Articles
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Health and safety guide for directors (22 May 2013) (NZ)
Chapman Tripp
To promote a better workplace health and safety culture in New Zealand, the Ministry of Business, Innovation and Employment and the Institute of Directors have produced a set of good governance guidelines. This fulfils a recommendation from the Pike River Royal Commission and from the...
Building, Local Government, Resource Management
Penny Hulse: No chance of a city full of high-rise homes (21 May 2013) (NZ)
New Zealand Herald
Half of suburban Auckland built up with three-storey apartments? Under the rules of the draft Unitary Plan it's about as likely as the sun setting in the east. In around 2016, the Unitary Plan is set to replace Auckland's eight district plans as the single rule-book for what people can and...
Bill of Rights, Constitutional, Human Rights
Andrew Geddis: We owe it to ourselves to be outraged (22 May 2013) (NZ)
New Zealand Herald
Citizens must speak up to protect the constitution when the Government fails to do so, says Andrew Geddis. Attorney-General Chris Finlayson's warning that new family care legislation is inconsistent with the Bill of Rights Act didn't stop the Government. Given our constitution's unwritten...
Company, Competition
Select committee fine tunes new cartel regime – and adds shipping (22 May 2013) (NZ)
Chapman Tripp
The changes the select committee is recommending to the Commerce (Cartels and Other Matters) Amendment Bill are mostly small and should make the new cartel regime more predictable. The exception is the removal of international shipping’s exemption from the Commerce Act, which is strongly...
Building, Property
Are the rules the rules? (17 May 2013) (NZ)
Martelli McKegg
Care needs to be taken when looking at body corporate rules. The first step is working out what the rules are. Just because a notice of change of rules for a body corporate has been registered against the title to a unit doesn't mean that those rules are still current. Don't be fooled as old...
Employment, Human Rights
Take care when dealing with job applicants (14 May 2013) (NZ)
Duncan Cotterill
A recent New Zealand human rights case shows how businesses risk unlawful discrimination claims from their job advertisements and dealings with job applicants. There are a number of prohibited grounds of discrimination including (but not limited to) age, marital status, religious belief,...
Civil Evidence, Civil Procedure, Technology
6 Things In-House Counsel Must Know About E-Discovery (15 May 2013) (USA)
Corporate Counsel
As a former securities litigator, Gabriela Baron recalls the days of document production when she tagged paper documents with different color tape flags, labeled the boxes lining the hallways with sharpie marker, and met trucks in the building’s loading bay, to make sure all those documents...
Intellectual Property, Technology
3-D Printing: The Next Big Thing in IP Law? (17 May 2013) (USA)
Corporate Counsel
Back in February, President Barack Obama indicated in his State of the Union address that 3-D printing may be the next big thing in manufacturing. What he didn’t say is that 3-D printing may also be the next big thing in intellectual property disputes. The new technology, which makes it...
What's Not to 'Like' About Service Via Facebook? (22 May 2013) (USA)
Corporate Counsel
About 15 years ago, you were greeted with, "You've got mail," when you turned on your computer. For better or worse, the use of electronic communication has expanded dramatically since the early days of AOL and this newfound reliance upon technology has certainly had a profound impact...
Human Rights, International, Privacy
Cloud Computing and Unexpected FCPA Jurisdiction (21 May 2013) (USA)
Corporate Counsel
A recent opinion from the Southern District of New York interpreting the “means of interstate commerce” under the Foreign Corrupt Practices Act, has opened the door for the United States federal judiciary to exercise jurisdiction over virtually any Internet communication, even when...
Employment, Health and Safety
Health and Safety Update: Good Governance Practices Guideline (21 May 2013) (NZ)
Minter Ellison Rudd Watts
Yesterday, the Minister of Labour released the Good Governance Practices Guideline for Managing Health and Safety Risks, which provides guidance for company directors on the steps they can take to comply with their health and safety obligations and influence their organisation’s health and...
Commercial, Company, Competition
Corporate Reporter (21 May 2013) (NZ)
Chapman Tripp
Welcome to Issue No. 20 of Corporate Reporter, Bell Gully's regular round-up of corporate and general commercial matters, designed to keep you informed on regulatory developments, legislation and cases of interest. Items in this issue include: Further amendments to the Consumer...
