Category: Dispute Resolution

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.

On 6 March 2025, the Supreme Court in Alalääkkölä v Palmer [2025] NZSC 9 confirmed that copyright is relationship property, and effectively up for grabs.  The decision is the latest chapter in a dispute dating back to 2017 between Sirpa Alalääkkölä and Paul Palmer.

Alalääkkölä v Palmer has been widely discussed as having a potential impact on artists, creatives and intellectual property.  But as the dust settles, how might this actually affect you? We take you through the decision, and some practical matters to be aware of.

Background

Sirpa Alalääkkölä (Ms Alalääkkölä) and Paul Palmer (Mr Palmer) separated in 2017, after 20 years of marriage.  Ms Alalääkkölä, an accomplished artist, provided the main source of income for the family.  On separation, Ms Alalääkkölä agreed Mr Palmer could keep several artworks as relationship property.  Mr Palmer then sought to copyright, reproduce, and sell copies of those paintings, which Ms Alalääkkölä objected to, setting the scene for a multi-year dispute centred around copyright.  This novel legal dispute covered previously unexplored territory between copyright and relationship property.

Legal Issues

The issues for the Supreme Court to decide were:

• Is copyright “property”, for the purposes of the Property (Relationships) Act 1976 (PRA)?
• If so, is copyright relationship property, or separate property, under the PRA?
• How should the financial value derived from copyright be allocated under the PRA?

Implications

Who Owns Copyright in a Relationship?

• The Copyright Act 1994 gives the author of a work a variety of rights, such as the right to reproduce, sell, and distribute copies. It also includes the ability to waive those rights.
• The long-standing approach in New Zealand is that copyright is a form of personal property. However, copyright created during a marriage holds an economic value.  That economic value, according to Alalääkkölä v Palmer [2025] NZSC 9, is relationship property.
• In short, while the owner of the copyright keeps the moral and personal rights of the copyright, the economic value derived from that copyright can be valued for the purposes of the PRA.
• The Courts will also choose a division which respects the copyright owner’s right to disclose to the public as they please, where it is consistent with a just division of relationship property.

Valuing Copyright

After confirming copyright as relationship property under the PRA, the Court made subsequent directions for the Family Court to deal with valuing Ms Alalääkkölä’s work, under several categories:

• incomplete, damaged or unsuitable;
• intended to be kept private;
• a unique piece;
• a piece (or pieces) with multiple copies.

The Court also emphasised that a market valuation should reflect whether copyright for specific artwork has been monetised in the past, and whether the artist intends to exploit it in the future.

Conclusion

The distinction between a right to create, and the financial benefits that flow from that right, can be difficult to define.  However, that distinction can clearly become the subject of dispute, as shown by Alalääkkölä v Palmer [2025] NZSC 9.

Our team at McCaw Lewis regularly deal with intricacies in the relationship property space. They can provide you with the right support and assistance, starting from the commencement of discussions, through to complex legal Court proceedings.  If your situation requires legal guidance, please get in touch with us.

Zane Mora is an Associate in our Dispute Resolution Team and can be contacted on 07 958 7431.

When a relationship breaks down, it is common for one party to remain in the family home while the other pays for accommodation elsewhere.  This situation can raise concerns of fairness if one party is able to continue to enjoy the use of the home.  In this article, we explore the concept of “occupational rent” and how it can help separating couples reach a fair outcome.

What is Occupational Rent?

Occupational rent is essentially “market rent” paid by the party continuing to live in the family home to compensate the party who moves out and pays for alternative accommodation.  Depending on the amicability of the separation, this arrangement can last for months (or even years) until issues regarding ownership are finalised.

How is Occupational Rent Calculated?

The standard calculation is 50% of the market rent.  For example, if the market rent for the family home is $700 per week, the party who moved out will be due $350 per week from the separation date to the date matters are settled.  Parties can agree amongst themselves an acceptable market rent value, or an expert may be called upon to determine the appropriate market rent.

But I’ve Been Paying the Mortgage

In practice, occupational rent is often used as an offset to balance claims for other costs or post-separation contributions.  Occupational rent is often offset against the mortgage, rates and insurance of the family home to ensure each party’s post-separation contributions are compensated fairly.  It can even be used to counter spousal maintenance payments.

