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News

Fallen in love with a beach house over the holidays? Going to AirBnB it? Rent it out for a fixed term? Slow down …

House, Latest news, Media, News, Property, Social Media
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If you’re buying a beach house and planning to rent it out or Airbnb it when you’re not using it, there are some things you might want to consider:

 

  1. If you are going to rent the property out – make sure that it complies with the healthy homes standards. If not, consider how much it might cost you to make it compliant.
  2. If you are going to rent it out with Airbnb, you don’t have to comply with the health homes standards.
  3. Either way, you might want to consider how difficult it might be to manage the property if you live a couple of hours drive away from the property. Think damage, parties, meth use or production, and cleaning up at the end of each stay.
  4. Consider additional costs for operating an Airbnb. Some councils increase rates for temporary accommodation arrangements like Airbnb.
  5. You will need to make sure that you obtain insurance that covers you if your Airbnb or rental tenant damage the property.
  6. Again, get yourself some tax advice.
  7. Finally, if you are renting, make sure you know your obligations as a landlord and how you can go about legally ending the tenancy.

 

We’re open again from 6th January to help you with your property purchases and conveyancing needs. We can also help you with ownership structures, negotiating property sharing agreements, succession planning, and any disputes that might arise.

 

Joanne Dickson

Postscript

Latest news, News
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Feedback about NZ Post’s service obligations

No doubt you have heard that the Ministry of Business, Innovation & Employment (MBIE) is seeking feedback from the public on how changes to NZ Post’s minimum service obligations could impact New Zealanders who still need to be able to send and receive mail. NZ Post’s obligations are set out in a Deed of Understanding, last updated in 2013.

 

With mail volumes continuing to decline significantly (one billion mail items were sent in 2014 and around 220 million sent in 2023-24), NZ Post estimates volumes will continue to decrease to about 120 million items by 2028. It is seeking a more financially sustainable mail service model.

 

Proposed changes include reducing minimum delivery frequency, reducing the minimum number of postal outlets and proposing mail items are delivered to clusters rather than individual mail boxes.

 

If you want to give feedback, submissions are open until 5pm on Tuesday, 10 December. To make a submission, go to www.mbie.govt.nz and click on ‘Have your say.’

 

Beware of scammers in the coming Christmas season

With the hustle and bustle of Christmas coming up and the demands of the end of year activities, it is easy to let our vigilance slip in terms of scams – whether they be through emails, phone calls or text messages.

 

In Fineprint’s Winter 2024 edition (page 5) we offered some tips to help protect yourself and your money this holiday season.

 

 

 

Merry Christmas and a happy New Year

 

As this edition of Fineprint is the final issue for 2024, we wish you all a very Merry Christmas and a happy, safe and healthy 2025.

 

 

 

 

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, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Modernising the Companies Act

Commercial, News
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In August 2024, the government announced that it would progress a package of reforms to the Companies Act 1993 and related legislation.

 

The reforms are designed to address several issues that are regularly encountered in practice, to make New Zealand an easier and safer place to do business and to increase uptake of the New Zealand Business Number (NZBN).

 

The reforms will be carried out in two phases:

  • Phase 1 will focus on modernising the Act, simplifying compliance, deterring poor and illegal business practices and making improvements to insolvency law to make outcomes fairer for creditors. The bill introducing these reforms is expected in early 2025, and
  • Phase 2 will take place after a Law Commission review of directors’ duties and liability issues, which is also due to begin in early 2025.

 

Phase 1

The first phase includes reforms that will address several practical issues. The key changes that have been suggested for Phase 1 include:

  • Introducing a simpler process for a company to reduce its share capital, modelled on Australian legislation
  • Amending the definition of ‘major transaction’ by excluding transactions relating solely to the capital structure of a company (for example: issuing shares, share buy-backs, dividends and redemptions) and by clarifying that a series of related transactions does constitute one ‘major transaction’
  • Extending the shareholder unanimous consent process in section 107 of the Act to cover issuing options or convertible securities, crediting unpaid share capital and acquiring shares to be held as treasury stock
  • Providing a process for dealing with unclaimed dividends
  • Providing for certain actions such as share buybacks and a company holding its own shares to be available by default (currently these actions are only allowed if expressly permitted by the company’s constitution)
  • Simplifying processes to reserve company names, restore companies to the register and correct mistakes on the register
  • Allowing companies to put certain shareholder and creditor information on a webpage rather than having to physically send out copies to each person
  • Introducing unique identifier numbers for directors and changing address requirements so directors’ residential addresses don’t have to be disclosed on the public register
  • Improving insolvency laws by extending the claw back period for related party transactions, and
  • Introducing various measures to improve the uptake of the NZBN.

