Painting is easy when you don’t know how, but very difficult when you do.  Edgar Degas

Our experiences over five years ago in Christchurch have unfortunately been brought to life again by the recent earthquake and the damage suffered in North Canterbury, particularly in Kaikoura.  We know the power of an earthquake and have for several years now been helping our clients achieve good outcomes on their EQC and private insurance claims.

Reflecting on what we have learned over these years has resulted in the thoughts set out here.  As the quote above indicates, sometimes with a little knowledge something can appear easy when in fact, digging a little deeper, it is much more complicated and difficult than you realised.  Doing the hard work though, whether it involves painting or something else (like insurance claims), will result in a better outcome.

Our intention in sharing these thoughts is to proactively assist those who may now be at the start of a journey they weren’t anticipating and who could benefit from what we have learned about EQC and insurance claims.  We are talking here about homeowners; for those with commercial premises and businesses there will be other points to consider (we have done a separate article for those who may have had businesses interrupted which you can access here.

 

The following are the most important principles to be aware of, and steps you should take, to help achieve a positive outcome with your EQC or insurance settlement:

Make an EQC claim and an insurance claim straight away if there is evidence of damage to your property. 

Notify your insurer even if you think the damage is only cosmetic.  By submitting the claim you enter the system.  While you do have 3 months to submit claims, we recommend doing it sooner rather than later so that the wheels can start turning.

Take good photos of damage and also source or retain any photos (or reports) you have of your home before the quakes.  Don’t rely on EQC or your insurer to record the damage.

This lessens the risk of a dispute over what is and isn’t earthquake damage and, should there be any further earthquakes, what damage was caused by each event.  That can become relevant where claims have to be shared over more than one earthquake, which has been an issue in Christchurch.

Not all insurance policies are equal – get advice on your policy/EQC entitlements before doing anything further. 

This not only ensures you know what you are entitled to from EQC/your insurer but also ensures that any professionals you use to help quantify your claim do also.  In a number of cases we’ve dealt with, engineers/quantity surveyors haven’t been properly briefed in line with policy/EQC entitlements so cases have either been overstated or understated.  This can stymie negotiations and cause delay and further expense.

In this regard it is worth mentioning that sometimes legal fees are covered by home insurance policies which may mean that your insurer will cover any fees you incur clarifying your entitlements.

It can pay to be proactive and obtain your own professional advice (i.e. engineering) up front. 

The EQC process can be a long and slow one.  You may be better served getting your own advice early on in the piece, rather than waiting for an assessment.

If you do obtain professional advice, make sure the evidence you obtain is going to be robust and stand up to scrutiny. 

While companies purporting to specialise in earthquake assessments and repairs may save you some initial costs, in our experience those assessments may not stand up to scrutiny when push comes to shove.  Use reputable structural or geotechnical engineers, land surveyors and quantity surveyors – it will ultimately save you time and cost in the long term.

Appreciate upfront that that the onus is on homeowners to establish their loss rather than on EQC/insurers.

Therefore, while insurers/EQC usually carry out assessments, if you disagree, it’s not actually up to EQC/the insurer to prove their assessment. Rather, you need to obtain your own evidence, be it engineering, quantity surveying advice etc.  In some cases EQC and insurers will cover these costs.

Watch out for cowboy contractors.

There are a lot of people making a lot of money from an unfortunate situation and we have seen situations where vulnerable people have been taken for a ride.  To avoid this, ask for testimonials and evidence of their work.

Also, watch out in particular for contingency arrangements where you pay a cut of your insurance or EQC settlement to the company assisting you.  It may seem they are taking the risk or the hassle away from you but, in our experience, often insufficient work is done to ensure you get the best result you can.

Be satisfied with any scope of works before any repair work begins or before you receive a cash settlement.

If repairs are being carried out for you, you want to ensure that all damage is reflected in the scope and the repair methodology is correct.  Once repair work begins, you don’t want additional issues to arise, particularly if you have moved out for the repairs.  That can mean the work has to stop while the issues are resolved, which can cause significant delays as well as issues with ongoing temporary accommodation.  As always, get advice on the scope from appropriate professionals.