Is Occupational Rent a Certainty?

Whether to order a payment of occupational rent is entirely at the Court’s discretion.  It is not a guarantee and cannot be relied on.  The Court sometimes takes a “broadbrush approach”, meaning that every set of circumstances is assessed on its own merit.  The Court uses its power under the Property (Relationships) Act 1976 to consider whether an order is just, considering factors including the financial impact an order would cause to either party and the interests of any children.

Knowing your rights and obligations following a separation can be difficult.  The experienced team at McCaw Lewis can help you navigate relationship property matters or answer any questions you may have.

Chantelle is an Associate in our Dispute Resolution Team.

Chantelle can be contacted on 07 958 7473 or chantelle.holland@mccawlewis.co.nz

Following on from our article “Is My KiwiSaver Relationship Property” we continue our Relationship Property Series by addressing the question “is my inheritance relationship property”.

To answer this question, we need to understand the term known as “intermingling”.  Understanding what intermingling is, and how it occurs, will help ensure your inheritance is applied as intended.  This article outlines several common examples of intermingling, and actions you can take to prevent this from happening.

The starting point for inheritance is that it is classified as a gift, which makes it “separate property” under the Property (Relationships) Act 1976 (the Act).  However, an inheritance that is “intermingled” with relationship property can lose its status as a gift.

Common Examples of Intermingling

Intermingling occurs when property (or its proceeds) become so entangled with other relationship property, that it becomes impracticable to classify it as separate property.  The whole property then becomes relationship property.

Examples of when inheritance can become intermingled are:

• Using inheritance to repay a relationship debt/loan. A typical situation is parties using inheritance monies to service a house mortgage;
• Depositing inheritance monies into bank accounts used by the relationship, for instance, joint bank accounts;
• Purchasing assets with inheritance monies, which are then used in the relationship. Buying a car that becomes the family vehicle, would be a common example.

In each of these scenarios, while it may make financial sense in the moment, as time goes on it becomes harder and harder to distinguish if the inheritance monies are separate, or relationship property.  If it becomes too hard to tell, the chances are your inheritance has “disappeared”, and become intermingled with other relationship property.

Keeping Inheritance Separate

If you are looking to protect or manage your inheritance in these sorts of situations, common ways to do so are as follows:

• Using/investing the inheritance in something completely separate from the relationship, such as a term deposit in your own name;
• Entering into a contracting out agreement with your partner under the Act, often referred to as a “pre-nup” or “pre-nuptial agreement”. This agreement would specify how the inheritance, regardless of its use, is treated upon separation.  A contracting out agreement can be entered into at any point before, or during, the relationship;
• Setting up a trust to deal with the inheritance, separate from the relationship.

Knowing which option to take can be confusing at the best of times, but being aware of those options is a great first step.  As with most things, it is better to seek advice early.  The experienced team at McCaw Lewis can help you navigate any aspect of your relationship property matters and answer any questions you may have.

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

Following a relationship breakdown, the term “relationship property” becomes all important.  But what exactly does relationship property include?  In a series of articles, we will be considering this question in respect of the most common items of property that people hold in their relationships, starting with KiwiSaver.

After the family home, KiwiSaver can be one of the major assets of a relationship.  So, is KiwiSaver relationship property?  As for most property, the answer is going to be “it depends”.

When is KiwiSaver Separate Property?

We will first address when KiwiSaver is not relationship property.  That is, when it is considered to be the separate property of one of the parties.  This will cover before, during and after the relationship.

It is not uncommon for one or both of the parties to enter into a relationship with a significant balance in a KiwiSaver fund.  This is particularly so in subsequent relationships.

The starting point for the KiwiSaver balance that you enter your relationship with is that it is your separate property.  However, if you were to subsequently use your KiwiSaver for the purchase of your first home, which you then live in with your partner, it is most likely that this contribution will become relationship property.  Likewise, if you make a KiwiSaver withdrawal due to hardship and apply it to the relationship, then this too will be considered relationship property.