 

The bill containing the reforms will be introduced in early 2025, and the public will be able to make submissions on the legislation as it progresses through the select committee stage.

 

Phase 2

The second phase is expected to begin in parallel with Phase 1, starting with a Law Commission review of directors’ duties and liabilities. This is expected to address several concerns, including that the law related to reckless trading and incurring obligations is unclear and difficult to apply.

 

 

 

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, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Business briefs

Commercial, Employment, News, Your Own Business
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Companies Act reforms announced

The government has announced a suite of changes to the Companies Act 1993 aiming to improve fairness and the ease of doing business in New Zealand. The reform is expected to take place in two phases.

 

Phase One: The first phase focuses on the modernisation and simplification of the Act to better reflect a more evolved business and technological landscape.

 

Specific proposed changes include:

  • Providing a process for reducing the share capital of a company that does not require court approval
  • Amending the definition of ‘major transaction’ to exclude transactions relating to the capital structure of a company and clarify that a series of related transactions are captured by the definition
  • Adding additional types of transactions that can be approved by unanimous shareholder consent
  • Allowing companies to mingle unclaimed dividends with other funds after two years
  • Assigning unique identifiers to directors to prevent ‘phoenixing’ (where a new company is registered to take over an insolvent or unsuccessful one), and
  • Allowing directors and shareholders to have their residential addresses removed from the Companies Register, resolving safety and privacy concerns.

 

Further insolvency law amendments are also being proposed, including extended claw back periods, preference for long service leave and greater honouring of gift cards.

 

Phase Two: The second phase will involve a Law Commission review of directors’ duties and related issues such as director liability, sanctions and enforcement.

 

The bill introducing Phase One is expected to be introduced in early 2025 and Phase Two will closely follow.

 

 

Siouxsie Wiles employment decision

In July, the Employment Court ruled that the University of Auckland had breached its health and safety, and good faith obligations to Associate Professor Siouxsie Wiles.[1]

 

Dr Wiles was prominent in the media during the Covid pandemic, communicating complex Covid information in an understandable way to the public. Dr Wiles received harassment and abuse, both online and offline, from those who disagreed with her. She sought help from the university, but was told that it was not part of her academic duties and that she should minimise further public statements until a security audit had been completed.

 

Although the university was commended for the actions it did take, ultimately, those actions were insufficient. The Employment Court was critical of the university’s delay in responding to safety concerns and the university’s misplaced focus on Dr Wiles’ outside activities. The court found that the onus was on the university to obtain the right health and safety advice, and proactively put a plan in place. By failing to do so, the university was not acting in good faith and was breaching its contractual obligations to be a good employer.

 

This ruling serves as a good reminder that employers, especially those in the public sector or that engage with the public, should consider health and safety risks in relation to employees’ work-related activities, including where those activities pose a risk of harassment. Employers may also be responsible for work related activities occurring outside of an employee’s work premises and normal working hours.

 

 

New bill to improve consumer data rights

Parliament is currently considering the Customer and Product Data Bill – a bill designed to increase consumer control over their data. It is currently with the select committee. If passed, the legislation will create an obligation for businesses that possess customer data to provide, on request, that data to those customers and certain third parties.

 

The bill will help consumers access their data to compare services and change providers, making it easier for new or smaller businesses in an industry to compete with the ‘big players.’ The bill introduces hefty fines for non-compliance, including a fine of up to $50,000 for failing to respond to a data request and a fine of up to $5 million for making an unauthorised data request. Initially, the bill will only apply to the banking, electricity, and telecommunications sectors.

