Edmonds Judd

Relationships

Are you an artist, a composer, an author? Are you in a relationship? If so, then you need to seriously consider a contracting out agreement.

 

Copyright is treated as relationship property for the purposes of deciding who gets what at the end of a relationship. This means that, if you separate, your ex could have a claim over the copyright in your work.

 

Owning copyright in your work means that you have the exclusive right to control how your work is used. Importantly, owning copyright means that you can prevent someone from making copies of your work. But, if it ends up in the hands of your ex? Well, that could lead to results that you won’t like. For example:

 

  • That novel you slaved over for weeks, months, and years part-time while you were working on a construction site during the day? Your ex might be able to sell copies of it after the relationship is over and make money from your efforts.
  • That series of paintings you lovingly painted and kept in your own private collection, while you successfully commercialised the rest of your works? Your ex might be able to have t-shirts made for sale with copies of those paintings in your private collection.
  • That carving you created painstakingly on your weekends off? Your ex might be able to flood the market with thousands of copies, devaluing your sculpture and the prestige.

 

If you want to avoid this outcome, then your best option to reduce this risk is to enter a contracting out agreement with your partner.  Under a contracting out agreement, you and your partner can agree who gets what in the unfortunate event that your relationship doesn’t stand the test of time. If you want a contracting out agreement, you’ll need to see a lawyer to make sure that you comply with the legal requirements for these agreements and ensure your best chance of any agreement being enforceable in Court.


Brought to you by Edmonds Judd – Your Life Your Lawyers

 

Steve has spent the last 45 years building a life he was proud of—raising a family, growing his business, and working hard every step of the way. But now, for the first time in decades, he was thinking about something new: retirement.

 

The thought was both exciting and overwhelming. Should he downsize to a smaller home? Maybe move into a retirement village? What about his Will—did he have one and if so, was it up to date? And who would make decisions for him if one day he couldn’t?

 

That’s when Steve decided it was time to talk to someone who understood the journey ahead—someone who specialised in elder law.

 

At Edmonds Judd, Steve found the guidance he needed. The team took the time to sit down with him, listen to his concerns, and explain everything. This helped Steve put a clear, confident plan in place—updating his Will, setting up Enduring Powers of Attorney, and walking through the legal details of retirement village living. Most importantly, they made sure Steve’s wishes—and his family—were protected.

 

Steve created an estate plan that matched his life now—not the one he had twenty years ago. Steve knew that his family would be protected, and that his wishes would be carried out no matter what the future held.

 

He learned that retirement planning wasn’t just about money—it was about peace of mind.

 

“It’s not just legal paperwork,” Steve told his children Luke and Sally one evening, “It’s making sure you’re all taken care of, no matter what.”

 

Thanks to Edmonds Judd, Steve now looks forward to his next chapter in his life with confidence and clarity.

Rachael Beattie


The purpose of these two laws are often confused: the Consumer Guarantees Act 1993 (CGA) and the Fair Trading Act 1986 (FTA) both provide legislative protection for consumers. However, they both address different aspects of consumer rights and business conduct.

The Consumer Guarantees Act 1993: The CGA only applies to goods and services bought for personal, domestic or household use, and not to those purchased for business purposes. The CGA states that goods must be of acceptable quality, fit for purpose and match the description provided by the seller. You cannot contract out of the CGA when you are dealing with consumers, even if you want to do so. There is a limited ability to contract out in business-to-business transactions provided certain requirements are met.

The CGA is important in that it ensures that goods and services bought for domestic use meet certain standards  following their sale.

The Fair Trading Act 1986: In contrast, the FTA provides protection for consumers from misleading and deceptive conduct of sellers in trade. The FTA cannot be contracted out of, except where both parties are in trade.

The FTA also promotes fair practice and conduct in relation to the supply of goods and services, meaning businesses must compete effectively and fairly. The CGA ensures all businesses operate on a level playing field, particularly for smaller businesses that could be taken advantage of by larger corporations.

If you find yourself in a position where false claims have been made in respect of machinery, livestock or equipment, you may have a claim under the FTA.

In addition, there may be other forms of redress ensuring fair treatment of consumers and business owners.

