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NZLaw

Caveats

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

  1. By consent
  2. If the caveat lapses, or
  3. 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

 

An agreement to lease and a deed of lease

Commercial Law, Leasing & Property, Property Law, Real Estate Transactions, Small Business Advice, Uncategorized
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How are they different?

An agreement to lease and a deed of lease are two similar, but different, documents. The Law Association of New Zealand (TLANZ), formerly the Auckland District Law Society, provides a ‘standard’ form of both an agreement to lease and a deed of lease. Most commercial leases use this ‘standard’ form of agreement to lease or deed of lease.

Agreement to lease

An agreement to lease sets out the main commercial terms of a lease, such as the term, annual rent and rights of renewal. It can also contain further details regarding the fitout and other alterations which the tenant intends to do to ensure the premises are suitable for its business use. It can also set out how the cost and ownership of the fitout and alterations will be met between landlords and tenants.

Agreements to lease can often be conditional agreements while the tenant works through a due diligence process to ensure the property is suitable for its intended use, or to ensure that it can obtain the necessary territorial authority consents to operate its business.

Once any conditions have been satisfied, the agreement to lease is a binding agreement between the landlord and tenant; it can only be cancelled in accordance with the terms of the agreement. An agreement to lease states that a tenant must enter into a deed of lease on the standard TLANZ form once prepared by the landlord.

Deed of lease

Like an agreement to lease, the deed of lease also sets out the main commercial terms of the lease, such as the term, annual rent and rights of renewal. It goes further than the agreement to lease; it allows a tenant to assign the lease and additional terms set out the position in relation to the day-to-day management of the lease, such as maintenance obligations for both the landlord and the tenant, and what happens at the end of the lease.

Why you should also enter into a deed of lease

An agreement to lease does not allow the tenant to assign its interest in the lease. However, a deed of lease does allow this. If a tenant wishes to sell its business, they will need to enter into a deed of lease to have the benefit of the assignment provisions in the deed of lease. If the tenant wants to obtain bank lending for its business, the lender may want to see the deed of lease, and may require that a deed of lease is entered into as part of its financing approval.

The agreement to lease provides that the parties will enter into a deed of lease on the ‘then current’ form of deed of lease.

Most importantly, the agreement to lease also incorporates all of the terms of the standard deed of lease, so the landlord and tenant are agreeing to be bound by a document they have not seen or signed. In particular, if the parties have not received legal advice before entering into the agreement to lease, they may not have full knowledge of the terms of the deed of lease and what they have agreed to, and may find that the obligations in the deed of lease are not as they expected.

We can help

While agreements to lease can be helpful, we recommend that you enter into a deed of lease shortly after the agreement to lease is unconditional and/or the lease has commenced. This will help ensure that all parties have a full understanding of the terms of the lease and all the benefits (and obligations) offered under the lease.

We can help in advising on the terms of the agreement to lease and the resulting deed of lease prior to execution. We can also assist with documenting the terms of an agreement to lease into a deed of lease.

 

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

 

Taxing the business income of charities

Charities & Not-for-Profits, Government & Policy, Regulatory Compliance, Taxation, Trusts & Legal Governance
0

Inland Revenue proposal unlikely to proceed

In February 2025, Inland Revenue issued a paper entitled ‘Taxation and the not-for-profit sector’ (the Issues Paper).

Among other things, the Issues Paper proposed taxing the business income of charities, where that income did not relate to their charitable purposes. This was highly controversial and resulted in a flurry of submissions.

 

Charities in New Zealand

Section 5 of the Charities Act 2005 defines ‘charitable purpose’ as including ‘every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community.’

From time to time, public debate arises over organisations that have been granted charitable status, particularly where that status is seen as controversial. For example, Greenpeace has gained and lost charitable status a number of times, and Family First has had charitable status declined by the Supreme Court. After serious allegations of abuse and law-breaking, Gloriavale’s charitable status is under review.

One charity in New Zealand has been controversial for some years. Sanitarium, the company that makes Weet-bix and other breakfast cereals, is owned by the Seventh-day Adventist Church.

