au_common_admin, Author at McCaw Lewis

Can you keep your name out of it? Name Suppression in the Employment Context

Posted on November 5, 2024March 19, 2026 by au_common_admin

This case involved an employment dispute where MW, an employee of Spiga Limited, sought non-publication (name suppression) orders after the company breached a Settlement Agreement (Agreement) and disclosed MW’s name publicly in breach of the confidentiality provisions.

The Employment Relations Authority (ERA) initially declined to grant non-publication of MW’s name, leading MW to challenge this decision in the Employment Court. The Court eventually granted the non-publication order. The Court’s comments here were of particular significance given the number of parties that became involved in this test case for non-publication orders in employment law.

The Court used this decision to ultimately set out guidelines for considering non-publication orders, including a number of factors such as privacy, tikanga, and the potential impact of publication on social media. The case was heard by a full bench of the Employment Court and there were two judgments made. We summarise key aspects drawn from both judgments below.

Majority Decision

The Employment Court reviewed the approach to non-publication orders, emphasising the balance between open justice and privacy interests. The majority decision adopted the conventional approach and granted a permanent non-publication order for MW’s name and name suppression.

The majority decision was made by Judges Corkill, Holden and King. In adopting the “conventional approach” here, they focused on the Erceg test and the principles of open justice.

The Erceg test is derived from the Supreme Court case of Erceg v Erceg [2016] NZSC 135, which provides a legal framework or “test” around determining whether a non-publication order should be granted in the civil context. The test requires an applicant to show that there are sound reasons for a non-publication order, and that these reasons outweigh the presumption of open justice.

The principle of open justice is fundamental in New Zealand’s legal system. It says that Court proceedings are to be open to the public for transparency and accountability. There are, however, situations where this is overridden to protect the interests or the privacy of people involved. Traditionally, this only happens in exceptional circumstances.

Many arguments were put forward specifically focussing on the employment context and the nuances of that space, those arguments included:

the focus on relationships between parties in an employment context;
the need to preserve confidentiality where there are settlements reached at mediation; and
the potential for any Authority or Court decision to adversely affect an individual seeking employment, given that decisions are all publicly available online.

The role of tikanga in this space was also considered quite generally. The majority acknowledged previous case law and confirmed again, that tikanga is relevant to both the Authority and Court’s approach to non-publication (and employment law generally). They stated however, that caution must be applied when engaging tikanga and its principles – the Courts are not the makers of tikanga. Tikanga was described as contextual, and that it should be applied on a case-by-case basis. They noted that the way in which tikanga is said to apply, whether it will be relevant to the employment relationship, and how much weight will be accorded, will depend on the context. It was also recognised that the Court and Authority must engage with tikanga through care and manaakitanga, in a way that upholds its mana and integrity.

Minority Decision

Chief Judge Inglis issued a separate decision which reached the same ultimate conclusion, but through a different approach. Judge Inglis’ approach was that the provisions of the Employment Relations Act and the statutory regime came first, rather than the Erceg test or open justice principles.

Through this lens, she drew on many considerations, with a number relating to and recognising tikanga. In her view, tikanga can inform the Court’s approach at a general (framework) level and at a case-specific level as it can be “a means or a mechanism to further the objectives of an employment relationship and of the wider jurisdiction”.

In this context, the more holistic and purposive approach is required to account for the relational and specialist nature of this jurisdiction, which tikanga will account for. Judge Inglis considers that this points squarely away from open justice being given pre-eminent status.

Points of Note

While the minority decision is not binding on future Courts, it does provide some food for thought in terms of how the Authority or Court might look at similar arguments and opens the door for a more bespoke approach in the specialist employment jurisdiction.

At a general level, the Court’s decision here suggests that – even using the conventional approach from the Civil courts – there may be some softening of the test for non-publication in the employment context.

Selling your Business: The Seven Things You Need to Do First

Posted on October 30, 2024March 18, 2026 by au_common_admin

There are many reasons you could be looking to sell your business in 2024. Maybe you want to free up some capital to pursue other ventures. Maybe you are retiring. Maybe the last few years have simply made you realise you want to do other things.