 

 

Changes to insurance industry coming

The Contracts of Insurance Bill, that awaits its second reading, will make significant changes to the rights of policyholders and insurers to promote confidence in the insurance market and ensure that insurers operate fairly. The bill proposes several changes to insurance contracts legislation, including:

 

  • Disclosure duties: The bill draws a distinction between consumer policyholders (where the insurance contract is for personal, domestic or household purposes) and non-consumer policyholders. Consumer policyholders will have a duty to take reasonable care not to make a misrepresentation to the insurer.
    Non-consumer policyholders will have a duty to make a fair representation of the risk. This shifts the burden on insurers to ask the right questions to reveal all the information they need
  • Unfair contract terms: The bill removes the existing exception for standard form insurance contracts from the unfair contract term provisions in the Fair Trading Act 1986. In other words, the unfair contract terms regime will apply more widely to insurance contracts, meaning insurers must make sure that the provisions of their insurance contracts are fair.
    There are still some exceptions in insurance contracts that will not be subject to the unfair contract terms regime, including event, subject or risk insured, sum insured, the basis for settling claims, excess, and exclusions or limited liability in certain circumstances, and
  • Proportionate remedies: Insurers will no longer be able to avoid an insurance contract for any failure or misrepresentation of a policyholder. Instead, insurers will have proportionate remedies based on how it would have responded if it had known the relevant information, such as reducing the amount paid on a claim.

 

Uber appeal dismissed: drivers are employees

In 2022, the Employment Court made a landmark ruling against Uber when it found four Uber drivers were employees and not independent contractors.[2] Uber appealed the decision, and the Court of Appeal issued its decision in August.[3] The Court of Appeal criticised the Employment Court’s approach, stating that the first step should be to look at the parties’ agreement governing the relationship, rather than whether the individual is vulnerable or suffering from an imbalance of power. Ultimately, however, the focus should still be on the parties’ mutual rights and obligations, interpreted objectively.

 

Despite these criticisms, the Court of Appeal still dismissed the appeal affirming the finding that Uber drivers are employees. This means Uber must provide the drivers with employee benefits, including minimum wage, leave entitlements and holiday pay.

 

The decision only applies to the four Uber drivers, but it has implications for all businesses that engage contractors, particularly for those operating in the gig economy. It is a timely reminder for businesses that rely on contractor workforces to ensure their contracts accurately reflect the nature of the relationship with their workers.

 

The Workplace Relations and Safety Minister Brooke van Velden has indicated that the coalition government intends to amend the Employment Relations Act in 2025 to increase certainty and clarity for contractors and businesses regarding employment status of workers. The changes will provide a four part gateway test which, if met, would mean a worker is a contractor. More information on the government’s announcement can be found here.

 

If you would like to know more about how any of the items in Business briefs may affect you and your business, please don’t hesitate to contact us.

[1] Wiles v University of Auckland [2024] NZEmpC 123.

[2] E Tū Inc v Rasier OperaAons BV [2022] NZEmpC 192.

[3] Rasier OperaAons BV v E Tū Inc [2024] NZCA 403.

 

 

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.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Budget 2024

Latest news, News, Rural
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What was in it for the rural sector?

On 30 May 2024, the Minister of Finance, Nicola Willis, presented her first Budget. The government is focussed on rebuilding the economy, easing the cost of living, delivering better health and education services, and restoring law and order.

Of course, within all those subsections, there is an underlying reliance on agriculture, the highest contributing sector to our economy. So, what did the Budget provide for the rural sector, and is there anything that farmers can look forward to over the next three years?

 

Drilling down to detail

After the Budget was presented, the Minister of Agriculture, Todd McClay said, “[It] places our trust back in farmers and growers by cutting public spending and reducing red tape, while also driving the efficiencies required to increase value and place the sector’s success at the forefront of New Zealand’s economic recovery.”

 

Practically speaking, the government intends to do that by:

  • Doubling exports by delivering strong frontline services, cutting red tape and reducing regulatory costs
  • Minimising the administrative burden on farmers caused by duplication, red tape and regulatory blocks on things such as irrigation, water storage, flood protection schemes and stock exclusion rules
  • Replacing the National Policy Statement for Freshwater Management 2020 (Three Waters) and delivering better resource management legislation for the primary sector
  • Taking an independent review of agricultural biogenic methane science by providing clear advice on New Zealand’s domestic 2050 methane targets
  • Committing $27 million for the removal of woody debris in Tairawhiti that will restore and help prevent further damage to vital infrastructure in local communities in the region
  • Committing $36 million over four years to catchment groups that back farmers’ efforts to improve land management practices, and
  • Driving innovation that will ensure farmers and growers remain global leaders in challenges, including reducing on-farm emissions.

