A solicitor in our business and property team, Natalie joined the firm in 2010, providing quality service and achieving successful outcomes for many.  

Contact Natalie for assistance with your commercial law, property law, trusts, wills and estates requirements.

Natalie Gaskin

Ph: 04 916 0138

Natalie@johnlaw.co.nz

• Family Businesses: Planning ahead for success
• Insolvent Transactions and Claw backs: The Companies Act carries a sting in its tail
• Clearing up Confusion about Criminalising Cartels
• Business Briefs:

             -  90-day trial periods

             -  Spam

             -  Companies and Limited Partnerships Amendment Bill

We hope you find the articles interesting and useful. Feel free to call us for further information on any of the topics below, or any business law matter.

Commercial eSpeaking Summer 2012

• Use of Your Property: Do you have the right to keep doing what you have always done?
• Protecting Yourself From Your Trees: Don’t just watch your garden grow
• Over the Fence: Public Holiday: Christmas 2011 and New Year 2012 – Sharemilking Agreements: Variable Order – Animal welfare – Amendment to legislation

We hope you find these topics of interest. Please feel free to contact us if you’d like to discuss any of the topics further.

The next issue of Rural will be published in March.

Rural eSpeaking, Summer Edition

• Land covenants: selling land and restricting its use
• Guest Editorial by ANZ National Bank’s chief economist Cameron Bagrie: New Zealand should get back to economic basics
• Help, I’ve just separated: tips for your first legal appointment
• Vineyard Magic: the devil is in the detail when buying
• Postscript:

-       New law may make some coastal properties rates-exempt

-       New domain name opportunities

-       SMEs to have simplified rules around financial reporting

If you’d like more information about any of these topics, please feel free to contact us.

Our next issue of Fineprint will be published in the Autumn.

Fineprint, Spring / Summer 2011

• Using KiwiSaver to Buy Your First Home: good benefits available
• Types of Property Ownership: implications for death, separation and rest home subsidy
• Property Briefs: Rating valuations – The repeal of gift duty and Solvency Statements – Unit Titles Act 2010: first important date 21 December 2011

The next issue of Property Speaking will be published in late April.

Property Speaking, November 2011

A mortgagee sale can be carried out through the High Court, by public auction or private sale, but many are done by public auction.  

If your lender wants to exercise its power of sale, it must tell why you are in default, how you can remedy it, and specify the date by which you must remedy the default.   The Property Law Act requires that you, as mortgagor, be given no less than 20 working days to fix the default, but your mortgage might stipulate a longer period of time. 

Your lender must tell you what your rights are if you can’t fix the default on time.   If the mortgagee sale is being carried out by the High Court, you can repay the entire mortgage debt at any time prior to sale and still save your property. 

If your lender doesn’t comply with its legal obligations, you may be able to get an order stopping the sale.

Your lender has the right to choose when it sells your property, but it has a duty to obtain the best possible price at the time your property is sold.  This means that your property must be marketed for sale appropriately.    If proper efforts to market the property are not made and a poor price is achieved, you may be able to claim against your lender.

If the mortgagee sale doesn’t make enough to repay the expenses of the sale, your borrowings and any other charges, your lender can sue you for the shortfall.   But, if there’s money left over, it’s yours.

Buyers interested in a property being sold by way of mortgagee sale need to beware that the transaction isn’t like an ordinary sale and purchase.   It’s important to understand the process, and to have your lawyer check the terms and conditions of sale before you make any offer or bid at an auction. 

To begin with, the lender selling the property may not be able to give you access to inspect any building on the property.  You may not know if the building is structurally sound or watertight. 

You’ll have to check what chattels are included in the sale.  The basic chattels that come with most houses, such as carpets, curtains, and appliances, may not be included in a mortgagee sale.  This means they may be removed before settlement.  There are stories about buyers taking possession only to find the house has been stripped of chattels, and there is nothing they can do.

The lender selling the property won’t give you the warranties that a vendor usually does under a standard agreement for sale and purchase.   For example, it won’t warrant that a code compliance certificate has been obtained for any building work done.