As a general rule, where a charity owns a business, and receives business profits, tax does not need to be paid on those profits, because they are being distributed to a charity which can only use them for charitable purposes. This tax exemption was closely scrutinized by Inland Revenue in the Issues Paper.

 

Taxing business income

The Issues Paper suggested that businesses owned or operated by charities have certain competitive advantages over non-charitable businesses. These businesses:

  • Can accumulate funds without paying tax, and therefore invest in and grow their businesses faster, and
  • May not face the same compliance costs as tax-paying businesses.

This led to Inland Revenue’s proposal to tax charities’ business profits where they were not related to the charitable activities in question.

The charitable sector argued that it would be very difficult to identify what business activities were related to furthering a charitable purpose and what activities were unconnected.

The Salvation Army’s thrift stores might remain untaxed, but what about Sanitarium’s production of healthy breakfast cereals?  Sanitarium might argue that it provides free healthy breakfasts in more than 1,400 schools as part of the overall charitable endeavours of the Seventh-day Adventist Church. (It might also make the point that John Kellogg invented cornflakes in the late 1800s because he believed that eating bland breakfast cereals facilitated godly morality.)

More specific counterarguments were also made in submissions. Charities said that they faced a number of competitive ‘disadvantages’ which for-profit businesses did not face; these include a limited ability to raise finance and differences in their ability to claim imputation credits. Any advantages their businesses might enjoy were offset by disadvantages.

Submissions also said that where business profits were taxed and then distributed to the charity which owned the business, they would always have to be used for charitable purposes, and a tax credit would need to be given to the charity in due course. It was argued that it would be time-consuming and costly (for both the charities and Inland Revenue) to make a tax payment and later receive a credit in respect of the same funds.

A number of charities also said that they face much greater compliance costs than small businesses. They have, for example, much more stringent audit requirements; if the law changed, there might need to be an income threshold whereby small charities are exempted from having to distinguish between types of income earned.

Sue Barker, a well-known tax and charities lawyer, said that the Issues Paper did not start by asking the fundamental question of whether there is a problem in the charitable sector regarding the payment of business income tax? If charities are misusing funds and not using them for charitable purposes, this would justify more scrutiny over charitable activities and perhaps better enforcement of existing laws, but it would not justify a law change.

 

Government response

Recently, Revenue Minister, Simon Watts confirmed that Inland Revenue is unlikely to pursue the proposal to tax charities’ business income. He suggested that there might be more scrutiny over the way charities use funds to ensure that existing laws are being followed, and there may be changes yet to come regarding ‘donor controlled’ charities, including rules about minimum distributions which must be made each year.

Charities seem to agree that better enforcement of existing laws is preferable to more law changes. The not-for-profit sector has already responded to considerable change in recent years; charitable trusts were impacted by the Trusts Act 2019, and incorporated societies have been significantly affected by substantial law changes under the Incorporated Societies Act 2022.

The most common criticism of New Zealand law relating to charities seems to be that ‘advancement of religion’ qualifies as a charitable purpose, even where the religion (or a popular figure associated with it) has a questionable reputation. There are, however, no current proposals to review that aspect of the law.

 

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

 

Trustees taking on liabilities of the trust

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

Death, property and prenups

Estate Planning, Family Law, Property & Asset Protection, Property & Relationship Law, Wills & Succession
0

The Rimmer case has changed the rules – for the meantime

Many couples now sign agreements ‘contracting out’ of the Property (Relationships) Act 1976. These contracting out agreements are commonly known as ‘prenups.’

Even though some prenups contain clauses that say couples must review the agreement every five years, or when a significant event happens (such as the birth of a child), they are almost never reviewed.

 

Early relationship prenups

What usually happens is that at the start of their relationship, a couple decide to buy a house together. They want to protect their respective deposits. They may have children from prior relationships to whom they want to leave their ‘share.’ They buy a house as tenants in common and sign new wills. They also sign a prenup stating:

  • Their shares in the house are their respective separate property
  • They may give each other a right to occupy their share of the home for, say, two years after their death, and
  • They intend leaving their separate property to their respective children.

What typically happens next is that the prenup and the wills are put into the bottom drawer and forgotten about. The couple may get married (which automatically revokes their wills), and/or they sell their first house and buy a new property that better suits their needs.