 

The government considers its Budget will back the sector’s continued growth by providing support and professional resources to the frontline, and boosting research and innovation.

 

Should we be optimistic?

No one would expect the rural community to feel particularly inspired by this Budget and its overuse of words ‘innovation’ and ‘growth’ that do not necessarily translate to practical implementation.

The Budget is clearly focusing more on the bigger election promises such as infrastructure, education, and law and order. Although the Budget was more or less neutral on agriculture, the sector will nonetheless be pleased to see a focus on legislative repeal that was going to create a suffocating amount of red tape and make farming financially unviable (for some) in the near future.

It was a tight Budget that intends to put New Zealand’s books back into the black. The deficit is forecast to continue through to 2025 with a surplus expected to be reached in 2027–28. The government will continue to rely on revenue from the rural sector, but it seems unlikely that those at the farm gate will notice any positive economic changes for several years.

 

 

 

DISCLAIMER: All the information published in Rural 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 Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.


Copyright, NZ LAW Limited, 2021.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Live animal exports

Latest news, News, Property, Rural, Your Own Business
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Government intends to lift the ban

In April 2023, following intense pressure from animal welfare organisations, the Labour government banned live animal exports. The basis of the ban was centred on an independent review that New Zealand’s international reputation was being damaged by its live animal export programme because of animal welfare standards being breached.

The government’s plan

With the ongoing pressure from SAFE (Save Animals From Exploitation) and other animal welfare organisations, the government is proceeding with caution. It intends to introduce amendments to the Animal Welfare Act 1999 that will impose strict regulations and ensure a ‘gold standard’ of care. This includes fit-for-purpose live export ships and certification regimes for the livestock and their destination country. The government believes these regulations will protect animal welfare and safety.

The government has not indicated the timing for these proposed legislative changes.

 

The good . . .

The answer is obvious – revenue. In 2022, before the ban on live animal exports, revenue of $524 million was generated for the farming sector. Reports say the ban resulted in a loss of between $50,000– $116,000/year per farm[1] that, in the current economic climate, is significant to those who have lost this source of revenue. The return of live animal exports may bring some financial relief to farmers. With the level of red tape involved, the actual benefit of live animal exports is unclear.

 

The bad . . .

No animal, except of course those of the aquatic variety, is designed to sustain long journeys by sea. Exporting live animals to China, for example, can take anywhere between 15–40 days and, during that time, the animals have endured rough seas, long periods of standing in their own excrement, heat stress and injuries. The conditions during the journey are aggravated further because once the ship docks, there are no assurances of continuing animal welfare and safety on land. Many importing countries lack the minimum welfare standards that New Zealand enforces.

And the ugly

While petitions have been submitted and lobbyists are in full force in New Zealand, elsewhere in the world live animal exporting continues to be practised. Earlier this year, 2,000 cattle and 14,000 sheep spent two weeks enroute from Perth to the Middle East, only to be turned around and returned to port at Fremantle where they remained on the ship for almost six weeks while the exporter attempted to obtain a new export permit. The Australian government is now under immense pressure to follow through with its own election promise to ban live animal exports.

Will our government follow through on lifting the ban?

That remains unknown. Each side of the argument will continue to pressure the government to make what that side believes is the right decision.

There remains a strong belief that live animal export represents such a small share of agricultural revenue (0.2%)[2] since 2015 that the damage to New Zealand’s ‘clean’ reputation is far worse than the benefit of the export receipts.

What farmers can certainly expect is that if the live animal export ban is overturned, there will be stricter regulation and more red tape, and the costs associated with those increased regulations may be onerous. Farmers can expect an update to this process this year.

[1] Livestock Export New Zealand.

[2] Ibid.

