au_common_admin, Author at McCaw Lewis

Changes to the Employment Relations Act – Contractor or Employee?

Posted on March 3, 2026March 22, 2026 by au_common_admin

Employment Relations Amendment Bill

The Employment Relations Amendment Bill has now received Royal Assent, and the amendments are now law, introducing significant changes to the Employment Relations Act 2000.

These reforms signal a notable shift in how employment relationships may be regulated in Aotearoa New Zealand, particularly in relation to contractor status and the role of the Employment Relations Authority.

Changes to Contractor and Employee Classification

A central feature of the amendments is the introduction of a statutory “gateway test” for contractors. The purpose of this reform is to provide clearer legislative criteria for determining when a worker will be treated as an independent contractor rather than an employee under the Act.

Current Position

Under the previous law, employment status is assessed by examining the “real nature of the relationship”. The courts and the Employment Relations Authority consider a range of factors, including:

the level of control exercised by the engager
• whether the worker is integrated into the business
• who bears financial risk
• whether the worker provides their own tools or equipment
• the practical day-to-day reality of the working relationship

This is a fact-specific inquiry, and contractual labels alone are not determinative.

New Statutory Gateway Test

Under the amendments, if the statutory gateway test is satisfied:

the worker will be excluded from the statutory definition of “employee”
• the worker will not be able to challenge their status through the Employment Relations Authority or the Employment Court
• employment-specific rights and remedies under the Act, including personal grievance rights, will not apply

This represents a shift away from the open-ended “real nature of the relationship” analysis toward a more structured legislative framework. The emphasis moves toward whether the contractual arrangement satisfies the statutory criteria, rather than whether the practical reality resembles employment.

For businesses that engage independent contractors, the new test is intended to provide increased certainty where agreements are clearly drafted and compliant with the legislative requirements.

Changes to the Role of the Employment Relations Authority

The amendments also affect the functions of the Employment Relations Authority in employment status disputes.

Previously, the Authority had broad powers to look beyond contractual wording and assess how a working relationship operates in practice. This allows it to determine whether a worker has been incorrectly labelled as a contractor.

Under the new framework:

the Authority will be required to apply the statutory gateway criteria when determining employment status
• where the gateway test is satisfied, the Authority’s ability to conduct a full “real nature of the relationship” analysis will be limited
• disputes will focus more on compliance with the statutory framework rather than broader factual assessments of workplace dynamics

These changes may alter how employment status disputes are argued and resolved and may reduce the scope for retrospective reclassification of contractors as employees where the statutory criteria are met.

Broader Implications

The Government has indicated that the reforms are designed to provide greater clarity and predictability for businesses engaging contractors, while reducing litigation over employment status.

By introducing a statutory gateway, parties may be able to rely more confidently on clearly documented contractual arrangements.

From a workplace perspective, the amendments may affect how individuals assess contractor arrangements. Where the statutory criteria are satisfied, some workers may have reduced access to employment protections that would otherwise apply to employees.

What Employers Should Be Aware of Now

Practical steps employers may wish to consider include:

reviewing contractor agreements to ensure they accurately reflect the intended relationship
• assessing whether current arrangements are likely to satisfy the new statutory gateway criteria
• seeking advice before restructuring existing contractor arrangements

Employment Law Assistance

If you have any questions about contractor arrangements, employment status, or how the recent amendments to the Employment Relations Act 2000 may impact your business or workplace, our Employment Law team is here to help.

We can also support you with reviewing and updating your agreements to ensure they align with the changes to the Act.

Please get in touch to discuss your situation.

Welcome to the Medium Claims Court – Disputes Tribunal Financial Threshold Doubles

Posted on February 24, 2026March 19, 2026 by au_common_admin

The Disputes Tribunal Amendment Bill came into force on 24 January 2026. Changes include doubling the financial jurisdiction for the Disputes Tribunal (the Tribunal) from $30,000 to $60,000, and introducing a higher filing fee tier for more significant Tribunal claims. Modelling from the Ministry of Justice estimates the Tribunal will hear around 2,000 more claims per year as a result of these changes.