DISCLAIMER: All the information published in Property Speaking 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 Property Speaking 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

 


Over the fence

Employer obligations: mental health

As an employer, you have a duty of care for both the physical and mental health of your employees’ health.

Health and Safety at Work Act 2015 (HSWA): Under the HSWA, you have an obligation to minimise the stress and mental health impacts that arise from within your workplace. This includes monitoring increased workloads to ensure your employees are not overexerted and stressed, investigating any bullying claims and ensuring a safe working environment.

Employeesrights: Your employees are not obliged to disclose a mental health condition unless it will directly impact their ability to safely perform their role. If you ask about a mental illness that directly impacts their ability to perform their role safely, they must tell the truth. There is a risk of disciplinary action if they do not provide you with the correct information.

You cannot discriminate against any employee (or potential employee) if they have a mental illness. These discriminations could be:

  • Not offering a job due to their disclosed mental illness
  • Not promoting as a consequence of their mental illness, or
  • Providing less favourable terms of employment as a result of their mental illness.

Employee action for perceived discrimination: If your employee believes they are being discriminated against, they may wish to discuss this with you to try and resolve the matter. If this is not successful or not appropriate, they can seek support from the Employment Mediation Services, raise a personal grievance or make a complaint to the Human Rights Commission.

What can employers do? You can help to facilitate a positive working environment and take steps to protect your employees by:

  • Providing support if a traumatic work event occurs
  • Offering flexible working environments including hours/days worked and the location for work to be completed by, for example, using other machines
  • Allowing time off to attend appointments
  • Providing resources such as counselling, work mentoring or stress management courses, and
  • Changing your employee’s duties.

It is important that you talk with your employees and take necessary steps to support them the same way you should protect their physical wellbeing.

DISCLAIMER: All the information published in Property Speaking 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 Property Speaking 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

 


What happens if your loved one loses mental capacity due to illness or accident?  Who will make decisions about whether they need to go into care?  Who can manage their finances to pay for their medical costs and living costs?

 

Hopefully your loved one has enduring powers of attorney in place appointing people to make decisions about their welfare and property.  But what if there are no enduring powers of attorney?

 

In that case, you will need to apply to the Family Court for orders under the Protection of Personal and Property Rights Act 1988 (PPPR).  There are various types of court orders that can be made appointing one or more people to manage someone else’s affairs.  Deciding which court orders to apply for depends on the circumstances and needs of the person who has lost capacity.

 

Before applying to the court, you should be aware of the strict legal obligations and responsibilities you will have if appointed, and that the court will have ongoing oversight to ensure affairs are being managed appropriately.

 

While it may cost a few hundred dollars to get enduring powers of attorney while someone is healthy, it can cost a few thousand dollars to get court orders if  they lose capacity there are no enduring powers of attorney in place.  So, it is a good idea to encourage your loved ones to get enduring powers of attorney while they are still healthy.

Kerry Bowler, Solicitor Kerry Bowler


Luke’s juggling a lot right now—his first baby on the way, a crash in Sally’s Tesla, and new business work piling up. But his biggest challenge? His employee, John.

John does not have the experience he made out during his interview and he is not able to complete tasks given to him.

Luke has done his best to mentor John and to train him on the job, but John doesn’t seem to want to learn or improve. Luke is at his wits’ end as his business can’t continue like this. Luke has no idea what to do to fix the situation with John and is not sure if he can just let John go.

First things first, Luke pulls up a copy of John’s employment agreement to see what it says about dealing with poor performance. Luckily for Luke, the employment agreement sets out exactly what he should do as his agreement sets out a process for addressing poor performance. He also recalls his lawyer telling him that the Employment Relations Act requires employers to act in a fair and reasonable way and to act in good faith towards John.

Luke has also realised that he can’t just fire John for his poor performance.

Luke can see that his mentoring John was a good start, but it is clear to him that he now needs to take the formal steps set out in the employment agreement to let John know that he is concerned about his performance and that he will place him on a performance improvement plan.

