Jorja Diffey, Author at McCaw Lewis

Who’s in control if you’re not? Planning for incapacity.

Posted on August 6, 2026August 6, 2026 by Jorja Diffey

Most people plan for what happens when they die. Far fewer consider what happens if they are still alive but unable to make decisions.

Losing capacity, whether through accident, illness, or cognitive decline, creates an immediate gap between who should be making decisions, and who is legally able to do so. For individuals with significant assets, business interests, or complex structures, that gap can have real financial and personal consequences.

No automatic authority

A common assumption is that a spouse or family member can simply step in. In New Zealand, that is often not the case.

If you lose the ability to make or communicate decisions, the impact extends beyond medical care to:

personal finances and banking
investment and asset management
trust governance and control
business decision-making
day-to-day contractual matters

Without prior authority, decisions cannot be made on your behalf. The usual pathway is an application to the Family Court of New Zealand to appoint someone to act. That process takes time, involves cost, and removes your ability to choose who is in control.

For business owners, the position can be more acute. Depending on the structure:

directors may be unable to act where your involvement is required
shareholdings can effectively be frozen
banking mandates or funding arrangements may be disrupted
co-owners and stakeholders can be left in uncertainty

Even short delays can impact operations, governance, and commercial relationships.

The primary tool: Enduring Powers of Attorney

Enduring Powers of Attorney (EPAs) are the central mechanism for managing incapacity risk.

There are two types of EPAs:

Property: This covers financial matters, banking, investments, property, and in some cases, business interests. It can be structured to take effect immediately, or upon loss of capacity.
Personal care and welfare: This covers decisions about medical treatment, living arrangements, and care. It only becomes effective once capacity is lost.

Well-structured EPAs allow you to nominate decision-makers and define how authority is exercised. In practice, issues tend to arise where EPAs are too limited, impractical to operate, or not aligned with how assets and responsibilities are actually structured.

Aligning trusts and business structures

Trusts and other asset-holding structures can assist with continuity, but they do not remove the need for planning.

If you are a trustee or hold key powers, your loss of capacity can still disrupt decision-making unless succession and control mechanisms are clear. The same applies to companies and investment structures—each may function well individually, but without coordination, gaps can emerge at the point decisions are most needed.

Where issues arise

Incapacity issues are usually not complex in isolation. More often, they stem from gaps between otherwise sensible arrangements. Common examples include:

no EPAs in place, requiring urgent court intervention
attorneys who are unavailable, unsuitable, or in conflict
unclear decision-making processes across multiple parties
trust or governance documents that do not deal effectively with incapacity
key assets held personally, with no one able to access them

When to review

Capacity planning should be revisited as circumstances change, particularly where there are:

significant asset acquisitions or disposals
new or restructured trusts
changes in relationship or family dynamics
business ownership or governance changes
new trustees, directors, or advisors

For clients with growing or more complex asset bases, periodic review becomes increasingly important.

Next steps

Effective incapacity planning requires your EPAs, business interests, and asset structures to work together in practice.

A useful way to assess your current position is to consider:

who could access and manage your finances if you could not
who could make medical and care decisions
whether your trust could continue operating without interruption
who could make decisions affecting your business interests
whether those people would have clear authority and guidance

If any of those answers are uncertain, there is likely a planning gap.

Our asset planning team regularly works with clients to review:

whether EPAs are fit for purpose
how trusts and business structures operate on loss of capacity
how assets are held and controlled
whether the right people are in the right roles

The aim is straightforward: ensuring that, if something unexpected happens, decisions can be made immediately, by the right people, without unnecessary delay or disruption.

Kaylee Bird is a Senior Solicitor in our Asset Planning Team and can be contacted on 07 808 6066.

Rural Property Transactions – Don’t Overlook ETS Registered Land

Posted on July 7, 2026 by Jorja Diffey

When buying or selling rural property, one important consideration is whether any of the land is subject to New Zealand’s Emissions Trading Scheme (ETS). While this may not affect every property, it can have significant financial and legal implications where forestry is involved. In particular, you may be liable to pay for the resulting greenhouse gas emission if you deforest any land that is subject to the ETS.

The ETS is designed to encourage the reduction of greenhouse gas emissions by rewarding eligible forest owners with New Zealand Units (NZUs) for carbon stored in their forests. However, registration also brings ongoing obligations, including maintaining forest cover and meeting compliance requirements.