They often buy the new house as joint tenants as, after a lengthy relationship, they want to ensure their spouse inherits the home and cannot get kicked out by their late spouse’s children. When they die, their property lawyer would give them the standard advice that property that is owned jointly passes automatically by survivorship and does not form part of your estate.

 

Dying

When one spouse dies, leaving a mix of property in their personal and joint names, what happened next used to look like this:

  1. Transmitting all jointly owned property (the house, the joint bank account, etc) into the sole name of the survivor
  2. Identifying any property in the deceased’s sole name, and
  3. If the deceased had a will, distributing in accordance with that, or If the deceased died without a will (intestate), distributing in accordance with the Administration Act.[1]

 

What happens now?

This long-standing estate administration process has recently been upended by the Rimmer decision in the Court of Appeal.[2] This decision made two statements that have changed the way lawyers think about prenups:

  1. It is the prenup (not the will, property law or the intestacy rules) that governs what part of the relationship property forms part of the deceased spouse or partner’s estate,[3] and
  2. A prenup will always be given effect to (unless successfully challenged) on the death of spouse or partner.[4]

This has now changed the process to:

  1. Finding out whether there is a prenup, and, if there is
  2. Dealing with all the property specified in the prenup as set out in the prenup
  3. If there is property NOT covered by the prenup, the survivor can either:– Apply for division of the relationship property that is not covered, or
    – Receive their gifts under the will if there is one, or under the intestacy rules if there is not.

 

How is this different?

The rules of property law ordinarily decide what falls into an estate following someone’s death. That is, if they own an asset in their sole name (such as an identifiable share in a home, or a bank account in their sole name), that will form part of their estate. However, if they own property jointly with someone else, that will pass automatically to the surviving owner(s).

In saying that ‘the division instead proceeds in accordance with the s 21 agreement,’ Rimmer appears to be suggesting that property owned solely in the name of the deceased could nevertheless be transferred to the survivor if it is defined in the prenup as relationship property (particularly if the prenup specifies how relationship property is to be divided in the event of death).

That is a huge departure from the current rules, which state that, when someone dies, their executors (if they have a will) or administrators (if they die without a will) have a strict duty to distribute their property either in terms of the will or the intestacy rules.

If their spouse or partner disagrees with those rules, they can elect to file an application in the Family Court; whatever the court then decides takes precedence over the will or intestacy rules. Rimmer seems to suggest that the executors/administrators can circumvent the rules!

 

What next?

Now as a result of Rimmer, the first thing we as lawyers need to do is find out if there is a prenup – even if it is 30 years old!

Instead of just working out what passed by survivorship (with everything else going to the estate), we now must establish how a potentially outdated prenup applies to the property owned by the deceased many years later.

The Court of Appeal decision in Rimmer, may not be the last word, as the Supreme Court has granted leave to appeal, so it may be that the rules change again.

For now, however, make sure if you have a prenup, that both your prenup and your will agree on what should happen to your property when you die.

If you think you have a prenup and you haven’t reviewed it in more than five years, now is the time to do so!

[1] Section 77 of the Administration Act 1969.

[2] Rimmer v Wilton [2025] NZCA 374.

[3] Para [40].

[4] Para [39].

 

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

 

Uber drivers are employees – for now

Employment Law, Gig Economy, Supreme Court Decisions, Workplace Advice, Workplace Rights
0

The Supreme Court’s decision is final, but proposed legislation may off an alternative

Uber has an unusual but highly successful business model. It has proved difficult to classify its drivers under employment law, both in New Zealand and in other countries where it operates. 

Employees vs independent contractors

The issue is whether Uber’s drivers are employees or independent contractors. The legal status of Uber drivers has significant consequences.

Employees have a range of statutory entitlements, including annual leave, sick leave, bereavement leave, employer contributions to KiwiSaver, minimum wage levels, and the right to join a union and engage in collective bargaining with their employer. 

Independent contractors have none of these rights. However, they are entitled to offset their expenses against their income for tax purposes. Employees cannot do this. 