During your relationship you may make contributions to your KiwiSaver from separate property.  If these contributions are in fact made from separate property (for example if you received an inheritance and invested that in your KiwiSaver fund), then these contributions will remain your separate property, provided your KiwiSaver is not subsequently used as described in the preceding paragraph.

Following separation, any contributions that you make to your KiwiSaver fund from your separate income or from your separate property, will remain your separate property.

When is KiwiSaver Relationship Property?

Any contributions that you make to your KiwiSaver during your relationship, that are not made from separate property, are most likely going to be relationship property.

The majority of KiwiSaver contributions come directly from employment, rather than voluntary contributions from other sources.  Considering the income earned during a relationship is usually relationship property, in most cases, a KiwiSaver balance accumulated during a relationship is considered relationship property.

If My KiwiSaver is Relationship Property What Happens to it if My Relationship Ends?

The starting point for any part of your KiwiSaver that is relationship property is that it is divided in half, as with all your other relationship property.

Practically speaking however this does not necessarily mean that you must access the funds in your KiwiSaver.

In circumstances where each party has a KiwiSaver fund then they may each keep their respective funds, with an adjustment payment being made from other relationship property to ensure overall equality, if the KiwiSaver balances are not equal.  This approach can also be used where only one party has KiwiSaver.  This is of course dependent on the availability of other relationship property to make an adjustment payment from.

If there is no ability to make an adjustment payment, then the Court can make an order for KiwiSaver funds to be released.

How Can I Protect My KiwiSaver?

One way to protect your KiwiSaver is by entering into a contracting out agreement with your partner pursuant to the Property (Relationships) Act 1976, often referred to as a “pre-nup” or “pre-nuptial agreement”.  This will specify whether any pre-relationship balances remain separate, and how on-going contributions will be treated upon separation.

The experienced team at McCaw Lewis can help you navigate any aspect of your relationship property matters and answer any questions you may have.

Zane is an Associate in our Dispute Resolution Team, specialising in Relationship Property, and can be contacted on 07 958 7431.

The loss of a family member or an acquaintance can be one of the most difficult situations to face.  A surprise as to how the deceased has left their affairs, can often compound the stress and emotions being experienced.

While the law assumes that a validly executed Will reflects the testator’s (willmaker’s) intentions, there are a number of legal frameworks to protect both the testator and those left behind.  When working with a client who is faced with an unexpected situation under a Will, we consider each of these in assessing whether or not the Will could or should be challenged.

Capacity – Did they know what they were doing?

Testamentary capacity has both a medical and a legal element to it.  In general terms, the Court must be satisfied that the testator understood what they were doing, and the consequences of it.

In assessing such a claim, it will be important to obtain full medical records and to take appropriate expert advice as to any impairments the testator may have had at the point of executing the Will.

Undue Influence – Were they pressured?

A testator can be found to have been subject to undue influence, if they were pressured or coerced into signing a Will contrary to what they wanted.

A duress situation is more likely to occur when a Will is not executed with the assistance of a lawyer and/or is not witnessed by a lawyer, though pressure can also have been exerted when a lawyer has been involved.

Duress is a high threshold, and a Court needs to be satisfied that the Will does not reflect the testator’s real wishes and own free will.

If there are issues of capacity, there is also greater risk of duress being imposed on a testator.

Testamentary Promise – Why didn’t they do what they said they said they would?

A testamentary promise claim addresses a situation when someone has provided services/assistance to the deceased based on an express or implied promise that they would be provided for in the Will.

Such claims often arise from people outside of family, as normal familial duties will seldom meet the testamentary promise test.

When assessing what reasonable compensation is for the service provided by the claimant, the Court will take into account a range of factors.

Family Protection Act – But what about family?

Family Protection Act claims are the most common basis to challenge a Will.  Most immediate family members have standing to bring such a claim, which will be on the basis that the testator has failed to meet the moral duty owed to them.

While there is an argument that someone should be able to leave their estate to whoever they wish, the law has a framework to ensure the deceased has considered the moral duties which the law imposes.

Where a moral duty has been breached, a Court can only amend the Will to the extent necessary to remedy the breach.  Doing so requires the Court to take into account factors including the financial needs of the claimant, the size of the estate and competing moral duties.

