#LegalAdvice Archives | Edmonds Judd

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

Rights of shareholders to company information

September 24, 2025

Business Guidance, Company & Shareholder Law, Leave & Entitlements

If you are a shareholder of a small to medium-sized company but not a director, then you may have a significant amount of money invested in the company but not be involved in its day-to-day management and operation.

You have an interest in knowing what the company is doing, as your investment may be at risk if the company fails. You may also be reliant on the company for your income, either through share dividends or as an employee of the company.

This raises the issue of what information about a company a shareholder is entitled to receive. The Companies Act 1993 governs this.

Right to information under section 216

A shareholder has an absolute right to some fundamental information under section 216 of the Companies Act. This includes:

Minutes of all meetings and shareholder resolutions
All written information distributed to shareholders over the preceding 10 years, including annual reports and financial statements
Directors’ certificates, and
The company’s interests register (the official list of any potential conflicts of interest the directors may have).

The limited information available under section 216 is unlikely to enable a shareholder to obtain information about significant financial decisions made by the company in time to influence them.

Right to information under section 178

A shareholder has a right to ask for any information held by a company under section 178 of the Companies Act. However, the company may refuse to provide the information or charge the shareholder for providing it. The company may decline to provide information for any reason.

The Companies Act, however, specifically states that a company may refuse to provide information if its release would prejudice the company’s commercial position or that of any other party it is dealing with. It also states that a company may refuse a request that is frivolous or vexatious.

A shareholder may apply to the court to have a company’s decision to refuse to release information reviewed. However, a court application is likely to substantially delay the release of the information and increase the cost of obtaining it, even if the court ultimately orders the release of the information.

Shareholder entitled to see the company’s legal advice?

One category of information that has special rules applying to it is legal advice received by a company. Traditionally, the courts have applied what has become known as the Shareholder Rule.^[1] This has meant that a shareholder was entitled to be provided with any legal advice obtained by a company except advice relating to a dispute with the shareholder. It would be very difficult for a company to deal with a dispute with a shareholder if it could not keep its legal advice regarding the dispute confidential.

Recent Privy Council decision

The UK’s Privy Council has recently issued a decision that is likely to become a landmark decision in company law.^[2] The court’s decision effectively overturns the long-standing Shareholder Rule. The court held that shareholders are not entitled to any privileged legal advice obtained by a company.

The Privy Council is no longer New Zealand’s highest court; it was replaced by the Supreme Court in New Zealand in 2004. The Privy Council’s decisions are, however, still strongly influential on the development of New Zealand law. Many commentators believe that the New Zealand courts will adopt this approach to the Shareholder Rule. Companies may well, therefore, begin to decline shareholder requests for any legal advice obtained by a company under section 178 of the Companies Act.

It is likely that the New Zealand courts will uphold the refusal by a company to release such information in the future.

Shareholders still have strong rights

Shareholders still have strong rights to obtain information about a company under sections 178 and 216 of the Companies Act, even if they are no longer able to access the company’s legal advice. These rights can be particularly useful if a dispute arises between shareholders in relation to the company’s management or strategic direction.

You should contact us if you have any concerns about the management of a company in which you own shares. There are a number of legal mechanisms contained in the legislation that shareholders can use to protect their position, including the rights to information discussed here. Prompt action, however, is often required to achieve the best possible outcome.

^[1] Lambie Trustee v Addleman [2021] NZSC 54, [2021] 1 NZLR 307.

^[2] Jardine Strategic Holdings Ltd v Oasis Investments II Master Fund Ltd No 2 [2025] UKPC 34.

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

Trustees signing unlimited bank guarantees?

September 2, 2025

Bank Guarantees, Best Practice for Trustees, Lending & Securities, Protecting Beneficiaries, Trust Law & Obligations, Trustees & Duties

Danger of breaching duties

When you buy a house in your own name, and you need a loan to do it, you will be the borrower, the owner and the security provider (mortgagor).

In some situations, these are different people. For example, the owners might be the trustees of a trust, but the borrower is an individual. There are good reasons for this sort of structure, particularly from a relationship property or creditor protection perspective. This does, however, make things complicated from the lender’s perspective, and can sometimes cause them to inadvertently ask trustees to breach their duties, as this article will explore.

Borrowing vs security

Whoever buys a property, be that you or your partner, a company or the trustees of a trust, as the owners you are the only ones who can give the lender a mortgage. The reason is that you cannot grant a mortgage, which is a type of security that is registered against a title to ‘real property’ (another word for land or ‘bricks and mortar’) unless you are named on the record of title as the owner or owners of the property.

There are a number of reasons why the borrower (person borrowing the money from the lender) and the security provider (person giving a mortgage or a guarantee) might not be the same person:

For asset protection purposes you will usually be the borrower, while the trustees will provide a mortgage by way of security, and there will be a guarantee linking them together (sometimes called an ‘interlocking guarantee’)
If a child is borrowing money to buy a house and their income is deemed insufficient to service a mortgage, a parent might guarantee their lending, or
If a company borrows 100% of the purchase price of a property, the shareholders (and sometimes the director/s), will be required to sign a guarantee (and often mortgage security over another property as well).

