 people accessed mental health services in New Zealand. The law of averages suggests that most workplaces will – to a lesser or greater degree – be affected at some time by an employee’s mental health issue.
Managing Medical Incapacity: Enough To Make You Feel Sick?
Managers and HR practitioners often tell us that dealing with employees who are genuinely too sick or injured to work is one of their least favourite tasks. Frankly, we can see why.
Hesketh Henry Employment Team to Present at the 5th Annual ‘Managing Ill & Injured Employees’ Masterclass
The Hesketh Henry Employment team have been invited to present at the 5th annual 'Managing ill & injured employees masterclass in Wellington on 24th July and Auckland on Monday, 30th July 2018.
Members of Hesketh Henry's specialist construction team have been busy presenting papers at a number of recent industry conferences on various topics of interest
Our Insurance Law team has written a new publication for LexisNexis, known as Insurance Practical Guidance. This is the first on-line insurance law product of its kind in New Zealand.
This update pr...
Criminal Law and Employment Law – when worlds collide
The obligation an employer has to be open and honest to its employees, active and constructive, responsive and communicative and not to mislead or deceive, is the exact same set of obligations that employees owe to their employer
September 2016
Our Insurance Law team has written a new on-line publication for LexisNexis, known as “Insurance Practical Guidance“. It is the first on-line insurance product of its kind...
“Hallelujah, I’m free!” Exiting a multi-owner SME – the importance of a Shareholders’ Agreement
A Shareholders' Agreement is a contract between a company's owners which should regulate the way the business operates and how owners deal with each other.
Compliance with the Holidays Act is paramount, but that is closely followed by compliance with any collective agreement and then individual employment agreement.
If you wish to dispute the market rent proposed by the landlord, you may wish to consider what evidence you need to substantiate your alternative proposed market rent.
When an employee leaves work in dramatic fashion, it is important (from both a legal and practical perspective) to try and clarify the employee's intentions, so you all know where you stand.
It is now widely accepted that New Zealand is in the midst of the largest construction boom in 40 years. For anyone working in or providing professional services to the construction sector, it is im...
Carter Holt Harvey Ltd v Minister of Education & Ors [2015] NZCA 321
Last year the High Court[1] refused to strike out a negligence claim that a designer, manufacturer and supplier of building m...
Regrettably, building and engineering is prone to disputation. As New Zealand moves through a period of significant construction activity, the risk of claims is likely to rise. High demand combi...
Is Your Home Held in a Family Trust? – The New Tax Changes Affect You!
The Government’s announced law changes dealing with taxation of property came into effect on 1 October 2015 and will have a significant impact on all property owners who hold their family home in a ...
Selecting and Tailoring Dispute Resolution Clauses
Dispute resolution clauses are often relegated to the end of contractual negotiations or standard “boilerplates” are included with little or no thought as to their appropriateness. Frequently...
The Employment Standards Legislation Bill (Bill), recently introduced to Parliament by the Government, proposes a raft of changes across employment legislation.
Once an employer has investigated allegations of misconduct, and reached the conclusion that yes, the employee has indeed done what they were accused of, it is tempting to race to the finish line, and...
Our construction team has been featured in the August 2015 edition of Business North, commenting on New Zealand’s current building boom. The article outlines reasons for the increase in demand, up...
Here we go again…the next steps towards the new health and safety legislation
After some 16 months of consideration, 226 submissions, and 2 extensions, the Transport and Industrial Relations Select Committee has finally released its report on the Health and Safety Reform Bill.
...
Enforcing Employment Standards – finally some teeth!
For a long time, enforcement of employment standards has been a bit of the proverbial slap on the hand with a wet bus ticket. However, things are about to get quite a lot tougher for employers who...
As you are no doubt aware, once again, the Health and Safety Reform Bill has been delayed, with the Select Committee now due to report back on 24 July 2015. Rumours are swirling with regard to the r...
Recently we have noticed a number of employers getting themselves in trouble when it comes to the disciplinary process. Often, these employers will have a good idea of what the employee has done w...
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In this update, we summarise significant decisions released in the first half of 2015.
It has been a busy June, with various substantive judgments released by the High Court and ...
There has been a lot of comment in recent months about changes to rest and meal break entitlements. Based on those comments, one could be forgiven for thinking the world was ending. Take one union...
New Director and Disclosure Requirements for New Zealand Companies
New director residency requirements are about to be introduced for all New Zealand Companies. These changes come into effect on 1 May 2015, with all existing companies having an additional 180 days ...