The Tribunal (often referred to as the “small claims Court”) represents a more accessible, cheaper and quicker alternative to traditional Courts, while still offering a binding decision. That makes the Tribunal an attractive alternative to Courts, for which the process is a lot slower, and often requires expensive legal representation.

The increased financial limit of $60,000 broadens the eligibility for claimants considering making a Tribunal claim, as an alternative to Court proceedings. Before making a claim however, it is important to understand how the Tribunal works.

How does the Tribunal work?

The Tribunal has some distinct differences when compared to traditional Courts. When seeking legal advice, it is important that the parties (and their advisors) are aware of the following:

Inquisitorial approach: The Referee (essentially the “Judge” for the Tribunal) determines disputes according to the “substantial merits and justice of the case”. This approach allows a Referee to have regard to the law, but they are not bound to give effect to strict legal rights or obligations. This allows the Tribunal to make a much wider variety of decisions, for example a claim that may strictly fail in Court, may uniquely succeed in the Tribunal (or vice versa);
Certain disputes barred: The Tribunal cannot hear particular categories of claims. For instance, the Tribunal cannot be used as a “debt collection” mechanism, and cannot deal with rental disputes. A useful list of what the Tribunal can and cannot help with, can be found here;
Legal representation: Legal representation at a Tribunal hearing is only allowed with the consent of the other party, or by an application to the Tribunal. The higher the claimed amount, and/or the more technical the claim, the more likely an application for legal representation will be granted;
Limited cost awards: A successful party in a Court hearing is entitled to have some of their legal costs paid by the other party. However, that is not the standard position in a Tribunal hearing. In the Tribunal, each party will bear their own legal costs, although the Tribunal does have the power to award costs in exceptional circumstances;
Privacy: Tribunal hearings are conducted privately. Tribunal decisions are able to be published, but the names of the parties are often anonymised.

What do I need a lawyer for?

Around 60% of Tribunal cases are for contractual claims, with the most common relating to small to medium businesses. We can advise on Tribunal queries at all stages, from initial queries through to representation at the hearing itself. Areas we can provide assistance with are:

Cost effectiveness: In 2024, the estimated cost of a one day hearing in the District Court was estimated at $10,845, with the true cost often being higher still. Claimants seeking a monetary award in excess of $60,000 may want to consider taking advice on reducing their claim to $60,000, in order to fit within the Tribunal’s jurisdiction;
Drafting submissions: There is a misconception that providing more information equates to a higher chance of success. However, providing too much information creates a risk that the Referee focuses on information that is either irrelevant, or harmful to your case. We can help ensure that submissions contain the most relevant information for a Referee to consider, helping you to put your best foot forward at the hearing;
Appeals: The Referee’s decision is binding and final on the parties. Parties have the right to appeal, but the grounds of appeal are restricted to issues of unfairness or prejudice – mere dissatisfaction with a decision, is not a ground for appeal. If you have received a decision that is not in your favour, we can advise you on the potential merits and pitfalls of an appeal. However, “unfairness” and “prejudice” are both interpreted quite narrowly, and the timeframes for lodging an appeal are short, so it is important to seek legal advice as quickly as possible.

Conclusion

The financial increase to $60,000 will be welcomed by many. However, the combination of restricted legal representation, flexible decision making from the Tribunal, and limited appeal rights, mean if you are making (or defending) a Tribunal claim, it is critical to get things right from the outset.

We regularly advise on Tribunal matters at all stages, from initial queries, support during the hearing itself, and on what your options are if a decision has not gone your way. If you have a Tribunal claim that you want targeted, effective legal advice on, feel free to get in touch with one of our team for a confidential chat.

Andrew is a Senior Solicitor in our Dispute Resolution Team and can be contacted on 07 958 7447.

The Granny Flats Exemption: What Homeowners Need to Know

Posted on February 10, 2026March 19, 2026 by au_common_admin

The Granny Flats Exemption has come into effect as of January 2026. In summary, it is set to allow homeowners to build a second, smaller dwelling on their property without the need for a building or resource consent and the higher cost the consents process brings – so long as the build meets the exemption requirements.