The New Zealand court system has been grappling with this issue for the last five years. In 2021, the Etū union filed proceedings in the Employment Court seeking a declaration that four Uber drivers were employees. The Employment Court ruled in the union’s favour, declaring that the drivers were employees. Uber appealed to the Court of Appeal. The Court of Appeal declined the appeal. Uber sought, and was granted, permission to appeal to the Supreme Court. The Supreme Court released its decision on 17 November 2025. [1]

 

Supreme Court decision 

The Supreme Court upheld the Employment Court’s decision that Uber drivers are employees, The court applied the well-established test for determining whether workers are employees set down in the Bryson case.[2] Bryson considered the issue of whether crew members on the ‘Lord of the Rings’ film project were employees or independent contractors. The test derived from this case involves considering the intention of the parties (how they describe their arrangement), the degree of control the company has over the worker, the extent to which the worker is integrated into the company’s business and whether the worker can realistically be said to have their own business. 

Uber’s contractual documentation avoids the terms employee and independent contractor altogether. Uber claimed that it merely provided a service to drivers and riders by matching them through its app. The Supreme Court found that this documentation did not reflect the true position and that, in reality Uber was using its drivers to provide transport services to its customers.

The court found that Uber exerts a high degree of control over its drivers, which suggests they are employees. Uber monitors the location of its drivers while they are using the app. Uber operates a reward system for drivers that strongly encourages them to accept nearly all the trips offered to them. Once a driver accepts a trip, Uber specifies the route they must take and the price for the trip. 

The court accepted that drivers are not integrated into Uber’s business in the traditional sense. They do not wear uniforms or have Uber branding on their vehicles. The court found, however that the drivers are integrated into Uber’s business in the sense that they are the ‘face’ of Uber’s business. The drivers are the only individuals that customers have contact with when buying services from Uber. 

The court also held that drivers do not, in reality, operate their own businesses. They have no opportunity to generate goodwill through a loyal customer base. They are not provided with customers contact details. They are prohibited from providing services to customers outside the Uber framework. In addition, customers are unable to select a specific driver. The app allocates a driver to them.

The Supreme Court is New Zealand’s highest court; therefore the court’s decision is the final say of the New Zealand courts on this issue. However, there is currently draft legislation before Parliament that, if enacted, will change the law relating to this issue. 

 

The proposed ‘gateway test’

The Employment Relations Amendment Bill includes a proposed ‘gateway test.’

The Bill lists five criteria for the gateway test. If a worker’s contract meets all five criteria, then they will be deemed to be an independent contractor, and they will be unable to take legal action to be treated as an employee. 

However, if the contract does not meet all five prerequisites, then their status may be decided by the courts using the tests applied in the Uber case. 

The five elements of the proposed gateway test are currently:

  1. The contract defines the worker as an ‘independent contractor’
  2. The worker may work for other parties (except while working for the other party to the contract)
  3. The worker is not required to work set hours, or may subcontract their work to others
  4. The contract does not end if the worker refuses additional work, and 
  5. The worker had the opportunity to take independent legal advice before signing the contract.

The Bill passed the select committee stage at the end of last year and has returned to Parliament for its second reading. 

It is unknown when the Bill will become law, as this will depend on how the government chooses to prioritise the legislation currently before Parliament. However, when the Bill is passed, it will enable companies to be certain that their workers are independent contractors, provided their agreements with their workers meet the requirements of the gateway test.

In the meantime, however the test for whether someone is an employee or a contractor is well established. If you need some help with sorting out your current work situation, please don’t hesitate to contact us. 

[1] Rasier Operations BV & Ors v Etū Inc & Anor [2025] NZSC 162.

[2] Bryson v Three Foot Six Ltd [2005] NZSC 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, 2026    Editor: Adrienne Olsen.       E-mail: [email protected]   Ph: 029 286 3650

New Zealand’s Resource Management Act overhaul

Environmental Law, Planning & Development, Property & Infrastructure, Public Policy & Reform, Resource Management, Uncategorized
0

What’s changing and why It matters?

For more than three decades, the Resource Management Act 1991 (RMA) has shaped how New Zealand uses land, builds homes and infrastructure, and protects its natural environment. It has been one of the country’s most influential, and controversial, pieces of legislation.