 

DISCLAIMER: All the information published in Rural 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 Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Significant Natural Areas

Latest news, News, Property, Rural
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Suspended while government overhauls RMA

Associate Minister for the Environment, Andrew Hoggard, announced on 14 March 2024 that the government will suspend the Significant Natural Areas (SNAs) requirements while it overhauls the Resource Management Act 1991 (RMA). It comes as a timely announcement after the Greater Wellington Regional Council’s (GWRC) unsuccessful prosecutions[1] of two rural landowners due to the council having wrongly identified wetlands on private farmland.

So what are SNAs, how do they currently affect our rural landowners and how will they be addressed in the future?

Defining an SNA

SNAs are areas containing ‘significant indigenous vegetation’ and ‘significant habitats of indigenous fauna’ that must be protected to ensure ongoing biodiversity. The basis for defining and identifying SNAs is in section 6 of the RMA:

‘6 Matters of national importance

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide [our emphasis] for the following matters of national importance:

. . .

(c) the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna: . . . ’

 

While the RMA is nearly 33 years old, it was only in August 2023, when the National Policy Statement for Indigenous Biodiversity came into force, that a mandatory standardised approach and criteria were introduced to protect SNAs under s6. In practical terms, the Policy Statement required regional councils to identify and map SNAs within their territory (including on private land) and include them in their district plans by August 2028.

 

Implications for rural landowners

Once an SNA has been identified, it means that the area is noted on the council’s records. The use to which that land can then be put is more controlled. That doesn’t necessarily mean that existing uses of that land will be stopped – although it could. It does mean, however, that generally speaking existing activities are unlikely to be able to be intensified and new activities are likely to be subject to tighter controls – if permitted at all.

There is no direct government compensation for a landowner who has an SNA identified on their land. The SNA identification process has been somewhat controversial. This is partly because the RMA does not define ‘significant’ and, as a result, it has been left to each council to interpret this, largely using case law and ecological guidance.

Regional councils’ interpretation and identification of areas to protect under the RMA has recently been highlighted by the GWRC’s two unsuccessful prosecutions of rural landowners, one of which has been labeled by the Court of Appeal as a ‘miscarriage of justice.’

In both cases, the GWRC was found to have incorrectly identified wetlands on private farmland. Although the GWRC’s prosecutions were unsuccessful in both cases, they illustrate how severe the penalties can be under the RMA. In one case, Mrs Crosbie was fined $118,742 as the owner of the property, and Mr Page was sentenced to three months’ imprisonment (which he had already served prior to the Court of Appeal hearing).

The future of SNAs

The message from this government has been very clear – stop mapping and imposing SNAs for three years while it reviews the RMA. Mr Hoggard has said that quickly suspending the SNA requirements was to ensure councils did not waste resources and efforts on requirements that were likely to change. He has also asked officials to review existing SNAs.

The suspension, however, will not change the need for councils to protect areas of national importance under s6 of the RMA. Arguably, regional councils could still identify areas on private land to protect, and they may impose restrictions on private landowners on the use of such land. Nevertheless, with the clear message from the government to not waste resources in this area, it is unlikely that we will see regional councils identifying new areas to protect until the government provides further guidance to those councils or new resource management laws are passed.

[1] Page v Greater Wellington Regional Council [2024] NZCA 51 and Greater Wellington Regional Council v Adams [2022] NZEnvc 025.

 

DISCLAIMER: All the information published in Rural 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 Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Postscript

Latest news, News, Uncategorized, Your Own Business
0

Holidays Act 2003 to be overhauled

 

Both employers and employees will be relieved that the government is prioritising overhauling this legislation.

“Change has been a long time coming, and I know there are many who are frustrated with the Holidays Act. We need an Act that businesses can implement, and that makes it easy for workers to understand their entitlements,” said the Minister for Workplace Relations and Safety, Brooke van Velden.

 

The government will develop an exposure draft of the new legislation for consultation. It has indicated that the previous government’s decision to double sick leave entitlements for all eligible workers has caused difficulties to some businesses and increased the disparity between part-time and full-time workers. As well, employers have long struggled with apportioning annual leave; an accrual system is mooted, rather than the current entitlements system.

