Business Law Archives | Edmonds Judd

Business briefs

September 24, 2026

Business Law, Consumer Credit, Health and Safety, Technology Law

Health and Safety at Work Amendment Act 2026

Since we published the Winter 2026 edition of Commercial eSpeaking, the Health and Safety at Work Amendment Act 2026 has received Royal Assent and will come into force on 1 April 2027.

The Act introduces ‘critical risk’ as a defined concept – being risks associated with hazards under Schedule 1A or risks likely to result in death, notifiable injury, illness, incident or occupational disease, and requires businesses to prioritise managing these risks above others.

If you employ fewer than 20 people, your health and safety duties will narrow specifically to critical risks, rather than covering every possible workplace risk. You’ll still need to meet baseline obligations, including providing adequate employee facilities (for example: toilets, drinking water and hand-washing facilities) but this change is intended to reduce the compliance burden for smaller businesses.

The Act also clarifies the duty owed by a Person Conducting a Business or Undertaking (PCBU) where its workplace includes outdoor space used for recreation. In specified circumstances, the PCBU will not owe the usual section 37 duty to people entering and using that space for recreational purposes, unless:

The recreational use is part of a PCBU’s business or undertaking, or
Other work connected to a business or undertaking conducted by the PCBU is being carried out at the time in the outdoor space near where the entry and use are taking place.

If your business already complies with industry-specific legislation, the Act confirms this will satisfy your obligations under the Act too, without needing to separately comply with the Act.

Businesses should begin reviewing their health and safety processes and policies now, ahead of the 1 April 2027 commencement date.

AI in the workplace

AI tools are becoming a standard part of many workplaces, used for everything from drafting documents to customer service and research. Used safely, AI may increase efficiency, but it is important to manage the associated risks and put the right safeguards in place.

Some key risks in practice include, without limitation:

Confidentiality: Trade secrets or confidential information entered into an AI tool could be disclosed, retained or used to train the tool
Privacy: Entering personal information into an AI tool may amount to a disclosure under the Privacy Act 2020
Intellectual property: AI-generated content isn’t automatically free of copyright issues, and outputs may infringe someone else’s protected work, and
Human oversight and transparency: AI output should be reviewed before it’s relied on, to guard against errors, bias or hallucinated content.

Some practical controls may include, without limitation:

Paid subscriptions: Paid subscriptions to AI tools generally offer stronger safeguards than free versions, but your business will need to check the specific terms that apply
Data audit: To take stock of what data the business holds, who can access it and whether use of an AI tool would give people wider access than they’re meant to have, and
AI policy: To set clear expectations around which AI tools are approved for use, what types of information staff can and cannot put into them and the process for reviewing and signing off on AI-generated output before it’s relied on.

There is more guidance in the Ministry of Business, Innovation and Employment’s publication Responsible AI Guidance for Businesses. Click here to read it.

AI in the boardroom

A recent Federal Court of Australia decision has offered a timely warning on AI’s growing role in the boardroom.^[1] The court also commented on AI use, warning that AI-generated summaries are not a substitute for directors actually reading and engaging with board materials themselves.

While the decision is not binding in New Zealand, directors here are subject to their own duty of care under the Companies Act 1993 that requires directors to exercise the care, diligence and skill of a reasonable director.

This duty applies regardless of whether AI is involved in a director’s decision-making process. If a director relies heavily on an AI-generated summary without checking it against the underlying material, they may struggle to demonstrate that they exercised the care, diligence and skill required by the Act.

As AI becomes more prominent in board processes and decision-making, this is a useful reminder that directors must properly engage with information and exercise independent judgement rather than relying solely on AI-generated material.

Reporting, liability and disclosure changes for consumer credit providers

On 1 July 2026, the Financial Markets Authority (FMA) took over responsibility for regulating the Credit Contracts and Consumer Finance Act 2003 (CCCFA) from the Commerce Commission. As part of this change, consumer credit providers including banks, credit unions and other lenders are now licensed under the Financial Markets Conduct Act 2013 (FMCA).