After having a chat with his lawyer, Luke finds out that some of the steps that he is going to need to take are:

  1. Identify the issues with John’s performance: clearly identify the performance problem, whether it’s related to the quality, quantity, or timeliness of John’s work.

 

  1. Communicate his concerns to John: Luke decides to invite John to a meeting to discuss his performance. He’s then going to meet with John to discuss the performance issues, explaining what areas need improvement and why it’s affecting the workplace.

 

  1. Provide support and clear expectations: Luke realises he needs to offer support, so, he has decided to offer John some further training and additional resources. He’s also going to set clear, achievable performance goals and a reasonable timeframe for improvement, and let John know the possible consequences if his performance does not improve.

 

  1. Monitor John’s progress: Luke has set up some reminders in his diary to monitor John’s progress towards meeting the set performance goals and provide regular feedback during meetings.

 

  1. Hold a formal review: If John’s performance doesn’t improve, Luke will arrange a formal review meeting for John to respond to the feedback.

 

  1. Implementation of further performance improvement plans, final warning or dismissal: If there is still no improvement, Luke now knows that he has some options about how to proceed from there – such as a performance improvement plan, issuing a final warning, or, in more serious cases, proceeding with dismissal.

Luke has decided to keep in touch with his lawyer as he works through the process with John to make sure that he meets his obligations as an employer. He’s keeping his fingers crossed that John will improve, and that a formal review and other actions won’t be necessary.

 

Kristin O’Toole

 

 

 


Disinheriting your children

Can it be done?

In New Zealand, people making wills have a great deal of freedom to dispose of their assets as they wish. If, however, a will-maker entirely excludes some close family members from their will, those people will often have claims against the will-maker’s estate.

In the recent case of what is known as the Alphabet case,[1] an abusive father tried to use a trust to disinherit his children on his death.

 

 

Family Protection Act 1955

The Family Protection Act 1955 is designed to protect family members who have been excluded from a will or left without adequate provision. It allows certain groups of people (including spouses, partners and children) to claim against an estate for further provision.

The court follows a two-step approach when evaluating claims under the Act. First, it must decide whether the will-maker owed a duty to the claimant and, if so, whether that duty has been breached. Second, the court must consider what is required to remedy the breach.

The court takes a conservative approach in making awards for further provision. It will do no more than the minimum that it believes is necessary to address any breach of duty. There is no presumption of equal sharing between children, and the court will not rewrite a will based on its own perception of fairness. There is no formula, however, for assessing what is required to remedy a breach; each case depends on its own facts.

Important factors will include the size of the estate, the claimant’s personal circumstances and other competing claims (such as from siblings or a parent/stepparent). In many cases, however, a financially stable adult child might expect to receive 10–15% of a parent’s estate. That could increase if a child is in poor circumstances or has suffered abuse at the hands of their parent.

 

 

Making a successful claim

When a successful claim is made under the Act, the award will be paid from the deceased’s estate. That necessarily means that claims are limited by the size of the estate. If a will-maker has gifted or transferred assets to a trust during their lifetime, or to other people, their estate may have little or nothing left in it. This has the effect of preventing estate claims because there is no estate available.

In the Alphabet case, an abusive father transferred his assets into a trust. His children wanted to bring claims against his estate, but there was nothing in it. They argued that they should effectively be able to unwind the transfer of assets to the trust, so that those assets went back into their father’s estate, and they could bring claims under the Act. This case went all the way to the Supreme Court.

 

 

Alphabet case

In the Alphabet case, the deceased father was referred to as Robert, and his children as Alice, Barry and Cliff. Alice, Barry and Cliff experienced egregious abuse at Robert’s hands and, understandably, did not have a relationship with him.

Robert took deliberate action during his lifetime to transfer most of his assets to a trust. None of his children were beneficiaries of that trust.

Alice, Barry and Cliff argued that Robert owed them fiduciary duties as a parent, and that he breached those duties when he abused them. They argued that the abuse created an ongoing fiduciary obligation which Robert breached when he transferred his assets into a trust. They argued that the transfer of assets could (and should) be unwound on this basis, and Robert’s assets returned to his estate; this would allow them to make claims under the Act.