Whatever your reason, getting your business ready for sale is an important step to ensure you maximise the purchase price you may receive, and enable a smooth transition to the new owner with minimal stress to your employees – and yourself.

With that, here are our top ten tips for preparing to sell your business:

1. Get your House in Order

Do you have up-to-date accounts and other financial information? Is your lease documentation current and complete? Do you have a solid business plan in place? Are there any problems with employees that need to be addressed? Are your assets in good working order? Is all registrable intellectual property validly registered? Do you have binding contracts in place with key suppliers and customers? These are all questions you need to start asking yourself to ensure your business is in a good condition for sale.

2. Talk to your Advisors

We’re not just talking about your trusted legal advisor. Usually before you start discussions with your legal team, you should have worked through the prospects of a sale and potential financial and tax implications with your accountant. You will also want to discuss the sale with your business banker. Finally, you may wish to consider engaging a business broker, who can help you to set a price and negotiate with potential buyers. We have some great contacts in these areas who we can highly recommend if needed.

3. Shares or Assets?

There are two ways you can sell your business. You can sell the assets of your business as a going concern (this includes the business name and any business premises lease), or you can sell the entity that owns your business assets – e.g. the shares in your company. There are potential benefits and risks involved in each option, and it’s important you talk to your advisors early to determine what is best for you.

4. Protect Yourself

You’re about to hand over a lot of your confidential information to a third party to enable them to assess whether or not they want to purchase, and at what price. Make sure you have a robust Confidentiality Agreement/Non-Disclosure Agreement in place to ensure your valuable information doesn’t end up in the wrong hands.

5. Package It Up

Consider preparing an information pack – sometimes called an Information Memorandum – which gives potential purchasers the data and information they will need to make an informed decision as to whether or not to purchase your business. The pack will potentially include financial information from the last few years, a copy of your lease, business history and information on the business assets. Just make sure your confidential information is protected (see step 5).

6. Stay Positive

These things take time. You may not have the flurry of activity you anticipated in the first few weeks, but stick with it and try to refrain from selling in a rush, which may mean you accept a purchase price that is lower than what your business is actually worth.

7. Come See Us

You have an offer on the table – great news! We would always recommend getting your solicitor to look over the Agreement for Sale and Purchase before signing. If that is not possible – you’re under pressure to sign or are just super excited – it would be worth including a condition in the Agreement for solicitor’s approval. This gives us a chance to look over the Agreement after it is signed and make any changes necessary to protect you. Rest assured, we’re not out to make changes just for the sake of it.

What next?

Just because an Agreement for Sale and Purchase has been signed, that doesn’t mean it’s time for rest. We will outline the sale process in another article.

We are happy to discuss anything in this article that may have captured your attention. Feel free to get in touch.

Shared Driveways: How do they really work?

Posted on October 25, 2024March 19, 2026 by au_common_admin

Properties with shared driveways are extremely common in New Zealand’s real estate market. While some buyers look at them and appreciate the added privacy and control, others see the potential for issues to brew with their neighbours. No matter which category you fit into, you may have questions about how exactly things will work after you purchase your new property.

Shared driveways can take different forms for different types of property.

Fee Simple – Right of way easements

One of the most common methods of creating a shared driveway over fee simple property is to register a right of way easement against the title. If your property has an associated right of way, it will include a notation along the following lines:

Appurtenant to Lot X DP XXXXXX is a right of way created by Easement Instrument XXXXXXX.X – DATE at TIME

Subject to a right of way marked X on DP XXXXXXX created by Easement Instrument XXXXXXX.X – DATE at TIME

For a crash course in easement terminology, “appurtenant to” means that the property has the benefit of an easement registered over another piece of land, and “subject to” means that the property has an easement registered over it, that other people or landowners are entitled to use. If your property is shown on an easement instrument as being the “benefited land”, it gets the right to use the easement, and if your property is shown on an easement instrument as being the “burdened land”, it has the easement area on it. The owner of the benefited land is known as the “grantee”, and the owner of the burdened land is known as the “grantor”.

The easement area itself is usually described as an area letter on a deposited plan. Sometimes the relevant plan will be attached to the back of the record of title, and other times you, or your lawyer, will need to request a copy of the plan from Land Information New Zealand to see the exact location of the easement.