Employment, Health and Safety
Independent Taskforce recommends urgent and sweeping changes of current workplace health and safety system (21 May 2013) (NZ)
beehive.govt.nz
After a 10-month inquiry process, the Independent Taskforce on Workplace Health and Safety issued its findings last month. It recommends urgent and sweeping changes to the current system which it has described as "not fit for purpose". The report identifies major and systemic...
Property, Taxation
Commercial land-related lease payments: IRD proposes further tax changes (20 May 2013) (NZ)
Minter Ellison Rudd Watts
The Inland Revenue Department is proposing to change the tax treatment of certain payments made in respect of land-related lease assignments and other lease-related payments. This proposal intends to align the tax treatment of all land-related lease payments with other recent changes to the tax...
Tort
Need to Know: Passing Off (16 May 2013) (NZ)
iplawyer.co.nz
The law of passing off prevents traders from appropriating the goodwill of their competitors by passing off their business as either being that of or associated with the business of another. To a certain extent the law of passing off has been replaced by the Fair Trading Act, and almost all...
Law Practitioners
Continuing Professional Development for lawyers (20 May 2013) (NZ)
iplawyer.co.nz
The New Zealand Law Society has recently approved the introduction of a mandatory Continuing Professional Development (or CPD) system. This post explains what will be required of lawyers under the new system, and how the requirements can be met. In reality most lawyers already engage in...
Bankruptcy, Company, Insolvency
When is broke broke? A UK Supreme Court perspective (20 May 2013) (NZ)
Chapman Tripp
Like many legal tests, the test for insolvency is easy to state, but hard to apply in practice. The United Kingdom Supreme Court (UKSC)1 has recently issued an important clarification, which confirms that an element of forwards projection must be applied – extending in extreme cases to...
Building, Property
Interest grows in earthquake prone buildings policy (15 May 2013) (NZ)
Duncan Cotterill
The future of earthquake prone buildings is still shrouded in uncertainty as the wait continues for the Government’s new policy to be released later this year. This follows consultation by the Ministry of Business Innovation and Employment. The Government has accepted, in full or in...
Law Practitioners
Call for solicitors to use British Sign Language (13 May 2013) (NZ)
Law Society Gazette
Research has highlighted the need for solicitors to learn British Sign Language (BSL) so that deaf people have the same access to legal advice as their hearing counterparts. The research, published last week to coincide with Deaf Awareness Week, found that 85% of deaf people prefer to receive...
Judiciary, Law Practitioners
Litigants in person; oral evidence; and costs management (13 May 2013) (UK)
Law Society Gazette
Sir Alan Ward in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234, a case which concerned two litigants in person (LIPs), opened his judgment by warning the reader that ‘this judgment will make depressing reading’. The case highlighted the difficulties increasingly encountered...
Law Practitioners, Technology
Americans introduce a professional obligation to understand technology ( 29 April2013)
Josh Mc Bride
The American Bar Association has recently updated its Rules of Professional Conduct to require lawyers to understand the benefits and risks to their practice of “relevant technology”. This is a significant development. What does it mean for the increasing number of lawyers using...
Property, Taxation
Inland Revenue proposes a second round of reforms to the tax treatment of land related payments (15 May 2013) (NZ)
Russell McVeagh
On the back of proposed changes to the tax treatment of lease inducement and lease surrender payments (included in a Bill currently before Parliament), Inland Revenue is now proposing broader changes to payments in relation to leases, other interests in land and licences to use land. If enacted,...
Competition
The Cartels Bill: One step closer to jail (14 May 2013) (NZ)
Russell McVeagh
The Commerce (Cartels and Other Matters) Amendment Bill, which represents the most significant ever reform to the Commerce Act 1986, came another step closer on 13 May 2013 when it was reported back from the Commerce Select Committee. The Bill has its roots in a Cartel Criminalisation...
Contract
Legal update - Preliminary agreements 2 - drafting tips (15 May 2013) (NZ)
Buddle Findlay
The first article in this series discussed the main types of preliminary agreements, including the pros and cons of investing time in signing a preliminary agreement. This second article sets out some drafting tips that will be useful when preparing and negotiating any preliminary agreement....
Competition
Cartel Bill: Report Back from the Select Committee (15 May 2013) (NZ)
Simpson Grierson
In our October 2011 FYI, we updated you on the Government's introduction of the Commerce (Cartels and Other Matters) Amendment Bill (Bill) into Parliament. The Bill was referred to the Commerce Select Committee (Committee) in July 2012. The Committee released its report on the Bill on 13 May...