Requirements:

must be a new single-level building of no more than 70m²;
must meet Building Code standards;
must be built (or supervised) by a licensed building professional; and
must be at least 2m from other dwellings and boundary lines.

Timelines and Important Steps:

homeowners will still need to apply for a Project Information Memorandum (PIM) before commencing any work. This is to identify any potential risks and hazards early on;
Council will then have 10 working days after receiving the application to issue the PIM;
the build must be completed within two (2) years of the PIM being issued. Extensions can be applied for;
once the build is completed, all relevant documents (including final design plans) and payments must be submitted to Council within 20 working days. The build is considered completed when the homeowner is in receipt of the following from the licensed building professionals:
- Record of Works (ROW) for plumbing and drainage work;
- ROW for restricted work carried out (or supervised) by the licensed building professionals;
- certificates of compliance and electrical and gas safety certificates.

Costs:

with the issue of the PIM, Council may also issue a development contribution notice. This charge relates to any support that is required for infrastructure and services caused by the construction process;
depending on the Council, the area, and the size of the granny flat, it is expected that development contributions will range from around $17,000 to $30,000 in urban areas, to under $10,000 in some rural areas;
development contributions are paid when the build is complete alongside the relevant documents Council requires.

The Granny Flats Exemption may not be suitable for every homeowner looking to build a granny flat. The Ministry of Business, Innovation and Employment have pulled together a guide book with helpful checklists to aid homeowners in understanding and deciding whether this new process would be best for their project Granny Flats Exemption Guidance. Please do not hesitate to reach out to our Property Team should you have any questions.

Choosing Your Executors and Trustees: Why it is not just a name on a page

Posted on December 17, 2025March 30, 2026 by au_common_admin

When making a will, most people focus on who they want to leave their assets to. But one of the most important and often overlooked decisions is choosing who will carry out those directions.

Appointing executors and trustees is not simply a matter of adding a name to a document. These roles come with significant responsibilities that can be both time consuming and costly. The people you choose will have a major impact on whether your estate is administered smoothly, efficiently, and in line with your intentions.

What do executors and trustees actually do?

An executor and trustee is responsible for managing your estate after you die. Their duties include:

Locating your original will.
Carrying out funeral arrangements and honouring your burial or cremation wishes.
Identifying and understanding your assets, such as bank accounts, vehicles, and property.
Paying any debts and taxes if necessary.
Making any important decisions in respect of your estate.
Distributing your remaining estate in accordance with your will.

What this means for choosing your executors and trustees

Given the significant responsibilities involved, it is important to appoint individuals who are not only trustworthy but also capable of managing the financial and administrative demands of the role. When making your selection, consider:

Location: Appointing executors and trustees who reside overseas can create unintended tax consequences for your estate, including the risk of foreign tax liabilities.

The number of executors and trustees: Relying on a single person can create problems if they are unable to act due to unforeseen circumstances. Having at least two appointees helps prevent disruption, additional costs and uncertainty for your loved ones.
Balancing personal and professional executors and trustees: For larger or more complex estates, combining family members with professional trustees can provide both personal insight and the expertise needed to manage estate administration effectively.
Conflict management: Executors and trustees must make decisions in the best interests of the beneficiaries of the estate, so choosing people who can act impartially between beneficiaries and who are likely to work well together is essential.

Can your executors and trustees be compensated?

Including clear directions around compensation helps ensure your executors and trustees are willing and able to take on these roles. In New Zealand, the general rule is that executors and trustees cannot be paid for their role unless:

Your will specifically allows it; or
A Court orders it in exceptional circumstances.

If you want executors or trustees to be compensated, clearly stating this in your will helps avoid misunderstandings and disputes.