Enforcing Employment Standards – heavy sanctions looming!
For a long time, enforcement of employment standards has been a bit of the proverbial slap on the hand with a wet bus ticket. However, things are about to get quite a lot tougher for employers who...
In a first for New Zealand, a Company Director has been sentenced to a custodial sentence (four months’ home detention) following a conviction under HASIE. His company was also fined $60,000.
In a...
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Helen Macfarlane, together with Christina Bryant, Nick Gillies and Michael O’Brien are the authors of the New Zealand chapter of the 2015 edition of “Getting the Deal Through: Co...
Introduction
Since its introduction twelve years ago, the Construction Contracts Act 2002 (CCA) has become a cornerstone of New Zealand’s construction sector. The CCA followed similar statutory in...
Wage and time records are not the sexiest or most captivating aspect of employment law. Indeed, it is an element of HR that is easy for even the best, most diligent practitioners to forget. Howe...
A beneficiary’s right to information – what should trustees disclose?
There have been a number of recent cases where beneficiaries have gone to court to seek information about the activities of a trust of which they are a beneficiary. The cases have helped shed light ...
In this update, we summarise significant insurance decisions released in the latter part of 2014.
Litigation arising out of the Canterbury earthquakes continues its progress through the levels of appe...
Responding to Progress Payment Claims: Lessons from the Court of Appeal
Two recent Court of Appeal decisions, SOL Trustees Limited v Giles Civil Limited and Watts v Hughes Construction Limited v Complete Siteworks Company Limited highlight potential pitfalls when respondi...
The Building (Residential Consumer Rights and Remedies) Regulations 2014 (the Regulations) are coming into force on 1 January 2015. These implement a number of new consumer protection measures for r...
Redundancy Wake Up: Court of Appeal Upholds Employment Court Decision
Redundancies have been a hot-button issue over the past 18 months, with no fewer than four Employment Court decisions dealing with them. The Court of Appeal has now weighed in, and made findings tha...
Maintenance & Repair Obligations under a Commercial Lease
The extent of a tenant’s responsibility to maintain and repair their premises under a commercial lease is something that often causes concern for both landlords and tenants alike and is not alwa...
Way way back, during the 2011 election campaign, National made a promise to amend the Employment Relations Act 2000. Following what has proven to be a long-winded saga featuring criminal convictions...
The trials and tribulations of using a trial period are compounding with each new Authority and Court decision. The latest wrinkle is the recent decision in Hutchison v Canon New Zealand Ltd [2014...
Rebuilding New Zealand: A case for Dispute Resolution Boards
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New Zealand sits on the cusp of the largest construction boom in a generation. One of the challenges (and opportunities) that this presents is how best ...
Arbitration Act 1996 – Reconstructing the Agreement to Arbitrate
The recent stream of alternate dispute resolution methods is part of the zeitgeist where disputants are shying away from Courts and attempting to settle their differences outside the Courtroom steps. ...
John Anthony Osborne and Helen Osborne v Auckland Council
On 10 June 2014, the Supreme Court delivered a decision on the eligibility criteria under s 14(a) of the Weathertight Homes Resolution Servi...
Nothing says excitement quite like the rules of civil procedure. We might laugh at that statement, but such rules are important insofar as they govern the way cases are commenced and managed through...
As you might be aware, the Government is in the process of introducing new workplace health and safety legislation. The Health and Safety Reform Bill is currently before Select Committee, and is expec...
Cladding manufacturers and leaky schools – sufficiently close to care?
Introduction
The Minister of Education and others, including four school boards of trustees, issued proceedings against Carter Holt alleging its cladding product, called shadowclad and installed in v...
Rent reviews are a fairly frequent occurrence in most leases and often a source of disagreement between landlords and tenants as to what level the reviewed rent should be set at. If you have received ...
Kim Dotcom’s anticipated Political Party aspirations may have taken a hit when the Supreme Court delivered a judgment against Dotcom. Most New Zealanders are no strangers to Dotcom and the storm o...
The New Giant – plotting the course between Admiralty and cross border insolvency rules
Admiralty proceedings against a vessel are necessarily territorial in nature. A debtor’s vessel may sail into a certain jurisdiction and be arrested and sold for the benefit of creditors who both ha...
Crystal Imports Ltd v Certain Underwriters at Lloyds of London [2013] NZHC 3513
Like Ridgecrest, Marriott and Wild South,[1] this claim concerns damage sustained by an insured property in successive earthquake events. The question arising in all of these claims is whether the i...