The lender won’t promise to give you vacant possession of the property.   If the owner or tenants are still in the property at settlement and won’t leave, it’ll be your problem to evict them. 

The property may not be insured prior to settlement, so if any damage is done by the current owner or tenants between the auction and settlement, the lender won’t accept responsibility. 

The old saying one person’s loss is another person’s gain is true in the context of a mortgagee sale, but buyers need to ensure the purchase price reflects the risks involved.

Angela O’Meara is an associate in our firm and provided this commentary as a legal expert for the  Your Law business section of the Sunday Star Times.

• Criminalising Cartels: Amendments will result in wide-ranging powers for perceived anti-competitive behaviour
• Business Briefs: Reform of financial markets laws – Copyright law: an update on s92A – The IRD’s powers to search premises
• Employment Law Update: Parental leave and annual leave: how it’s calculated – Casual employees: the law clarified

We hope you find the articles both interesting and useful. 

Feel free to call us for further information on any of the topics below, or indeed on any business law matter.

Commercial eSpeaking, October 2011.

This special edition of Fineprint explores this in detail. As always, contact us for further information or advice about this and how it affects you.

Fineprint Special: Gift Duty abolition 1 October

Last year, there was a lot of media interest in the Air New Zealand pilot who had a drinking problem.  At the same time, a cabin crew attendant was taking a personal grievance against an Air New Zealand subsidiary company for her dismissal after a drink driving incident.  She’d been in uniform and on her way to work when stopped by police and breath tested.  She called in sick when she failed the breath test – without explaining why, and was later convicted of drink driving.  Her employer may never have known of the incident had the police not been in touch with airline management.  The Employment Authority upheld the employer’s decision to dismiss her, partly due to the safety sensitive nature of the airline industry.    

Then there was the case about an employee who lost her job after throwing a cup of coffee at her supervisor, followed by a filing tray.  

But my favourite was about a fisherman on leave in Nelson for a few days while the vessel he worked on was prepared to sail again.  Despite being on-call, he and several workmates booked into a hotel and got horribly drunk. 

The employee denied taking part in various questionable acts, but admitted he had urinated from a sixth storey window, striking the assistant hotel manager. 

The fisherman had some additional bad luck; the hotel was owned by a company related to his employer so his manager was quickly informed.  The manager tried to see the employee while he was in police custody, but wasn’t allowed.  The manager decided to fire him and delivered a dismissal letter to the police station.  

The fisherman claimed he hadn’t been treated fairly. 

If a situation is serious and the facts clear, you may be able to dismiss one of your employees instantly for serious misconduct.  Usually, you will be obliged to carry out a full investigation into your employee’s conduct.  Your employee must be told if their job is on the line and given a genuine opportunity to respond to your concerns before any decision is made.   

Employment contracts often list behaviours an employer will treat as serious misconduct, although I’ve never seen urinating on someone actually specified. 

In the fisherman case, the manager said he was dealing with an emergency.  He had to get the vessel to sea the next day with a complete and sober crew, and had no time for the ‘niceties’ of hearing what the employee might have to say about his behaviour. 

The Employment Tribunal found the employee’s behaviour was serious misconduct.  But it also found the procedure to get rid of him was unfair and the dismissal unjustified.  When deciding what remedy to give the employee, the Tribunal ruled the employee was only partially responsible for his dismissal.

On appeal, the Employment Court decided that although the process was hasty and less than perfect, the employee couldn’t criticise his boss for not keeping a cooler head when he’d behaved as he did.  The Court ruled that the overall circumstances justified the dismissal, and the employee’s behaviour disentitled him to any remedies.  However, the Court bluntly said engaging in a fair process isn’t a matter of good manners; it’s a legal requirement.

So the moral of the story for employees is be careful where you pee.  And for employers, beware of acting rashly, no matter how tempting.

Angela O’Meara is an associate in our firm and provided this commentary as a legal expert for the Your Law business section of the Sunday Star Times.

Angela O’Meara looks at the importance to your business of a strong employment agreement, before we update you on recent events at the firm.

Enjoy reading this edition of Newsbrief. For further information on any of these matters feel free to contact us.

Newsbrief: Spring 2011