Now, the RMA is on its way out, set to be replaced by an entirely new resource management system that the government has described as a ‘once-in-a-generation’ reform.

The changes underway are not incremental tweaks, they constitute a severing of ties with a piece of legislation that has mutated since its inception. Supporters argue the reforms will unlock housing supply, speed up infrastructure delivery and reduce red tape. Critics warn there are risks of weakening environmental protections and local democratic input. Either way, the new system will reshape development and environmental decision-making for the foreseeable future.

 

Why the RMA is on the way out?

The case for RMA reform has been building for years. While the RMA was originally intended to promote sustainable management of natural and physical resources, over time it accumulated multiple objectives, layers of regulation and complex case law. Critics argued it became slow, costly and unpredictable.

Housing shortages, rising infrastructure costs and delays to major projects have all been linked, fairly or not, to RMA processes. Developers and councils alike have complained of lengthy consent timeframes, inconsistent planning rules between regions and an over-reliance on litigation. Environmental advocates, meanwhile, argue that despite its complexity, the RMA has not always delivered strong environmental outcomes.

Successive governments have attempted to fix these problems – real or perceived – through amendments. These new reforms, however, can be seen as an acknowledgement that the RMA is no longer fit for purpose and further attempts to band aid growing problems would likely add to the complexity of an already convoluted statute.

 

The new proposals

The government has proposed an entirely new approach to development and environmental protection. Rather than one catch-all statute, the RMA will be replaced by two core pieces of legislation: the Planning Bill and the Natural Environment Bill. These proposed pieces of legislation had their first reading in Parliament on 16 December 2025.

The underlying philosophy behind the changes is separation. Under the RMA, development and environmental protection were weighed together within a single decision-making framework. The new system aims to separate those functions more clearly.

The Planning Bill will concentrate on land use, development and infrastructure.

The Natural Environment Bill will focus on protecting ecosystems, freshwater, biodiversity, air quality and the coastal environment. Proponents argue this makes trade-offs more transparent and avoids environmental protection being negotiated away on a case-by-case basis during consenting processes.

 

Planning Bill

The Planning Bill is designed to make it easier and faster to build. The emphasis is on providing certainty about what can be developed and where, particularly for housing and infrastructure.

Under the RMA, councils have developed their own bespoke planning rules, meaning similar activities can be treated very differently across the country. The Planning Bill seeks to reduce this inconsistency.

Greater standardisation

A key feature is greater standardisation. Nationally consistent zones, rules and definitions are intended to reduce the ‘postcode lottery’ that currently exists, where the same activity can be treated very differently depending on the district council rules and plans that apply. This should make development rights clearer, and reduce the need for costly planning advice and litigation.

Reducing reliance on resource consents

A core objective of the Planning Bill is to reduce reliance on resource consents altogether. More activities will be classified as permitted, provided they meet plan standards.

Where consents are still required, their scope will be narrower. Applications will focus only on specific matters identified in plans, rather than open-ended assessments of effects. This represents a deliberate move to resolve disputes during plan-making, rather than through individual consent hearings.

Streamlining consenting processes

The Planning Bill also streamlines consenting processes. Notification and appeal rights are reduced in some circumstances, particularly where developments comply with established standards.

The intention is to reduce delays for housing developments, infrastructure projects, and other forms of growth that governments at both local and national level see as critical.

More centralised decision-making

Another major feature of the Planning Bill is a shift away from local government in favour of empowering central government to make decisions as to planning. More than 100 existing plans will be reduced to 17 regional combined plans. The aim of these regional combined plans is to bring together spatial, land use and natural environment planning in one place. Councils will be required to collaborate on these plans, rather than operating independently.

Supporters have argued that this will reduce duplication and inconsistency between councils. Critics point to the significant governance and logistical challenges that a more standardised regional combined plan would entail.

The Planning Bill represents a substantial loss of autonomy for councils. National direction will carry greater weight, limiting councils’ ability to impose local variations. While this shift no doubt promotes consistency, it also reduces local democratic control.