What Happens if a Claim is Successful?

Different claims can result in different outcomes.  If a Court finds that there was a lack of capacity or duress, the outcome is that the Will in question can be declared void.  This could result in an earlier valid Will coming into effect, or if there is no other valid Will, default intestate distributions will be made.

Conversely, in the case of a successful Family Protection Act claim or testamentary promises claim, the position under the Will will only be varied to the extent necessary to address the problem.

Summary

Managing estate claims requires careful assessment of the options and the wider considerations such as family dynamics and relationships.  There are statutory timeframes which apply so it is important that concerns are raised as soon as possible.

In nearly all situations, a negotiated outcome will minimise the stress and long-term damage which can result from litigating such matters.

Daniel leads our Dispute Resolution Team, specialising in Trust and Estate Disputes, and can be contacted on 07 958 7477.

If you asked someone why they have insurance in the first place, the most common reaction is peace of mind.  However, a lack of caution can mean a breach of your insurance, with insurance companies commonly citing a “failure to take reasonable precautions” as a reason for the policy being breached, with cover being declined as a consequence.

What is “reasonable”, and moreover, what would count as a “reasonable precaution” is relatively wide, but Courts have interpreted the word “reasonable” as actually meaning “reckless” – with “reckless precaution” being a significantly higher threshold.  This article looks at the differences between “reasonable” and “reckless” precautions, and how this might affect your own insurance cover, should you need it.

The requirement to take reasonable precautions is usually articulated by clauses/terms in the relevant policy.  These clauses are collectively often referred to as “reasonable care conditions”.  The exact wording in policies can vary, but generally they state some sort of requirement that an insured takes “all reasonable steps to prevent loss or damage for item/property X”.  In other words, the insured must avoid being negligent.  A plain reading of these reasonable care conditions mean you are not covered for careless actions – for instance, accidentally leaving your phone or wallet in a taxi – because this was due to your own negligence, as opposed to an event outside of your control.

Somewhat fortunately, the Courts read these clauses through a different, stricter lens, starting with the 1967 English Court of Appeal.  The Court in Fraser v B N Furman (Productions) Limited found that such clauses were completely at odds with one of the main principles of insurance – that being, to protect against acts of negligence.  Diplock LJ found that the standard should instead be assessing on if the insured had knowingly taken risks they normally wouldn’t, knowing they would be covered – to go back to our example, suppose our insured person decided to lose their phone deliberately in a taxi, knowing they would then get a pay-out from their insurer.  In this instance, the insurer could decline cover, citing an abuse of the insurance policy.  This distinction between an insured’s negligence, and an insured’s recklessness, is the standard that has now been adopted in New Zealand.

There is still a continuing debate in New Zealand on the differences between subjective (i.e. the person’s own viewpoint) and objective (i.e. a reasonable person’s viewpoint) recklessness, and which “type” of recklessness should be required.  However, it is clear that recklessness, not just a lack of reasonable care, is the standard required to breach a reasonable care condition.

In Roberts v State Insurance General Manager [1974] 2 NZLR 312 (NZSC), it was argued that an insured motorcycle owner was reckless for leaving his broken down motorcycle on the side of the road, though he was planning to come back and collect it.  The motorcycle was subsequently stolen.

While the insurance company accepted that the required standard was recklessness, they argued that the insured could have taken a number of alternative steps, such as pushing the motorcycle along the road, or asking local authorities for help, in order to reduce the risk of theft.  In other words, the insured had not taken all reasonable steps under the insurance policy, to safeguard the motorcycle from loss.

The Court rejected this argument.  In applying the test of Fraser outlined by Diplock LJ, the Court noted the insured had not contemplated that his motorcycle could be stolen, and had actually made arrangements to collect the motorcycle (albeit, the day after it had broken down).  In summing up the decision, McMullin J held:

He [the insured] neither appreciated the risk that his motor cycle might be stolen and chose to ignore it nor did he act in a grossly negligent way. His claim for indemnity ought to have succeeded.