Fiduciary duties are duties to put someone else’s interests before your own. They usually arise in relationships of particular trust and confidence. The Supreme Court acknowledged the existence of fiduciary duties between a parent and a minor child, but it found that these duties ended when the parent’s caregiving responsibilities ceased. It did not agree that there remained a fiduciary duty owing later on which would prevent Robert transferring his assets to a trust.

The court noted that the Act does not contain any mechanism to ‘claw back’ assets which have been put in a trust or transferred to another person in order to avoid estate claims. It noted that this might be the subject of future law reform but it was not existing law.

Robert’s three children therefore failed in their attempt to bring assets back into Robert’s estate, on which they could then have made Family Protection Act claims.

 

 

Law Commission

The Law Commission recently prepared a comprehensive review of succession law. It proposed that some form of anti-avoidance, or ‘claw back’ provision, be included in any law reform efforts that would address situations such as the Alphabet case.

While the government has considered the Law Commission’s report, it has not yet taken any steps to progress law reform efforts. For the time being, this means trusts may continue to be used in order to prevent some potential estate claims, particularly those brought by children.

[1] A, B and C v D and E Limited as Trustees of the Z Trust [2024] NZSC 161

 

 

DISCLAIMER: All the information published in Trust 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 Trust 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


In a recent decision of the Human Rights Review Tribunal an employer has been ordered to pay an ex-employee damages of $60,000 for interfering with the employee’s privacy.

 

The CEO invited the employee out of the office for a coffee meeting. During that meeting, the CEO gave the employee a letter detailing concerns about the employee’s performance. While they were out of the office, a director of the employer took the employee’s work laptop, personal USB flash drive, and personal cell phone from the employee’s desk without the employee’s consent or knowledge.

 

About a week later, the employee’s employment was terminated.

 

The employer later returned the personal cell phone, but did not return the personal information that had been stored on the work laptop or the employee’s USB drive.

 

Despite several requests over a long period of time, the employer failed to return the employee’s personal information and USB drive. Instead, the employer effectively blocked the employee’s attempt to obtain the return of his information, engaging in a range of tactics that delayed the return of the information.

 

The Tribunal found that the employer had collected the employee’s personal information when uplifting the laptop, cell phone and USB. It went onto find that the employer had breached information privacy principles 1, 2, and 4 of the Privacy Act 1993 because the employer had not collected the personal information for a lawful purpose or directly from the employee, and the personal information was collected in circumstances that were unfair and constituted an unreasonable intrusion on the employee’s personal affairs.

 

The Tribunal went on to determine that the breaches were an interference with the employee’s privacy as they had caused significant humiliation, injury to feelings and loss of dignity to the employee. In support of this finding, evidence had been provided by the employee that three weeks after the collection of his information, he was formally diagnosed with acute anxiety and depression, prescribed antidepressants, and sleeping medication. The employee had also started attending counselling.

 

The employer argued that the health conditions were caused by the loss of work, not by breaches of the collection principles. However, the collection does not need to be the sole cause of the consequences suffered.

 

Emails and other correspondence in evidence showed that the health conditions were attributable to distress about the collection of the information, including the inability to retrieve it, and not knowing who had seen it, and who was using and sharing the personal information

 

The Tribunal also found that the collection had caused the employee loss and detriment when he couldn’t complete his tax return on time, leading to a penalty. It also negatively affected his interests as it impacted his health, his career prospects and removed access for him to a personal USB and he did not have access to all his personal information that had been on his laptop.

 

The Tribunal found that an award of damages of $60,000 appropriately reflected the significant level of humiliation, loss of dignity and injury to feelings experienced by the employee because of the wrongful collection of his personal information.

 

A prompt return of the personal information wrongly collected would have significantly reduced the humiliation, loss of dignity and injury to feelings experienced and therefore the amount of any award.

 

This claim was decided under the Privacy Act 1993 because the actions all occurred prior to that act being replaced by the Privacy Act 2020. However, it is still relevant to conduct under the 2020 Act – information privacy principles 1 – 4 and the test to show an interference with privacy has remained largely unchanged.

 

The decision is: BMN v Stonewood Group Ltd [2024] NZHRRT 64.