Reporting

Section 412 of the FMCA requires licensees to inform the FMA as soon as they believe they’ve breached, or are likely to breach, a licence obligation or if there has been, or is likely to be, a material change in circumstances, or where certain particulars are false or misleading.

While other types of FMCA licensees have been subject to this for years, this is new for consumer credit providers who have not had to comply with this until now.

The obligation to report arises as soon as the licensee believes a breach may have happened or may be about to happen. Getting this timing wrong, or failing to report at all, can result in a penalty of up to $600,000.

Director and senior manager liability

Directors and senior managers of consumer credit providers no longer have a personal due diligence obligation under the CCCFA. Personal liability arises instead under the existing FMCA regime and requires involvement in a breach.

Disclosure

Under the CCCFA, courts may order a debtor not liable for borrowing costs where appropriate disclosures have not been made by consumer credit providers. This is triggered by way of application from a debtor or the FMA, where courts may consider factors including, without limitation, the provider’s compliance programmes and prejudice caused to the debtor.

For more detailed information about these changes, click here.

^[1] ASIC v Bekier (Liability Judgment) [2026] FCA 196.

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650

What’s in a name?

September 24, 2026

Business Law, Intellectual Property, Legal Technology, Trademarks & Branding

Brand protection in the age of AI

An apple with a bite taken out. A golden ‘M.’ ‘Just Do It.’ The power of a punchy slogan or well-designed logo to immediately identify a business is immense, tapping into a deep-seated part of our psyche as consumers. A good brand inspires trust, implies integrity and creates emotional connection. It’s also a valuable piece of intellectual property.

A good brand, however, also costs money. Marketing and advertising, graphic design and social media experts: it all adds up, particularly for small businesses where every dollar counts. That is why many businesses are turning to the latest tech toy – generative AI. ChatGPT and other AI tools can create professional-looking branding in seconds for a tiny fraction of the market cost.

Under OpenAI’s terms of use, you own any output generated by ChatGPT or its other applications based on prompts or information you input,^[1] meaning you potentially own a piece of intellectual property which can contribute to the value of your business. Logos or slogans created by AI might even qualify to be registered as trade marks.

So what’s the risk?

Trade marks have been used and relied upon for hundreds of years by traders seeking to distinguish the goods or services they offer from those of other businesses. They attract a goodwill value to a business as a recognisable symbol of the products on sale, as well as providing an enforceable means of protection against less scrupulous traders who might seek to sell the same or similar products under a pretence of connection.

Under the Trade Marks Act 2002, to be eligible for registration, a trade mark must:

Have a distinctive character.^[2] It cannot just be a description of goods or services, and
Not be similar to an existing trade mark for similar goods or services, or otherwise be likely to cause confusion.^[3]

Even without registration, a business may have protection under the common law tort of passing off, as well as under provisions of the Fair Trading Act 1986 that prohibit misleading or deceptive conduct and certain conduct concerning trade marks.

OpenAI gives no warranty or representation, however, that the brand it creates will meet trade mark eligibility criteria, or be sufficiently distinctive to you to justify a passing off claim. In fact, its Terms of Use expressly acknowledge that due to the nature of the services provided, outputs may not be unique, and ‘other users may receive similar output.’ This means there is no guarantee that your AI-generated brand will not be the same as or similar enough to someone else’s mark to cause confusion, limiting its value as a trade mark in terms of goodwill and reducing its enforceability against potential fraudsters.

Using generative AI to create a brand might also leave you open to trade mark infringement or passing off claims by existing trade mark owners. OpenAI’s terms expressly state that a user is responsible for their own output, including that it does not violate any applicable laws.

ChatGPT does not run any clearance checks to ensure that the branding that it generates for a user does not use or infringe the intellectual property of any other party.

Generative AI models are trained using large datasets, which may include material created by third parties. The legal implications of that training, and of particular AI-generated outputs, are still developing. Businesses should therefore not assume that AI-generated material is free from third-party intellectual property risks.

