Newsletter

Merry Christmas to our clients and colleagues!!

We will be heading off on our Christmas holidays from midday on 23 December and returning with a skeleton staff on 9 January 2012. We will be back up to full capacity on 16 January 2012.

In this issue:

In the Community

We value our opportunity to contribute to the community and support a number of charitable and sports organisations and provide discounted legal services.

Kids kai time

Tim and Brett (as solicitor and trustee) have volunteered their services as solicitors for a new local charity called ‘Kids Kai Time Charitable Trust’. The charity aims to ensure that Wairarapa primary school students don’t go to school hungry and are able to enjoy a healthy and nourishing lunch. Logan Gold Walsh was also proud to sponsor a morning breakfast for a number of children from Lakeview School and Te Kura Kaupapa Māori of Wairarapa, which was held at the Aberdeen Steak House on Chapel Street, Masterton.

43 Below update

43 Below is an incorporated society and a socialising and networking group for people aged 18-43 years living, working or studying in the Wairarapa. Julie, Tim and Kathryn are on the committee for this group.

During the last few months 43 Below has hosted a number of events, including a bowling evening, a ski weekend, two musical events and a day out volunteering at Toast Martinborough. The membership is growing and if you are interested in meeting some new faces (and are aged between 18 and 43) please contact Julie, Tim or Kathryn by emailing: 43below@gmail.com

The annual quiz

On 25 August we held the third Logan Gold Walsh Quiz night in support of Hospice Wairarapa Community Trust. The team here was impressed with the support from the community for the event. There was a record number of spot prizes donated thanks to the generous support of local businesses and the persuasion powers of our Vicki Lackner.

Other snippets

Kathryn has spent a considerable amount of her time in the last six months playing the violin at community shows, such as the Wairarapa College production of Spamalot and the Masterton Amateur Theatrical Society’s pantomime of Cinderella.

Kathryn also performed at Lansdowne Village on 18 November with all the proceeds donated to the Food Bank.

Tim’s rugby season was a bit longer this year because he was selected for the Wairarapa Bush ‘B’ side.

Julie completed the Taupo Half Ironman event on 10 December and she was very pleased with her time of 5.36 hours.

Brett was lucky enough to go over to watch the President’s Cup Golf tournament in Melbourne in November. Hopefully watching the experts will have improved his game!

We have two staff on maternity leave. Kathryn Cole, our deeds clerk, gave birth to Louis on 5 September. Our office manager, Melissa Pauling, also had a boy, Zac, born on 21 October.

Legal Matters of Interest

Can I sell my Maori Land?

The short answer to the question, ‘Can I sell my M ori land?’ is, “Yes, you can but be prepared for a tricky process!”

The Te Ture Whenua M ori Act 1993 acknowledges the significance of land to M ori and promotes retention of that land. This Act has, understandably, made the sale process more complicated.

It is vitally important that you follow a particular procedure so that your sale transaction is not pronounced invalid.

The right to sell M ori land is not absolute and there are no guarantees. For your own peace of mind it is important to seek professional advice early, ideally from the moment you decide to sell. It can be a long process and it should not be rushed.

What are some of the things I need to be aware of?

  • If you own all of the land, you can advertise it for sale in the usual way but make sure that any real estate agent knows the land is M ori land.
  • The law provides that a ‘right of first refusal’ must be given to persons who belong to the ‘preferred class of alienee’, ahead of those who do not belong to that class. You do not have to offer these people a discount; they simply have first option to purchase the property at the price that could be met on the open market.
  • ‘Preferred class of alienee’ is defined in the Act as meaning:
    • Children and remoter issue (grandchildren) of the vendor
    • Relatives of the vendor who are associated with the land through bloodline links and M ori customary principles
    • Other owners of the land (if any) if they are members of the hapu (a subtribe of many families/whanau) associated with the land
    • Trustees for owners or relatives
    • Descendants of any former owner of the land who is or was a member of the hapu associated with the land.
  • If a person from this preferred class wishes to purchase the land, you can sell it to them at the open market price. If you have a competing offer, even if it is from a person who is not from the class, the preferred class buyer still needs to meet this offer.
  • Regulations under the Act make provision for notification to the preferred class by public notice in the newspaper.
  • An agreement for sale and purchase can be prepared in the usual way but it is important that the agreement contains a condition regarding M ori Land Court approval.
  • Even when you have a contract signed by both vendor and purchaser, this is not the end of the process. An application needs to be made to the M ori Land Court for confirmation of the sale within three months of signing the agreement.
  • The Court will grant this if the documentation has been prepared in accordance with the Court rules, the sale is not in breach of any trust to which the land is subject, the consideration is adequate, the purchase money has been paid or secured and the ‘preferred class of alienee’ has been offered the first right of refusal.

The Limitation Act 2010

What effect will this new legislation have on business?

