• EMPLOYMENT LAW
  • FAMILY LAW
  • WILLS AND ESTATES
  • INTELLECTUAL PROPERTY
  • TRUSTS
  • RESOURCE CONSENT

EMPLOYMENT LAW

Employment laws can be a bit of a minefield in that sometimes even seemingly small oversights in the way you behave or operate can have big consequences down the line.  For example, if you are an employer it’s normally necessary to hold back on making decisions which have a material effect on your staff, at least until you have talked them through with your workers and have given them an opportunity to give feedback.  But even then there are certain things an employer should and should not do.

When it comes to being dismissed (if you are an employee), or doing the dismissing (if you are the employer), the Employment Contracts Act has a number of guidelines.  These include –

  • asking what a fair and reasonable employer could have done in all the circumstances;
  • asking whether the employer investigated things properly  before dismissing the employee;
  • asking whether the employer raised concerns with the employee before doing the dismissing;
  • asking whether the employer gave the employee a reasonable opportunity to respond to concerns; and
  • asking whether the employer genuinely considered the employee’s explanation before acting.

But these are only part of the equation and so it is best to get detailed legal advice on one’s situation before making decisions to dismiss someone or to seek compensation.  Compensation can involve reinstatement of the employee or payment of a significant sum of money, or both.

Protecting property when entering a relationship

If you are going into a personal relationship with property already in your name then it pays to be cautious because after a while it can all become relationship property, owned by both you and your partner.  This means that if you break-up down the track then what was once your property may have to be split between you and your ex.  There are ways to protect against this and a written agreement, formed at the outset of the relationship, is often a good way to do it.  But this type of agreement has to be done in a particular way to be effective and we can help you with that.

Dividing property at the end of a relationship

If a marriage, civil union or de facto relationship comes to an end then one person in the relationship is often at a disadvantage because of the role they had over the years.  For example one partner may have been the breadwinner, and the other the homemaker with less ability to earn a good income.  But the law has mechanisms to balance the scales.  For example in some cases the disadvantaged partner can be awarded a greater share of the relationship property and can also be entitled to receive financial support from his or her partner.  The support is not open ended, but it can help one get up on one’s feet while recovering from the breakup.  If you need any help in this area then just let us know.

Domestic violence

If you are in a close personal relationship and your partner becomes abusive and violent then it’s normally possible to go to the court and get a protection order.  This may mean your partner has to keep away and it gives you control over what contact they can have with you, if any.   It’s also possible to get an order giving you the sole right to stay in the home that was previously shared.  Protection orders can vary in their length and scope and it’s something we’d be happy to advise you on.

Access to children

When a relationship ends and there are children involved, things can get messy.  The Care of Children Act steps in and provides that at these times it’s the welfare and best interests of the children that are paramount.  The Act also provides that neither the mother nor the father will be favoured, ie just because of their gender, when it comes to deciding who has primary care of the children.  The reasons for the breakup rarely come into it, unless it’s something that affects the best interests of the child.  If the parents can’t agree on how or by whom a child will be cared for then the court can be asked to decide this.  In making a decision the court can place some weight on what the child has to say, but this is only one of many considerations.  In some cases decisions made by a New Zealand court can even be enforced on a parent living overseas.  If you have any questions on this area then just let us know.

Why is a will important?

Having a will is important because without one the things that you have worked hard for during your life may end up in the hands of people that you did not intend to have them.  Forming a will is normally a quick, easy and relatively inexpensive process and is well worth the effort.

What happens if you pass away without a will?

If you pass away without a will then it can be a more difficult and expensive process for your loved ones to sort out your estate (ie the assets you leave behind).  They will generally end up having to spend more on legal fees and it can take a lot longer for them to get to the end of the matter.  The Administration Act sets out which family members are entitled to your estate if you have no will.  It may be that the provisions of the Act are not what you would prefer, and so it pays to have a will.

What’s the process?

When someone passes away, with or without a will, there is a procedure to follow before their assets can be distributed.  This can depend on the value of the assets, but in most cases no distribution can occur until the High Court has approved it.    This usually requires professional assistance because the Court is very strict on how things should be done.

Can a will be challenged?

Yes a will can be challenged and the Family Protection Act can come into play here.  It is generally recognised that every person has a moral duty when it comes to at least close family members.    The extent of that duty depends on all the surrounding circumstances and it is not guaranteed that you will be able to get the same share of, for example, the estate that someone else in your family is set to receive.

If someone has made a promise to compensate you in their will for work done for them, etc, but then leaves you out of the will, then in some cases it is possible to claim a share of the estate under the Testamentary Promises Act.  This can be done regardless of whether you are a family member.

Patents, trademarks, designs and copyright

Intellectual property is an area of particular expertise for us.   For a full set of information on this subject go to

What is a trust?

A trust is where a person called the ‘trustee’ holds legal ownership of some property for the benefit of another person called the ‘beneficiary’.  The property doesn’t have to be land, it can be almost anything of value.  While the trustee has ‘legal’ ownership the trustee can only use the property for the good of the beneficiary.  Most trusts have more than one trustee and more than one beneficiary.  They may be set up so that the trustees are free to use their discretion when it comes to which beneficiary gets the most benefit.

Why form a trust?

Trusts are usually formed as a way to protect or control property.  For example if a beneficiary gets into financial trouble and owes a lot of money the normal rule is that the creditors cannot get at the property.  This is because the beneficiary doesn’t own the property, it’s owned by the trustees even though they can only use it in a way that benefits the beneficiary.  It’s quite common, for example, to have a family home owned by a trust.

Can the trustees and beneficiaries be the same?

It’s common for a trustee to also be a beneficiary and in principle there is nothing wrong with this.   For example in a family trust the parents can be trustees, and the parents in combination with the children can be the beneficiaries.  But it’s important to make sure there is a difference between the make-up of the trustees and the beneficiaries.  For example if all the trustees are beneficiaries, and they are the only beneficiaries, then that’s a bad trust and it is unlikely to stand if challenged.

Sham trusts

Sometimes things that were set up to be trusts are just not accepted by the courts.  They can be called a “sham”.  For this reason it’s important for a trust to be formed professionally, particularly if it is for holding valuable property.

Issues under the Resource Management Act
We can help you when it comes to meeting your obligations and obtaining consents under the Resource Management Act.  The requirements of the Act are many and varied and often there is a way through the regulatory quagmire even after, for example, a city council has turned down an application for resource consent.  If you are about to start a building or development project, or are in the middle of one and have run into some hurdles, then just give us a call.