For vendors, it is essential to disclose whether the property contains ETS-registered land. Buyers should understand whether NZUs have already been claimed, whether any liabilities will transfer with the land, and what future obligations they may inherit.

Before completing a purchase, buyers should carry out appropriate due diligence. This may include reviewing the property’s title, obtaining details of any ETS registration, and seeking professional legal or forestry advice where necessary. This includes identifying any old stands of exotic trees that may be deemed pre-1990 forest and automatically subject to the ETS without being formally registered.

Understanding the ETS status of a property helps avoid unexpected costs and ensures both parties are fully informed before settlement. As with any rural property transaction, early investigation can help make the buying or selling process smoother and provide greater confidence for everyone involved.

Client Guide: Buying or Selling Property with ETS Registered Land

If you are buying or selling rural property, it is important to establish whether any part of the land is registered in New Zealand’s Emissions Trading Scheme (ETS). ETS registration can affect the value of a property, the ownership of carbon credits, and the legal obligations that transfer to a new owner.

What is the ETS?

The New Zealand Emissions Trading Scheme (ETS) is a key tool for New Zealand meeting our domestic and international climate change targets set by the Climate Change Response Act 2002. The ETS is designed to encourage the establishment and protection of forests by allowing eligible forest owners to earn New Zealand Units (NZUs), commonly referred to as carbon credits. These units have a market value and may be sold or retained as an investment.

What happens to the NZUs?

One of the most common misunderstandings is that NZUs automatically transfer with the sale of the land. They do not, as they remain personal property of the individual or entity who earnt the NZUs.

Unless the sale and purchase agreement specifically provides otherwise:

NZUs that have already been earned and issued remain the property of the person or entity that owns them, regardless of who owns the land after settlement.
The purchaser does not automatically receive the vendor’s NZUs.
The parties can negotiate whether some or all NZUs will be transferred as part of the sale, but this should be clearly documented in the sale agreement.

It is also important to determine whether the vendor has already claimed NZUs for the registered forest, as this may affect future earning potential and any liabilities associated with the land.

What obligations come with ETS registered land?

Purchasing ETS-registered land may also mean taking on ongoing responsibilities under the ETS.

Depending on the type of ETS registration, being pre-1990 forest land or post-1989 forest land. The distinction is based on when the land first became forest and has significant implications for carbon credits, liabilities, and land management.

The distinction between the two classifications of forest land exists due to the 1 January 1990 cut-off for pre- 1990 forest and reflects international climate accounting under the Kyoto Protocol. Forests established before this date are treated as an existing carbon stock that should be retained, whereas forests established after this date are acknowledged for their additional capture of carbon.

Both classifications have differing obligations under the ETS, some of which may include:

maintaining the registered forest in accordance with ETS requirements;
ensuring any harvesting complies with the relevant ETS rules;
accounting for emissions if the forest is cleared, deforested, or otherwise removed without re-establishment;
notifying the relevant government authority of changes in ownership where required; and
complying with reporting and record-keeping obligations.

If forest carbon stocks decrease below the level for which NZUs have been earned, the registered participant may be required to surrender NZUs back to the Government. This can represent a significant financial liability if it has not been identified before settlement.

Due diligence for buyers

Before purchasing a property with ETS-registered land, buyers should:

confirm whether the land is registered in the ETS;
determine the type of ETS registration and who is currently the registered participant;
establish whether any NZUs have already been earned, sold, or remain available;
understand whether any current or future liabilities may arise; and
obtain legal, forestry, and accounting advice where appropriate.

Considerations for Vendors

Vendors should ensure they provide accurate information about the ETS status of the property. This includes disclosing whether the land is ETS registered, whether NZUs have been claimed or sold, and whether any obligations or liabilities remain attached to the registration.

We can help

ETS-registered land adds another layer of complexity to a rural property transaction. Understanding who owns the NZUs, what liabilities may exist, and how those matters should be addressed in the sale and purchase agreement can help avoid costly surprises after settlement.

If you are buying or selling a property with ETS-registered land, we can help you understand your rights and obligations, undertake the necessary due diligence, and ensure the transaction documentation properly reflects the parties’ intentions.