Reasonable care conditions are a part of nearly all insurance contracts, and it is important to understand how those clauses are interpreted, should the policy be required.  This is even more important when we consider the recent extreme weather events in New Zealand, which have had far reaching, and often devastating consequences.

Conclusion

Making an insurance claim can be a stressful and time consuming process at the best of times.  To give yourself the best chance of a successful claim, it is important to consider the following:

• Were you aware of the risks, prior to the incident? If so, at what time were you made aware of the risks?
• Would a “reasonable person” in your situation know those risks?
• Did you, being aware of those risks, proceed anyway?
• When you proceeded, did you believe those risks had been mitigated?
• What alternatives (if any) were considered, and why were they not taken?

If you are considering making a claim, we can assist you with both the preparation and the claim process itself.

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

A relationship breakdown can be an incredibly challenging time, emotionally, mentally, and financially.  This is even more so when tensions are high.  While the care and welfare of any children and personal safety, are paramount, when it comes to relationship property where do you start?  What are the key considerations and practical matters you need to be aware of? How do you go about finalising your relationship property affairs?

Key Considerations

Everyone’s own relationship and situation is unique and with that comes many different considerations.  However, there are a number of general questions to ask yourself and general matters to consider initially.  The time between the relationship breakdown and finalising your relationship property affairs can be incredibly difficult.  It is also not unusual to have power imbalances both financially and in having access to key information, due to the different roles that may be held in a relationship.

• If you own your own home how will the mortgage, insurance, rates, and other pressing matters be paid initially?
• Who will live where in the interim?
• How are you going to support yourself and how is your former partner going to support themselves?
• What are your options or obligations if either one of you is unable to support yourself?
• Are there other financial obligations that must be met in the interim, such as hire purchases, credit cards etc?
• If you are operating all your financial affairs from joint accounts, how are you going to ensure you each have what you need in the interim?

Do not hesitate to reach out at this early stage for support through your lawyer, accountant, or other financial advisors.  Sometimes a third-party perspective/assistance can make all the difference in this trying time.

Practical Matters

Now is also the time to start thinking about some practical matters as you move forward in finalising your affairs.

Something that can easily be forgotten is passwords and access to email accounts, mobile phones, computers, social media, separate bank accounts, etc.  It is not uncommon for couples to know each other’s passwords or for accounts such as email to be shared.  It is particularly important to ensure that you have a private and secure email account to receive and send communications, especially when it comes to communicating with your lawyer.

Related to updating of passwords is ensuring you secure and obtain any records and previous communications.  Common examples include joint email accounts, tax returns, bank statements, KiwiSaver statements and annual returns filed for a family business.  Securing the records from the outset can result in significant time and cost savings.

What Next?

To address your relationship property matters requires one of two things, an order from the Court or a particular form of settlement agreement.  We will always advocate for you to reach a negotiated outcome if it is fair but, unfortunately, this is not always possible.

While you do not need a lawyer to go to Court, though we would always recommend that you instruct one, a separate lawyer is required for each party to reach agreement through a settlement agreement.

The way we initially approach relationship property matters, to ensure that it is handled as cost effectively and efficiently as possible, is through the use of a secure online system, Settify.

Settify is a free online tool which you can find on our website, or we can provide you with a link.  Settify enables you to cost effectively provide us with some background information regarding your relationship, the details of your assets and liabilities, contributions made to the relationship both initially and throughout, your future needs and your contact details.

Settify is safe, confidential, and secure.  Best of all it enables you to fill it in at your own pace and in the environment of your choosing – you can also save as you go.  By providing information through Settify you save on the time and cost of sitting down with a lawyer and working through all the matters that Settify covers.  This can be particularly helpful if you have complicated financial structures and affairs.

Of course, Settify is not for everyone and if you prefer, we can instead meet with you in person, talk over the phone or by video call, to obtain the necessary information.

Once Settify is completed and you submit your information, Settify generates a confidential report for us.  We then review this to understand your particular needs after which we get in contact to arrange a meeting at a time that suits you.

The experienced team at McCaw Lewis can help you navigate any aspect of your relationship property matters and answer any questions you may have.

Zane is an Associate in our Dispute Resolution Team, specialising in Relationship Property, and can be contacted on 07 958 7431.