During your due diligence, you should always make sure to read the terms of the registered easement instrument to work out exactly what is and is not permitted. Much of the time though, these terms will be light on detail and the easement will have the following notation:

Unless otherwise provided below, the rights and powers implied in specified classes of easement are those prescribed by the Land Transfer Regulations 2018 and/or Schedule 5 of the Property Law Act 2007.

To summarise right of way terms in plain English:

Both the grantee and the grantor have the right to travel along the right of way, and can, by default, bring any vehicles, machinery, equipment, or animals along that right of way with them.
The right of way area must be kept clear and cannot be blocked by parked cars, locked gates, items left behind or anything else that could get in the way of either parties’ use (at any time of the day).
The only time the right of way does not have to be kept clear is where the parties are repairing or maintaining it.
The grantee can repair and maintain the right of way as required, and can construct a right of way/driveway in the area if one does not already exist.
If you share the benefit of the right of way, each person that has the benefit is equally responsible for sharing the costs of the right of way, except for where those costs are caused because of the actions of one party. So, for example:
1. If all parties are using the right of way and it develops damage due to regular use, all parties must share the costs.
2. If all parties are using the right of way, and one person causes damage by, say, dropping something heavy on the concrete, or spilling a large amount of oil on it, that party will be responsible for the repairs.
3. If all parties are using the right of way, and one person is causing more wear and tear than the others, say, by driving a very heavy vehicle over the driveway daily, and a portion of the wear and tear can be attributed to that person, that person will be responsible for a greater share of the repairs and maintenance, with the balance to be split equally.
If a party breaches their obligations, the other party/ies can serve notice, and if that default is not fixed within 10 working days, the non-defaulting party can fix the problem at the defaulting party’s cost. This means that in situation 2) above, the other parties could step in to fix the driveway and charge that owner for the costs of doing so.
There is also a statutory process for dealing with disputes if the parties cannot do so themselves (via formal arbitration).

Fee Simple – Access lots

The other common way of creating a shared driveway for fee simple property is to have an access lot, which all the parties sharing the driveway have an equal ownership share in. On the title, this shows as two distinct freehold interests, one of which will show as a fraction ownership, as below:

Type	Fee Simple
Area	XXX square metres more or less
Legal Description	Lot X Deposited Plan XXXXXX

Type	Fee Simple – 1/X share
Area	XXX square metres more or less
Legal Description	Lot X Deposited Plan XXXXXX

Sometimes the access lot will also have an easement registered over it. However, if it does not, section 298 of the Property Law Act 2007 creates an implied vehicular right of way (under Schedule 5 of that Act), over the access lot and in favour of the various owners. While this schedule is less detailed than the easement rights created under the Land Transfer Regulations, it does, in practice, re-create most of the terms, and provides a sturdy basis for the ongoing relationships between neighbours.

Cross-lease

Under a cross-lease a shared driveway is usually described as “common property” and its use will be subject to the provisions of the particular registered lease. Your maintenance obligations will also be set out in the registered lease.

You, or your lawyer, will need to obtain a copy of the registered lease to ensure that the shared driveway is located in the right place and that the rules are clear.

Unit Title

For most unit title developments, a shared driveway will also be described as “common property”. Their use is governed by the body corporate’s rules, whether registered, or implied under the Unit Titles Act 2010. The body corporate will generally be responsible for the maintenance of the shared driveway and you will contribute towards the costs as part of the body corporate levies.

What does all of this mean for you?

While shared driveways are only one part of the overall picture of a property, they are often misunderstood and can affect both marketability and desirability of a property. Demystifying those rights empowers all parties to make more informed choices about such properties, and helps to resolve small disputes between neighbours before they become bigger problems.

If you have any questions about rights of way, easements, or other aspects of property due diligence, please feel free to get in touch with our friendly property team.

Workplace Bullying – What it is, and what it isn’t

Posted on September 25, 2024March 19, 2026 by au_common_admin

Employers must take allegations of workplace bullying seriously, and they need to be investigated promptly and thoroughly. However, it is important that employers know what constitutes “workplace bullying” and what does not.