Quinn is a Solicitor in our Property Team and can be contacted on 07 958 7475.

Suspensions under New Zealand Employment Law: Balancing Fairness and Good Faith

Posted on June 2, 2026June 2, 2026 by Jorja Diffey

Under the Employment Relations Act 2000 (ERA), the duty of good faith is a cornerstone of employment relationships. This duty requires employers to act in a manner that is active, constructive, and communicative, particularly when making decisions that could adversely affect an employee’s employment.

Suspensions are typically used as a temporary measure during investigations into alleged misconduct or when an employee’s presence in the workplace may pose risks to safety or operational efficiency. While suspensions are not outcomes of a disciplinary process, they are considered a formal action and can be a contentious issue that creates implications for both employees and employers if the process is not done properly.

The Courts have made clear the fundamental importance of procedural fairness for decisions relating to suspensions and have found instances such as failing to consult with an employee before suspension and pre-determined decisions to be a significant procedural flaw.[1] Employers must tread carefully, ensuring that their actions are legally compliant, fair and reasonable.

The first step in determining whether suspension is appropriate is to look at the relevant employment agreement. Often employment agreements will include provisions about the ability to suspend an employee and in what circumstances this can happen. If the relevant employment agreement does not provide for suspension, the employer will need to consider whether the employee’s continued presence poses a significant issue (e.g., serious safety or operational risk).

Suspensions must be approached in good faith and in line with natural justice. An employer must ensure that:

All other reasonable alternatives to suspension have been considered.
Notice of the proposal to suspend is given to the employee, outlining the reason for this and any other relevant information.
The employee is able to engage and respond on the proposal.

Suspensions are generally expected to be done with pay unless there is an express provision or an exceptional circumstance that allows otherwise. Suspension without pay is considered a drastic measure and is generally only justifiable in rare and exceptional circumstances, for example, those relating to imminent danger or safety concerns. Some employment agreements also allow more unpaid suspension in special circumstances, however, even in these situations a fair and justified process still must be followed.

The ERA allows for suspensions to be challenged under s 103A of the ERA as an unjustified disadvantage. As part of this, the ERA will look at whether a suspension is justified, including whether the employer’s actions were what a fair and reasonable employer could have done in the circumstances, whether the suspension was necessary, whether it was for a reasonable duration, and whether the employee was given an opportunity to be heard.

Needing support on a proposed suspension? Our team at McCaw Lewis are available to support you through the process and offer clear, practical advice and checklists to ensure things get done properly.

Tazmyn is a Solicitor in our Workplace Team and can be contacted on 07 958 7467.

Shareholders Agreements and Why You Should Have One

Posted on May 26, 2026May 26, 2026 by Jorja Diffey

In Aotearoa, many companies start with good intentions, a handshake, a Companies Office registration, and nothing more. For a lot of founders, especially younger entrepreneurs, whānau owned businesses, and small business owners, the focus is on getting the business off the ground. Governance documents, formal processes, and legal protections often feel secondary. However, as soon as there is more than one shareholder, the relationship between parties becomes a commercial partnership and legal relationship whether it has been formalised or not.

A shareholders’ agreement is the document that sets out the rules of that relationship. It addresses difficult questions that are often overlooked at the outset and provides clear mechanisms to manage situations if things do not go as planned. While enthusiasm and trust are high in the early days, failing to put agreements in place can lead to significant tension and costly disputes down the line.

The Value of Good Governance

Shareholder disputes arise not only because parties disagree about the business itself, but often because there was no agreement in place from the start. While shareholders’ agreements are usually viewed as being mainly about money, their true value lies in providing clarity. They establish who has authority to make decisions, how conflicts will be resolved, and how the business can continue to function effectively as it grows or changes. Without this framework, businesses are exposed to a number of risks, including:

Deadlock: 50/50 ownership can create impasses with no mechanism to resolve disagreements.
Disputes over roles and responsibilities: As businesses evolve, expectations shift, creating friction if not documented.
Unplanned ownership changes: Shares may be sold, gifted, or affected by personal circumstances (for example, relationship property claims), leaving the company exposed.
Investor uncertainty: Potential investors often seek certainty regarding governance and dispute resolution before committing capital.
Misaligned expectations: Differences over dividends, salaries, or management authority can escalate into broader conflicts.