Similarly with a cash settlement, you want to ensure that it covers all damage and provides the correct repair.  Once you’ve settled with EQC or your insurer, you don’t want to find that the cash settlement is insufficient to cover the actual cost of repairs or a rebuild.  We have found, for example, that a quantity surveyor’s costings may differ markedly from those of EQC or insurers.

If EQC or the insurer is doing the repairs, also be aware that any building contract presented at the back end of the process is not a mere formality.

It is a document that requires careful consideration/advice.  Inadequate attention to it can result in other issues once the repair/rebuilding work begins and may be counterproductive to the whole process.  Again, many insurers pay for legal advice on these contracts.

Finally, as the cliché goes “patience is a virtue”. 

Unfortunately, throughout the process, patience may be something you need in large supply.   Dealing with EQC and insurers can take time and a lot of effort so it is good to try to reduce stress levels where you can but anticipate that it may take longer than you think to get through.

As we noted early on, when you look into something it may seem harder and more complicated than you first thought.  However, if you embrace the challenge, you can achieve a successful outcome.  With EQC and insurance claims, the hard work of preparation is key.  We hope that the information provided here has been helpful to better prepare those now needing to make an insurance and EQC claim.

Every situation is unique so please discuss your situation with a professional advisor who can provide tailored solutions to you. Please contact Paul Cowey at Parry Field Lawyers (03 348 8480) paulcowey@parryfield.com

 

 当事務所は1948年クライストチャーチに創立され 以来、広範な法律サービスを提供させていただいて  おります。

弁護士を少しでも身近な存在だと感じていただけるように努力しています。

クライアント様のご要望にお応えできるように、最善を尽くします。

30人以上のチームをもち、以下のサービスを提供しています:

  • アドバイサリー: 会社及び企業事務、事業の買収及び売却、インターナショナルな契約及び海外投資
  • プロパティ: 住宅販売, 商業賃貸, 不動産分割.
  • 争議:Court work 裁判所関連事務及び会社や個人訴訟, 保険及び EQC 関連訴訟.
  • 個人業務: 雇用契約, 移住(ビザ申請), 信託, 遺言 & 不動産.

更に、専門性を有するチームによって専門領域の問題を解決する仕組みになっています。例えば、農場経営及び農村地域に関するサービスを提供することに特化したチームや、技術チームによってIT関連及び立ち上げ事業サービスを提供します。その上、4名の中国語話者と2名の日本語話者のメンバーで構成したアジアチームも あります。

2名の日本語話者の中、Steven Moeは弁護士として4年間東京の法律事務所に務め、その後英語教師として大阪で1年間滞在したことがあります (stevenmoe@parryfield.com)。Yuki Liuは茨城県で日本語を習得し、元日本パナソニック社員です(yuki.liu@parryfield.com)。

法律問題をお持ちの方々、いつでも相談窓口に来てください。事務所本部はRiccarton におり、他にCityやRolleston 、Hokitikaにもオフィスを設置しております

お問い合わせ先: メールwww.parryfield.com 電話: 03 348 8480.

 

 

Business owners in Christchurch largely failed to take advantage of their business interruption cover. Here are some tips from our experience with those who did well.

 Things to do:

  1. Take photos of everything, before the clean-up if possible.
  2. Get a copy of your business interruption policy schedule and the full wording document (if you don’t have them your insurance broker may do. If in doubt call the insurance company who will provide the full policy wording.)
  3. Understand the cover that your particular BI policy provides. Your broker or your lawyer will help if they have had previous BI insurance experience (if not then get an advisor with experience). Most BI policies will pay for all claims preparation costs including legal and accounting advice. Good advice will make a very sizeable difference to your claim.website-photos-ajs
  4. Business interruption cover usually only lasts 6-12 months starting from the date of the damage.  Plan to make ALL the business adjustments you can within that period. That way the insurer will pay.
  5. Possible policy responses may include re-establishing the business elsewhere, or changing the focus of the business.
  6. Many BI policies cover staff wages and increased costs of business.
  7. You can often obtain an interim payment from the insurer if you can clearly show a loss covered by the policy. A decent payment at this time allows more options and better decision making.