Communities, especially rural communities, have long complained about district councils ‘running wild’ and are often flummoxed by the unchecked decision-making power of local government. These changes will limit this to a degree, but communities may also see fewer opportunities to object to individual developments as decisions are made through plans rather than consents.

As with anything, there will be trade-offs.

 

The Natural Environment Bill

The Natural Environment Bill is the environmental counterpart to the Planning Bill. Its purpose is to protect ecosystems, freshwater, biodiversity, air quality and coastal environments through clearer environmental limits and outcomes.

Environmental limits to define impact

Rather than assessing environmental effects on a project-by-project basis, the Natural Environment Bill aims to set environmental bottom lines in advance. This lines up with the greater level of standardisation that the Planning Bill is intended to bring.

Under the new framework provided by the Natural Environment Bill, environmental limits will define the acceptable level of impact on natural systems. Development must occur within those limits, rather than negotiating trade-offs during individual consent processes as is often the case under the RMA.

Supporters argue this approach strengthens environmental protection by removing pressure on decision-makers to compromise standards in the face of economic or political pressure.

The environmental bottom lines that the Natural Environment Bill will impose should provide clarity for decision-makers and allow them to evaluate planning decisions with a greater degree of certainty.

Environmental effects separated from development planning

A defining feature of the Natural Environment Bill is its separation from development planning. Environmental protection is no longer balanced directly against development benefits in each decision. Instead, environmental rules are set first, and development is enabled within those constraints.

This separation is intended to provide clarity, but it also raises concerns. Critics have questioned whether environmental limits will be set conservatively enough to provide genuine protection, or whether they will be adjusted to accommodate growth objectives.

By clarifying environmental limits upfront, the government hopes to reduce litigation and uncertainty. Fewer arguments about environmental effects should arise at the consenting stage if limits are clear and enforceable.

The effectiveness of this approach, however, depends heavily on monitoring, enforcement and political willingness to maintain robust limits over time. Historically, enforcement under the RMA has been uneven, with councils facing resource constraints and political pressures.

The use of environmental limits within a planning framework will require significant investment in monitoring and enforcement resources. Without such investment, the Natural Environment Act risks becoming aspirational rather than productive.

Treaty considerations

Treaty of Waitangi considerations are intended to be more clearly embedded in the Natural Environment Bill than they were under the RMA. The new legislation is expected to acknowledge the principles of Te Tiriti o Waitangi, the relationship of Māori with land, water and taonga, and the role of mātauranga Māori in environmental management.

The shift toward national and regional decision-making, however, may complicate engagement for mana whenua. As processes become more centralised and streamlined, ensuring meaningful Māori participation will be a critical test of the new framework.

 

Public input will be earlier

Public participation under the Natural Environment Bill is also expected to change. As environmental limits and outcomes are set through policy and plan-making processes rather than individual consent decisions, opportunities for public input are likely to be concentrated earlier in the process.

This front-loaded approach is intended not only to encourage more strategic engagement, but it also means fewer opportunities to challenge specific developments once limits are in place. Whether this leads to better environmental outcomes or reduced community influence remains to be seen.

 

Lack of flexibility in planning?

A main criticism of the Natural Environment Bill is that the separation of environmental protection from development planning could reduce the ability to respond flexibly to complex, site-specific environmental issues.

A one-size-fits all approach to environmental protection could, in certain instances, inhibit decisions that best reflect the needs of particular sites.

 

What does it all mean?

The replacement of the RMA marks one of the most significant shifts in New Zealand’s planning and environmental framework in a generation. After more than 30 years at the centre of land use and environmental decision-making, the RMA is being set aside in favour of two new statutes that deliberately separate development from environmental protection.

Together, these proposed laws represent a decisive move away from the RMA’s balancing model, which often left environmental standards and development outcomes to be negotiated through individual consent processes.

Instead, the new system aims to resolve trade-offs upfront through national direction, regional planning and predetermined environmental boundaries.

Ultimately, the success of the reforms will not be judged by legislative intent alone. It will depend on how robust environmental limits are set under the Natural Environment Bill, how consistently development is enabled under the Planning Bill, and whether key stakeholders are given the resources and influence needed to make the system work.

