Risk Management Archives

Health and Safety at Work Amendment Bill

June 3, 2026

Employment Law, Government & Policy, Health and Safety, Regulatory Compliance, Risk Management, Workplace Regulation

Expected to be enacted in the spring

The Health and Safety at Work Amendment Bill was introduced into Parliament on 8 February 2026 and passed its first reading on 12 February 2026. It is currently before the Education and Workforce Select Committee. Submissions closed at the end of March and the committee is scheduled to report back to Parliament by 12 June 2026. It is anticipated that the Bill will be passed before the election (early November).

If enacted, the Bill will represent the most significant reform of health and safety law in New Zealand since the Health and Safety at Work Act (HSWA) was passed in 2015.

Purpose of Bill

Workplace Relations and Safety Minister, the Hon Brooke van Velden, said that the Bill is intended to reduce compliance obligations, focus on preventing serious harm and clarify businesses’ obligations under the HSWA.^[1] The key proposed changes in the Bill are:

Increased focus on preventing serious harm
Reducing compliance obligations for small businesses
Clarification of the health and safety obligations of landowners, and
Clarification of the relationship between health and safety legislation, and other legal requirements.

Introducing ‘critical risk’

The Bill introduces a new defined term of ‘critical risk.’ Small businesses must focus on avoiding critical risks. All other businesses must manage all risks but are required to ‘prioritise’ critical risks.

The Bill defines a ‘critical risk’ as a risk associated with one of the matters specified in Schedule 1A of the Bill; this lists a number of specific high-risk activities such as working with asbestos and other hazardous substances. A critical risk also includes any hazard that is likely to result in death, a notifiable injury or illness, a notifiable incident or an occupational disease listed in Schedule 2 of the Accident Compensation Act 2001.

Identifying what the critical risks are for a particular business is likely to be one of the more challenging aspects of the new legislation.

The impact on small to medium-sized businesses

The most significant change contained in the Bill is the narrowing of the duties of small to medium-sized businesses, referred to as ‘small PCBUs,’ to risks that are defined as critical risks under the Act.

This does not mean that small businesses have no obligations in relation to other risks. They are still required to provide adequate facilities to ensure the safety of their employees.

A small PCBU will be defined as a business with fewer than 20 employees. Businesses that have a fluctuating workforce will qualify provided that they have fewer than 20 employees for at least nine months of the year. This change is likely to have a significant impact on the compliance obligations of businesses in New Zealand, given that approximately 97% of businesses would qualify as a small PCBU.^[1]

Obligations of landowners and recreational activities

Potential exposure to prosecution under health and safety legislation in New Zealand has long been a concern for landowners who wish to make their land available for recreational activities.

In the past, this has been a particular concern for rural landowners who have often avoided providing access to their land due to such concerns. It has also discouraged public landowners, such as schools and councils, from allowing their land to be used for recreational activities.

The potential liability of landowners was recently highlighted by the prosecution of the owner of Whakaari/White Island following the eruption in 2019, which resulted in the deaths of 22 people. The landowner was initially convicted in the District Court under the HSWA, despite not directly operating the tours to the island.^[2] The High Court overturned this conviction on appeal.^[3]

The passing of the Bill would mean that landowners would not generally owe health and safety obligations to people using their land for recreational activities.

The Health and Safety at Work Act and other legislation

The Bill would clarify the relationship between general health and safety legislation, and other legislation that applies to specific industries such as the aviation and maritime sectors.

In the past, there has been confusion as to whether or not businesses in industries covered by specific legislation have additional duties under the HSWA. The Bill clarifies that compliance with industry-specific legislation or approved industry codes of practice is also compliance with the HSWA, so there are no additional obligations.

The Bill also states that the owners of earthquake-prone buildings do not need to take additional steps under the HSWA, provided that they comply with the requirements of the Building Act 2004.

The Bill is intended to reduce the compliance work that is required by businesses under current health and safety legislation, which has become an expensive ’tick-box’ exercise for many. However, it will still be important for small businesses to identify the ‘critical risks’ in their businesses and to take steps to mitigate them.

If you have any concerns about the impact that this proposed legislation may have on your business, please don’t hesitate to contact us.

^[1] New Zealand business demography statistics at February 2025, Statistics New Zealand.

^[2] WorkSafe New Zealand v Whakaari Management Ltd [2023] NZDC 4149.

^[3] Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288.