How do we define “Workplace Bullying”?

WorkSafe NZ defines workplace bullying as: “repeated and unreasonable behaviour directed towards a worker or a group that can lead to physical or psychological harm”.

Under this definition, bullying is a repeated and unreasonable behaviour, and behaviour may be constituted of physical, verbal, or social behaviours.

The Health and Safety at Work Act 2015 (The Act) requires that employers prevent or mitigating any accidents or incidents in the workplace that may cause injury or harm to employees. This includes managing any health and safety risk presented by workplace bullying to an employee’s mental health and wellbeing. Allegations of bullying, when substantiated, are also grounds for personal grievance which can bring risk and expense to the employer.

If you are faced with this situation, check workplace policies and individual employment agreements to see whether specific behaviours are described as workplace bullying there. Broadly, workplace bullying can include repeated instances of the following:

Verbal Abuse: Insults, shouting, or offensive language directed at an individual.
Exclusion: Deliberate exclusion from activities or information.
Intimidation: Threats of harm or adverse consequences.
Undermining Work: Deliberately setting unrealistic deadlines or unachievable tasks.
Unwarranted Criticism: Excessive or unjustified criticism of work performance.
Physical Abuse: Any form of physical intimidation or harm.

Harassment is differentiated from bullying, as it may be inferred from a single event and tends to be directed towards a specific characteristic of the victim, including religion, ethnicity, or disability.

What doesn’t constitute “Workplace Bullying”?

When things go bad and emotions are heightened, a lot of actions or behaviours can look or feel like bullying to employees on the receiving end. Those actions do not always amount to bullying and it is important to identify where they fit. Examples of what doesn’t amount to bullying on its own include:

Reasonable Management Action: Actions taken by management to address performance or conduct are not bullying if they are reasonable and conducted in a fair manner.
Single Incidents: One-off incidents or occasional disagreements between employees, while not acceptable, may not constitute bullying unless they become part of a pattern of behaviour.
Workplace Conflict: Genuine workplace conflict where parties have differing views or disagreements is not bullying unless it involves persistent intimidation or unfair targeting of individuals.
Personality Clashes: Differences in personalities or work styles that do not involve targeted harassment or harm.

Next Steps

Understanding the distinction between workplace bullying and other workplace conflicts or issues is crucial for creating a healthy and productive work environment. Our Workplace Law Team can assist, in drafting a workplace bullying policy, providing tailored advice and assistance if a complaint has been received, or if you are the employee looking to make a complaint alleging workplace bullying.

Chantelle is an Associate in our Workplace Law Team. Chantelle can be contacted on 021 675 858.

New Guidelines on Trade Marks Containing Māori Elements

Posted on September 24, 2024March 18, 2026 by au_common_admin

Overview

The updated guidelines focus on ensuring that any use of Māori words, symbols or other cultural elements in trade marks is done with respect and understanding. Key to this process is the role of the Māori Advisory Committee, which has been given an enhanced role in assessing trade mark applications that involve Māori elements. The role of the Māori Advisory Committee is to advise on whether a trade mark is likely to be offensive to Māori, or if it constitutes a misappropriation of traditional knowledge or cultural expressions.

The guidelines make it clear that the inclusion of Māori elements in a trade mark is not merely a branding decision but a cultural consideration that requires careful thought and consultation. An evaluation by the Māori Advisory Committee can significantly impact the outcome of a trade mark application either bolstering or reducing the chances that an application is approved. Making it essential for businesses to be well-prepared when submitting applications that include Māori elements.

Business Considerations

Cultural Appropriateness and Sensitivity

The guidelines encourage businesses to consider the potential impact of their trade marks on Māori communities and to take steps to ensure that their use of Māori elements is respectful and culturally appropriate. This requires a deep understanding of the cultural significance of the Māori elements being used and a careful assessment of whether their use might be perceived as offensive or disrespectful. Businesses need to approach the use of Māori elements with a genuine respect for Māori culture and avoid any forms of cultural appropriation that might exploit or misrepresent Māori heritage.