No legislative guidance here

New Zealand does not currently have an AI-specific legislative regime. The current government has indicated that it will take a ‘light touch’ approach to regulation and courts will likely follow guidance from overseas. Existing laws, including privacy, consumer protection and intellectual property laws, continue to apply to AI use.

For now, the onus is on you to ensure that your AI-generated branding is sufficiently distinctive and original – not only to provide the goodwill value of a trade mark, but also to protect your business against passing off claims. MBIE has published voluntary guidance for businesses on the responsible use and development of AI. To read this, click here.

To ensure protection against passing off and defence against third party infringement claims, getting our advice will be your safest bet.

^[1] https://openai.com/en-GB/policies/terms-of-use/

^[2] Trade Marks Act 2002, s18.

^[3] s17(a).

Consequences of ‘accidental directorship’

August 5, 2026

Business Law, Company Law, Corporate Governance, Directors’ Duties, StartupAdvice, Startups, Venture Capital

Caution for investors, startup advisers and board observers

Startup companies often rely on advisers, investors and board observers to help guide their new businesses. This is a good thing, but it carries hidden risk.

If you are in one of these roles, in some circumstances, you can be treated as a director, even if you never formally agreed to the appointment. If this happens, it can expose you to personal liability.

Directors vs advisers: What’s the difference?

Directors are responsible for the overall governance and strategic direction of the business.

Directorship also comes with legal compliance under the Companies Act 1993. There are significant consequences for directors if things go wrong.

On the other hand, advisers and board observers typically provide strategic, non-binding guidance for the directors to take into consideration when making decisions.

In theory, this is a clear distinction. The line, however, can become blurred. What matters is what you do in practice, rather than your title.

How do people become accidental directors?

This is common in startups, where governance structures are still evolving and roles are often informal. Having said that, this is still a real risk for any company. Courts tend to focus on how you are fulfilling your role as an adviser or observer in practice. Warning signs include:

The board of directors regularly following your instructions or directions
Being involved in decision-making on the same level as directors, and/or
Exercising authority normally reserved for directors.

If these patterns develop, you may be seen as a deemed director.

Personal liability

Directors’ duties are personal. If a company gets into financial trouble, the directors are exposed to personal liability, and in some instances may be required to personally contribute to company debts. This risk doesn’t just apply to those formally appointed. If you are treated as a director in substance, you may carry this risk without even realising you’ve taken it on.

A risk area

Board observers and startup advisers are particularly exposed because their role sits very close to the line. For example, an observer may:

Attend meetings and receive board papers
Provide input on strategy or decisions, and/or
Represent investor interests.

That’s fine, but the risk increases where:

You participate in decision-making on significant matters
The board tends to follow your recommendations
Your role is not clearly recorded as ‘observer only,’ and/or
You (or your investor) have significant control or approval rights.

Over time, what starts as ‘advice’ can start to look like decision-making.

This is one of those areas where things can drift without anyone noticing. Everyone is acting in good faith, wanting the business to succeed, but the legal position gradually shifts. If you are involved in a startup as an adviser, investor or observer, it’s worth asking yourself:

Am I just advising, or am I influencing decisions?
Does the board treat my input as optional or as direction?
Is my role clearly documented and understood?

Small changes in how you operate can make a big difference.

Be careful

Being an adviser or board observer is often valuable and rewarding, and is of great benefit to startups. However, there are real risks with these roles that are not always obvious. If your involvement crosses the line into decision-making or control, the law may consider you as a director, exposing you to all the responsibility and possible personal liability that comes with that title.

It pays to be clear about your role from the outset and to keep checking that your involvement hasn’t crept further than intended. If you’re not sure where that line sits in your situation, it’s a good time to get legal advice to help avoid unintended consequences.

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2026. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650

Modern Slavery Bill

August 5, 2026

Business Law, Employment Law, Human Resources, Human Rights, Legislation, Supply Chains, Workplace Law

Implications for business

The introduction into Parliament of the Modern Slavery Bill has brought awareness of how modern slavery has manifested itself into New Zealand businesses. Modern slavery can rear its ugly head in a range of ways from forced labour in supply chains, exploitation (or coercion) of workers and various forms of trafficking.