Marriott v Vero Insurance New Zealand Ltd [2013] NZHC 3120
This claim, Wild South and Crystal Imports[1] all involve the application of an automatic reinstatement clause in a policy, in circumstances where the insured property sustains damage in successive ea...
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In this update, we summarise insurance decisions issued at the close of 2013 and in first quarter of 2014. Litigation arising from the Canterbury earthquakes continues to domin...
Today is International Workers’ Memorial day, commemorating employees and contractors killed in the course of performing their jobs. In New Zealand, for the year 2013, 51 people lost their lives at ...
What happens when an employee, or an unsuccessful candidate for a position, wants to see information relevant to their file or application that the employer considers is confidential? The Human Righ...
Parental Leave Redundancy: Restructuring While An Employee Is On Parental Leave – A Hard Push?
When restructuring a business, it is important to pay particular attention to employees whose employment may be affected while they are on parental leave.
HEALTH AND SAFETY REFORM BILL: RISKS YOU NEED TO KNOW ABOUT
Quite a few months after the ‘Exposure Draft’ was introduced in October 2013, the government has now introduced the Health and Safety Reform Bill into parliament. The sales pitch is that this is...
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Over the past few months the Rules Committee has been considering a total revamp of the District Court Rules (DCRs). At the same time, Parliament has been considering the Judica...
The Employment Relations Act is changing (yes, again!). What does this mean for you?
Now that the Christmas tree has been packed away for another year and the New Year celebrations have been success...
Health and Safety Changes – Directors Need To Act Now!
We all know about New Zealand’s appalling record in workplace health and safety, compared to the rest of the OECD. This was, of course, brought into even sharper relief by the tragedy at Pike Rive...
Diminution of value or the cost of cure: assessing the “normal” measure of damages in leaky building claims
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Johnson v Auckland Council [2013] NZCA 662
Mr and Mrs Johnson purchased a leaky home in a mortgagee sale. They were aware at the time of purchase that the house might leak. T...
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For ten years NZS 3910:2003 was the form of construction contract most commonly used in New Zealand. However, following industry feedback, NZS 3910:2003 has now been superseded...
Introduction
As expected, the Canterbury earthquakes have resulted in a plethora of insurance litigation. The Christchurch High Court has a dedicated earthquake list to deal with the volume of cases...
Christmas bonuses, annual bonuses, or quarterly bonuses that are paid shortly before Christmas may all have an impact on holiday payments.
Generally speaking, if the payment is made under an employee...
Employers are entitled to have a Christmas closedown – provided they customarily have had a closedown period. Unfortunately, what constitutes “customarily” is somewhat unclear: an employer tha...
In 2013-2014, both Christmas and New Year’s Day fall on a Wednesday. Boxing Day and 2 January 2014 both fall on a Thursday. Accordingly, all are to be observed on the actual days they fall.
Publ...
Employers have responsibility for their staff at any work-related Christmas function. This can potentially include client functions.
Employee behaviour can stray into misconduct, particularly where ...
The Government has released its Construction Report, which takes an in-depth look at the state and direction of NZ’s construction industry. Construction is one of the largest sectors in NZ’s eco...
Commercial Tenancies: Yield Up, Make Good & Reinstatement
Obligations to make good and reinstate a premises at the end of a lease are not usually at the forefront of the mind of someone who is about to enter into a new lease or take an assignment of an exist...
Pre-Employment Assessments – What You Need To Know
Can employers use ‘on the job trials’ as part of the recruitment process? An Employment Court decision suggests the answer is ‘yes’, but there are still some pitfalls to watch out for.
To av...
Skeletons in the Closet – Misrepresenting Convictions
A Fonterra driver has won his unjustified dismissal case after failing to disclose previous criminal convictions in his job application. The application included a warning that a failure to disclose c...
Job Application Forms and Questions – Have you been sterilised?
A job application form seems so simple, however they can be harder to make legally compliant than you might think.
In the Media
An extreme example recently reported by Fairfax Media was a series of ...
Can you deduct from an employee’s wage? It’s not as easy as you may think.
It is a fundamental rule that employers must pay the entire amount of an employee’s wage without any deduction. But what about PAYE, an overpayment made to the employee or if the employee owes you...
Garden leave intertwines with post-termination restraint of trade
It is the nature of business that employees often resign in order to take up jobs with competitors. In some cases, these employees are privy to valuable business information which soon-to-be ex-empl...