Other issues can also arise depending on the nature of the business, the shareholders involved, or unforeseen circumstances. While the Companies Act 1993 provides a general legal framework for shareholder rights, its default provisions are not always suitable for every company and often fail to reflect the practical realities of running a business. A shareholders’ agreement fills these gaps with tailored agreements, providing greater certainty, protecting both the business and its owners.

Core Components of a Shareholders Agreement

An agreement aims to resolve problems before they arise. It can be tailored to the specific needs of the company and its owners, or drafted more generally to provide broad guidance, allowing flexibility depending on the parties and company’s unique needs. A well-drafted agreement sets out key governance and ownership matters, such as:

the structure of the company;
how the company is governed;
board meetings, when they occur and who must attend;
shareholders’ voting rights, whether votes are equal or differentiated;
how the company will raise capital;
distribution policy: including dividends and profit allocation; and
when shares can be issued or transferred.

Why a Shareholders’ Agreement Matters

While everything feels straightforward when the company is new and everyone is aligned, a shareholders’ agreement is essential for long-term stability. By addressing these issues upfront, it offers certainty, protects shareholder interests, and helps ensure the business can continue to operate effectively through periods of growth, transition, or disagreement.

Good governance is not reserved for only large and complex organisations. For any business with more than one owner, a carefully considered shareholders’ agreement is one of the most valuable tools available. providing a clear framework that supports both the commercial objectives of the company and the relationships between its owners.

Whether you are setting up a new venture or refining the governance of an existing one, our Commercial Team can assist with preparing a shareholders’ agreement that is tailored to your company’s structure, priorities, and long-term goals.

Interim Injunctions in the Māori Land Court – A Guide for Trustees and Whānau

Posted on April 30, 2026May 14, 2026 by Jorja Diffey

Manaaki Whenua, Manaaki Tāngata, Haere Whakamua

Interim Injunctions in the Māori Land Court – A Guide for Trustees and Whānau

When unexpected activity occurs on whenua Māori such as earthworks, new buildings, unauthorised trustee decisions or rising whānau tension, the situation can quickly become stressful and uncertain. In these moments, trustees and whānau often need a way to stabilise matters and prevent further harm while the underlying issues are properly addressed. Where attempts to resolve matters have broken down, an interim injunction can be appropriate.

What is an interim injunction?

An interim injunction is a short‑term Court order that either halts an activity or requires something to be done. In the Māori Land Court, interim injunctions are commonly sought to stop earthworks, prevent unauthorised occupation, protect wāhi tapu or urupā, or prevent trustees or individuals acting beyond their authority. With the amendments to Te Ture Whenua Māori Act 1993, interim injunctions are now also able to require a person to act, including ordering the removal of structures or objects, or the restoration of land to its previous condition.

A substantive application must also be filed

An interim injunction must be supported by a main application that asks the Court to determine the underlying dispute. If granted, the interim injunction can remain in place until the substantive application is determined.

Common applications filed alongside interim injunctions include:

Review of Trust applications
Occupation applications
Wāhi tapu and urupā protection applications

These applications give the Court the jurisdiction to address the core issues once the immediate risk has been paused.

Legal test

To grant an interim injunction, the Court applies a three‑part test:

Serious Issue to Be Tried – Is there a genuine issue requiring proper consideration?
Balance of Convenience – Who is likely to suffer greater harm if the injunction is granted or refused?
Overall Justice – What is the fairest approach in all the circumstances?

The Court relies on clear, practical evidence showing why a restriction is necessary. This usually includes photographs, correspondence, trust records and information about the further harm that may occur if no injunction is granted.

Just as importantly, tikanga evidence is often very persuasive. Statements from kaumātua explaining the relevant local tikanga or kawa, whakapapa responsibilities, and cultural or spiritual impacts help the Court understand the depth of the potential harm.

Considering an interim injunction?

An interim injunction is generally a last resort, used only when less formal steps such as seeking a hui, exchanging correspondence, or attempting mediation, have not resolved the issues. However, it can be used as a temporary measure to protect the whenua, steady relationships, and support good decision‑making.

If you need advice on whether an interim injunction is appropriate for you, the Kahurangi team at McCaw Lewis can help you understand your options and navigate this process.

Author: Jorja Diffey