The Bill has also made history as it is the first time a bill has been introduced through Standing Order 288. This allows a Private Member’s Bill to bypass the random ballot (or ‘biscuit tin’) process if it is supported by two-thirds of non-executive MPs.

This Bill was co-sponsored by Labour MP Camilla Belich and National MP Greg Fleming. This bi-partisan effort shows the importance of the Bill not only to our parliamentarians, but also to New Zealand society.

What is modern slavery?

Modern slavery is often seen as a global matter and, for many New Zealanders, it probably feels like an issue away from our shores. Unfortunately, this is far from the truth. World Vision currently estimates that the average Kiwi spends around $77 a week on goods linked to various forms of modern slavery.^[1] Walk Free’s 2023 Global Slavery Index estimated that in 2021, there were 8,000 individuals on any given day, living in modern slavery in New Zealand.^[2]

In a high-profile case in the modern history of slavery in New Zealand, Joseph Matamata was convicted of 13 charges of slavery and 10 charges of human trafficking involving labourers working in orchards. After bringing the labourers to New Zealand with promises of a better life, Matamata retained their income, restricted communication and movement, and used threats of violence to ensure the labourers stayed in their jobs.^[3]

The Bill

The Bill is both broad and extensive in defining modern slavery. It is defined as:

Crimes already understood in the Crimes Act 1961:
– Dealing in slaves, as well as debt-bondage or sefdom
– Dealing in people under 18 for sexual exploitation, removal of body parts, or engagement in forced labour
– People trafficking, and
– Coerced marriage or civil union

The ‘worst forms of child labour’ under Article 3 of the International Labour Organisation Convention No. 182
Trafficking as defined by Article 3 of the United Nations Protocol
Forced or exploitative labour
Servitude, and
Sexual exploitation.^[4]

Outside of the definition of modern slavery, the Bill requires the Minister to report annually on modern slavery matters, to publish guidance and to direct the Chief Human Rights Commissioner to designate modern slavery as a ‘priority area’ if necessary. The Bill will lead to the creation of a Modern Slavery Statement Register to be publicly accessible. All this will be overseen by the proposed independent Anti-Slavery Commissioner.

What does this mean for business?

The Bill currently states that ‘reporting entities’ are required to:

Prepare and publish annual modern slavery statements that describe their structure and supply chains
Identify modern slavery risks (both real and potential)
Outline what steps the entity is taking to deal with the identified risks, and
Lodge these statements on the Modern Slavery Statement Register.

A ‘reporting entity’ in the Bill is defined as a business with a consolidated annual revenue that exceeds $100 million. These entities not only refer to New Zealand entities, but also any overseas company carrying on business in New Zealand. These entities can be both public and private organisations, with government agencies also being captured under this regime.

How this affects New Zealand businesses

If your business is considered a reporting entity under the Bill, non-compliance with the regime could carry a strong penalty. Offences will be committed if entities fail to comply with their reporting obligations, or if they knowingly make false or misleading statements in their reports. These offences could amount to reporting entities being liable on conviction to a fine of up to $200,000.

From a civil point of view, the maximum pecuniary penalty for a contravening reporting entity is $600,000.

This also imposes personal liability for directors and individuals involved in management. If an offence occurs with the permission, knowledge or presumed knowledge of these individuals, they will be found guilty. This is particularly important if the director or management should have known it was occurring but failed to take reasonable steps to prevent it from happening.

The final important note for businesses is that if they are found to be non-compliant, both the name of the business and the individuals responsible will be published on the Register for three years.

Preparing for the Bill to become law

Many affected by the reporting obligations of this Bill may already be familiar with its obligations, considering there are similar laws in other jurisdictions. However, potential ways to prepare for the implementation of the modern slavery legislation in New Zealand could be in the form of preparing policies and governance, reviewing supply and procurement contracts (and being particularly diligent about who your suppliers are), and potentially establishing internal whistleblowing procedures.