Change was necessary. It is to be determined whether said change brings about positive development, or further headaches.

Have your say

Submissions on the Planning Bill and the Natural Environment Bill close at 4.30pm on Friday, 13 February 2026. To make a submission, click here.

If you would like some guidance with a submission and/or want to know more about how these two new statutes may affect your circumstances, please don’t hesitate to contact us. We are here to help.

 

DISCLAIMER: All the information published in RMA 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 RMA Speaking 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

Age of consent

Civic Rights & Responsibilities, Family & Community Education, Growing Up in NZ, New Zealand Law Updates, Youth Law & Guidance
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What you can do at 16, 18 and beyond

In New Zealand, reaching different ages unlocks a whole range of new rights, responsibilities and freedoms. There is not a single ‘magic number’ but rather a journey where you gradually gain more independence and adult status. We guide you through New Zealand’s key legal milestones explaining exactly what you can do at certain ages.

 

Turning 16: gaining more independence

At 16, you start to get more legal independence, though you are not quite an adult in every sense. The main thing people know about a 16th birthday is that it is the legal age for sexual consent in this country. This means that generally, any sexual activity with someone under 16 is against the law, even if they seem to agree, with only a few specific exceptions.

Beyond that, if you are 16 or 17, you can get married or enter a civil union. There is, however, a catch; you need a Family Court Judge’s permission to do this. Usually, this means your parents or guardians must also agree; in special situations, the court may decide that marriage or a civil union is permissible without their consent.

When it comes to your health, if you are 16 or 17 years old, you are generally considered mature enough to make your own medical decisions without needing your parents’ say-so, as long as you understand what is involved.

You can also start working at 16 years old and sign your own employment agreement. There are still some rules about what kind of work you can do and how many hours you can work, especially for safety reasons.

If you are keen to drive, 16 years old is when you can apply for your learner licence, which allows you to drive with a supervisor.

While your parents are still responsible for you until you are 18 years old, after you turn 16 you generally have more say in where you live, particularly if you are mature enough to make those choices.

 

Turning 18: becoming a full adult

Eighteen years old is the big one in New Zealand; you can sign any legal contract and be fully responsible for it. This means you can buy and sell property, take out loans and be held accountable for any agreements you make. You also have the right to vote in all elections, whether it is for Parliament or your local council. This is a major civic right, allowing you to have a say in how the country is run.

At 18, you can legally buy and drink alcohol, purchase tobacco products and participate in gambling activities such as going to a casino or placing bets. However, you cannot gamble at a casino until you are 20 years old. This is the distinct exception to most other adult privileges that start at 18 years old.

You can also apply for your full driver’s licence at 18. If you have, however, completed an advanced/defensive driving course earlier, you can apply for your full licence at 17.5 years.

If you are feeling politically ambitious, you can even stand as a candidate in parliamentary or local body elections. You are also generally eligible for jury service, which is an important part of the justice system. At 18, you can get married or enter a civil union without needing anyone’s permission, and you can make a legally valid will.

 

Turning 20: Legally an adult

Interestingly, 20 is technically the legal age of majority in New Zealand. That means, on paper, you’re officially considered a full adult at 20 years old. In reality, however, all the big adult milestones—stated above—have already kicked in. By the time you hit 20, you already have all those rights and responsibilities, so there aren’t many new legal perks or obligations waiting for you.

The main exception is casino gambling; you can only gamble legally at a casino from your 20th birthday onwards. For those interested in trying their luck at the tables, this is the one milestone that only arrives when you’re 20. Otherwise, turning 20 is just another birthday—no extra privileges, just continuing on as a fully-fledged adult.

 

A clear progression of rights

In essence, New Zealand’s legal framework outlines a clear progression of rights and responsibilities as individuals mature. While turning 16 marks a significant step towards independence, particularly concerning sexual consent and some personal choices, it is the 18th birthday that truly ushers in full adulthood.

At 18, you gain most adult privileges and obligations, from voting to entering binding contracts. By the time you reach 20, you are simply continuing to exercise the full range of adult capacities you have already acquired. This structured approach ensures that as you mature, your legal standing evolves, reflecting a greater capacity for independent decision-making and accountability within society.