Working Safer – Government’s Blueprint for Health and Safety Released
The Minister of Labour, Simon Bridges, yesterday announced the introduction of a package of health and safety reforms, which aim to make a significant dent in New Zealand’s comparatively poor rates ...
A pregnant pause
In March 2013, The Observer reported that:
“one in seven women surveyed had lost their job while on maternity leave; 40% said their jobs had changed by the time they returned, with ...
Replacement Workers – Are the times (and the law) changing?
Replacement Workers – Are the times (and the law) changing?
On 13 June the Employment Relations (Continuity of Labour) Amendment Bill was drawn from the ballot of private members’ bills, meaning t...
The Employment Relations Act Gets a Makeover
In the March 2013 edition of Employment News, we mentioned that the Government was to introduce a new Bill to amend the Employment Relations Act 2000 in se...
Make time for tea – do your employees take their breaks?
Most employers are now cognisant that employees are entitled to rest breaks and meal breaks during the employee’s working hours. What may not be so clear are the employer’s obligations to inform a...
Common Sense prevails – Court of Appeal overturns Bull and Speedy decision
Where did this start?
This litigation arose out of a tragic accident on Mangaohane Station in which an employee was killed. Health and Safety Inspector Margaret Utumapu sought to interview Mr Bull and...
On 1 July, a new workplace health and safety system was launched by the Ministry of Business, Innovation and Employment (MBIE).
New legislation, the Health and Safety (Pike River Implementation) Bill ...
Health and Safety – getting its Act together at last?
The Independent Taskforce on Workplace Health and Safety has recommended sweeping changes to just about every aspect of health and safety in New Zealand. The recommendations are for a new agency (whic...
Who knew that Fonterra employees were such dedicated followers of internet trends? The dairy giant has once again found itself embroiled in employment litigation over a social media craze. Back in 201...
Subject to any guidelines, agreement, or policies to the contrary, an employee is allowed to turn up to work wearing an ugly tie or with a horrific haircut. An employee’s appearance, is, within reas...
Redundancy – Employer Judgement or Court Judgment?
Four recent decisions of the Employment Court have found the employers’ reasons for redundancy wanting, and have consequentially held the dismissals to be unjustified.
Rittson-Thomas t/a Totara ...
Leading from the front on Health and Safety – what all directors need to know
The government is committed to holding directors to account for their company’s performance in health and safety, and assisting them to understand and manage their responsibilities.
PPSA Pointer – Update Debtor’s Name Change or Lose Priority
For a secured party to retain the priority of their registration on the Personal Property Securities Register (PPSR), they must keep their financing statement up to date with all the information that ...
Judge Barrie Travis
Judge Travis, a long-serving Judge of the Employment Court in Auckland, retired at the end of 2012.
A member of the Court since 1989, Judge Travis has been responsible for some of ...
The creation of a stand-alone Crown agent was a key recommendation of the Royal Commission on the Pike River Coal Mine Tragedy. The Government has now announced that it will create this agency, and...
Given the summer holiday, one would expect little to report in the way of proposed legislative changes to employment law. The Government clearly didn’t get that memo! Since November, it has anno...
Court rules competing rights trump religious belief at work
Recently, the European Court of Human Rights (“ECHR”) ruled on claims brought by four applicants based upon what they saw as discrimination against them in their workplaces on the grounds of relig...
Two Degress of Separation: How Not to Vary and Employment Agreement
The Employment Relations Authority’s decision in Edwards v Two Degrees Mobile Ltd serves as a reminder to employers of the fundamental requirement to reduce agreements to writing. It also demonstr...
In the recent decision of Faitala v Terranova Homes & Care Ltd, the Employment Court firmly rejected an employer’s position that it was entitled to deduct the employer’s compulsory KiwiSaver c...
Tomorrow Doesn’t Work for Me, Nor Does Any Other Day – Let’s Just Not Bother: An Employee’s Refusal to Attend a Disciplinary Meeting
We are quite often asked what to do if an employee just won’t turn up to a disciplinary meeting. Do you have to delay forever? Can you box on and hold the meeting without the employee in question?...
Dismissals in the Spotlight – Employee nearly kills a colleague but gets awarded $10,000
In the first few months of 2013 we have seen numerous articles in the media reporting on cases where employees have been dismissed, including a swearing and speeding nanny and a drunk employee at a Ch...
Don’t Let the truth get in the way of a good story
DON’T LET THE TRUTH GET IN THE WAY OF A GOOD STORY
The New Zealand Herald reported on 21 January 2013 about a manager at Independent Liquor (referred to using the Bond-esque title “Mr X”) who wa...