However, executors and trustees can be reimbursed for reasonable expenses incurred while performing their duties. These may involve:

Administrative costs: Court filing fees, legal and accounting fees, and other professional services.
Travel expenses: Visiting properties, meeting beneficiaries, or attending Court.
Postage and communication: Correspondence, phone charges, and courier fees.
Property maintenance: Insurance, repairs, and utilities for estate property until it is sold or transferred.
Other necessary expenses: Any additional reasonable costs directly linked to administering the estate or trust.

Making the right choice

Choosing the right executors and trustees is a serious decision that requires careful thought. Making informed choices ensures your estate is managed according to your wishes and offers peace of mind for you and your loved ones.

If you would like assistance reviewing your current appointments or selecting new executors or trustees who are the right fit, the McCaw Lewis team can provide advice and support.

Licence to Occupy: Empowering whānau to live on their Whenua

Posted on December 3, 2025March 19, 2026 by au_common_admin

A licence to occupy (LTO) is a quick and efficient option for Māori landowners who wish to live on their whenua. A LTO grants a personal right of occupation to the licence holder and is a unique form of Māori land tenure that can be utilised to help owners with occupation of their whenua.

What is a Licence to Occupy?

A LTO is an agreement that allows a person or whānau to live on or use a defined area of Māori freehold land under agreed terms.

If the land is under a trust or Māori incorporation, the trustees or committee of management decide who may occupy it. Their duty is to act for the collective benefit of all owners, so any grant of occupation must align with that purpose.

If there is no trust or Māori incorporation over your land, you will need to seek the permission of all the owners. That approval, often confirmed at a hui of owners, should be recorded in writing. Transparent decision-making and proper documentation protect both the occupier and the governance body.

No application to the Māori Land Court is required, however, the Court must be notified when the licence term is 21 years or more, or if a variation or transfer involves such a term. If the total period goes beyond 52 years, it becomes a long-term licence and that’s when formal approval from the Court is required.

Key Tips

To ensure there are clear guidelines in place for your LTO, we recommend that your LTO agreement includes the following:

A clear description of the area you intend to occupy
Rules for the occupation include:
- Maintenance terms
- What activities can occur within the occupation area?
- Any fencing or access matters
- Any rent fee or payment of rates
- The duration or term of the LTO
- What happens when the LTO comes to an end?
Provision for immediate family members to be included in the occupation terms
A clause for resolving disagreements or issues arising from the LTO
Building conditions, including any permission required from your local council

If you are building on the whenua, we also recommend you consider obtaining an order from the Māori Land Court to confirm your ownership of any building. This ensures that ownership of the building is clear and can protects you and your whānau in the future.

Whether you are seeking occupation or are a trust or legal entity considering occupation our Kahurangi Whenua Team are available to assist.

Calling in Sick to Work

Posted on November 13, 2025March 19, 2026 by au_common_admin

The winter months always seem to take their toll around the workplace with bugs lingering long into spring. While you can’t always control when the sickness hit, as both employees and employers, there are things we can do to minimise the impact of sickness in the workplace.

What does the law say?

By default, employees are entitled to ten days of sick leave each year. This can be added to by specific employment agreements, so it pays to always check if an issue arises. Employees are entitled to take sick leave any time they are unwell, provided they have leave accrued.

There is no statutory or legal entitlement to work remotely or “work from home”. Where this is permitted, it will be governed by employment agreements and workplace policies.

Are you sick or not?

With the increase of remote working arrangements or working from home, the line is sometimes blurred between sick leave and remote working. If an employee is sick, then they should stay home and take sick leave.

This does not mean that they are “working from home”. There is no obligation for employees to work while they are sick. In fact, ensuring that employees have time to properly rest and recover is often better in the long run for getting them back to the workplace.

Coming into work when sick presents a health and safety risk to other employees so those who turn up sick might expect conversations about heading home to avoid others getting sick. In some circumstances this might mean working from home if an employee is well enough but still contagious perhaps. If these discussions are had with care and with all individuals in mind, they are likely to be well received.

In terms of being sick, it is important to remember that any time an employee is not well enough to work, they are able to sick leave. This can include sick leave for mental health, if the impact of it is adversely affecting ability to work.

When is a medical certificate needed?