DISCLAIMER: All the information published in Commerical 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 Commerical 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

Navigating redundancy

April 28, 2026

Employment Law, Human Resources, Regulatory Compliance, Risk Management, Workplace Regulation, Workplace Rights

Understanding the legal process for employers

Redundancy refers to a situation where an employee’s position is deemed superfluous to an employer’s needs. Understandably, a redundancy proposal can bring stress and uncertainty to those affected. Unfortunately, it is a term that many New Zealanders may be familiar with.

We provide a summary of the required process, and obligations by you, as an employer, in proposing a potential redundancy in your organisation.

Lawful redundancy

For a redundancy to be lawful, it must be both justified and carried out through a fair process. A redundancy is justified only where there is a genuine commercial reason for it; redundancy cannot be used as a means to dismiss a poor performing employee or as an alternative to a disciplinary process for misconduct.

‘Genuine commercial reasons’ may include a downturn in work/revenue, declining financial performance, organisational restructuring, or the merger or acquisition of a business. Courts are increasingly applying scrutiny into the ‘commercial rationale’ for a redundancy.

However, even where a genuine reason exists, the dismissal will not be lawful unless the correct process is followed.

Process

The process that all employers must follow includes:
• Providing your employees with relevant information about the proposed change and the potential impact on their employment if the proposal is adopted
• Consultation with your employees and considering their feedback (and enabling your employees opportunities to seek advice or support within the consultation period)
• Considering alternatives to redundancy, and
• Following any additional procedural requirements specified in the relevant employment agreement or policy documents.

Providing information

The Employment Relations Act 2000 sets out that an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of one or more of his or her employees, is required to provide the affected employees with access to relevant information about the decision.

The term ‘relevant information’ will depend on the specific circumstances. It includes, however, information necessary for employees to understand the rationale for the proposed change and to enable them to provide informed feedback. Your employee is entitled to ask for additional information relevant to your proposal. While an employer is not required to provide confidential information, they must be able to genuinely demonstrate that disclosure would cause actual, unreasonable prejudice, and must show that they have explored alternative options for confidential consultation.

Consultation

You are not only required to provide a potentially affected employee with all relevant information, but you must also ensure there is a genuine opportunity for your employee to comment on that information before any decision is made. This includes providing sufficient time to provide feedback.

You must approach this process with an open mind and genuinely consider any feedback received before deciding whether to proceed with the proposed change. Without genuine consultation, the redundancy may be deemed a pre-determined outcome, and a breach of your obligation as their employer to act in good faith.

Selection criteria

In circumstances where you are reducing a number of same/similar roles, a fair and reasonable selection process must be followed to decide which of your employees will be appointed to the remaining roles. Clear and relevant selection criteria should be provided to your employees in advance, and their feedback sought. This includes providing details as to how that criteria will be assessed and weighed.

Redeployment

If a role is disestablished, you have an obligation to consider redeployment opportunities within your organisation for any of your affected employees. The affected employee/s continuing employment must be considered before a new or vacant role is advertised externally. Redeployment must be considered for an affected employee, even if some (reasonable) training or upskilling may be required.

Your obligation to consider all redeployment options, stems from an employer’s statutory requirement of good faith – to be active and constructive in maintaining the employment relationship, including being responsive and communicative.

A challenging time

Proposed redundancy can be a challenging and uncertain time for all; but understanding the legal framework and the required process can help you to navigate this with more confidence.

It is also important to carefully review employment agreements and relevant workplace policies to carefully identify any relevant provisions, including any entitlement to redundancy compensation.

If your organisation is contemplating redundancies, we recommend you talk with us at the outset; this will help you and your employees better understand their rights and obligations.

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, 2025. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650

Caveats

April 9, 2026

Property Law, Real Estate Transactions, Relationship Property, Risk Management, Wealth & Asset Planning

What are they?

A caveat is a warning and, once registered, notifies the world at large to ‘be aware’ of a potential claim.
In the property sector, a caveat is a legal instrument that can be registered against a property title to protect a person’s rights or interests in respect of a particular property. A caveat prevents the registered owner/s of the property from transferring, selling or disposing of, mortgaging or otherwise dealing with it.

Why register a caveat?

The Land Transfer Act 2017 stipulates when caveats can be registered. It is important that the person wanting to register a caveat (the caveator) meets specific requirements as set out in the legislation.