Engagement with Māori Communities

The primary recommendation of the guidelines is that businesses engage with relevant Māori communities when developing trade marks that include Māori elements. This engagement is not only a way to ensure that the trade marks are culturally appropriate but also a demonstration of the business’s commitment to upholding the principles of Te Tiriti o Waitangi. Engaging with Māori communities can involve consulting with iwi or hapū, discussing with Māori artists or engaging cultural experts. The type of activity and who to consult depends on the specific cultural elements involved in the trade mark. These consultations can provide valuable insights and help build trust and positive relationships with Māori communities. By obtaining the support or endorsement of Māori communities for the use of certain cultural elements, an applicant can strengthen its trade mark application and reduce the risk of objections by the Māori Advisory Committee during the registration process.

Navigating the Guidelines

Before applying for a trade mark, businesses should conduct a comprehensive cultural audit of the Māori elements they intend to use. This will involve evaluating the cultural significance of the elements and ensuring that their use aligns with Māori values and traditions. Seeking advice from experts in Māori culture or intellectual property law is crucial and is emphasised repeatedly throughout the guidance. Early and meaningful engagement with Māori communities can help identify potential cultural concerns and build a foundation of mutual respect and understanding. This engagement should be approached with sincerity and a willingness to listen to the perspectives of Māori community members.

Final Thoughts

The updated guidelines on trade marks containing Māori elements represent a next step in recognising and respecting Māori culture within Aotearoa, and more specifically within the realm of intellectual property which can extend globally. By adhering to these guidelines and engaging in respectful consultation with Māori communities, businesses can ensure that their trade mark applications are both legally compliant and culturally appropriate. These guidelines not only seek to help protect the cultural heritage of Māori but also offer businesses an opportunity to contribute positively to the broader recognition and preservation of Māori culture.

For more detailed information, the official guidance on the updated guidelines can be found on the Ministry of Business and Innovation and Employment website together with the Intellectual Property Office NZ guidelines.

If you need assistance with navigating these new guidelines, our Commercial and Kahurangi Teams are well-equipped to assist you to ensure your trade mark application is both compliant and culturally appropriate.

Ezrom Waka is a Solicitor in our Commercial Team and can be contacted on 07 959 2313.

Proposed Treaty Principles Bill

Posted on September 24, 2024March 19, 2026 by au_common_admin

Background

When the Treaty of Waitangi Act 1975 was enacted, it affirmed the existence of certain Treaty principles derived from Te Tiriti o Waitangi/the Treaty of Waitangi. These include the core principles of active protection and partnership. To date, it has been the role of the Waitangi Tribunal to determine claims through the practical application of these principles. The Coalition Government now seeks to define the Treaty principles through legislation and has taken steps to progress the introduction of the proposed Treaty Principles Bill, which has been approved by Cabinet.

Cabinet has asserted that the intention of the proposed Bill is to create certainty about what the Treaty principles are and how they apply in New Zealand. However, the Treaty principles have been dealt with before the Waitangi Tribunal for over 35 years, already giving clarity and certainty about what the existing principles are and how they operate.

Waitangi Tribunal Report

On 16 August 2024 – prior to the specific wording of the proposed “Treaty principles” being published – the Waitangi Tribunal issued an urgent report into the proposed Treaty principles Bill and Treaty clause review policies. The Tribunal found that the Crown’s policies and actions have breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the Article 2 guarantee of tino rangatiratanga. The Crown failed to engage with Māori, and the proposed Bill:

lacked a policy imperative justifying its development;
was based on flawed policy rationales;
was ‘novel’ in its Treaty interpretations;
was fashioned on a disingenuous historical narrative; and
distorted the text of te Tiriti o Waitangi.

Given the findings of significant breaches by the Crown summarised above, the Tribunal recommended that:

The Treaty Principles Bill policy should be abandoned.
The Crown should constitute a Cabinet Māori-Crown relations committee that has oversight of the Crown’s Treaty/te Tiriti policies.
The Treaty clause review policy be put on hold while it is re-conceptualised through collaboration and co-design engagement with Māori.
The Crown consider a process in partnership with Māori to undo the damage to the Māori–Crown relationship and restore confidence in the honour of the Crown.