Generally, employment agreements or workplace policies will set out when a medical certificate is required, often where an employee is sick for three days or longer. In workplaces where there is a high level of trust, medical certificates are not needed on every occasion, but if there is a prolonged illness or something that is going to have a lingering/flow-on effect, medical certificates are helpful to ensure that everyone is on the same page.

In the absence of a medical certificate, understanding what exactly is going on and how long an employee thinks they may be out of action for is quite important. For an employee, this shows good faith in assisting their employer to manage their absence and workload. That communication can also mean that there is less stress for the employee resulting from their absence from work.

There is no need for an employee to provide every detail of an illness, but of course the more information that is provided, the better the employer can plan around a situation and support an employee. Particularly in instances of extended sick leave, employees should expect their employers to ask for more detail of the illness or injury and what that means in terms of their role.

Requesting sick leave

The rules for requesting sick leave are generally contained in workplace policies, or employment agreements. Although employees are entitled to take sick leave when they are unwell, it should always be communicated to the relevant supervisor or manager before being publicly communicated to the wider staff or to clients/customers. Communications should be made at the earliest opportunity and in advance of any upcoming shift or working hours commencing.

In our experience, where the focus is on hauora and where communication is strong, sick leave will be well managed for the benefit of both employees and employers.

Recent Supreme Court Part 2 Judgment of Re Edwards (Te Whakatōhea) MACA Proceedings

Posted on October 30, 2025March 19, 2026 by au_common_admin

On 15 August 2025, the Supreme Court delivered its second decision in the Re Edwards (Te Whakatōhea) appeal proceedings.

The first decision, issued on 2 December 2024, addressed the interpretation of section 58 of the Marine and Coastal Area (Takutai Moana) Act (the Act), which outlines the test for granting customary marine title (CMT)—the central issue in these appeals. The Supreme Court considered broader questions about CMTs and whether the Court of Appeal had correctly interpreted the Act.

This second decision dealt with the remaining matters which were more specific to the parties there. This included navigable rivers, the status of the Edwards application, Te Upokorehe’s claim to exclusive rights, and issues relating to Whakaari and Te Paepae o Aotea.

Summary of Supreme Court Decision

The decision clarified several key issues under the Act. The Court found that previous decisions on CMT around Whakaari and Te Paepae o Aotea did not properly consider the unique context of these offshore islands, and sent the matter back to the High Court for rehearing. It also confirmed that joint CMTs can be held by multiple groups, but multiple, overlapping CMTs are not allowed.

The Court ruled that Māori customary rights to the beds of navigable rivers were not extinguished by historic legislation, meaning these areas can be included in recognition orders. It clarified that applications for CMT must be based on actual rights according to tikanga, not just formal mandates or group names. The decision also confirmed the eligibility of Ngāti Muriwai and Kutarere Marae as applicant groups for negotiations, recognising their distinct identities and connections.

Some matters have been sent back to the High Court for further consideration, and affected groups are awaiting further directions on next steps.

What does this mean practically?

Although this decision focused on applicant-specific issues, a key takeaway for other groups in these takutai moana proceedings is the encouragement to resolve disputes through tikanga-based processes. This approach aims to achieve more durable outcomes and to determine group rights according to tikanga before further hearings take place. As noted by the Supreme Court, “the best means for resolving matters of entitlement as between the applicant groups will be through a tikanga process undertaken over time.”

Given the longstanding relationships and histories among many hapū and iwi, and the existence of multiple overlapping applications, it is important to have mechanisms in place to resolve overlapping issues in accordance with tikanga. Ideally this should happen prior to hearings starting. This can help reduce the number of matters that need to be addressed in court, saving time and resources for all parties involved.

The decision also provides greater certainty regarding the issue of navigable rivers, which is likely relevant for other MACA applicants seeking customary marine title over rivers of significance and/or within their application area.

It is also important to note that the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill is currently before Parliament. If enacted, it may alter or impact the effect of the Supreme Court’s decision.