Competition
Criminalisation of cartel conduct one step closer (15 May 2013) (NZ)
Kensington Swan
The Commerce Committee has reported back on the Cartel Criminalisation Bill suggesting some significant changes. Businesses will need to give serious thought to whether they are at risk of breaching the new provisions well ahead of any amendments coming into force. Criminal offence remains and...
Property
Unit Titles Amendment Bill (15 May 2013) (NZ)
Kensington Swan
The Unit Titles Act 2010 (‘Act’) and Unit Titles Regulations 2011 (‘Regulations’) have been in force since 20 June 2011. The purpose of the Act is to establish a framework for the ownership and management of unit title developments on a socially and economically...
Intellectual Property
Software and the New Zealand Patents Bill (15 May 2013) (NZ)
Baldwins
In response to concerns from local ICT industry sources that the currently worded Patents Bill would have allowed software to be patentable and hindered innovation, a new supplementary protection order (SOP) has been issued here. The Patents Bill uses the old English law concept of an invention...
Commercial, Competition
Proposed Commerce Act changes (15 May 2013) (NZ)
Bell Gully
The Select Committee has now reported back on the Commerce (Cartels and Other Matters) Amendment Bill (the Bill), which proposes major changes to New Zealand's competition law regime. We expect the Bill to be passed before the end of this year. This Bill amends the Commerce Act 1986, with the...
Commercial
Mitigating risk when selling offshore–ways to avoid losing a pound of flesh (15 May 2013) (NZ)
Kensington Swan
International trade continues to play a significant role in the New Zealand economy. New entrants to the export environment may not be up to speed with the legal and commercial risks associated with selling products overseas. Read more
Building, Property
Debate resolved: council earthquake strengthening policies reduced to 34% (15 May 2013) (NZ)
Kensington Swan
A recent High Court judgment has ruled Christchurch City Council cannot require earthquake-prone buildings to be strengthened beyond a seismic rating of 34% of the New Building Standard (NBS) specified by the Building Code. Read more
Health
Healthcare News Alert (13 May 2013) (NZ)
DLA Phillips Fox
A weekly overview of recent judgments, legislation, press releases and news items from around the world which impact the healthcare industry. Included in this week’s review is a report from the New Zealand Ministry of Health (MoH). This overview is produced by DLA Piper Australia and is a...
Judicial Review
Judicial Review: Being Candid About the Duty of Candour (14 May 2013) (NZ)
Bell Gully
A party to an application for judicial review has a duty to be candid with the Court and any other party. This article outlines just what is required in such applications by way of candour and the consequences that can ensue should the duty be overlooked or ignored. It also examines how the...
Health, Law Practitioners, Professions and Trades
This is the depression we don’t have to have (13 May 2013) (AUS)
Lawyers Weekly
The Tristan Jepson Memorial Foundation is seeking to introduce a set of guidelines in a bid to change the culture within the legal profession. The TJMF Psychological Wellbeing: Best Practice Guidelines for the Legal Profession was launched today (13 May) to coincide with the start of National...
Commercial, Construction, Contract
Construction contract creates a security interest (14 May 2013) (NZ)
Chapman Tripp
A High Court decision arising out of the Mainzeal receivership confirms that a construction contract can create a security interest in goods. But where the contractor has granted other security interests, for example to its bank, the rights of the principal and the bank will rank in priority...
Leaky Building, Limitation, Property
Supreme Court to consider interpretation of “built” date under the WHRS Act 2006 (8 May 2013) (NZ)
Martelli McKegg
In December 2011 we published a blog in relation to the High Court's ruling that an appeal from the Weathertight Homes Tribunal could not proceed to the Court of Appeal following its dismissal in the High Court. Mr and Mrs Osborne's pursuit for justice in their claim will now take them to the...
Building, Law Practitioners, Legal Services, Professions and Trades, Property
Surveyors and lawyers - partners not competitors (8 May 2013) (NZ)
Glaister Ennor
The two key New Zealand land professional parties authorised to lodge, alter and search land records are surveyors and lawyers. We have much in common and there are several distinct areas where surveyors and property lawyers can and should work closely together. If we can improve the...
Insurance, Property
Homeowner beware! - How home insurance changes could affect you (14 May 2013) (NZ)
Gibson Sheat
For most homeowners in New Zealand, their home insurance has always been an unspecified ‘replacement’ cost based on the floor area of their home. However, following the Christchurch earthquakes, insurers are now adopting a new home insurance process whereby all home insurance policies...