The recommendations are made in light of the significant effects that the introduction of such a Bill is likely to have on Māori. If the Crown proceeds with the introduction and progression of the Bill through the House, further significant damage will be caused to the Māori-Crown relationship and the Treaty partnership. The Tribunal has also noted significant impacts that the policy will have on the social cohesion of Aotearoa as well as significant practical issues that will be created for the future Treaty settlements.

What are the proposed principles

In place of the existing well-established Treaty principles – and seemingly in place of the wording of te Tiriti/the Treaty itself – Cabinet has agreed that the following principles be included in the Bill:

Civil Government: The Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.
Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.
Right to Equality: Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

While the Waitangi Tribunal has not yet commented on the above text, comments from the Tribunal on its origins and its distortion of te Tiriti demonstrate clear flaws with what is proposed. From a legal perspective, this is of huge concern as it has the potential to rewrite historical agreements and arrangements through the misinterpretation of a legally binding treaty.

The proposed Bill is currently being drafted and is set to be introduced to Parliament by the end of 2024. Submissions can be made to Select Committee once the Bill has been introduced.

If you have any questions about the proposed Treaty Principles Bill or any te Tiriti-based kaupapa, you can contact Senior Solicitor, Carmen Mataira, or Law Clerk, Hakaraia Richards-Coxhead who are both part of our Kahurangi Team.

Important Updates in the World of Business

Posted on September 9, 2024March 18, 2026 by au_common_admin

The Government is taking further steps to modernise the (somewhat archaic) Companies Act 1993 (the Act), with Hon Andrew Bayly, Minister of Commerce and Consumer Affairs, recently announcing the Government’s backing for a comprehensive reform package.

The broad purpose of these reforms is to simplify business in New Zealand, including by reducing business compliance costs – all of which is good news and potentially long overdue.

The reforms are set to roll out in two phases starting in 2025:

Phase 1: The focus here will be on updating and modernising the Act, simplifying compliance for businesses, and strengthening measures to prevent unethical and illegal business practices.
Phase 2: This second phase will involve the Law Commission reviewing the directors’ duties set out in the Act, giving particular attention directors’ liability, sanctions, and enforcement. Some of this review has come off the back of the Mainzeal case – see our article on that here.

What Will Happen in Phase 1?

Time to bring the Act into the 21^st century

The Act is some 30 years old, and is still a key piece of legislation for businesses operating in New Zealand. Time has obviously moved on, and the amendments to the Act seek to bring it into the present, by:

simplifying the process for share capital reduction, reducing the need for expensive and time-consuming court approvals;
similarly, enabling more broad use of unanimous shareholder consent processes (e.g. for share issues or conversions, and the company acquiring its own shares to be held as treasury stock);
updating the definition of “major transaction” to exclude those transactions that solely a company’s capital structure (e.g. share issues, buy-backs, declaring dividends and redeeming shares), but also to provide that a series of transactions that are related to each other can also be caught by the definition;
enabling certain company documents to be accessed online rather than manually; and
introducing procedures for managing unclaimed dividends where a shareholder cannot be contacted.

Know who you’re dealing with

One of the key aims of the reforms is to strengthen the processes for identifying and preventing unethical/illegal business practices; this involves being able to more easily identify persons in control, while still protecting their privacy. This will include:

introducing unique identifiers for directors and general partners of limited partnerships; and
allowing directors to use services addresses in the company’s public records, rather than their private residential addresses.

Protection for creditors if it all goes wrong

These proposed amendments will seek to incorporate the recommendations of the Insolvency Working Group set up in 2015, and importantly will extend the “claw back period”, within which related party transactions undertaken prior to liquidation can be voided, to four years.

NZBN? What’s that?

Most of us are familiar with the concept of an NZBN, but more commonly use the more traditional Companies Office number when referring to companies. The proposed amendment would seek to increase the use of the NZBN, potentially improving business efficacy and identification.

What next?

All going well, the bill to introduce Phase One will be introduced in 2025 at which stage submissions will be open to the public.

But I’m not happy with this?

If you are keen to find out more, including what you need to do to make a submission, please get in touch.

A loved one has died, what next?