Other steps could involve identifying risk factors that may facilitate the exploitation of workers, and developing management plans to mitigate them. The Ministry of Foreign Affairs and Trade has a range of specific resources all targeted towards combatting modern slavery.^[5]

A positive development

This Bill is widely seen as a positive development in New Zealand law. While there may be concerns on the extent of obligations imposed on entities, the benefits to victims undoubtedly outweigh the costs. If you are concerned that this proposed legislation may affect the way you do business, please don’t hesitate to contact us.

^[1] https://www.worldvision.org.nz/about/media/parliamentary-rule-modern-slavery-act-for-nz/

^[2] https://www.walkfree.org/global-slavery-index/country-studies/new-zealand/

^[3] Joseph Auga Matamata v R [2020] NZHC 1829.

^[4] https://www.legislation.govt.nz/bill/members/2026/242/en/latest/#LMS1569519

^[5] https://www.mfat.govt.nz/en/trade/nz-trade-policy/combatting-modern-slavery

When Workplace Conflict Hits

July 3, 2026

Business Law, Employment Law, Human Resources, Legal Guidance, Small Business Advice, Workplace Regulation

Lately, Sally had noticed that Emilio seemed a little distant and distracted. She asked him what was troubling him.

“Mi vida, I am so stressed. Work is so busy. We have orders to fill and my sales manager is having an argument with my chief mechanic!”

Emilio explained that his agritech business was in its peak season and orders were pouring in, but this issue meant the sales team and mechanical team could not communicate. That led to serious delays, angry customers and frustrated suppliers.

Sally suggested that Emilio might need some employment advice about New Zealand employment law.

Emilio called his lawyer the next morning. He learned that employers had obligations to act in good faith. He did not realise that employers could raise concerns with employees about their performance or workplace conduct, investigate the facts, and make decisions – provided these were decisions a fair and reasonable employer could make in the circumstances.

With guidance from his lawyer, Emilio raised the concerns with the sales manager and the chief mechanic. Quickly, the argument cooled off. Emilio met with each of the employees, and asked them for their side of events. He learned that the manager and mechanic were old friends that had different opinions about the best kind of coffee for the tearoom. The manager had asked office staff to get his favourite Kopi Luwak coffee, and had made a cup for the mechanic, telling him it was something different. The mechanic learned about the prank and was extremely upset.

Concluding the investigation, Emilio decided that he would give a written warning to the manager about the prank due to the effect it had on the mechanic, and gave a verbal warning to both employees about allowing the argument to affect the workplace. Since Emilio had caught it early and gave the employees plenty of opportunity to participate, they accepted the outcome and made amends, although the mechanic now brings a thermos to work.

Emilio went on to have his best sales season yet, meaning he could afford a holiday to Spain to take Sally to visit his abuela.

Jadin Hooper

To Share and Share alike

April 15, 2026

Business Law, Contracts and Agreements, Due Diligence, Legal Guidance, Shareholder Agreements

It was just another Monday, as Simon entered his law office, looking forward to slaking his thirst with a comforting cup of tea. He shrugged off his suit jacket and hung it up. While he waited for his computer to wake itself for the day ahead, he made himself a cup of tea.

He was just about to have a sip, when the phone rang. He put the tea down. Reception told him that someone was here to see him, no appointment in place, but it was apparently urgent. Taking a last look at his untouched drink, he went downstairs and shook hands with Reggie, who was flustered, Sally’s cousin.

“I’m joining someone in an engineering business, it’s all got to be done by tomorrow for some reason, and I’ve got all this paperwork to sign. In fact, I’ve already signed it and was going to hand it over, but Lory said I better come and see you first. Well, she demanded it.”

Simon sat Reggie down in an office, and had a look at the papers provided. Reggie was joining two other people in a company which ran the engineering business, he was going to take over from a current owner, and this all had to happen by 31 March for tax reasons. Simon went back to his room, grabbed his favourite pen, ignored the cold cup of tea on his desk, and returned to an expectant Reggie, who said: “We’re all good to go, aren’t we, can I just pay the money and get on with it?”