 

It is expected that the exposure draft of the Holidays Bill will be released for targeted consultation in September. “I believe it is important to hear from small businesses in particular, given small businesses will adopt a range of working arrangements and often do not have the same payroll infrastructure as larger organisations,” the Minister added.

 

Although registration for targeted consultation closed on 8 July, we will keep you up-to-date with how this new legislation progresses.

 

Roadside drug testing to be rolled out

 

In May, the Minister of Transport, Simeon Brown, indicated the government will introduce legislation that will enable roadside drug testing to improve road safety.

 

“Alcohol and drugs are the number one contributing factor in fatal road crashes in New Zealand. In 2022, alcohol and drugs contributed to 200 fatal crashes on our roads. Despite this, only 26% of drivers think they are likely to be caught drug driving,” said the Minister.

The legislation is likely to be introduced mid-2024 and passed towards the end of the year.

 

 

 

Visual artists will receive royalties when work on-sold

Long-awaited legislation that comes into force on 1 December 2024 will allow New Zealand’s visual artists to receive royalties when their work is sold on the secondary market.

 

Passed in August last year, the Resale Right for Visual Artists Act 2023 will enable the collection of a 5% royalty each time an eligible artist’s work is sold on the secondary art market. The scheme is for artworks that sell for $1,000 or more. The collection agency, Copyright Licensing New Zealand, will deduct a percentage of the royalty as an administrative fee.

 

 

 

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, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Avoiding scams

Latest news, News, Uncategorized
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Tips to protect yourself

Every year thousands of people fall victim to scams through emails, phone calls and text messages. Scams are fraudulent schemes designed to deceive you and steal your money or personal information.

 

The danger of scams lies in their ability to look and sound genuine – at least until it’s too late. Scammers are becoming more cunning, often using technology and psychological manipulation to trick you. Fortunately, there are a few easy steps that can help you.

 

 

Phone scams

Scammers often try calling and pretending to be from your bank. They usually create a sense of urgency, claiming there are issues with your bank account such as unusual account activity or overdue fees; scammers will make you think that the matter needs immediate attention.

 

To spot a phone scam, be wary of unexpected calls that ask for personal information such as your account details or your passwords. Most organisations do not request sensitive information over the phone. An easy way to verify if the call is genuine is to hang up and call back using the official number.

 

 

Text message scams

Text scams are when you receive messages designed to trick you into providing personal information or clicking on malicious links. These messages might say they’re from your bank, a courier company or even your insurer. They often contain urgent requests to verify your account, claim a prize or resolve a problem.

 

To protect yourself from text scams, never click links or respond to messages from unknown numbers. If you receive a message claiming to be from an organisation, call them directly and check.

 

 

Email scams

Email scams, or ‘phishing’ emails, are a common way scammers try to steal personal information. These emails, similar to texts, appear to be from your bank, a courier or even a shop. Like many scams, they are often ‘urgent’ and ask you to update your account information, reset your password or review suspicious activity.

 

Don’t click on links or download attachments from unknown or suspicious emails, especially if you’ve never heard from them before. Organisations will never ask (or should not ask) for sensitive information by email.

 

 

Key points

We are exposed to scams more and more in today’s world. To keep yourself safe:

  • Be suspicious – who is contacting you and why?
  • Don’t trust any unexpected contact
  • Resist the urge to act immediately, despite what the message says
  • Never open attachments or links if you’re not sure where they’ve come from, and
  • Trust your instinct! If something doesn’t feel right, it probably isn’t.

 

Staying vigilant and informed is crucial in protecting yourself from scams.

If you think you’ve received a text or email that you think is a scam, you can report it to the Department of Internal Affairs, following the instructions on its website (www.dia.govt.nz).

 

 

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, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Business briefs

Commercial, News, Uncategorized
0

Five companies sentenced over Whakaari/White Island eruption

In our Summer 2024 edition published in early February, we wrote on the Whakaari/White Island prosecutions brought by WorkSafe; in this Winter issue we report on the court’s late February sentencing.