Commercial, Company
Let's keep the positive momentum going (13 May 2013) (NZ)
Minter Ellison Rudd Watts
After a noticeably flat 2012 the Mergers and Acquisitions market is much busier this year. When you combine this with the Government-led and private sector IPOs, I think we're seeing the most buoyant capital market situation we've had for some time. This renewed activity has given investors...
Commercial, Company
Longer arm of the law (13 May 2013) (NZ)
Minter Ellison Rudd Watts
With the game-changing Financial Markets Conduct Bill (FMCB) expected to come into effect during 2014, directors of public issuers need to be aware of the significant changes that will increase their responsibilities and potential liability. Not only will these changes affect directors, but...
Commercial, Company, Competition
Spotlight on the FMA how is it doing? (8 May 2013) (NZ)
Minter Ellison Rudd Watts
The Financial Markets Authority (FMA) has had a tough task on its hands since it was set up in 2011 to restore confidence among New Zealand investors. After the multimillion-dollar finance companies collapse, investors lost confidence in the Securities Commission's prowess as a financial...
Commercial, Company
Power to the people An investor's eye vIew of pending changes to offer documents (13 May 2013). (NZ)
DLA Phillips Fox
If Mighty River Power's initial public offering had been undertaken in two years' time, investors may have seen a very different offer document. Mighty River Power is the first company to be partially sold under the Government's mixed ownership model programme. Many retail investors may...
Intellectual Property
Georgie Pie: a brand that forever lives on in the hearts of its fans, and on the trade marks register (10 May 2013) (NZ)
Baldwins
New Zealanders are a nation of pie lovers, so it is no surprise that Georgie Pie evokes nostalgic feelings of simpler times and $1 pies. At its peak, Georgie Pie was selling more than 700,000 pies a week. Then, in 1996 McDonald’s bought the chain form Progressive Enterprises, and three...
Intellectual Property, Professions and Trades
A response that is unlikely to be accepted (13 May 2013) (NZ)
Baldwins
An American patent attorney has discovered the dangers of unprofessional conduct. Not only is it a disservice to your client or your relationship with the Intellectual Property office, but, in America, submissions to the Patent Office become publically available. Dennis Crouch, on his...
Environment, Resource Management
RMA reforms – what's on the horizon for 2013? (13 May 2013) (NZ)
Bell Gully
The Government has been busy in the RMA space, recently releasing two discussion documents. "Improving our resource management system" proposes a number of reforms including to provide greater national consistency and guidance, ensure there is more efficient and effective consenting,...
Intellectual Property
Legal challenges of any plain packaging laws bound to fail in New Zealand (2 May 2013) (NZ)
James and Wells
Are tobacco companies entitled to the same protection offered by New Zealand law as any other business? If you’ll pardon the pun, there’s no doubt there will be plenty of fuming legal debates that go on once the idea of plain packaging of cigarettes moves beyond an idea and into...
Employment, Law Practitioners, Professions and Trades
Career breaks: return journey (15 April 2013) (UK)
Law Society Gazette
Traditionally, practising lawyers follow a linear career path from trainee to partner. But does a career break, whether from choice (to go travelling, try something new or raise a family) or enforced (through redundancy, illness or addiction) have to break your career? A heavy emphasis on...
Environment, Local Government, Resource Management
Queenstown Central Ltd v Queenstown Lakes District Council: assessing applications for non-complying activities (7 May 2013) (NZ)
DLA Phillips Fox
Two recent High Court decisions have challenged the way consent authorities process resource consent applications for non-complying activities. Click below to read an overview of the decisions and the implications for planners and consent authorities. Read more
Family, Mental Health
“Is the test for capacity to cohabit the same as the test for capacity to marry?” (9 May 2013) (UK)
UK Human Rights Blog
It may seem strange that the same individual, with learning difficulties, can be considered to have capacity to marry, but not the capacity to decide whether to live with the person they have espoused. What, in essence, is marriage, that puts it on such a different footing to informal...
Costs, Legal Services
From Barretry, Maintenance and Champerty to Litigation Funding – Lord Neuberger, President of The Supreme Court (8 May 2013) (UK)
www.supremecourt.govt.uk
Lord Neuberger gives the inaugural Harbour Lecture at Gray's Inn. A little over 10 years ago, Professor Michael Zander observed that litigation funding in England and Wales was ‘in the throes of a revolution’. He was very prescient. Three major changes were under way or about to...