Don’t:

  1. Decide to muddle through and think about it later. If you do that, your cover will expire and you may get nothing.
  2. Make large changes to your business at your own cost without understanding what your BI cover provides for. BI cover is frequently more than expected.
  3. Make decisions based on advice from someone who has not read your full policy wording.

 

Every situation is unique so please discuss your situation with a professional advisor who can provide tailored solutions to you. Please contact Paul Cowey at Parry Field Lawyers, paulcowey@parryfield.com (03 348 8480)

In an increasingly online world we are sharing and disclosing more and more online and that information is being held digitally. There are frequent examples in the news of leaks and data breaches. This article looks at this issue in detail and examines what the legal requirements are in this area.  Understanding what to do when there are data breaches is vital in these times when it is an increasingly common event.

So you’ve had a Data Breach. What are you legally required to do?

On 1 December 2020, the new Privacy Act came into force. One of the significant changes is the requirement to report serious breaches to the Privacy Commissioner and the affected individuals.

What is a privacy breach?

A privacy breach is defined as:

  1. unauthorised or accidental access to, or disclosure, alteration, loss or destruction of, the personal information; or
  2. an action that prevents the agency from accessing the information on either a temporary or permanent basis.

When do I have to report a privacy breach?

A privacy breach becomes notifiable when it is reasonable to believe that the breach has caused serious harm to those affected, or is likely to do so.

How do I assess whether a privacy breach will cause serious harm?

When assessing the seriousness of a privacy breach, you will need to consider the following:

  • any action you have taken to reduce the risk of harm following the breach;
    • whether the personal information is sensitive in nature (e.g. financial/health information);
    • the nature of the harm that may be caused to affected individuals;
    • who obtained or may obtain personal information as a result of the breach (if known);
    • whether the personal information is protected by a security measure (e.g. was the information encrypted?); and
    • any other relevant matters.

How do I report the privacy breach?

As soon as practicable after becoming aware of the privacy breach, you must notify the Privacy Commissioner. You can do so at the Privacy Commissioner’s ‘NotifyUs’ page here.

You must also notify the affected individuals as soon as practicable after becoming aware, unless an exception applies.

What are the Exceptions?

You do not need to disclose the breach if disclosure would prejudice the security or defence of New Zealand, prejudice maintenance of the law, endanger the safety of a person or reveal a trade secret.

You may delay notification if you believe disclosure would risk the security of the personal information and those risks outweigh the benefits of informing the affected individuals. As soon as the grounds for delay no longer pose a risk, you must inform the affected individuals of the breach.

Even if you rely on an exception, you must always notify the Privacy Commissioners of the breach as soon as practicable.

What happens if I don’t comply?

Failure to notify the Privacy Commissioner of a notifiable privacy breach may result in a fine of up to $10,000 or the issue of a public compliance notice.

How can I prepare?

You should use this opportunity to make sure your privacy policy will comply with the Act. You should also consider the following:

  • Make sure you have internal procedures in place to deal with how you become aware of a privacy breach;
  • Assess the personal information you hold, the reason you collect it, where it is stored and who has access to it;
  • Make sure your staff are aware of the new requirements.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. If you think your privacy policy is insufficient (or non-existent!), we would strongly encourage you to get in touch with us. Contact Steven Moe at stevenMoe@parryfield.com

 

 

New Zealand has a similar takeovers regime to that in other Commonwealth jurisdictions like Australia and England.  There are specific rules which govern when a takeover offer will need to be made and the process around doing so.  This article sets out the key thresholds involved and points to be aware of if an acquisition in New Zealand is being considered.

 

Where are the rules set out?

Takeovers are governed by the Takeovers Code which became law 15 years ago.  The purpose is to make sure that the acquirer of shares in a company complies with certain rules when certain thresholds are met.  This means that shareholders are informed where there is a potential change of control of the company they own shares in.

Which companies do the rules apply to?