Almost five years after the Whakaari/White Island eruption that left 22 people dead and 25 others severely injured, the District Court delivered its sentence for safety failings under the Health and Safety at Work Act 2015.[1]

Five companies were collectively fined $2 million for failing to assess and mitigate risk, and three of the five have been ordered to pay a collective total of $10.21 million in reparations to victims and their families. GNS Science was also fined $54,000 for failing to adequately communicate risk to contractors.[2]

Whakaari Management Limited (WML), one of the five companies sentenced and responsible for managing access to the land, was held liable for a significant portion of the penalties. WML has claimed it is unable to pay the penalties as it has no assets or bank account, even though evidence at trial indicated WML received about $1 million annually from island tours. The judge acknowledged he cannot make orders against WML’s shareholders, but appealed to their ‘inescapable’ moral duty to advance the necessary funds – even if this means reaching into their own pockets.

These penalties are a strong reminder for businesses to take seriously their health and safety obligations or risk hefty penalties.

 

Navigating financial distress

What should you do if your business is in rough financial waters? If you feel financial strain creeping into your business, it is important to take action early to address the situation rather than hoping it improves on its own. Below we suggest some options to help you navigate financial distress.

  • Engage with lenders: Communicate transparently with your lenders early on. This will maximise available options and strengthen your relationship. Most lenders are willing to agree to an approach where borrowers are transparent and can demonstrate a plan

 

  • Reach out to suppliers and customers: Have open conversations, where appropriate. Clarity around payment timeframes, late payment fees and other expectations will provide certainty for all parties involved

 

  • Review business contracts: Understand the terms of your business contracts, what obligations are owed and the implications if you default

 

  • Keep directors’ duties in mind: Ensure you are complying with your director duties, including avoiding trading recklessly or incurring obligations the company is not able to perform. You can be found personally liable if you breach your director duties. Maybe you have to make the difficult decision of winding up your business to avoid breaching your duties, and

 

  • Seek professional advice: Speak to your accountant or financial advisor to assess the financial position and solvency of your business. We can also advise on your options at any stage.

 

Commerce Commission win over Viagogo

In a recent judgment, the High Court provided useful guidance on misleading and deceptive conduct, and unfair contract terms under the Fair Trading Act 1986 (FTA). The decision followed a six-year legal battle between Viagogo and the Commerce Commission.[3]

The Commission commenced proceedings against Viagogo in 2018 after receiving thousands of complaints by consumers who had purchased event tickets from Viagogo, only to be refused entry at the events because their tickets were not authentic.

The High Court found that Viagogo had misled consumers in breach of the FTA by:

  • Failing to adequately disclose its status as a resale platform
  • Guaranteeing customers’ tickets to events, when in practice it often refunded invalid tickets after a customer had already missed the event
  • Creating a false sense of urgency for prospective purchasers seeking tickets
  • Disclosing additional ticket fees at a late stage of the purchase process, and
  • Stating it was an official or authorised source of tickets when it was not.

A clause in Viagogo’s terms and conditions requiring customer disputes to be resolved in Switzerland was also found to be unfair and unenforceable.

Viagogo was ordered to correct the misleading information on its website and update its terms and conditions.

This judgment emphasises the importance of using honest and fair trading practices, and ensuring your terms and conditions comply with the FTA.

Viagogo has appealed the judgment.

 

CCCFA update

The government recently announced changes to the Credit Contracts and Consumer Finance Act 2003 (CCCFA) as part of a larger, two-phase financial reforms package to address concerns about the accessibility of credit and burdensome obligations on lenders.

Phase 1: Already underway, this phase includes the removal of overly prescriptive requirements around loan affordability assessments, and exemptions for local authorities and providers of non-financial goods and services (such as certain car dealers).

Phase 2: As this phase is rolled out, it is expected the CCCFA will be updated to further streamline the lending process and continue to support more accessible lending practices.

The Ministry of Business, Innovation and Employment will publicly consult on revisions to the Responsible Lending Code and possible amendments to the CCCFA as they become available.

[1] WorkSafe New Zealand v Whakaari Management Limited, White Island Tours Limited,
Volcanic Air Safaris Limited, Aerius Limited, Kahu (NZ) Limited [2024] NZDC 4119.

[2] WorkSafe New Zealand v Institution of Geological Nuclear Sciences Limited [2024] NZDC 4149.

[3] Commerce Commission v Viagogo AG [2024] NZHC 713.

 

 

 

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.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

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