The caveator must have a ‘caveatable interest’ in the property. The legislation specifies the situations in which a caveatable interest may exist. If you think you may have a caveatable interest in a property, we encourage you to talk with us about your particular situation.

One common scenario in which caveats are registered is when a person dies and the executors of their will are in the process of transferring or otherwise dealing with the deceased person’s property. The deceased’s former partner or spouse may register a caveat (called a notice of claim in this situation) against the deceased’s property to protect their interests and their right to bring any claims under the Property (Relationships) Act 1976. This is particularly common in situations where executors are unwilling to cooperate or consider such claims.

Another situation in which caveats are commonly registered is where a person is a beneficiary of a trust and has an expressly recorded entitlement to a particular property or piece of land. That beneficiary may wish to prevent their entitlement from being transferred or otherwise dealt with, and so may register a caveat to protect their proprietary interest.

It is important to keep in mind that registering a caveat is not a decision that should be made lightly. There are serious potential consequences for the caveator if a caveat is improperly registered. The Act allows people affected by the registration of a caveat to claim compensation for loss or damage against the person who registered it, especially where there was no caveatable interest to begin with. Lawyers can also face liability and be penalised for assisting their client to register a caveat where there is no caveatable interest. Claims for compensation are heard and determined by the High Court.

One situation in which people may seek to claim compensation is when the sale of the property has been impacted or delayed by the registration of a caveat, and there were no reasonable grounds to justify the registration of the caveat or sustain one in the first place. Affected people may apply to the court for compensation for loss or damage. This compensation could include an award of compensatory damages (to compensate and restore the claimant to the financial position they would have been in had the caveat not been registered) and, in extreme cases, punitive damages (designed to punish the caveator).

Registering a caveat

Once you have confirmed a caveatable interest in a particular property, you should discuss with us about registering that caveat. We will prepare and ask you to sign an Authority and Instruction Form. This confirms your instructions and facilitates registration of the caveat on the Land Information New Zealand (LINZ) database.

When can caveats be removed?

There are three situations in which caveats are removed:

By consent
If the caveat lapses, or
By a court order.

More commonly, caveats are removed when the parties have set aside their differences, and the caveator may decide to withdraw the caveat from the property title.^[1]

Further, the Act^[2] provides that a caveat may lapse following an application made by an affected person, usually the registered owner of the property, to the Land Transfer Registrar, unless a specific and timely response is received from both the caveator and the court. The caveat will lapse unless the caveator makes an application to the court within 10 working days to sustain the caveat, and the court makes one of three types of order within a further 20 working days. The orders the court can make include an interim or temporary order that the caveat not lapse, a final order or an order postponing the caveator’s application for the time being.

As well, the Act^[3] confirms that a person who has an estate or interest affected by a caveat may apply to the court for an order that the caveat be removed. This means that the registered owner, for example, may apply to the court rather than to the Land Transfer Registrar seeking removal of the caveat. Claims for compensation for loss or damage may also be made at the same time.

In summary, a caveat is a robust tool for protecting one’s rights and interests over real property. It is important to receive sound legal advice on the effects and implications of registering a caveat, due to the risks and consequences associated with registering one incorrectly.

^[1] Section 144.

^[2] Section 143.

^[3] Section 142.

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.
Content Copyright © NZ LAW Limited, 2026. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650

Trustees taking on liabilities of the trust

February 26, 2026

Litigation & Dispute Resolution, Risk Management, Trust Law, Trustee Duties, Wealth & Asset Planning

Can they be held personally responsible?

When someone acts as a trustee of a family trust, they often take on liabilities associated with the trust. Those liabilities generally include obligations to the trust’s lender (such as a bank) or other creditors.

While that does not usually cause issues for the trustee, there can be cases where a trustee is left personally responsible for a trust debt that they are not then able to recover from the trust. It’s a daunting prospect for both professional and non-professional trustees.

How trustees contract

It is a common misconception that when signing documents in your capacity as a trustee, your risk is limited to the assets of the trust. Unfortunately, this is not the case. A contract that is enforceable against a trustee can be enforced against the trustees (or any one of them) personally.

The reason is that a trust is not a separate legal entity or ‘person’ in the same way as a company or incorporated society. The trust itself cannot enter into a contract or be registered on a property title; only the individual trustees’ names can be listed.

It is important, therefore, for trustees to seek advice on the form of any contract that they are entering into in their capacity as a trustee. In some situations, however, clauses can be negotiated that limit the obligations of non-beneficiary trustees to the assets of the trust at the time in question (whatever those may be). This is an important protection for non-beneficiary trustees. These clauses will not usually be extended to include trustees who are also beneficiaries.