Posted on September 4, 2024March 19, 2026 by au_common_admin

During our lifetime, we are almost certain to experience the death of a loved one. It can be an overwhelming and challenging time, even more so if you are tasked with sorting their personal affairs. Understanding what to expect when a loved one dies can help ease the stress you may feel and allow you to take the time to grieve.

Before the Funeral/Tangi/Burial or Cremation

It is common to want to deal with your loved one’s affairs immediately after their death. We can understand that it can be a little unnerving, especially if your loved one died with debts. However, take this time to farewell your loved one and spend time with those that were close to them.

A more practical first step is to locate your loved one’s will, as it may contain important information about their funeral, tangi, burial, or cremation wishes. If you know which law firm holds the will, the executors may contact them directly to access a copy. Only the named executor/s have the legal right to access the will and it is at their sole discretion as to whether they share the contents of the will with family or beneficiaries. Not all wills outline directions for the body or the funeral. We also note that if there are directions outlined, they are not binding on the executor/s and the executor/s have the ultimate legal responsibility to deal with the body.

Often the deceased’s bank can pay the funeral invoice direct out of funds held in the deceased’s bank accounts, however, each bank will have its own requirements.

After the Funeral/Tangi/Burial or Cremation

Once you have had the opportunity to farewell your loved one, and are ready to deal with their affairs, we recommend that the named executor/s contact the law firm that holds the original will. This initial conversation with the lawyer will be an information gathering exercise in order for the lawyer to determine whether a grant of probate is necessary. If your loved one died leaving assets worth $15,000.00 or more in their personal name (not jointly owned), a grant of probate will be required. Probate is the process of the High Court proving the will as authentic and approving the appointment of the executors for the purposes of administering your loved one’s estate.

Once probate is granted, the administration of an estate can be relatively straightforward (although the ease of the estate administration will vary from estate to estate). The executor’s role is to uplift/gather in the assets of the estate, pay all debts, and attend to the distribution of the remaining assets to the beneficiaries outlined in the will. Only executors named the will are able to administer the estate, with the assistance of the estate’s lawyer.

What if my loved one died without a will?

If your loved one dies without a will (intestate), the rules of intestacy outlined the Administration Act 1969 apply. These rules set out who is/are entitled to administer their estate and who has a beneficial interest. If your loved one owned assets worth $15,000.00 or more, the entitled persons would be required to apply for letters of administration.

The Asset Planning Team at McCaw Lewis are here to guide you through the process and assist in minimising the legal burden for you during this time. We encourage you to contact our team, so we can assist as much as possible.

Beneficiary Rights

Posted on August 23, 2024March 19, 2026 by au_common_admin

A key objective of the Trusts Act 2019 (“the Act“) was to provide further transparency for beneficiaries of trusts. The Act in fact records that trust information may be withheld from all beneficiaries only in “exceptional circumstances”.

Under the current law, a trustee must assess at reasonable intervals whether “basic trust information” should be provided to all beneficiaries. Basic trust information being:

the fact that a person is a beneficiary of the trust; and
the name and contact details of the trustee; and
the occurrence of, and details of, each appointment, removal, and retirement of a trustee as it occurs; and
the right of the beneficiary to request a copy of the terms of the trust or trust information.

In deciding whether to provide basic trust information or any other requested information, a trustee is entitled to consider a wide range of factors, with the more significant being:

the likelihood of the beneficiary receiving trust property in the future;
the expectations and intentions of the settlor at the time of the creation of the trust (if known) as to whether the beneficiaries as a whole, and the beneficiary in particular, would be given information;
the age and circumstances of the beneficiary and also other beneficiaries;
if a beneficiary has requested information, the nature and context of the request.

Finally, the trustee is given the protection of being able to rely on “any other factor that the trustee reasonably considers is relevant to determining whether the presumption applies”.

If however a trustee decides to withhold information, they will in most cases have an obligation to apply to the High Court to confirm that the withholding of information is reasonable.

The Court’s approach was set out in Lambie Trustee Ltd v Addleman, where the Supreme Court held that “information generated or held for the purposes of a trust — that is information held by trustees as trustees — is not the personal property of the trustees”. The Supreme Court ordered disclosure of trustee information including legal advice given to the trustees relating to the general administration of the trust. However, the trustee was “entitled to assert privilege in legal advice received after the commencement of proceedings”.