 

 

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

Business briefs

Business Regulation & Compliance, Consumer & Fair Trading, Employment Law & Workplace Wellbeing, News & Legal Updates, Privacy & Technology
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Commerce Commission – Misleading and deceptive conduct – Noel Leeming

The Commerce Commission has filed criminal charges against electronics retailer Noel Leeming, alleging that its well-known ‘Price Promise’ misled consumers.

 

The retailer had promoted the promise as a guarantee that customers would always receive a match with a competitor’s price. In practice, however, the exclusions and restrictions in the terms and conditions significantly limited the application of this and many shoppers were unable to rely on the promise as advertised.

 

The Commission has alleged multiple breaches of the Fair Trading Act 1986 that prohibits businesses from engaging in misleading and deceptive conduct. The Commission emphasised the importance of large retailers being clear and honest in their advertising. It has previously warned businesses that disclaimers buried in fine print may not be enough to correct misleading impressions.

 

This investigation serves as a reminder to all New Zealand businesses of the importance of ensuring promotional promises are accurate and not undermined by hidden conditions. For consumers, it highlights the need to be cautious of marketing claims that may not tell the full story.

 

Online Casino Gambling Bill

The government has introduced the Online Casino Gambling Bill. This is a significant reform in the gambling sector that would allow online casino operators to be licensed and regulated in New Zealand for the first time.

 

Up to 15 operator licences will be allocated by auction to businesses seeking to offer online casino services to individuals in New Zealand, whether based locally or offshore. It is anticipated that large offshore gambling companies will feature prominently among applicants for the 15 licences. These licences will be valid for three years and renewable for a further period of five years. Operators will be subject to strict conditions, including mandatory age and identity verification, advertising restrictions, harm minimisation obligations and fines of up to $5 million for breaches.

 

While the Bill is intended to facilitate a safe and compliant regulated online casino gambling market, it has attracted strong opposition from more than 50 sporting organisations. Unlike the current Class 4 ‘pokie trusts’ system, which distributes millions each year to grassroots and community sport, the new framework does not require online casino operators to contribute to community funding. Sporting leaders have warned that the change could severely impact local organisations already facing financial pressure due to a lack of funding.

 

The Bill is currently before the select committee and a report on the Bill is due in November 2025.

 

Biometrics Processing Privacy Code 2025

In last summer’s edition of Commercial eSpeaking (#69), we reported on the draft Biometrics Processing Privacy Code. Since then, the Office of the Privacy Commissioner has finalised the Code; this will take effect on 3 November 2025. Organisations already using biometric technologies will have until 3 August 2026 to ensure full compliance.

 

The Code applies to organisations using automated processes to collect and use biometric information – that is, information about a person’s physical features or behavioural traits, such as facial features, fingerprints, voice or eye patterns.

 

The Code introduces 13 rules that go beyond the general information privacy principles in the Privacy Act 2020, requiring businesses that collect biometric data to take a more rigorous and transparent approach. These rules can be broadly categorised in the following way:

 

  • Purpose: Organisations must clearly identify why they are collecting biometric information and ensure that collection is necessary, effective and proportionate to that purpose
  • Safeguards: Adequate privacy protections must be in place before collection, including measures to reduce privacy risks, ensure system accuracy and strengthen security
  • Proportionality: Biometric data should only be collected where there are reasonable grounds to believe that the benefits of collection outweigh the potential privacy impacts on individuals
  • Openness: Individuals must be informed about how their biometric data will be used and disclosed so they can make an informed decision about providing it, and
  • Use limits: The Code places clear limitations on how biometric data can be used and when it may be disclosed.

 

Each rule contains specific obligations that may impact how your business collects, uses and protects biometric information. As a result, it is important that businesses review their biometric systems and policies to ensure compliance with the Code as the effective date (3 November) approaches.

 

To view the full and detailed list of the rules under the Code, please click here.

 

If you need any guidance on any of the above topics, please don’t hesitate to contact us.

 

 

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

Rights of shareholders to company information

Business Guidance, Company & Shareholder Law, Leave & Entitlements
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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

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