It is also important for the trustee to have a clear understanding of the trust’s assets and whether the trust is in a position to meet its obligations under the terms of the contract being entered into by the trustees. Taking on a loan that the trust would be unable to service, for example, would not be a wise decision for a trustee to make.

How can trustees recover their losses?

Often, however, the fact that individual trustees are liable to the trust’s creditors does not cause individual trustees significant issues. Trustees have a general right of indemnity from the trust funds; if they must pay a debt on behalf of the trust, the trust’s funds must be used to reimburse the trustee.

What happens if the trust has no assets

In a recent decision of the High Court of Australia,^[1] a former trustee found himself in the unenviable position of being found liable to a creditor of the trust for payment of more than A$3 million that he was unable to then recover from the trust.

A creditor of the trust had begun court proceedings against the former trustee in 2006 relating to unpaid sums on a share purchase.

In February 2007, the former trustee resigned as a trustee of the trust and was replaced by a trustee company, whose director was the brother of the Default Beneficary and Appointor of the trust.

Nine years later (and after a series of court proceedings in the meantime between the creditor and the trustees and others), the court entered judgment against the former trustee in favour of the creditor for A$3.4 million.

In the ordinary course, the former trustee would have then demanded that sum from the trust by way of indemnity. However, the trust did not have sufficient assets to provide indemnity. The court found that the current trustees had deliberately depleted the trust’s assets to avoid any potential liability to either the creditor or the former trustee.

The current trustees of the (perhaps aptly named) Sly Fox Family Trust were found to have dishonestly and fraudulently stripped assets out of the trust by transferring its assets to various family members and companies controlled by family members of the Default Beneficiary and Appointor.

In the court proceedings that followed, it was unsuccessfully argued that the current trustees owed an obligation to the former trustee to ensure that the trust retained sufficient assets to meet any financial obligations that it might owe to the former trustee under the right of indemnity. The court, however, did not agree that the current trustees owed such an obligation to the former trustee.

Two appeals followed; the decisions of both the Court of Appeal of the Supreme Court of New South Wales and the High Court (which is effectively the Australian equivalent of our Supreme Court) were split. In the Court of Appeal the judges were split 2/1, and they were split 3/2 in the High Court. This had significant repercussions for both the creditor of the trust and the former trustee, neither of whom were successful.

What can trustees do?

Trusteeships come with risks. When taking on obligations to third parties, trustees must carefully consider the financial position of the trust, and any risks associated with the people involved.

They should also consider the terms of the contracts they are entering into and whether any clauses can/should be included to limit their liability as non-beneficiary trustees.

Indemnities are only as valuable as the assets of the trust at the time. Therefore, trustees should not rely on indemnities alone if there are other options available to limit their risk

^[1] Naaman v Jaken Properties Australia Pty Limited [2025] HCA 1.

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, 2026. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650

Terms of trade

October 7, 2025

Contracts & Documentation, Legal Agreements, Risk Management, Terms & Conditions

After firming up a child support agreement with Sally and adjusting to his new routine after separating from Sally, Luke decided that he better check in with his business and make sure nothing has fallen by the wayside while he was preoccupied with his separation.

While doing a general review of what’s been happening in the business, he comes across his business’ terms of trade. After having a quick look at the terms of trade he is shocked to see that the terms haven’t been updated in a couple of years. To make matters worse he notices that his terms of trade don’t build in any protection for his business should a customer not pay him for his goods and services. Luke decides to set up a meeting with his lawyers for advice.

At this meeting, Luke gives his terms of trade to his lawyers and explains how his business operates and what terms and conditions he would like to be in place. Luke and his lawyer discuss the importance of regularly reviewing and updating the terms of trade.

A business’ terms of trade are recorded in a written document that set out the relationship between the business and customer, and the terms and conditions that apply to the supply of goods and services.

Luke’s lawyers review his terms of trade, update them to reflect his business needs and make further suggestions on how the terms and conditions should be amended to provide clarity to both Luke and his customers. Importantly, his lawyers made sure that the terms included clauses that set out what would happen if there was a dispute, limited Luke’s liability to the customer, and detailed the business’ rights if a customer didn’t pay.

Luke now felt much more protected using his new terms of trade for his business.

Kristin O’Toole

Risk Management