If you need legal advice or support with your MACA Application, our Kahurangi Tiriti team is ready to help. We offer practical guidance and are committed to assisting you every step of the way.

Cree Ratapu is a Senior Solicitor in our Kahurangi Tiriti Team and can be contacted on 07 808 6069.

Why You Still Need a Lawyer to write your will in the Age of AI

Posted on September 5, 2025March 19, 2026 by au_common_admin

There is no doubt that we live in a world where technology is reshaping the way we live, work and make decisions. Artificial Intelligence (AI) tools are now able to spit out documents in mere minutes that previously would have taken hours to produce – including wills. We are spoilt for choice when it comes to will drafting these days and with so many free online templates and DIY options it’s tempting to draft your own will without seeking professional help. Wills are one of the most important legal documents you will ever sign. In New Zealand, small mistakes in your will can have significant consequences, sometimes leaving loved ones to pick up the pieces instead of the estate being administered smoothly as was intended.

The appeal and limitations of AI

AI offers a low cost, quick and convenient service. You simply type in a few details and within seconds you have a professional looking will. Easy as that, right? While AI can sometimes provide a useful starting point, it does have fairly significant legal limitations, including:

No understanding of your personal circumstances: AI is not, and never will be, aware of your personal circumstances. Whether it’s the unspoken complexities of your family dynamics, cultural considerations, a blended family situation or adopted children, these circumstances and many others require more than just a template.
No risk assessment or explanation of consequences: AI can’t look at clauses in your will and assess whether they may be likely to trigger a claim against your estate and explain how and why this is the case.
No ability to advise on alternative solutions or structures for you: AI can generate solutions based on the prompts you provide it, but it lacks contextual awareness and cannot think laterally. AI has no ability to step back, look at the bigger picture and offer creative alternatives which still achieve your desired outcome.
Risk of invalidity: New Zealand has strict content, signing and witnessing requirements for wills, and the risk of doing this incorrectly may cause the Court to deem your will is invalid, therefore causing significant stress to your family and likely increasing the costs involved to remedy the error.

Ultimately, if something goes wrong, AI isn’t going to be there to help your loved ones fix the problems you have left behind.

Why a having a trusted lawyer still matters

Lawyers do more than just fill in the blanks. They bring with them experience, skills and knowledge that AI simply does not have. Among other things, they also bring you:

Tailored legal advice: this is personalised to your relationships, assets, business interests, and other obligations. A good lawyer will ask the hard questions to ensure your will is fit for purpose and best suits your circumstances.
Compliance and certainty: knowledge of appropriate legislation and the expertise to ensure your will includes the right content and is validly executed.
Foresight: advice to future-proof your will by perhaps contemplating a future marriage, the birth of children or grandchildren, the death of an executor, or identification of potential issues that may arise from your wishes, such as leaving a child out of your will or distributing your estate in unequal portions to your children for example.
Support: a good lawyer does more than just support you through the making of your will but is also there to help guide your chosen executors through their role after you die. This isn’t only practical guidance but also includes ensuring that your executors understand their duties to your beneficiaries and the legislation that governs them.

A Better Approach

There is no question AI can be a helpful tool, but it shouldn’t be relied upon to get everything right. The safest approach to will drafting is to let the experts guide you. Your will isn’t any old document – it’s likely one of the most important documents you will ever sign. AI is a great tool to help in certain circumstances, but in terms of will drafting it can’t replace the role of a lawyer, and it can’t provide you with peace of mind knowing your will is valid, legally sound, and is able to stand the test of time.

If you’d like a review of your current will, or to create a new one which reflects your intentions, get in touch with the McCaw Lewis team. We can help you protect your legacy by combining the efficiency of technology with the precision and judgment that only human experience brings.

Note: This article was thought of, written, and edited by a real human. As we’ve established there’s still no substitute for human intuition, nuance, and that gut feeling that something just “sounds better.” Long live the humans.

Employee Remuneration Disclosure Bill

Posted on August 29, 2025March 19, 2026 by au_common_admin

The Employment Relations (Employee Remuneration Disclosure) Amendment Bill passed its third reading on 20 August 2025. The Bill will become law pending Royal Assent by the Governor-General in the coming weeks.