It was noted that the Court “expect[s] that trustees would normally provide to close beneficiaries on request, if not proactively, trust accounts and other documents showing how the trust had been administered and what had become of the trust property”. Disclosure of a trust deed and trust accounts is likely the minimum required to scrutinise the trustees’ actions in order to hold them to account.

There is however a distinction between providing Trust information and providing disclosure of trustees’ reasons for particular decisions. The Act expressly excludes “reasons for trustees’ decisions” from the definition of trust information in section 49 and therefore a beneficiary cannot always expect an explanation as to why a particular decision has been made.

To seek clarity around what the requirements for proactive and transparent disclosure mean for you, as a trustee or as a beneficiary, reach out to our Dispute Resolution Team.

Daniel Shore leads our Dispute Resolution Team and can be contacted on 07 958 7477.

Navigating mediations in the Māori Land Court

Posted on July 30, 2024March 19, 2026 by au_common_admin

Court-related disputes can be challenging, but the Māori Land Court offers alternatives to traditional litigation. Alternative Dispute Resolution methods, such as mediation, can be less adversarial and more focused on resolution, providing an opportunity to incorporate tikanga and promote mana enhancing solutions for participants. This article introduces the Māori Land Court mediation service and provides key tips to navigating this process.

Mediations generally

Mediation is both, a consensual and confidential dispute resolution process, which means that both sides must agree to mediate. A mediation involves an independent and impartial mediator who assists negotiations between the parties to reach a resolution. The process can be tikanga-based, led by values, beliefs, and practices of those involved.

In contrast to a Court hearing, the mediator’s job is to facilitate the process to establish and refine the core issues and options to be explored without the formal procedures and restraints of a Court hearing. The mediator is not a decision-maker. The process of mediations will vary slightly based on the mediator, but generally, will include the following:

Process

Application for Mediation – If your dispute involves Māori land, an application can be made to the Māori Land Court for mediation. All parties to the dispute must agree to mediate the matter.
Appointment of Mediator – A mediator is then appointed. Currently, the Māori Land Court mediation service is facilitated by Māori Land Court Judges. Over time, this will be extended to non-judicial mediators who have the skills to resolve disputes over Māori land. Importantly, the Judge that mediates your matter will not be the judge that decides the matter in Court if mediation is unsuccessful.
Date, time & venue – A suitable time, date and venue will then need to be confirmed. This is an opportunity to consider the most appropriate forum for the dispute – is a Marae best appropriate or an alternative neutral venue.
Agreement to mediate – Once a mediator is appointed, they will generally require parties to enter into a formal agreement to mediate. Generally, this ensures the Parties understand the process of mediation, the rights each party have and importantly, that the parties formally commit to the process. This usually includes a provision setting out that parties will co-operate and use their best endeavors to reach a resolution.
Pre-mediation hui – Prior to mediation, a pre-mediation hui is usually held with the parties (and their respective lawyers). The purpose of a pre-mediation hui is to help the mediator get a real understanding of the issues at hand. This is also an opportunity to cover off any tikanga that will be followed on the day.
On the day – On the day, the mediator will explain the process for mediation, including any tikanga practices that have been agreed on. If an agreement is reached between parties, the mediator will record the terms of the agreement which is then signed by the parties and provided to the Māori Land Court. Once signed, the agreement will be binding on the parties. From there, a mediator will provide a report to the Court notifying the Court of the outcome. Parties can then consider next steps, including whether to resolve the dispute through Court or try mediation again.

Conclusion

One of the primary benefits of a mediation process is the opportunity to meet kanohi ki te kanohi in a safe environment, guided by tikanga. Like any dispute resolution process, it requires hard work, and some give and take by all parties involved. But above all else, it is a valuable opportunity to display collaboration, to listen, and to kōrero, all whilst maintaining the ability to contribute to overall process and potential mana enhancing resolutions.

The Māori Land Court website provides helpful information on the process here. Our whenua Māori team at McCaw Lewis are well-equipped to assist you with any pātai or matters relating to mediation, including assisting you through a mediation process – start to finish. Feel free to give us a call.

Author: au_common_admin