The rules only apply to certain “Code Companies” which are only New Zealand registered companies that:

  • have (or recently have had) listed shares that trade on the NZX; or
  • have 50 or more shareholders who hold voting rights as well as 50 or more share parcels.

What are the key thresholds?

The fundamental threshold is 20% because acquisitions of shares which will take a shareholding above 20% are caught by the Takeovers Code.  In measuring this the percentage held by associates is also examined.  Such acquisitions must be done in compliance with the rules.

A takeover offer can either be a partial or full takeover offer.  Full takeover offers mean the offeror has to receive a minimum level of acceptance of the offer.  So if the offeror does not reach more than 50% then the entire takeover fails.

This is in contrast to a partial takeover offer where the offeror makes an offer for only some of the shares.  Whether it is successful will depend on the level that is sought – if for more than 50% then the acceptances need to be above that level.  If for less than 50% then shareholders vote for or against the offer – so the offer needs to get to the percentage specified and also be approved by a majority of the shareholders.  As this indicates, these rules are more complex than a full takeover.

The following are also important percentages to be aware of:

  • 50% shareholding: As mentioned above, this is important in the context of a takeover to determine what rules apply;
  • 5% creep: is permitted each year over a 12 month period for Shareholders who already own more than 50%; and
  • 90% threshold: compulsory acquisition of shares is permitted above this level because they have become a dominant owner.

Conclusion

This short summary of some of the key points regarding takeovers in New Zealand is brief and the specific circumstances of any situation will need to be examined.  If you have a target in mind then it would pay to discuss the context of that particular proposal with your advisers to obtain input on the best approach to adopt as one size will not fit every situation.

 

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance, please contact Kris Morrison at Parry Field Lawyers (348-8480) krismorrison@parryfield.com

We are lawyers who have just opened our new law office in Selwyn district, in Rolleston.  Why would lawyers come to Rolleston?  There are several reasons why we have made this choice:

    1. Filling a gap: right now most people need to drive in to Christchurch to see a lawyer.  We want to be more proactive and accessible to Rolleston residents by coming out to Rolleston.  Already the enthusiasm for this has surprised us and we are glad to offer a solution for people locally.
    2. A close connection for us: Several of our staff have close connections out in the Rolleston community with Steven Moe moving back from overseas and choosing to take his young family there (his children go to Rolleston School).  Paul Owens lives a short hop down the road in Prebbleton with his young family and other staff members live in Hornby and other locations in the area.   Having operated in Christchurch since 1948 we are glad to expand our horizons to Rolleston as well to meet the needs of the community.
    3. Growth and positive developments: Rolleston is growing in importance both in the Selwyn district and as a significant town located close to Christchurch.  With a bustling shopping centre, iZone business park, increasing number of subdivisions and ever growing primary schools (and don’t forget Rolleston College) it is certainly not the sleepy town you may remember of years ago.
    4. Community: Just attending the recent 150th anniversary celebrations and seeing all the participants driving by in the parade, or going to the recent Fireworks at Foster Park where there were thousands of people enjoying the sinking ship slide, bouncy castles, merry go round etc you could see an energy and life and a real community spirit.  The earthquakes and displacement following them certainly gave Rolleston an unexpected boost to its numbers but with that new growth there seems to be a real sense of community since nearly everyone is “new” to the area so there are fewer preconceptions and “the way it is always been done” attitudes.
    5. The future: Anyone who spends time in Rolleston will easily tell that this is a town with a future and there will be a new generation coming through which call it their home.  We are glad to arrive and be part of the history of this town as it moves into the next stage of life and are excited about the opportunities for the residents of Selwyn whether they are in Rolleston, Lincoln, Darfield, Leeston, Prebbleton or beyond.

Our offices are at 80 Rolleston Drive. W To send us an enquiry write to Paul Owens (Partner) at paulowens@parryfield.com or Steven Moe (Senior Associate) at stevenmoe@parryfield.com or phone us on 03 348 8480.