The Bill creates new rights for employees:

Employees can now disclose, share and discuss their pay without fear of discipline from their employer.
Pay secrecy clauses in employment agreements are no longer valid.
Employers cannot retaliate or penalise employees who talk about their pay.

For employees, this Bill provides greater pay transparency, stronger bargaining power and aims to help close unfair pay gaps. While it shouldn’t be seen as a signal to start asking all your colleagues what they get paid over the morning break, any conversations that do take place will be protected by this legislation.

For employers, this Bill means they need to be prepared to explain how pay is set in a fair and transparent way. Employers should also review their employment agreements, remove secrecy clauses and update their template agreements to effect compliance. Where employers already have transparent and robust systems in place to assess employee performance and set remuneration, these changes are unlikely to cause much unrest. For those employers who are still on that journey of working towards fairer systems and checks, this legislation might be a good opportunity to make that happen.

Employment Law Assistance

Our Workplace Law Team are able to assist with all employment processes and any other bespoke employment queries you may have.

Chantelle is an Associate in our Workplace Law Team and can be contacted on 07 958 7473.

Transparency in Trusts: Making Information Work for Māori Land Beneficiaries

Posted on August 8, 2025March 19, 2026 by au_common_admin

The Māori Appellate Court has issued a decision confirming that the trustee duty to provide information to beneficiaries applies to trusts within the Court’s jurisdiction. The recent decision in Nikora v Trustees of the Tūhoe – Te Uru Taumatua Trust provides important clarification on this duty. In this case, Mr Timoti Buddy Nikora, a beneficiary of the Trust, requested access to a range of trust information, including budgets, trustee minutes, and financial statements. The Trust refused to provide some of the requested information, and the Māori Land Court initially declined to order disclosure. On appeal, the Māori Appellate Court allowed Mr Nikora’s appeal, set aside the Māori Land Court’s decision, and directed that the application be reheard. The type of information requested included trust budgets, trustee minutes, and balance sheets between 2019–2021.

The Court emphasised that trustees are required to consider the statutory factors set out in the Trusts Act before refusing disclosure. As there was no evidence that the trustees had properly considered these factors, the Court could not uphold the refusal to provide information. The Māori Appellate Court confirmed that the Trusts Act 2019 applies to Māori land, including the corresponding duty to provide information to beneficiaries. It upheld the appeal and sent the matter back to the Māori Land Court for determination.

The Trusts Act 2019 sets out a presumption that trustees will provide information to beneficiaries, reflecting principles of transparency and accountability in trust administration. Section 49 of the Trusts Act 2019 defines “trust information” as any information regarding the terms of the trust, the administration of the trust, or the trust property, that is reasonably necessary for the beneficiary to have to enable the trust to be enforced. Sections 50–55 set out the process and presumptions for providing such information, including the factors trustees must consider before refusing a request. These factors range from consideration of the nature of the beneficiaries interests, confidentiality, age and circumstances of beneficiaries, practicalities including restrictions or redaction and the context and nature of the request.

This decision highlights that Māori land trusts and post-settlement governance entities are subject to the information disclosure regime in the Trusts Act 2019. Trustees must follow the statutory process when considering requests for information and cannot withhold information without proper consideration of the relevant factors. The matter was remitted to the Māori Land Court for a full rehearing to determine whether the information should be provided in accordance with the law.

Key tips for providing information to beneficiaries include:

Understand your obligations and what must be provided versus what might be optional and assess the request alongside the factors in section 53 of the Trusts Act 2019.
Have a clear process to request and provide the information, including timelines; ensure these are workable and practical.
Ensure your documents are kept in a secure place and are easily accessible.
Be transparent but balanced in your approach to disclosure.

Our Kahurangi Whenua team at McCaw Lewis are available to provide advice and assistance with a wide range of services for Māori Land Trusts and to answer any pātai you may have. Please contact us through reception on 07 838 2079.

Author: au_common_admin