Simon put down the documents, looked at Reggie, and took a deep breath. “Reggie, there are some really important things to think about first:

Due Diligence – how well do you know the people you are going into business with? Do they have experience in the industry, in this company, do they have a good reputation? Are they financially sound, can they help bail the company out of trouble if necessary, have they had money problems in the past?

Shareholder Agreement – it is essential that you and the other owners sign an agreement which sets out expectations of each other, whether you will need to put more money into the business, who makes decisions, and when do you all have to agree.

You should commit to a timeframe where no one can pull out of the business, and if they do they must offer the shares to each other.”

Reggie’s eyes were wide open. “Thanks for this, I’ll have a good chat with the others, I won’t sign anything, and I’ll come back and see you shortly.”

Simon waved him goodbye, and poured himself a cup of tea. He knew that was not the end of this story.

Simon Brdanovic

Protecting Your Business Name: Bob’s Story

August 15, 2025

Brand Identity, Business Law, Business Protection, Commercial Law, Entrepreneurship, Intellectual Property, Legal Disputes, Small Business Advice, Small Business Challenges, Trademarks & Branding

Bob was beyond happy, he now felt as though he had the stability he had been searching for. This feeling lasted only a few minutes though as Bob was about to receive a call in relation to his business that would change everything…

Things were going so well for Bob, until he got the call about his business.

“Uh…yes, this is he” Bob said, his ear to the phone.

“Bob, of Bob’s Burger Bar?” the caller repeated.

“Yes, I said” Bob replied, irritated.

“Thanks”, the voice said. “Just confirming”

“Who is this?” Bob demanded.

“My name is James Crane, of Shatner, Bergen and Miller. I’m calling on behalf of my client, who shall remain nameless. Unfortunately, your business is infringing on my client’s intellectual property rights.”

“WHAT?!” Bob exclaimed.

James Crane continued. “The name of your business, Bob’s Burger Bar, is very similar to the name of my client’s business, Bob’s Barbeque, in a way that is likely to deceive or confuse others into thinking they are related. That needs to change.”

“That’s ridiculous, the business is named after me!” Bob protested.

“Be that as it may, Bob” James Crane said, patronisingly. “Intellectual property is no joke and my client is now registering the name Bob’s Barbeque. This is just a friendly call to let you know to change the name of your business before you get a cease-and-desist letter and our client commences formal court action. Good day”. James Crane hung up the phone, leaving Bob’s head spinning.

He had ALWAYS been Bob’s Burger Bar, ever since he had operated out of a rusty little truck, doing the food market circuits. He had built his business from the ground up on word-of-mouth and goodwill alone. People would queue for miles to get a taste of Bob’s burgers. He couldn’t believe that now he was finally in a brick-and-mortar premises, some imposter he had never heard of was trying to claim his name. His own name!

Bob wouldn’t stand for this. He went to see the lawyer his brother Luke had recommended at Edmonds Judd.

First, his lawyer had a look at the Intellectual Property Office website to check if “Bob’s Barbeque” was a registered trademark and found that it wasn’t. Bob and his lawyer also discovered that Bob’s Barbeque was in a completely different part of the country to Bob’s Burger Bar, and that they didn’t even sell burgers, meaning that there was a very low likelihood of confusion.

Edmonds Judd wrote a letter to Shatner, Bergen and Miller politely explaining that there was no infringement on their client’s intellectual property rights that they could see.

“That’s a relief!” Bob said. “Do you think I could trademark the name Bob’s Burger Bar?”

“You might be able to” his lawyer said. “The name is quite distinct. Furthermore, your logo of the bright red B, entwined with the burger motif and the old man holding a spatula, is very distinct. You might want to register that as a trademark.”

Bob’s lawyer referred him to a firm specialising in trademark registration and Bob put a bit of his inheritance money into sprucing up the place with nice new signage. After all, why not display his nice new registered trademark?

Bob called his brother Luke to share the good news, but what Luke had to say rocked Bob’s very core….

Jamie Graham

Business Law