 

 

 

 

 

 

Kris Morrison and Steven Moe recently attended a “Turning Innovation into Gold” event hosted at the Canterbury Employers Chamber of Commerce.  There were a range of interesting speakers and topics covered.  The top 3 insights we heard were:

  1. What businesses want and need: Six points were given by Louise Webster of the Innovation Council who said the companies they work with have identified six areas that they were focussed on:
  • understand and verify market opportunities;
  • have a go to market strategy;
  • working on the business vs working in the business (especially start-ups);
  • getting the right skills and talent;
  • channels to market and partnerships; and
  • funding to remain competitive nationally and internationally.

2. Mistakes made: One of the best parts was the five panellists talking about some mistakes they had made and learned from.  Key points were:

  • Choose the right people to join the team who fit the culture and will work together well;
  • Do a lot of due diligence around risk factors and markets you will sell into;
  • Work closely with new partners / distributors – it is better to have a few people you really connect with to sell your product than having a long list of people who don’t really get behind and promote it;
  • Having lots of cash can be a bad thing – innovation often thrives from the “need to make do” attitude that results from not yet having funds flowing into the enterprise.

3.  A change of mind set and culture: One of the key themes was the need for New Zealand to develop an innovative risk taking culture where people try things and fail, learn from that, and try again.  To promote the creation of higher paying jobs and an economy that has moved beyond primary production is something we should be targeting.  How do we do that?  Well, that is a topic for another day…

The Government abolished Gift Duty on the 1st October 2011.  When this news was first announced about a year prior to that date, many people thought they would simply wait and then make a large, perhaps final gift, to their Trust and so avoid the need to carry on with a regular gifting programme.  Due to the change in the law, that is certainly now possible.

Points to consider

While the news is a welcome change, we would express caution.  There are several reasons why you may wish to take a conservative approach at this stage:

Consider whether it is a good idea to gift all the debt owing by you to your Trust.  In some instances it may be appropriate to leave some money owing.  For example, the retention of some of the debt gives you greater control over the value of the Trust’s assets and therefore, distribution amounts to beneficiaries, some of whose personal circumstances and life choices you may not approve.  Reasons may vary, but it is certainly a point worth discussing with us first.

Recent advice by Ministry of Social Development (“MSD”) indicates that there will be a potential disadvantage if you make large gifts.  When assessing a person’s eligibility for a residential care subsidy, MSD take into account gifting over the previous 5 years (the Gifting Period) and treat any gifts made during that time exceeding $6,000.00 per annum as a couple, as your assets. They will then include them in your financial means assessment.  Gifting outside the last 5 years before the assessment (“Historic Gifting”) must not exceed $27,000.00 per annum for both parties as a couple.  Again, to the extent it does, MSD will include the excess gifting as your assets, the total value of which is likely to exceed MSD’s minimum asset threshold for subsidy eligibility.

Even if you pass the asset test you may fail MSD’s income test.  This is because both tests are separate and MSD can find there’s been income deprivation from assets gifted off at allowable amounts under the first test!  Currently the exempt income limit for a couple who are both in care is only $1,925.00 per annum.

In other words, if one of your reasons for making a larger than usual gift is to gain a possible advantage for future residential care subsidy purposes, then you may achieve the very opposite of what you intend.

In addition to the above, if you are intending to gift more than $27,000.00 in any one year, we are recommending that clients arrange a Certificate of Solvency, ideally prepared by their accountant, for greater credibility.  This would be attached to the usual Deed of Forgiveness of Debt.  This Certificate is a statement that the assets being retained by you are sufficient to meet your current known liabilities.  This is designed to provide evidence that the gifting cannot be construed as an intention to defeat a known creditor’s ability to satisfy their account by accessing your assets, which a lump sum gift may jeopardise.

It is also important to ensure that annual Trust minutes or resolutions are attended to even if your gifting programme has finished. This is evidence of the on-going activity of the Trustees and their attention to the matters of the Trust.  Among other advantages, such activities reduce the likelihood of a claim that your Trust is an “illusory” Trust (ie: not a real trust).

 

Every situation is unique so please discuss your particular case with a professional advisor who can provide you with a tailored solution. Please contact Pat Rotherham at Parry Field Lawyers, (03 348 8480) patrotherham@parryfield.com