Limitation laws prevent certain legal claims being brought against a person or company after a defined period of time. They provide a defence against old claims and give certainty in relation to legal liability for past events, balancing the interests of claimants, who want to enforce their rights in law, and the interests of defendants to have claims against them brought in a timely fashion.

This legislation has important ramifications for businesses, particularly in relation to how long records should be kept for past clients and customers. It is very difficult to defend a claim adequately when relevant records have been destroyed.

The Limitation Act 2010 came into force on 1 January 2011, replacing the Limitation Act 1950. The purpose of the new Act is to encourage claimants to make claims for monetary or other relief without undue delay, by providing defendants with defences to stale claims. This new Act only applies to claims for acts and omissions after 31 December 2010. Despite being repealed, the 1950 legislation will continue to govern a claim before that date, provided the claim is brought by the later of either 15 years from the date of the act or omission or five years from 1 January 2011.

What do I need to know about this new legislation?

  • The limitation period for most ‘money claims’ will be six years after the act or omission on which the claim is based. After this time has expired a defendant can raise a limitation defence against the claim.
  • The legislation addresses the unfairness that has arisen from the previous law in that a limitation period could end before a claimant even realised something was wrong. The concept of ‘late knowledge’ is introduced.` If you do not discover your claim before the end of the relevant limitation period, you have three years from when you discover the claim to issue proceedings. There is, however, a 15 year absolute ‘longstop’ by which all claims must be brought, whether or not the person knows they have a claim.
  • Records should be kept until there is no longer a risk of a claim being brought against your business. This time period is now 15 years.
  • The new Act applies to most types of claims, however, specific limitation rules contained in other statutes will continue to apply in the situations covered by those statutes. For example, the new rules will not affect the specific limitation rules under the Fair Trading Act 1986.
  • The new Act permits parties to contract out of or modify the terms of the Act. This means that businesses and individuals should be cautious when negotiating and signing agreements, as this may affect the length of time they must retain their records.

Employment Law Update

90-day trial period for employees

In April this year legislation was passed to enable all employers to use the 90-day trial period but there are important limits that all employers need to be aware of:

  • The 90-day trial period must be in a written employment agreement.
  • It cannot be used for an employee who has worked for the employer previously (even if it was only for a few days).
  • The employment agreement must be signed before the employee starts work.
  • Employers still have to ensure their actions before dismissal are what a fair and reasonable employer would do. For example, set reasonable expectations, give appropriate training, allow a reasonable time for an employee to learn and tell an employee in what respects they are not meeting expectations.
  • Employers still have to comply with their own contractual obligations and policies, for example, to have regular appraisal meetings.
  • Employers still have to give notice of dismissal, as required by the employment agreement, even if the notice period ends after the 90 days are up.
  • Employers still have to act in good faith, which includes giving reasons to the employee for the dismissal and carrying out the dismissal in private.
  • Employers are protected only from dismissal personal grievances, not from other kinds of personal grievance, for example, discrimination or disadvantage to the employee.
  • The 90-day trial period is still useful to employers in the event of dismissal but great care is needed to ensure the employer is able to rely upon it and is not exposed to other kinds of claims.

Covert Surveillance by the Police

The Video Camera Surveillance (Temporary Measures) Act 2011, which restores the ability of Police to use covert video surveillance in investigating serious criminal offending, came into force on 18 October 2011.

All Police covert video surveillance on private property had been halted following a Supreme Court decision on 2 September 2011 that found almost all such operations were illegal.

One of the purposes of this legislation is to provide a temporary period that will enable Parliament to address the matters raised in this decision regarding the lawful and appropriate use of video camera surveillance as part of law enforcement. The Act will expire after six months.

The Act preserves the position as it was understood by previous governments and the Police, that covert video surveillance in an otherwise lawful search will not be regarded as illegal (for example, if Police were already on a private property under a search warrant.)

The timeframe has been tight, with the introduction of the Bill into Parliament on 27 September, immediate referral to the Justice and Electoral Committee and less than a week for submissions to be heard by this committee. This urgency was to minimise the disruption to police operations. Despite the short timeframe, some changes to the Bill were introduced, including the removal of some elements of retrospectivity.

The Act’s provisions will not apply to evidence in pending trials, where that was collected before the Act’s enactment. However, the Act does prevent those who have already been convicted from appealing on the basis of the Supreme Court’s decision.

The Courts will retain the power to exclude video surveillance evidence that has been obtained unreasonably and in violation of the New Zealand Bill of Rights (1990) Act’s protections against unreasonable search and seizure.

Contact us

For more information about us, a description of the legal services we offer and published legal articles go to our Contact Us page or to make an appointment call the office on 06 370 6480 or email: enquiries@lgw.co.nz

The information contained in this newsletter is of a general nature and does not purport nor is intended to be advice on any matter. No person should rely on the contents of this publication without first obtaining advice from a qualified professional person.

Logan Gold Walsh staff