Trustee duties

When trustees are asked to provide security, whether in the form of a mortgage, a guarantee (or both), they must be mindful of their duties to all of the beneficiaries of a trust. These include duties:

To invest prudently, and in doing so must exercise the care and skill that a prudent person of business would exercise in managing the affairs of others,[1]
Not to bind or commit trustees to future exercise of discretion:^[2] they may, for example, be called on to honour the guarantee in the future by paying the beneficiary’s lending, and
To be impartial as between the beneficiaries:^[3] Will giving the guarantee be unfairly partial to one beneficiary if the trustees cannot do the same for another?

Trustees also have an overarching duty of care which encapsulates hundreds of years of case law^[4] which makes it clear the trustees’ duty is to hold or deal with trust property for the benefit of the beneficiaries as a whole.

Unlimited guarantees

An unlimited guarantee states that the guarantor is liable for all amounts the borrower owes, however much that is, until every cent owing has been repaid, or the guarantor is released from their obligations.

As an example, if a beneficiary of a trust borrows $750,000 to buy their first home, and the trustees of the trust sign an unlimited guarantee, the trustees’ liability can extend to:

The $750,000 loan
The borrower’s car loan they take out a year later
The new loan for renovations taken out three years after that, and/or
The borrower’s credit card debt.

This could breach a number of the trustees’ duties.

Best practice

Trustees should not sign an unlimited guarantee without first considering their duties to all the beneficiaries. In many cases, consideration of their duties will lead trustees to realise that it would be more prudent to sign a limited guarantee.

While all the major lenders are familiar with and will grant a limited guarantee, they will issue an unlimited guarantee by default unless you ask specifically.

If you think that as a trustee you will be asked to guarantee a beneficiary’s lending, make sure you ask for that to be a limited guarantee.

[1] Section 30, Trusts Act 2019.

^[2] Section 33.

^[3] Section 35.

^[4] Section 29.

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 Speaking 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] M: 029 286 3650

Enduring Power of Attorney

September 2, 2025

Family Law & Support, Legal Remedies & Court Processes, Property & Personal Care Decisions, Protecting Loved Ones, Safeguarding Against Abuse

Is the attorney carrying out their role correctly?

If your family member is losing capacity and has an Enduring Power of Attorney (EPA) in place, you will be reassured that their attorney is working in your loved one’s best interests. Very occasionally, however, this isn’t the case. In this article, we look at how an EPA works and what can be done if you believe the attorney is not doing their job properly.

Enduring power of attorney

An EPA is a legal document that allows someone else to step into another’s shoes and make decisions on their behalf if they lose the capacity to make important decisions for themselves. An attorney is usually a close relative or trusted friend of the person losing capacity (the donor).

There are two types of EPA: for personal care and welfare, and for property.

An EPA for personal care and welfare allows the attorney to make decisions on behalf of the donor about things such as medical treatment and living situations – including residential care.

An EPA for property allows the attorney to make decisions about a person’s assets and allows them to directly access bank accounts, selling property, making payments on the donor’s behalf and so on.

EPAs can be a very effective way of ensuring that decisions can be made in a timely and cost-effective way for the benefit of the donor. An EPA also allows the donor to decide, in advance of losing capacity, who they want making decisions on their behalf should the need arise. But, as an EPA provides the attorney with significant powers, an EPA can be misused or abused.

Getting information

If you are suspicious that the attorney is not working in the donor’s best interests, you should gather information about what the attorney is actually doing.

Ask them for a broad overview of the steps that they are taking on behalf of the donor and discuss with them any concerns that you might have.

When the donor made the EPA, one of the questions they will have been asked is whether they wanted their attorney to consult with other family members before making decisions, or whether they wanted their attorney to provide information to other family members.

If you have not seen the EPA document, you can ask if either of those provisions were included. If the donor made it a requirement that the attorney either consults with you or provides information to you, then that will give you enhanced powers to obtain important information.

If the donor did not include a requirement that the attorney consult with you or provide you with information, you can still ask for an overview; many attorneys will be happy to provide that.

But if you are not receiving information and you have ongoing concerns – what can you do?

Could the attorney transfer assets to themselves?

As an attorney has the ability to access the donor’s assets, sometimes issues can arise where the attorney will act for their own benefit, and not the benefit of the donor. They may transfer money to themselves, withdraw and fail to account for cash, or make personal use of the donor’s property, for example living in their property without paying rent or making use of their car.

If you are concerned that this is happening to your family member, you can apply to the Family Court under the Protection of Personal and Property Rights Act 1988 to have the court review particular transactions or decisions made by the attorney. It is also possible to apply to the Family Court to have the attorney removed and replaced if they are acting outside of the powers given to them by the donor.

The court process is not straightforward, but it can provide effective remedies to protect the donor and their assets from abuse.