The recent slew of high profile cases involving directors of failed finance companies highlights the need for all current and would-be directors to understand and sufficiently perform their directors&...
Successfully positioning your business for the future in terms of growth, succession or exit is crucially important for all businesses regardless of size or stage in the business life cycle. Without p...
Changes to Company and Director Information Requirements – Will they affect your company?
The Companies and Limited Partnership Amendment Bill (“Bill“) proposes key changes to company director requirements which may affect up to 4,200 companies. This article outlines some key c...
Obtaining landlord consent to an assignment or sublease of your lease is a standard requirement for commercial tenancies. While a tenant wishing to exit a lease will generally remain liable for the ex...
LEGISLATION UPDATE
What’s new in the world of employment-related legislation? A real mix of developments in legislation dealing with adventure tourism, parental leave, the controversial “...
Watch This Space!
Since our last edition of Employment News, we have learned of two important cases before the Employment Court regarding KiwiSaver contributions and Equal Pay for women. There are al...
Employee Benefits – which Employer carries the can?
When a ‘vulnerable’ employee elects to transfer employers under Part 6A of the Employment Relations Act 2000 (“Act”), all their employment entitlements transfer with them. The new employer b...
In a matter of months the Minister of Labour has stated that she intends to review the law regarding constructive dismissal, a couple of constructive dismissal cases were reported in the media, and Ch...
Early Morning Shop leads to Health and Safety Nightmare
Many of us know that supermarket shopping with children can be a trying experience. However, a trip to Lower Hutt Pak n’ Save became something of an early-morning nightmare for a father and his 10...
Major Workplace Health and Safety review and consultation
New Zealand has one of the highest workplace death rates in the OECD. For the first time in twenty years, a significant review of New Zealand’s entire workplace health and safety system is underwa...
Crest Cleaning Refuses to Transfer Vulnerable Employees
Either Crest Commercial Cleaning (“Crest”) are on a crusade against Part 6A of the Employment Relations Act 2000 (“Act”) or Part 6A has unfairly rallied against Crest. The object of Part 6A ...
Fixed Term Employment Agreements
Section 66 of the Employment Relations Act 2000 (“ERA”) allows an employer to employ an employee for a fixed term. There are, however, various prerequisites, set o...
New Zealand’s size and geographical proximity to Australia has resulted in a number of trans-Tasman sporting events. This trans-Tasman rivalry offers fantastic visibility opportunities for spons...
Competing claims scuppered: A ship repairer’s priority rights following the ship’s arrest and sale
Alan Sherlock, Partner at Hesketh Henry, has been involved in a number of Admiralty cases, and has experienced the following recent success.
In Babcock Fitzroy Limited v The Ship “The M/V Southern P...
Key steps in deal process
In the current market, where it is generally taking parties some time to negotiate deals, we are seeing more heads of agreement being negotiated by clients as the first step ...
The New Zealand government may have been viewed by some as Santa heralding Christmas early when it announced in November 2010 that the 125 year old gift duty will be abolished effective 1 October 2011...
You are the subcontractor and supplier of tiles to the cladding contractor on a major commercial construction project. Midway through the project, one of your payment claims is not paid. Some weeks la...
Enduring Powers of Attorney – Update on changes in the law
Everybody knows that it is important to have a will in place. Likewise, appointing someone to act on your behalf if you lose mental capacity is very important. As part of an estate planning “hea...
Investor Losses: A Fruitful Ground for Class Actions?
In tough economic times when share prices fall, corporate profits drop and companies edge towards insolvency, investors can face the depressing reality of dwindling retirement portfolios. Whether they...
Lawyers need to have a greater understanding of a client’s business if they are to continue to play a key advisory role in their affairs. “Knowing the law isn’t enough any more,” says Hesketh ...
Selling a House You’ve Built or Renovated? What You Need to Know, Before You Sell
If you have done building work to a house you are selling, there is a good chance that the warranties in the standard agreement affect you as many types of work require a building consent.
Construction Contracts Act 2002 – Important Lessons Still Not Learnt Three Years On
The Construction Contracts Act 2002 ushered in a new approach to construction contracts and changed the balance of power between principal and contractors. The purpose of the Act is:
to facilitate re...
The Background To SME Business Succession
Business succession for small to medium enterprise businesses (“SME’s”) has become a hot topic. Many SME business owners consider the sale o...