 

Joanne Dickson


The Supreme Court recently issued its much-anticipated ruling in A, B and C v D and E Limited as Trustees of the Z Trust known as the Alphabet case. It concerns the extent of fiduciary duties owed by a parent to an adult child. ⚖️

The case involves a father, who transferred most of his assets to a trust during his lifetime, leaving his adult children without any entitlement to those assets. The children argued that due to past abuse they suffered at their father’s hands, including physical, emotional abuse and sexual abuse, their father owed them fiduciary duties that extended into adulthood. They believed his actions in transferring assets breached those duties, and the assets should revert to his estate to satisfy their Family Protection Act claims to be provided for from his estate.

While the Court agreed that fiduciary duties exist between a parent and minor child, it ruled that those duties generally end once the child reaches adulthood or the caregiving responsibility ends. The Court rejected the notion that such duties continued into adulthood, despite the children’s vulnerability due to the abuse they suffered during childhood. Importantly, the Court noted that imposing fiduciary duties in this case would create legal uncertainty and “reverse engineer” a remedy for past wrongdoing.

The Court also ruled against treating the trust assets as part of the father’s estate. However, it acknowledged the need for legal reform in this area and pointed to the Law Commission’s 2022 proposal to allow courts to unwind property transactions that intentionally defeat claims under succession law.

While the Court was sympathetic to the appellants, it ultimately found that the law could not support their claim in this case. The ruling highlights the need for further reform in this area of law, which the Law Commission’s proposals may address in the future.

Kerry Bowler, Solicitor Kerry Bowler


Meet Luke and Sally. They’ve been together for about a year, and now they have some exciting news—Sally is pregnant with their first baby! Amid the joy, Sally wants to find out what her pregnancy means for her job and what leave she can take once the baby arrives.

Pregnancy Rights at Work

First things first: the law protects pregnant employees. Under the Human Rights Act, it’s illegal for anyone to treat Sally unfairly because of her pregnancy. In fact, employers can (and often do) offer extra support, like flexible work hours, to make things easier for expecting mothers.

Understanding Parental Leave

Sally is planning to be her child’s main caregiver, so she looks into her parental leave options under the Parental Leave and Employment Protection Act (let’s call it the Parental Leave Act for short).

The Parental Leave Act defines a primary carer as the biological mother (or another person, like a partner, in certain situations). If you’re the primary carer, you may be entitled to:

  • Unpaid parental leave from your employer, and
  • Paid parental leave payments, which are handled through Inland Revenue.

How Long Has Sally Been at Her Job?

What Sally qualifies for depends on how long she’s worked for her employer and how many hours she’s worked each week. Let’s break it down:

  1. 6-Month Test:
    If Sally has worked for her employer for at least an average of 10 hours a week in the 6 months before her baby’s due date, she qualifies for:

    • Up to 26 weeks of unpaid leave, and
    • Up to 26 weeks of parental leave payments.
  2. 12-Month Test:
    If Sally has worked for at least 10 hours a week in the 12 months before her baby’s due date, she’s eligible for:

    • Up to 26 weeks of paid parental leave, and
    • Extended unpaid leave of up to 52 weeks total.

Good news for Sally—she meets the 12-month test, so she’s entitled to the full benefits.

What About Luke?

Sally and Luke also have the option to share parental leave. If they decide Luke will be the primary carer at any point, he can take over Sally’s entitlements, but this means Sally would no longer have primary carer benefits during that time.

If Luke doesn’t take over as the primary carer, he can still apply for partner’s leave:

  • 1 week if he’s worked 10+ hours weekly for the last 6 months, or
  • 2 weeks if he’s worked 10+ hours weekly for the last 12 months.

What Does Sally Need to Do?

To take parental leave, Sally must give her employer at least 3 months’ notice before her due date. She’ll also need to include a certificate from her midwife confirming her pregnancy and due date.

Need Help?

Parental leave laws can seem complicated, but knowing your rights can make the process smoother. If you’re unsure about your entitlements or how parental leave might affect your job, we’re here to help—just reach out!

 

Kristin O’Toole