Assets taken by the attorney after donor dies?

It is not uncommon for an attorney’s actions to come to light only after the death of the donor, usually when there is significantly less in the donor’s estate than was expected.

The Family Court can review an attorney’s decisions either before or after the donor’s death. It is not necessarily too late to recover assets that the attorney has transferred to themselves without authority.

Conclusion

There are steps that concerned family members can take if they are suspicious about the actions of a donor’s attorney. These include obtaining information, recovering misappropriated assets and having the attorney removed if needed.

If you are unsure of the status of your family member’s affairs, don’t hesitate to contact us – we are here to help.

Protecting Your Business Name: Bob’s Story

August 15, 2025

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

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

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

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

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

“Yes, I said” Bob replied, irritated.

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

“Who is this?” Bob demanded.

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

“WHAT?!” Bob exclaimed.

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

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

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

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

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

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

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

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

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

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

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

Jamie Graham

Planning Ahead: How Enduring Powers of Attorney Helped Steve’s Family

July 28, 2025

Caring for Aging Parents, Client Stories, Elder Law, Enduring Powers of Attorney (EPA), Future-Proofing Your Family, Health & Wellbeing, Legal Tips, Life Planning, Peace of Mind Planning, Wills & Estates

A few years into Steve’s retirement, things started to change.

Steve was not quite himself anymore. He became forgetful, sometimes confused, and would occasionally lose track of where he was or what he had planned for the day. At first his children, Luke and Sally thought it might just be part of getting older. But over time, it became clear that it was something more serious. Steve was beginning to lose mental capacity.

It was a difficult time. Watching the strong and capable father they had always relied on start to struggle was heartbreaking. But one thing made a huge difference. Steve had prepared for this.

Years earlier, with the help of Edmonds Judd, Steve had put in place Enduring Powers of Attorney. He had taken the time to meet with a lawyer, talk through his options, and sign the documents while he was still well and able to make decisions for himself. He had appointed both types of attorney. One for property, which would allow his children to manage his finances and property. And one for personal care and welfare, where he had named Sally as his first attorney to make decisions about his health and daily care.

When Steve’s condition worsened, Luke and Sally were able to step in without any delays or uncertainty. Luke handled the financial side, making sure bills were paid and everything stayed in order. Sally worked closely with Steve’s doctor and made the final call on his treatment when he was no longer able to do so himself.

There was no need to go through the courts. There were no arguments about what should happen or who should decide. Steve had made his choices clear, and they could simply carry them out.

Because of the advice and support he received from Edmonds Judd, Steve’s family had the tools they needed to care for him with clarity and compassion. His wishes were protected, and his children could focus on what mattered most.

It was not just legal paperwork. It was peace of mind. And it made all the difference when Steve and his family needed it most.

Georgia Willard

Life Stage – First Home

June 18, 2025

Economy & Finance, Employment, Estate, House, Media, News, Online, Uncategorized

It felt like Bob’s life had been turned upside down. Not only had his father, Steve, passed away recently leaving him upset and overwhelmed, but his burger bar business was also struggling. Bob had put all his life savings into his burger bar, which he opened 6 months prior. Further adding to the stress, Bob currently did not have a home. He had been couch-surfing at friends places while he saved up enough to rent a place of his own.

After a few difficult months, Steve’s estate was finally settled. As one of the beneficiaries, Bob received a substantial inheritance. Though the money offered some relief, Bob knew he needed to use it wisely. His first step: finding a home. He realised that in order to take care of his business and himself, he needed a stable place to live and rest, putting him in a better frame of mind to make smart business decisions.

As Bob now had more funds than he had expected to receive from years of working, he decided this was the right time to buy a property rather than rent. He browsed listings on local real estate websites and soon found a small, tidy place in a quiet neighbourhood—within his budget and close to his burger bar.

He decided to call his lawyer and ask for the things he should consider before making an offer. His lawyer guided him through several key considerations:

Conditions in the Sale and Purchase Agreement: He needed to decide whether he wanted to include conditions in the agreement. He already had the funds available for the purchase so he did not need to make it conditional on finance. Bob did not realise that he could also include other conditions such as a LIM report, builders report, and toxicology report. Bob decided to include each of these as it was better to make sure there were no big issues before being locked in a deal.

KiwiSaver: If Bob has KiwiSaver funds, he would need to fill out an application to withdraw the funds from his provider. He would need a solicitor to witness him signing this as it could not be left until the last minute.

Insurance: The lawyer stressed to Bob the importance of checking he could obtain insurance cover for the property prior to going unconditional. Also, if there were any issues under the builders report / LIM report / toxicology report, he would need to disclose said issues with his insurer.

–

Relationship Property: Bob had not had the time to date with everything going on but was made aware to obtain advice in this regard once he had a partner in the future.

Bob took all the advice into consideration and obtained all recommended reports. Within weeks, his purchase when unconditional, and weeks after, settled.

Macayla Brdanovic

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